1504257 (Refugee)

[2018] AATA 712

1504257 (Refugee) [2018] AATA 712 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504257

COUNTRY OF REFERENCE:                  Nigeria

MEMBER:Nora Lamont

DATE:21 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 21 February 2018 at 10:45am

CATCHWORDS
Refugee – Protection visa – Nigeria – Religion – Catholic – Leaving the priesthood – Race – Igbo – Fear of kidnapping – Threats of killing – Banishment – Disgracing his community – False claims of homosexuality

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB (2013) FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.   The applicant, who claims to be a citizen of Nigeria, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] March 2015.

3.   The applicant appeared before the Tribunal on 4 April 2017 and 28 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the [Father A] at the 4 April 2017 hearing.

4.   The applicant was represented in relation to the review by his registered migration agent.

CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7.   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

1. The issue in this case is when the applicant will be harmed in Nigeria because he discontinued his studies to become a Catholic priest. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Nationality and Background

1. The applicant provided a copy of his Nigerian passport at his protection visa interview and at the Tribunal hearing.  The department found that without evidence to the contrary the applicant is a citizen of Nigeria and Nigeria is the receiving country for complementary protection purposes. With regard to the information before it the Tribunal finds the applicant to be a citizen of Nigeria.

2. The applicant was born on [date] in Imo State in Nigeria. He is of the Igbo ethnicity and Roman Catholic religion.

3. The applicant’s parents, [and specified family members] reside in Nigeria. His parents live in their home village of [Village 1] in Imo state in. [Details of family members, their locations and occupations deleted.]

4. The applicant completed his [schooling] in Imo in [year] then studied [course] at [a specified] University between [year range]. He also worked as [an occupation 1] at [a] church in [City 1].

5. He entered Australia [in] May 2008 on a [temporary] visa to study for the priesthood. He studied for [number] years up until [year] at [College 1] in [location]. He returned to Nigeria between November 2010 and February 2011 and between December 2012 and February 2013.

6. The applicant married in Australia in [year]. His [child named], was born in [year]. His wife, who he met in [year], is [from] [location] and is in Australia on a [temporary visa]. The applicant is currently working as a [different occupation] with [an employer].

Economic Community of West African States (ECOWAS)

1. Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any other country apart from Australia. Pursuant to s.36(4), this provision does not apply if the person has a well-founded fear of persecution or there are substantial grounds for believing the person will suffer significant harm in relation to that country.

2. As discussed with the applicant, as a Nigerian national, he may have a right to enter and reside in the 15 countries belonging to the Economic Community of West Africa (ECOWAS).[1]

   [1] Article 50 of the ECOWAS Revised Treaty 1991 provides that citizens of the member states shall have a right to enter and reside in all member states.

3. Article 4 of the ECOWAS Protocol A/P 1/5/79 provides that member states shall reserve the right to refuse admission to persons “who come within the category of inadmissible immigrants under its laws”. A report commissioned by the UNHCR details inadmissibility provisions in ECOWAS countries.[2] According to the report, “the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would be migrants seemingly without need of explanation or process”. Most countries require some form of medical or health certificate. Some require evidence of a return ticket and means of support. Others exclude persons described as ‘feeble-minded’, ‘insane’, ‘mentally defective’ or ‘idiots’. Some countries simply maintain an open discretion to refuse admission. The report notes that, whilst the ECOWAS states allow visa free entry for 90 days subject to the admissibility restrictions above, as at 2010, member states had not extended residency to nationals of the member states. The Department of Foreign Affairs and Trade (DFAT) reported in 2015 however that Nigerians have a right of residency in all ECOWAS countries.[3]

   [2] Aderanti A, Boulton B and Levin M, 2010, Promoting integration through mobility: Free movement under ECOWAS, UNHCR

   [3] DFAT, 2015, DFAT Country report Nigeria, 10 February

4. There are 15 member states of ECOWAS including Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. The Tribunal has considered information from a number of sources in respect of ECOWAS, including the rights of nationals of member nations to enter and reside in member countries.[4]

   [4] The ECOWAS Protocol 1979: >

   The applicant claims he can be found by his persecutors in Ghana as it is a neighbouring country and that the ECOWAS countries are xenophobic. The applicant’s advisor submitted he will be persecuted in ECOWAS countries due to being Igbo and that an Igbo student at Ghana University Godwin Ayogu was recently killed in Ghana.

