1507135 (Refugee)

1507135 (Refugee) [2017] AATA 276 (15 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507135
COUNTRY OF REFERENCE:                  Nigeria
MEMBER:David McCulloch
DATE:15 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 15 February 2017 at 2:57pm

CATCHWORDS
Refugee – Protection visa – Complimentary protection – Nigeria – Religion – Christianity – Fear of harm from father’s cult – Double jeopardy – Decree 33 Nigerian criminal law – Family will be split – Credibility issues – Inconsistent information
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437.
SZGIZ v MIAC (2013) 212 FCR 235
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (‘the applicant’) and second named applicant, who claim to be citizens of Nigeria and China, respectively, applied for the visas [in] April 2014 and the delegate refused to grant the visas [in] May 2015.
The applicant appeared before the Tribunal on 10 February 2017 to give evidence and present arguments. Second named applicant attended the hearing, but the applicant indicated that it was not proposed that she give evidence.
The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse.
The Tribunal is satisfied, based on the Certificate of Marriage contained on Departmental files, that the second named applicant is the spouse of the applicant and therefore a member of the same family unit as the applicant.
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. The Tribunal has before it DFAT Country Report – Nigeria, 10 February 2015, a copy of which was provided to the applicant in the hearing.
The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and complementary protection criterion only
The applicant has provided to the Tribunal copy of the decision of the delegate dated [in] May 2015. The applicant’s extensive migration history, in a notated form, as set out in that decision, is appended to this decision.
Relevantly, that history indicates that the applicant arrived in Australia [in] August 1999 on a [temporary] visa. He arrived on a bogus [Country 1] passport. A prior valid application for a Protection visa, which had been lodged [in] June 2001, was refused by the delegate of the Minister [in] March 2002 and, on review, refused by the Refugee Review Tribunal on 30 April 2003 (‘first Tribunal decision’). The first Tribunal decision indicates that the applicant made claims based on being homosexual/bisexual including on the basis of homosexual activity whilst in Nigeria. The Tribunal found the claims as not credible.
The current valid Protection visa application was made [in] April 2014.
The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).
The relevant application forms for the current Protection visa indicate that the applicant has three children: [Child 1] ([gender]) born on [date]; [Child 2] ([gender]) born on [date], and; [Child 3] ([gender]) born on [date]. [Child 1] is indicated as being an Australian citizen. The two younger children are indicated as having permanent residence in Australia. Information on the Departmental file relating to the applicant indicates that the middle child, [Child 2], made [his/her] own application for a Protection visa [in] March 2010. That application was refused by the delegate [in] July 2010. A review by the Refugee Review Tribunal, in a decision dated 5 November 2010, found that [Child 2] was a person entitled to protection pursuant to the Refugees Convention and satisfied the criteria set out in s.36(2)(a) of the Act (‘[Child 2]’s Tribunal decision’).
The Refugee Review Tribunal determined that [Child 2] met the relevant criterion because [the] mixed Nigerian and Chinese racial background would make [Child 2] a non-indigenous Nigerian which puts [Child 2] at a greater risk of suffering serious harm based on being identified as non-indigenous. Further, [Child 2] may become an abandoned child in Nigeria because [Child 2] will not have the support of [the] father because of him being imprisoned for a substantial period in Nigeria due to his drug related criminal record in Australia. It is indicated that [Child 2] would not have the support of [the] mother because she would not travel to the country to avoid being targeted in Nigeria for being a non-indigenous person who is married to a Nigerian citizen.
Claims
The application form in relation to the current Protection visa application provides limited details concerning the applicant’s fear of harm. It indicates that the applicant left Nigeria because he was running for his life to avoid being killed. It indicates that the applicant has seen people killed and that he has been beaten by police. He fears that he will be killed.
The claims were expanded upon in the interview with the delegate. The Tribunal notes the following as particularly relevant from the interview.
The applicant was born in, and lived all of his life in, the town of [name] in Anambra State, Nigeria.
The applicant left Nigeria for [Country 1] in 1996, where he spent approximately three years. The applicant travelled to [Country 1] on his legitimate Nigerian passport. However, the applicant travelled to Australia on a fraudulently obtained [Country 1] passport with the identity of another person. This passport had been facilitated through an agent.
The applicant indicated that [Child 1] was born from a relationship he had had with a woman who he met when he initially arrived in Australia. The applicant indicated that he sees [Child 1] from time to time. The applicant’s [other children] are the offspring of he and the second named applicant, and they all live together.
The applicant was asked why he left Nigeria. The applicant indicated that he came to learn when he was around [age] that his father was involved in a cult called Ogboni. This was a cult that engaged in rituals such as drinking people’s blood and cursing people. The applicant indicated that it was not a criminal gang such as those operate on university campuses but rather was involved in traditional religious practices such as juju. The applicant was told that, as the firstborn, he would need to take over in the cult from his father. The applicant did not want to do this. The applicant did not tell his father that he did not want to be involved. The applicant indicated that his father died in 2008 and, while he is not sure, he thinks that he was killed by the cult. The applicant indicated that the cult had about [number] members in the applicant’s area, but the cult operates throughout Nigeria. Because of this, the applicant indicated that he could not relocate within Nigeria to avoid the cult. He said that, even though 20 years have passed, he may become known to the cult wherever he is in Nigeria.
The delegate pointed out evidence given by the applicant as recorded in [Child 2]’s Tribunal decision in which the applicant refers to a risk of harm being from the Bakassi cult. The applicant said that this cult would also harm him and there are linkages between the cults.