5. Whilst country information indicates that ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, it also suggests that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment, and extortion on the part of member nations. For these reasons the Tribunal is not satisfied that the applicant has a right to enter and reside in another country based on Nigeria being a member of ECOWAS.

Claims

1. The applicant’s claims as set out in his protection visa application and at the two Tribunal hearings can be summarised as follows:

• He was always bullied at school and in the community because he tries to stand up for what he knows to be right.

• In the last [number] years of his training to become a Catholic priest he realised that this vocation was not meant for him. He continued with his training because his family placed pressure on him to remain but it has caused him stress, depression and sleepless nights. Emotionally he is not well and [he suffers health symptoms].

• Since he advised his college on [date], that he was leaving, he has not been mentally or emotionally himself because of his fear about what might happen to him.

• For years he was a role model for the youth in his community and it is taboo or unthinkable and a public disgrace that he has withdrawn from his training so close to its completion.

• He fears losing his life because he will not be accepted back into his community or society.

• He has received threatening calls from Nigeria telling him that if he does not come back as a priest he will have nothing to do with the community. He has had to change his mobile phone number.

• His community and extended family will come after him causing him physical harm and isolation. The main reason for this harm is that, because he has almost finished his training, his community expect him to show a good example to other people and they have boasted about him becoming a priest.

• His brother who lives in [City 1] is now his staunch enemy.

• He will be seen as an outcast and receive all sorts of inhuman treatment. The community and society are structured in a particular order - one is linked to the other If he goes against their beliefs, his life is in danger.

• The authorities only help the privileged. In 2011, his friend was kidnapped by unknown armed men because he had organised a peace protest against the government during a [strike]. No one can go against the authorities or the community or the culture. He cannot stand up for himself or for what he believes is right without facing the risk of losing his life or being extinguished from society.

• The authorities are corrupt; incidences are reported wrongly, the police punish the wrong people and the government sponsor killings and kidnappings all over the country.

• His representative provided the Tribunal with submissions that Boko Haram is a threat to the applicant as he is Igbo and all Igbo’s are in danger in Nigeria. Igbo’s are targeted whether they are involved in BIAFRA activities or not.

• The applicant will be unable to find employment in Nigeria given the current crisis and insecurity.

• Christians are under threat in [City 1] and the Northern part of Nigeria.

• The applicant’s wife and child are unwilling to relocate from Australia to Nigeria with the applicant.

• The applicant could be driven to suicide if he is returned to Nigeria.

Consideration of claims

1. The applicant told the Tribunal he first thought about becoming a priest when he was a little boy. His [specified relatives] are priests at [a location] - [in specified roles].

2. In 2010 he started to discover he did not have a vocation.  Changes in society and in religious practice led him to this view. Someone called him a paedophile when he was wearing his collar and this made him concerned about what he was doing and how people perceived him. Also, he was more accepting of people and more tolerant than the church allowed.

3. The applicant told his parents about his loss of vocation when he returned to Nigeria in 2012-2013. His parents weren’t happy with his decision and neither was the community. His father told him he should consider his position in the community and that everyone had been looking forward to him becoming a priest. His father wanted him to continue with his training. (He was [number] years into a six year course.)  He also discussed his concerns with teachers at the seminary in about 2012. They encouraged him to stay and to think his way through his dilemma.

4. The applicant did not tell his parents when he left the college however they found out from other sources and rang him and told they knew he had left. His father was very unhappy and said to the applicant, if he died today he would be the cause of his death.  His parents know he has married and has a child. The applicant claims they don’t talk to his wife and don’t approve of the marriage.

5. His parents have not come to terms with his departure from the priesthood. The applicant claims his father was sanctioned by the church community in about 2015 and he was prevented from taking communion by the priest and the community.  When the Tribunal asked why his father would be punished especially given he is very upset about the applicant’s withdrawal from the priesthood, the applicant said the community blamed his father for allowing him to leave.

6. When asked why the priest and the community would wait two years to sanction his father, the applicant said that people know he is not going back to the church because he is now married and has a child. He said he has no idea if his father is now able to take communion. The Tribunal notes that the applicant himself told the Tribunal that he still speaks to his father and as the sanctioning was a harsh penalty for his father it follows that they would converse about whether or not he is now able to take communion.

7. When asked by the Tribunal why he is afraid to return to Nigeria, the applicant said the community is not happy with his decision. They have told him he is not part of the community because he has disgraced them by not completing his training. They have threatened to kidnap him and to banish him. The threat to kidnap him was made a short time after he left the seminary. Someone called him on his mobile in Australia. He doesn’t know who the caller was. When asked how the caller obtained his number, the applicant said they could have easily asked his parents or through his training. He claims he received three calls. The callers said they heard he had left the seminary and was a bad person because he was teaching them one thing and doing something else; that he would regret it if he went back and that he wouldn’t be alive to see what they did to him. He received the last call in 2014. He then changed his number. The Tribunal accepts that he received phone calls when he left the Priesthood and that it would have caused anxiety to the applicant during a turbulent time in his life. However, the phone calls were four years ago and at the time he originally left the Priesthood and the Tribunal does not believe the applicant will face a real chance of future harm based on phone calls made four years ago.

8. When asked if he received any other threats, the applicant said that, during his trip to Nigeria in 2012, he met a friend at the airport in [Town 1] and they talked. After he got back to Australia, he saw on the news that his friend was arrested because he was a member of a gang that had kidnapped people in [Town 1]. The friend didn’t threaten the applicant during their meeting. The Tribunal finds this was a chance encounter with an old friend and is unrelated to any claims being made by the applicant.

9. The applicant told the Tribunal he is still a Christian however he only goes to church once in a while and doesn’t take communion. He has become disillusioned with the church because so many things have gone wrong in the church. He goes to church from time to time to express his love for God. He is considering other Christian religions but has not formed a view yet.

Threatening Letters

1. The applicant provided three letters at the hearing. The letters are purported to be written by the [Family 1]. The applicant told the Tribunal that the [Family 1] is a clan in his local area comprising about 200 people and he is a member of [that] family. There is one other clan in his area the [specified] Clan. The [Family 1] is primarily Christian.

2. The first letter dated [in] December 2014 states that the applicant organised prayer vigils during his visit in 2012 contrary to the wishes of the head and members of the [Family 1], that the prayer was aimed at defying [a specified god], the family god and worshippers of the [specified god] shrine, that the chief priest of the family died six months after the prayer session, that his son and successor died a year after the prayer session, and that the third chief priest has also since died. The letter states that the applicant’s prayer is behind the deaths and a poor harvest because it defied the family’s sacred places and brought mockery and condemnation from other families in the village. The letter states that “worst still, we have heard your family is mourning your abandonment of the Roman Catholic religion and that you have embraced another religion – thus you have been assigned to come to Nigeria to plant the seed of your new religion on our land and other parts of the country. We await your coming in and will attack you first wherever and whenever you arrive, before you attack us or do more harm to the entire community. This is a stern warning that you stay clear from our family and within their reach otherwise we will stone you to death. The gods and the land are angry and so are our people”.

3. The second letter dated [in] April 2015 is addressed to the applicant’s father and is headed, ‘Banishment of [applicant name variation]’ and states, “we the entire people of [Village 1] wish to inform you that we cannot fold our hands watching you and your son, [applicant name] kill all of us. The gods forbid that. Kindly help us to tell your son that he is not in any way worthy to live as a human being because he is so full of evil”. The letter then accuses the applicant of initiating [boys] into homosexuality and states his banishment is maintained.