The applicant was asked how it was consistent with him being brought up a Catholic by his parents that his father was involved in this cult. The applicant indicated that his father was bringing up his children in this way just for appearances, to look good in the community.
The applicant was asked why he made no claims relating to the cult as part of his first valid Protection visa application, and instead referred to claims of being homosexual, which he now indicates were not true. The applicant said that he did not write good English. He said that his agent told him what to say.
[Child 2]’s Tribunal decision records that, in the relevant hearing, the applicant said that he did not feel comfortable or feel it was safe to share information about the cult with his representative. The Tribunal member commented it had difficulty accepting this explanation given that he did not give this explanation to the delegate at the interview. The applicant responded that he did not give this explanation to the delegate because the delegate did not ask.
In the interview with delegate, the applicant referred to harm him he would face in Nigeria because the death penalty will be applied to him because of his drug conviction in Australia. The Tribunal has information that the applicant was convicted of a drug related offence in Australia and sentenced to [number] years imprisonment, of which he served [number] years in an Australian jail and was released in [year].
The delegate indicated that independent information suggested that a Nigerian law, Decree 33, which could cause the applicant to be charged for drug offences he had been convicted of in Australia, has not been enforced since 2003. The applicant indicated that authorities can act with impunity and he could be harmed extrajudicially. The applicant referred to an individual with whom he was imprisoned in Australia, who he believes is in detention waiting prosecution under the relevant provisions.
The applicant made reference to harm based on being a Christian, due to difficulties being faced by Christians in Nigeria. The delegate noted that independent information referred to difficulties in the north of the country, but that the applicant was from the south where there is a Christian majority. The applicant referred to the fact that he would have to travel through the north to get to the south.
The delegate asked the applicant if the second named applicant was making claims on her own behalf as this was not clear from the relevant forms, including on the basis of a prior invalid application. The applicant indicated that his wife was not making claims on her own behalf because advice had been provided that this would prevent her making an application on her own behalf if the current application was unsuccessful.
Independent information
Ogboni cult
Research undertaken by the former Refugee Review Tribunal provided the following information on the Ogboni cult dated 6 April 2011[1]:
[1] Refugee Review Tribunal, Country Advice: Nigeria NGA38592, 20 April 2011
Little is known about the Ogboni or their practices. Historically the Ogboni played an important role in the politics and affairs of the Yoruba peoples (present day Nigeria, Republic of Bénin and Togo)[2] but the nature of the group has changed and its significance diminished since the 19^th and 20^th century. Sources indicate that today the group considers itself more akin to a social club like the Masons than to a secret society or cult, and its adherents are usually influential and financially well off members of society including judges and politicians.
[2] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Nigeria: 8th European Country of Origin Information Seminar Final Report Vienna, 28-29 June 2002’, Refworld website, 28 November, - Accessed 15 April 2011 – Attachment 1; Yoruba (undated), ‘Everyculture website, - Accessed 19 April 2011 – Attachment 2
Sources indicate individuals, particularly the family of members, may face considerable pressure to join the group.
The most recent comprehensive information on the Ogboni is provided in a research response by the Canadian Immigration and Refugee Board dated 12 July 2005 which draws on the advice of a number of academics.[3] That response states the following on the subject of the group’s makeup and purpose:
[3] Immigration and Refugee Board of Canada 2005, ‘NGA100180.E – Nigeria: Ogboni society including history, structure, rituals and ceremonies; membership and consequences for refusing to join(April 2000-July 2005)’, Refworld website, 12 July - Accessed 15 April 2011 – Attachment 3
With regard to how to describe the Ogboni, the political science professor said that members of the Ogboni "society" would likely take offence at having their organization referred to as a "cult" or a "secret society" and would probably refer to themselves as a "lodge" similar to that of the Masons (13 Apr. 2000). The anthropology professor said that in Nigeria the Ogboni are commonly referred to as a "secret society" by Nigerians, but that Ogboni members would likely self-identify the group as a social club whose members help each other in matters such as commerce, marriage, etc. (14 Apr. 2000). Consequently, in this Response the Ogboni will be referred to as a "society." The anthropology professor added that there has been a lot of "cross-fertilization" between the Masons and groups such as the Ogboni, since there are many Masons in Nigeria and that they have been there since the 19th century (ibid.).
Both scholars stated that Ogboni members are typically financially very well off and well-connected. The political science professor said that the current Ogboni society dates back to the 1930s when a group of senior Nigerian civil servants formed the society in reaction to the existing European social clubs that excluded native Nigerians (13 Apr. 2000). According to him, the Nigerians wanted a forum in which they could interact and enjoy some of the privileges of their senior status in Nigeria. The founder was a Methodist minister and, in addition to senior civil servants, Ogboni members included doctors, lawyers, senior police officials, and other elite Nigerians (ibid.). Both scholars stated that despite Ogboni origins in the Yoruba ethnic group, the membership includes persons of other Nigerian ethnicities. The anthropology associate professor stated that women are also now able to join (14 Apr. 2000)
It also states:

The American-based scholars stated that they knew nothing of any Ogboni rituals, as its members are sworn to secrecy. Based on her knowledge of other similar groups, the anthropology professor said that initiation rituals would likely involve some mystical elements and "some sort of physical transformation" (14 Apr. 2000).