4. The third letter dated [in] July 2015 is also addressed to the applicant’s father and is headed ‘Reminder’. It refers to the previous letters and states that “we the entire people of [Village 1] do hereby remind you and your son once again that our spells and banishment on the applicant still subsist. [Applicant name variation] committed abomination and should face the full weight of our traditional and cultural punishment”. The letter goes on to state that, “Information had been spread to our people living in various cities in the country to monitor your son whenever he arrives in the country. It is better our eyes is not set on him forever”.

1. The Tribunal noted the letters do not appear to be consistent with the applicant‘s claim that his community are angry with his for leaving his training for the priesthood. Only the first letter refers to the applicant leaving the Roman Catholic Church. The letters are claiming he violated a traditional god and brought death and poor harvest on the village and claim he is a homosexual and initiated others into homosexuality.  

2. The Tribunal queried why the second letter accuses the applicant of initiating village boys into homosexuality. The applicant said the villagers just want to create trouble for himself and his family. The Tribunal accepts the applicant did receive the threat letters; however this throws doubts on the applicant’s credibility given that the letters relate to other matters or issues he may be having in the village which are unrelated to his claims of protection for leaving the priesthood. Given the applicant has been away from the village for [number] years, the threats are mostly centred on other issues, and he is married with a child the Tribunal does not accept that these threats could amount to a real chance of serious harm or a real risk of significant harm if he returns to Nigeria.

3. When asked to clarify what the village is concerned about, the applicant stated they claim he preaches one thing but leads a different life. Because he left the seminary, he was living a life that was different to what he preached.  When he travelled home, he tried to have a prayer session and encouraged people to lead their lives in a way that is good. When asked why he was leading a prayer session, the applicant said he always prayed with people as [an occupation 1].  The villagers’ children did not listen to them and they blamed the applicant for teaching them to live the life they wanted. He always told kids to live their life well so that if they died they would be remembered as a good person.

4. The Tribunal asked what he fears will happen to him if he returns to Nigeria, the applicant said he will be subject to inhumane treatment; people won’t associate with him; and will see him as a rebel. People in the community could harm him by kidnapping him or bullying him in any activity. The church won’t assist him as it will regard him as a rebel and as untrustworthy. Members of the community may kidnap him because they will see him as a person who teaches people to do the wrong thing. When asked if he fears his family will harm him, the applicant said they could: when he was leaving the priesthood, his brother said he wouldn’t take it lightly if anything happened to his parents. The Tribunal does not accept that the applicant will suffer inhumane treatment and that he may be kidnapped. The applicant was not even living in his village for [number] years prior to coming to Australia and apart from a few visits he has not been living in his village now for [number] years. People he knew may have moved and with the passage of time and distance from when the applicant left the village to now is [number] years and enough time for there to be no fear of significant harm upon return.

5. When the Tribunal noted it was struggling to understand why his community would be so unhappy with his decision to leave the priesthood that it would harm him, the applicant said his decision makes it more difficult for parents to control their children when their children have seen him, a role model, abandon his vocation. The applicant told the Tribunal that harming him because he abandoned his vocation is also sending a bad message to children; the applicant said the villagers believe the community is put in danger if their children are rebellious. Again, the Tribunal finds such a significant passage of time has elapsed since the applicant first left his village in [year] that the community would not have that strong a connection to the applicant.

6. The Tribunal could not locate any news articles nor any country information regarding the applicant’s contention that because he left the priesthood he faces persecution and possible death should he return to Nigeria.  In the absence of any documentation, news articles, or country information the Tribunal is not satisfied the applicant faces a real chance of harm upon return to Nigeria due to leaving the priesthood.

7. The Tribunal took evidence from [Father A] who also undertook part of his training at [College 1] and is now assistant priest at [a church] in [another town].[5] The Tribunal confirmed [Father A’s] identity following the hearing. [Father A] told the Tribunal he first met the applicant at school in Imo in Nigeria and remained in contact with him then met him again when he came to Australia in 2012.

   [5] [Deleted.]