A report by the UK Home Office states the following on the subject of secret cults, juju or student confraternities in Nigeria:
Secret societies or cults exist in Nigeria but, by their nature, very little is known about them. The most widely reported and studied is the Ogboni cult, though many Ogboni members reportedly self-identify the group as a social club rather than a cult or a secret society.[4]
[4] Home Office UK Border Agency 2009, Operational Guidance Note Nigeria, 14th April - Accessed 15 April 2011 – Attachment 4
A 2002 report on Nigeria by the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD) indicates that the modern Ogboni is distinct from the traditional group of the same name. The report States:
The "Reformed" Ogboni Society" is an association of politicians and influential people, distinct from the traditional Ogboni society.
The traditional Ogboni society was part of the checks and balances system of the Yoruba kingdoms. They were kingmakers, and disposed of both a religious as well as a judicial function. They had also the power to dethrone the Oba (the king) and could order him to kill himself (or would give him poison). The ethnographic work on their role and function in the 19th and early 20th century dates back to the 1930s, thus no in-depth knowledge on their structure and inner workings after independence is available. They are thought to still dispose of considerable local influence, forming part of the traditional power network to regulate societies and control resources. It is assumed that through their membership they also have strong connections to official state structures (police, judiciary, commissions, universities).[5]
[5] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Nigeria: 8th European Country of Origin Information Seminar Final Report Vienna, 28-29 June 2002’, Refworld website, 28 November, - Accessed 15 April 2011 – Attachment 1
Sources report that under certain circumstances individuals may face significant pressure to fulfil a family obligation to the group.
The Canadian Immigration and Refugee Board states the following on being forced to join the group:
the political science professor said that he was not aware of any recent examples of persons being forced to join (13 Apr. 2000)… On the other hand, the anthropology professor stated that forced membership in the Ogboni society might be possible, although it would not be common (14 Apr. 2000). She said that there was an expectation that children of members would join. If there was such an expectation, the parents could apply considerable pressure on the individual to join (ibid.).
The anthropology professor also described the only instance she could think of when the society might actively pursue a person who did not want to join (ibid.). If that person's parent(s) had "dedicated" their child to the society, sometimes before birth, then the society could go after the person and force him or her to join to ensure the fulfilment of the parents' promise. She said that the person who had been dedicated might be raised unaware that their parent(s) were Ogboni member(s). As such, they might not be approached by the society until they were thought ready to join, which could be when the individual was 30 or 40 years old. She added that she was fairly sure that the persons she lived with in Nigeria who were Ogboni did not join until they were in their late thirties.[6]
The ACCORD report states that it is unlikely that an individual would be pressured to join the Ogboni, including through threats of physical harm, due to a family member’s position in the group:
It is also unlikely that there is a rule of automatic succession in a position (i.e. the son replacing the father) but more likely that those families who traditionally have had the authority to invite new members would choose the most suitable candidate. If this person should for some reason – because of his or her Christian belief – not want to join and if there is no other candidate from this particular family he or she might be ostracized and might also lose property or an inheritance but would not have to fear for his or her life.[7]
Christianity and Boko Haram
[6] Immigration and Refugee Board of Canada 2005, NGA100180.E – Nigeria: Ogboni society including history, structure, rituals and ceremonies; membership and consequences for refusing to join(April 2000-July 2005), Refworld website, 12 July, - Accessed 15 April 2011 – Attachment 3
[7]Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Nigeria: 8th European Country of Origin Information Seminar Final Report Vienna, 28-29 June 2002’, Refworld website, 28 November, - Accessed 15 April 2011 – Attachment 1

DFAT Country Report – Nigeria, 10 February 2015 provides relevantly as follows in relation to Christianity and harm from Boko Haram:
Christianity is the dominant religion amongst the Ibgo and Yoruba people in the south and Islam is the dominant religion of the Hausa-Fulani and Kunuri people in the north.
Freedom of religion is guaranteed under the Nigerian Constitution, as is the freedom for individuals to change their religion and to propagate their religion or belief through worship, teaching, practice and observance. State and local governments are prohibited from adopting a state religion or from giving preferential treatment to any religious community. All religious groups must apply to the federal Corporate Affairs Commission for an application to build a church, mosque or other religious facility. In accordance with the Constitution, school students must receive religious instruction in their own religion. The Government observes a range of religious holidays including Eid-El-Maulud, Good Friday, Easter Monday, Eid-El-Fitr, Eid El-Adha, and Christmas.
In accordance with the Constitution, twelve northern states maintain courts which adjudicate civil matters including divorce, inheritance and domestic disputes in accordance with Sharia (see State Protection – Sharia Courts, below).
Boko Haram – Christians and Muslims
Both Christians and Muslims have faced violence at the hands of Boko Haram due to their religious beliefs. Boko Haram opposes Christianity as well as less restrictive forms of Islam. Credible local and international sources advise that Boko Haram attacks Muslim communities more frequently than Christian communities and that individual Muslims have been kidnapped and assassinated by Boko Haram. It is considerably less common for Christians to be targeted individually.
There have been numerous attacks on predominantly Muslim occupied villages in the northeastern states of Borno, Yobe and Adamawa. In November 2014, Boko Haram fighters burnt homes, killed several people and occupied villages in Adamawa state. This continues a series of attacks committed across all three states under a state of emergency that since August 2014 that have resulted in over 500 deaths and 300 kidnappings. Numerous local government areas are now under direct Boko Haram control as a result. The girls who were abducted from Chibok in April 2014 by Boko Haram (see ‘Security Situation-Boko Haram’, above) are understood to be made up of a mix of Muslims and Christians. Christians have also been targeted in the northeastern states of Borno, Yobe and Adamawa and occasionally in the central state of Plateau. Boko Haram killed four Christians in Yobe, 25 Christians in Adamawa and six in Gombe in separate attacks in January 2012. The group destroyed two churches in Bauchi on 22 January 2012.
DFAT assesses that both Christians and Muslims face a moderate risk of violence from Boko Haram when they remain domiciled in the north-eastern states of Borno, Yobe and Adamawa, particularly if they are based close to the fighting. Attacks on Christians by Boko Haram are opportunistic and infrequent. Individual Christians are highly unlikely to be targeted. Many Christians have moved internally within Nigeria to escape the risks posed by the Boko Haram insurgency.
Sectarian Violence
Christian ‘settlers’ and Muslim ‘herdsman’ continue to clash in central and northern Nigeria over land disputes and often in connection with national elections. While the clashes amplify a complex set of religious, ethnic and political tensions, in essence they represent competition for limited resources including land and political power.
More than 300 Muslims and Christians were killed in violent clashes in Plateau state in January 2010. A Christian senator representing Plateau North, Gyang Dantong, was shot by Muslim Fulani herdsmen near Jos in July 2012. Fulani herdsmen were accused of killing approximately one hundred Christians in Kaduna state in relation to land disputes in February 2014.
Three days of rioting and sectarian violence between Muslims and Christians broke out in Kaduna state following the announcement of the 2011 presidential election. In its 2011 report, Nigeria: Post-Election Violence, Human Rights Watch stated 800 people had died in the violence. According to credible local sources, a large number of Christians were killed and several churches were destroyed. The majority of those killed however, were Muslims.[8]
[8] DFAT Country Report – Nigeria, 10 February 2015 paras 3.11-3.19
The Refugee Review Tribunal’s Country Advice and Information Team provided the following advice on 7 October 2010, relating to treatment of Christians in Anambra, which was referred to in [Child 2]’s Tribunal decision:
Little information was located which dealt with the relationship between Christians and Muslims in Anambra State. This is probably due to the religious and ethnic demography of Anambra. In a state with such a large majority Christian community, it would be unlikely that intra state religious violence would break out. One report was located in 2006 which noted the targeting of Muslim Hausa-Fulani speakers in the city of Onitsha in Anambra state. Muslims were being targeted by Igbo Christian youths retaliating against deaths of Igbo Christians in northern states after the publication of caricatures of Mohamed enraged northern Muslims.[9] The security of Christians in Anambra is demonstrated in their peaceful reception of a politician, General Buhari, the neighbouring Igbo state, Akwa, who had recently publicly suggested that ‘Muslims should vote only for their fellow Muslims’.[10]
Decree 33
[9] United Nations Office for the Coordination of Humanitarian Affairs – Integrated Regional Information Networks (IRIN) 2006, ‘At least 123 killed as anger over cartoons fuels existing tensions’, ReliefWeb, 23 February, - Accessed 16 October 2010,
[10] Nigerian commentator Hank Eso reported that the Christian community and leadership “showed the virtue of forgiveness in welcoming him wholesomely.” Eso, H. 2003, ‘Nigeria: Religion as a tool of politics’, Kwenu.com, 16 April, – Accessed 8 October 2010,
The following is provided from a report of the Country of Origin Information Services Section (COISS) of the Department of Immigration and Border Protection date 26 May 2016[11]:
What are the punishments under Decree 33 for persons convicted of drug offences outside of Nigeria, upon their return to Nigeria?
[11] Country of Origin Information Services Section of the Department of Immigration and Border Protection, Nigeria:CI160512161200205 – Decree 33 – Prison Conditions, 26 May 2016.
Reports indicate that those convicted of drug offences outside of Nigerian may face additional charges upon returning to Nigeria under ‘Decree 33’of 1990.[12] The Department of Foreign Affairs and Trade (DFAT) advised in 2014 that while ‘Decree 33’ remains in force, ‘[t]echnically this is no longer a decree (a military era term) but formally incorporated into the National Drug Law Enforcement Agency Act, Section 22’.[13] According to the National Drug Law Enforcement Agency Act under Section 22(3), the minimum sentence a person may face upon return is five years imprisonment and forfeiture of assets and properties.[14] However, the Nigerian government has rarely given effect to the Decree and according to DFAT, the last known application was in 2005.[15]
Section 22 of the National Drug Law Enforcement Agency Act states:
[12] National Drug Law Enforcement Agency, n.d., National Drug Law Enforcement Agency Act, < Accessed 17 May 2016 <CIS38A8012897>
[13] Department of Foreign Affairs and Trade 2014, COIS Request No: NGA15808: Nigerian Law - Status of Decree 33 of 1990, 6 March <CX318741>
[14] Department of Foreign Affairs and Trade 2015, DFAT Country Report Nigeria, 10 February, p.23 <CISEC96CF1143>; National Drug Law Enforcement Agency, n.d., National Drug Law Enforcement Agency Act, < Accessed 17 May 2016 <CIS38A8012897>
[15] Department of Foreign Affairs and Trade 2015, DFAT Country Report Nigeria, 10 February, p.23 <CISEC96CF1143>
Offence, of Exportation of Narcotic Drugs etc.