8. [Father A] stated that he did have discussions with the applicant about his feelings about not wanting to be a priest and whether or not [Father A] felt that the applicant’s decision to leave the seminary would cause problems should the applicant return to Nigeria. [Father A] did testify that he felt the applicant would suffer harm as it would impact on the applicants mental health as leaving the seminary causes a stigma on the person and should he return to Nigeria he may suffer as a consequence of the applicant’s failure to become a priest.  The Tribunal finds that [Father A’s] testimony was supportive of the applicants claims of harm should he return to Nigeria.

Psychological concerns

1. The applicant has claimed to be experiencing psychological issues. He told the Tribunal he saw a psychologist in 2015 for six sessions. He has seen a different psychologist on one occasion in 2017. He is taking medication for [two conditions]. When asked what is causing his psychological issues, the applicant said he is human and not being perceived as you would like to be perceived causes problems. The applicant said his religious training was a focus of his life and he is suffering a sense of withdrawal from society. When asked what his wife thinks about his circumstances, the applicant said she doesn’t listen to him much. His wife may plan to stay in Australia at the end of her [commitments]. She is not received in his family as a married person as people believe he left his training to be with her. He stated that relocation is challenging and moving is difficult.

2. The Tribunal asked what the applicant’s wife’s plans were for the future as the applicant stated that she would not go back to Nigeria with him. The applicant stated that she was on a temporary visa and had been in Australia for a considerable period of time. The applicant said his wife may stay in Australia as she is free to do that if she likes. The wife did not appear at the Tribunal nor is she a party to the application. As the applicant has stated that his wife is on a temporary visa, it is unknown to the Tribunal whether the applicant’s wife would stay in Australia or return to Nigeria.

3. The Tribunal received a confidential psychological report from [a psychologist]. The applicant saw [this psychologist] once [in] March 2017 for a period of two hours. The Tribunal notes the psychologist report that the applicant suffers from anxiety and psychological difficulties and he was of the opinion that the applicant should he return to Nigeria would suffer from anxiety and that he would be isolated.  The Tribunal gives limited weight to the psychological report as the applicant only spoke with him on one occasion and for a two hour period.

4. The applicant’s advisor submitted that the applicant is experiencing anxiety. The letters he provided show he will not be accepted by his community if he returns because, by leaving his training he was telling people to follow their vocation and not listen to their parents.   

5. The applicant stated he could be driven to suicide if he is returned to Nigeria.

6. The Tribunal accepts that the applicant is fragile, that he suffers from anxiety and that he does not want to return to Nigeria. However, the Tribunal finds that the applicant’s anxiety does not lead him to face a real chance of serious harm nor is he facing a real risk of significant harm. The applicant would have access to mental health practitioners in Nigeria.

Widespread Violence, Pro-Biafra Violence & Boko Haram

1. The applicant’s advisor submitted that the Igbo race is notorious in all of Nigeria because of Biafra, so the applicant will be harmed wherever he relocates because he is Igbo. Igbo can’t hide because they are a close knit community and represented in every state. There are hate killings of Igbo everywhere, she doesn’t know why. The applicant’s wife and child won’t relocate with him and it will also be hard for him to relocate because of his poor mental health.

2. The Tribunal has regard for DFAT country information that states the Igbo are able to move freely within Nigeria, there are no legal provisions directed towards the Igbo and they are able to participate in political, social and cultural life in Nigeria without interference.

   There are no legal provisions directed towards the Igbo population in Nigeria. The Igbo are able to participate in political, social and cultural life in Nigeria without interference. The Igbo, like all Nigerians, are able to freely move within Nigeria. [6]

   [6] DFAT Country report Nigeria 10 February 2015

3. The applicant has at no stage indicated that he is a member of or has ever participated in any political activities or rallies related to any pro-Biafra movement. Therefore the Tribunal does not accept that the applicant will face harm in respect of pro-Biafra violence upon return to Nigeria nor will the applicant be imputed as a Massob supporter just because he is an Igbo.