1. Any person whose journey originates from Nigeria without being detected of carrying prohibited narcotic drugs or psychotropic substances, but is found to have imported such prohibited narcotic drugs or psychotropic substances in to a foreign country, notwithstanding that such a person has been tried or convicted for any offence of unlawful importation or possession of such narcotic drugs or psychotropic substances in that foreign country. Shall be guilty of an offence of exportation of narcotic drugs or psychotropic substances from Nigeria under this subsection
(1990 No.33, 1992 No.15)
2. Any Nigerian Citizen found guilty in any foreign country of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence under this Subsection
(1990 No. 33)
3. Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fine and his assets and properties shall be liable to forfeiture as provided under this Act.
(1990 No.33).[16]
Similarly, the 2015 DFAT country report on Nigeria advises that Nigerians returning to the country with a criminal record may face a minimum of five years imprisonment:
Nigerian citizens returning from overseas with a criminal record may be charged under Decree 33 (the Decree) of the National Drug Law Enforcement Agency Act 1990. The Decree provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas – including those with drug convictions and other serious crimes including money laundering, fraud, armed robbery and rape. The minimum sentence under Decree 33 is five years imprisonment.[17]
Are there any recent reports (particularly in the last two years) of persons convicted of drug offences outside of Nigeria, being prosecuted on return to Nigeria under Decree 33? If yes, please provide information on the punishment they received and where any jail time was served.
No recent reports were found indicating that persons convicted of drug offences outside of Nigeria had been prosecuted on return to Nigerian under Decree 33.[18]
A 2008 British-Danish fact-finding mission to Nigeria interviewed senior officials of the Nigerian National Drug Law Enforcement Agency (NDLEA) about the enforcement of Decree 33. According to the NDLEA officials, ‘Decree 33 had been enforced from 1990 to 2000’.[19] While no information was available regarding the number of prosecutions and convictions from 1990 to 1995, NDLEA statistical information indicated that from 1996 to 2000, 451 Nigerians had been prosecuted and convicted under the provisions of Decree 33.[20] According to NDLEA officials, ‘these individuals has been prosecuted and convicted for “bringing the name of Nigeria into disrepute” by being convicted of a drugs offence abroad’, rather than for ‘committing the drugs offence itself.’[21]
Advice provided by DFAT in 2014 and 2013 states that since 2003 there have reportedly been no prosecutions under Decree 33.[22] In advice provided in 2014, DFAT noted that the ‘[l]aw has not been enforced since 2003, and that cases are no longer prosecuted’.[23] DFAT also reported that a ‘western European Embassy has received a statement from the Ministry of Justice stating that this will remain the case until the Decree 33 / NDLEA Act Section 22 is repealed’.[24] No information was found indicating that Decree 33 has since been repealed.[25]
In its 2015 country report on Nigeria, DFAT states that in regard to Decree 33, ‘credible sources advised DFAT that the Nigerian government has rarely given effect to the Decree’.[26] DFAT advised that ‘the most recent application DFAT is aware of was in 2005’.[27]
[16] National Drug Law Enforcement Agency, n.d., National Drug Law Enforcement Agency Act, < Accessed 17 May 2016 <CIS38A8012897>
[17] Department of Foreign Affairs and Trade 2015, DFAT Country Report Nigeria, 10 February, p.23 <CISEC96CF1143>
[18] Searches were conducted of Nigerian and international news media, major human rights reports, major foreign government reports, think tanks, peer-reviewed journals, tribunal resources, DIBP resources and general internet searches.
[19] UK Home Office & Danish Immigration Service 2008, Report of Joint British-Danish Fact-Finding Mission to Lagos and Abuja, Nigeria 9-27 September 2007 and 5-12 January 2008, 28 October, p.44 < >Accessed 16 May 2016 <CIS16713>
[20] UK Home Office & Danish Immigration Service 2008, Report of Joint British-Danish Fact-Finding Mission to Lagos and Abuja, Nigeria 9-27 September 2007 and 5-12 January 2008, 28 October, p.44 < >Accessed 16 May 2016 <CIS16713>
[21] UK Home Office & Danish Immigration Service 2008, Report of Joint British-Danish Fact-Finding Mission to Lagos and Abuja, Nigeria 9-27 September 2007 and 5-12 January 2008, 28 October, p.44 < >Accessed 16 May 2016 <CIS16713>
[22] Department of Foreign Affairs and Trade 2014, COIS Request No: NGA15808: Nigerian Law - Status of Decree 33 of 1990, 6 March <CX318741>; Department of Foreign Affairs and Trade 2013, NGA14427 - Status of Decree 33 in Nigeria, 15 February <CX303836>
[23] Department of Foreign Affairs and Trade 2014, COIS Request No: NGA15808: Nigerian Law - Status of Decree 33 of 1990, 6 March <CX318741>
[24] Department of Foreign Affairs and Trade 2014, COIS Request No: NGA15808: Nigerian Law - Status of Decree 33 of 1990, 6 March <CX318741>
[25] Searches were conducted of Nigerian and international news media, major human rights reports, major foreign government reports, think tanks, peer-reviewed journals, tribunal resources, DIBP resources and general internet searches.
[26] Department of Foreign Affairs and Trade 2015, DFAT Country Report Nigeria, 10 February, p.23 <CISEC96CF1143>
[27] Department of Foreign Affairs and Trade 2015, DFAT Country Report Nigeria, 10 February, p.23 <CISEC96CF1143>
On 18 January 2017 COISS advised the Tribunal, for the purpose of this decision, that research had not found any more recent reports of prosecutions under Decree since the May 2016 report.
Hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
At the commencement of the hearing, the Tribunal asked the applicant if there were any impediments to him giving evidence to the Tribunal. The applicant said that he was not feeling well and would prefer to have the hearing on another day. The Tribunal asked the applicant what the problem was. The applicant said that he has a disease and a rash. He said that he had financial problems in being able to see a doctor. The Tribunal sought to explore with the applicant what the symptoms were that might create difficulties for him in giving evidence. The applicant then said that he wanted to proceed with the hearing. The Tribunal confirmed with the applicant that he felt able to tell his story and respond to the Tribunal’s questions.
On that basis, the Tribunal proceeded with the hearing. The Tribunal did not form the impression from the hearing that the applicant was constrained in responding to the Tribunal’s questions or in making his own points by reason of any medical condition.
The Tribunal is satisfied that the applicant is a citizen of Nigeria, and accordingly his claims will be assessed against Nigeria.
The Tribunal is satisfied that the second named applicant is a citizen of China.
Reasons for fear of harm
In the hearing, the Tribunal explored with the applicant the harm that he feared in returning to Nigeria. Initially, the applicant resisted responding to this questioning, indicating that the basis on which he considers he should be able to stay in Australia is that he has been here for 21 years and he has three Australian citizen children in Australia.
The Tribunal indicated to the applicant that its primary function was to determine whether the applicant faced a real risk of significant harm on return to a Nigeria. It indicated that issues raised by the applicant would be relevant to Ministerial Intervention.
During the course of the hearing the applicant referred to his fear in returning to Nigeria being based on issues involving a cult and the potential for double jeopardy under Decree 33 as a result of his drug conviction in Australia. The Tribunal asked the applicant if there were any other issues creating a fear in returning to Nigeria. The applicant said that that was enough.
Christianity
The Tribunal noted to the applicant that he had previously made claims that he may be harmed based on being a Christian. There was some degree of confusion in the applicant’s response. Initially, he said that he did not fear harm on the basis of being a Christian, but only as that was linked to the cult issues. When the Tribunal went through the independent information contained in this decision suggesting that the risk of harm to Christians was mainly limited to the north of Nigeria, not in the applicant’s home state of Anambra, in the south, the applicant said that problems for Christians occur everywhere in Nigeria. When the Tribunal sought to clarify with the applicant if, therefore, he was making claims of harm based on being a Christian, the applicant said that this was not a claim that he was making, other than as connected with the fear of harm that he had from a cult.
On that basis, the Tribunal does not consider that the applicant is making a claim of harm based on being a Christian living in Anambra State. In any event, the Tribunal would not be satisfied that the independent evidence before the Tribunal would establish that the applicant faces a real risk of significant harm based on being a Christian in his home State of Anambra, including in the absence of any specific evidence from the applicant that he would be a particular target as a Christian (leaving aside claims of harm from a cult).
Cult
The Tribunal has the following credibility concerns with the applicant’s claim that he faces harm from a cult that he was told he had to join, following the involvement of his father.
Firstly, this was not a claim made by the applicant in his initial Protection visa application. Rather, the applicant made claims the based on him being homosexual, which he now says was not true. The Tribunal, in the current application, put to the applicant that it might have expected that, if the applicant had an actual and legitimate fears of harm in returning to Nigeria, he would have made those claims as part of the first Protection visa application, rather than making false claims.

The applicant indicated that these were claims put together by an agent, unbeknownst to him. He says that this issue should not be held against him now. The applicant indicated that he did not speak good English when he arrived in Australia. The Tribunal also notes that the applicant has previously indicated that he did not feel comfortable revealing information about the cult to his representative.
The applicant’s claims that he did not know about the claims in the first Protection visa application are inconsistent with the fact that the applicant positively maintained that he was homosexual in the Tribunal hearing in relation to that application. Evidence to this effect is referred to in the decision of the delegate with respect to this application, a copy of which has been provided by the applicant to the Tribunal.
In any event, the Tribunal has difficulty accepting that the applicant would have allowed Protection visa claims to be made on his behalf without knowing what those claims were, true or not. However, if the applicant had a disregard for the claims that were being made, it seems to the Tribunal that the applicant would clearly have been aware that false claims were being made. The Tribunal has difficulty accepting that the applicant would not have ensured legitimate claims were made as part of the first Protection visa application, were there legitimate claims. The Tribunal sees no particular reason why the applicant would have been reluctant to disclose truthful issues relating to harm from a cult, yet have allowed claims to be made on the basis of homosexuality which, from a Nigerian cultural perspective, would be considered shameful and sensitive.
The Tribunal does not accept that difficulties in the applicant speaking English justify false claims being made as part of the first Protection visa application.
The failure by the applicant as part of his first Protection visa application to make claims based on harm from a cult is undermining of the applicant’s credibility in relation to this claim as part of the current Protection visa application.
Secondly, the applicant has been inconsistent as to the cult that his father had been involved with and who would harm applicant for not joining them.
[Child 2]’s Tribunal decision records the applicant giving evidence in the relevant hearing stating that the name of the cult who may target him is known as Bakassi. The applicant indicated that his father was killed by this cult in 2008 because he refused to follow their instructions. He indicated that, sometime before he left Nigeria, he had suspicion from the conduct of his father that he was a member of this cult. The applicant indicated that his father told him that the cult was against his beliefs because he was a Christian. When the applicant asked his father whether he was involved with any cult and his father reacted so aggressively that he believed his life was at risk and so he subsequently left Nigeria. The applicant indicated that the older son is expected to follow the father’s footsteps and therefore the cult will expect him to join and if he refuses they will kill him.