   DFAT assesses that individuals associated with Massob live free from violence and discrimination on a day-to-day basis, however individuals participating in protests face a low risk of being arrested or injured by security forces. Leaders may face a higher risk of arrest when engaged in Massob events[7].

   [7] DFAT Country report Nigeria 10 February 2015

4. The Tribunal accepts that Boko Haram operate in Nigeria particularly in the northern regions. The Tribunal has regard for DFAT country information in relation to Boko Haram and Igbo’s;

   The Igbo have faced attacks from Boko Haram in the middle belt and northern states of Nigeria. In January 2011, forty Igbo people were taken from a bus and killed after the bus had entered a predominantly Muslim area in the city of Jos in Plateau State. In November 2011, Igbo residents in the middle and northern states of Plateau, Kaduna, Nasarawa, Niger and Borno evacuated to the south in response to attacks by Boko Haram.  Such attacks have been opportunistic, isolated and infrequent and DFAT assesses the Igbo people do not face societal violence on a day-to-day basis in Nigeria.

5. The Tribunal accepts there is generalised violence in Nigeria however for reasons above the Tribunal does not accept that the applicant will be harmed by generalised violence. For reasons above, including relevant country information and considering the applicant’s claims individually and on a cumulative basis, the Tribunal does not find that the applicant faces a well-founded fear of persecution on return to Nigeria.

Relocation

1. When asked whether he could live somewhere away from his village such as Ewiro or Lagos, the applicant said there are always Igbo gatherings in Nigeria and Igbos will see him in either city. Ewiro is [distance] from his village and there are people who know him wherever he goes. When asked why people in his village would seek him and harm him elsewhere in Nigeria, even if they are unhappy with him, the applicant said that Igbos regard priests as people they can trust and he is seen as vulnerable and untrustworthy. 

2. The applicant was living away from the village working and attending school in [City 1] for 10 years prior to coming to Australia. The applicant resided in [City 1] from [year range] and has resided in Australia since 2008. The Tribunal finds that the applicant has been gone from his home village for almost [number] years now and that with the passage of time the applicant does not face a real chance of convention-based harm should he return to live in [City 1].

3. The Tribunal discussed whether the applicant could reasonably locate to another part of Nigeria such as Lagos or Ajuba, noting the applicant is young and educated. The Tribunal noted that Lagos has a population of 16 million people. The applicant stated that there are many Igbos in Lagos. The applicant said that Igbos have strong networks, everybody knows everybody and people would learn he was there. When asked why he could not return to Ajuba where he lived previously, the applicant said he has a community there, including [some relatives], and he is not sure how he would be accepted. His [relatives] are not happy with him. He fears he will be harmed by local people, village people and his siblings in [City 1]. As noted by the Tribunal above the applicant has been gone from the country for ten years and from his village for [number] years. The Tribunal does not believe that the applicant will face significant harm in Ajuba or Lagos and could return to live with his family in Nigeria.

Complementary Protection

1. On the basis of the applicant’s claim to be a national of Nigeria and earlier findings about his identity and nationality with regard to his refugee assessment, the Tribunal finds that Nigeria is the applicant’s receiving country for the purposes of s.36(2)(aa).

2. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2) (aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

3. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Nigeria now or in the foreseeable future from his decision to leave the priesthood and not complete his schooling, from his family or community, from generalised violence, for his Igbo ethnicity, pro Biafra violence and from Boko Haram. In MIAC v SZQRB, the full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention Definition. [9] It follows that the Tribunal does not accept there to be a real risk that the applicant would suffer significant harm from the Nigerian authorities or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria.

   [9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Nora Lamont
Member

free-movement-persons-residence-establishment/p28124; Revised Treaty of the Economic Community
of West African States July 1993: COISS Research Response
CI150325110636777 April 2015: UNHCR January 2011 ‘Protecting Refugees and Other Persons on the Move in the ECOWAS Space’ Adepoju, A, Boulton, A & Levin, M 2010,
‘Promoting integration through mobility: Free movement under ECOWAS’ - DFAT Country report Nigeria 10 February 2015