In contrast, in the interview with the delegate with respect to the current application, the applicant indicated that he was not sure of the name of the cult from whom he feared harm but then indicated that it was called Ogboni. The applicant specifically indicated to the delegate that this was a different cult to the Bakassi cult, and Bakassi was not the cult that his father had been involved in. When the delegate noted that [Child 2]’s Tribunal decision made reference to harm from Bakassi, the applicant said that he mentioned about the cult his father was involved in three or four times and also mentioned Bakassi because they also harm people in Nigeria and they will also be after the applicant.
When this inconsistent evidence was put to the applicant in the hearing, he said that his evidence must have been accepted by the Tribunal which granted [Child 2], a Protection visa. The Tribunal noted to the applicant that the decision of the Tribunal relating to [Child 2]’s application did not make findings accepting the applicant’s claims of harm from a cult, and [Child 2]’s Protection visa was granted on other grounds.
The Tribunal considers that the evidence is directly inconsistent. The applicant told the Tribunal considering [Child 2]’s application that it was the Bakassi cult that his father was a member of and that they were the ones who killed his father and would want the applicant to join, and would kill him if he did not. This is directly contradicted by the applicant’s evidence to the delegate with respect to the current application that the cult that his father was involved in was the Ogboni cult and that this was a different cult than the Bakassi cult.
Even if the Tribunal were to accept that there are linkages between the cults, the Tribunal considers that the applicant has been directly inconsistent as to which cult his father was a member of and was killed by, and would harm him. This is undermining of the applicant’s credibility as to a claim of a risk of harm from a cult, and more generally.
Thirdly, the applicant has been inconsistent in terms of claims of declaring, when in Nigeria, that he was not going to be involved with the cult, and of being specifically harmed by the cult.
In the Tribunal hearing with respect to the current application, the applicant indicated that he was told the cult that he was going to be forced join, that he would not be joining them. He said, as a result, they tied him to a chair and beat him.
The Tribunal noted to the applicant that he had not made claims previously, including either in [Child 2]’s protection visa hearing or in the interview with the delegate that he had been beaten by the cult members. In response, the applicant indicated that he was never asked.
Further, the Tribunal noted to the applicant that he had indicated to the delegate in the interview with respect to the current application that he never told his father that he did not want to be involved in the cult, of which his father was a part. That seemed inconsistent with the applicant’s evidence in the hearing that the cult harmed him physically as a result of the applicant indicating that he would refuse to join them. In response, the applicant seemed to suggest that what other members of the cult knew may have been different to what his father knew.
The Tribunal considers that, if the applicant had actually been beaten by the cult, he would have proactively provided this information either as part of his written application or during questioning by the delegate with respect to the current application or as part of [Child 2]’s Protection visa application.
The Tribunal does not consider it plausible that the applicant would have told cult members other than his father that he was not going to join the cult. If the applicant had conveyed this information, the Tribunal considers that his father would have been a recipient of this information also. That being the case, the Tribunal considers that there is an inconsistency in the applicant telling the Tribunal in the hearing that he was beaten for indicating that he would not join the cult, and the applicant telling the delegate that he never told his father that he would not join.
The evidence on this issue is undermining of the applicant’s claims as to being asked to join a cult and being harmed for stating that he would not join, and facing a risk of harm as a result.
The cumulative impact of these three credibility issues result in the Tribunal disbelieving the applicant’s claims that he was asked to join a cult that his father was involved in. The Tribunal is not satisfied that this is the case. The Tribunal is not satisfied that any cult members harmed or threatened the applicant as a result of him indicating that he would not join. The Tribunal is not satisfied that there are cult members in Nigeria who have a desire to harm the applicant as result of him refusing to join their cult.
As the independent information in this decision makes clear, the Ogboni cult does exist in Nigeria. There is limited evidence that family members could be pressured to join cults. Notwithstanding that this might happen in Nigeria, the Tribunal does not believe the applicant’s claims concerning a cult wishing to harm him, for the reasons given.
The Tribunal is therefore not satisfied that the applicant faces a real risk of significant harm as a result of a cult in Nigeria wishing to harm the applicant for the reasons claimed.
Double jeopardy – Decree 33
The Tribunal discussed with the applicant the independent evidence outlined in this decision concerning Decree 33, and the prospect of the applicant being charged, convicted and imprisoned, or otherwise punished in Nigeria as a result of drug offences he has been convicted of in Australia. The Tribunal accepts that the applicant has committed a serious drug offence in Australia for which he has been convicted and imprisoned, which would result in him falling within the provisions of Decree 33.
The Tribunal acknowledged to the applicant that the law existed but that the independent information before the Tribunal indicates that Decree 33 has not been enforced since 2005. There is also information which indicates that the Nigerian Ministry of Justice have indicated that there will be no prosecutions under the law until the law is repealed.
The Tribunal indicated to the applicant in the hearing that this may indicate a limited risk to him in being prosecuted under the law. In response, the applicant said that the law still exists, with the implication that it may be enforced. The applicant also said that it is not true that the law is not being enforced. He said that it is being enforced unbeknownst to independent observers, because the Nigerian authorities want to hide enforcement of the law.
The Tribunal does not accept that there would not be knowledge by independent observers if Decree 33 is being enforced. The Tribunal accepts independent evidence that the law has not been enforced since 2005. Whilst the Tribunal acknowledges that the continued existence of the law means that it could be enforced, the Tribunal notes the indication by the Ministry of Justice that it does not intend to enforce the law until it is repealed.
The Tribunal considers that the combination of the fact that the law has not been enforced since 2005 and that Nigerian authorities positively stating that they have no intention to enforce the law results in there not being a real risk of the law being enforced. The Tribunal therefore considers that the applicant does not face a real risk of significant harm by virtue of being charged, convicted and punished pursuant to Decree 33.
The applicant has previously indicated that he could be harmed extra-judicially as a result of his drug conviction in Australia. No independent evidence has been provided to the Tribunal that would suggest that Nigerian authorities act extra-judicially to harm those convicted of drug offences in other countries. In the absence of any independent information before the Tribunal, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant on this basis.
Other claims
The Tribunal notes the applicant’s brief written claims as part of the current Protection visa application which states that the applicant was beaten by the police. When this was explored with the applicant in the hearing, he indicated that he was picked up by police in Nigeria for breaching a curfew and he was beaten. The Tribunal, for the purpose of this decision, is prepared to accept that this incident occurred. However, the Tribunal is of the view that this was a one-off incident involving the applicant breaching a curfew and it is not satisfied it demonstrates that the applicant faces a real risk of significant harm on return to Nigeria.
Removal from Australia and separation from family
The applicant has referred to the harm to him in being separated from his family in Australia if returned to Nigeria. The Tribunal accepts that the applicant is married to a Chinese citizen, who lives with him in Australia. The Tribunal clarified with the applicant that the two children from that relationship, [Child 2] and [Child 3], are both Australian citizens. The applicant indicated that [Child 3] was granted a Protection visa following on from the Protection visa granted to [Child 2], on the basis that [Child 3] will face similar harm in Nigeria to that of [the sibling]. The applicant’s other child, [Child 1], from an earlier relationship with an Australian citizen, is an Australian citizen. The applicant indicated that he has not seen [Child 1] for two years as [Child 1] lives with [the] mother interstate, but he did used to have access to [Child 1].
The Tribunal accepts that if the applicant is returned to Nigeria then the second named applicant and the two children, who are part of his current family unit, are unlikely to follow. This is because the children face a real chance of serious harm in Nigeria on the basis of their mixed heritage as found by the Tribunal considering [Child 2]’s Protection visa application.
If the application is unsuccessful the Tribunal considers it likely that the second named applicant will return to China and seek to take her two children with her. The Tribunal acknowledges that this will require steps to be taken for the children to renounce their Australian and Nigerian citizenships, in order for them to acquire Chinese citizenship, given that Chinese law does not permit dual nationals.
The Tribunal does not consider that the applicant would likely join the family in China because he would likely be prevented by reason of his serious criminal history.
The Tribunal therefore accepts that if the applicants are not granted the Protections visa, the family will be split up.
Although it was indicated to the delegate that the second named applicant was not making claims on her own behalf, in the relevant application forms for a prior invalid application, the second named applicant refers to the fact that if she were returned to China she would face harm due to being separated from her husband and her children.
The Tribunal is not inclined to accept that the second named applicant will be separated from her children if the application is unsuccessful. It considers that steps would be taken for them to acquire Chinese citizenship and for them to return to China with the second named applicant. The Tribunal does accept that if the application is unsuccessful both applicants will be split apart from each other and the applicant will be separated from his children.
This would lead to harm for both applicants.
In the hearing, the Tribunal canvassed with the applicant the fact that harm due to the family being separated would not appear to fall within the definition of significant harm for the purpose of the Act.
In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.
Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.
Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
In the hearing, the applicant did not take issue with the fact that removal from Australia and the family being split up would not constitute significant harm for the purpose of the complementary protection criterion.
For the reasons given, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the purpose of the complementary protection criterion as a result of being separated from his wife and children, if he were to return to Nigeria.
Although the second named applicant has not made her own claims as part of this application, for the avoidance of doubt, and for the same reasons, the Tribunal is not satisfied that she faces a real risk of significant harm on being returned to China due to separation from her family, most particularly the applicant. Further, in relation to the Refugees Convention criterion such harm would not be for a Convention reason and therefore that criterion would not be met.
Ministerial Intervention
There are certainly issues, as outlined in this decision, concerning the family unit being split up if the applicants are removed to their respective countries.
These are matters that the applicants will be free to make applications for Ministerial Intervention the pursuant to s.417 of the Act.
Non-Disclosure certificates
The Departmental file contains a Certificate regarding the disclosure of certain information under s.438 of the Act. The Certificate indicates that certain information falls within s.438(1)(a) of the Act because it contains internal working documents and documents relating to business affairs to do with identity assessment. The Tribunal is not satisfied that an indication that the documents contain internal working documents and documents relating to business affairs to do with identity assessment justify public interest immunity pursuant to s.438(1)(a). For that reason, the Tribunal does not consider that the Certificate is valid. In any event, the documents covered by the Certificate have not been relevant to the determination in this matter.
The Tribunal has further information on the Department file subject to a s.438 Certificate restricting disclosure of the information pursuant to s.438(1)(b) of the Act on the basis that that information had been given to the Department in confidence. The Tribunal discussed with the applicant in the hearing the substance of this information after providing the applicant with a written direction under s.440 of the Act preventing the applicant from disclosing the information revealed.
[Details deleted].
The information was not relevant to the Tribunal’s determination as to whether the applicant faced a real risk of significant harm on return to Nigeria. The applicant’s criminal history may well be relevant to a decision on any application for Ministerial Intervention.
Conclusion

100. The Tribunal is not satisfied that there are substantial grounds 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 for any of the reasons claimed, or for any other reasons.
101. Although the second named applicant did not make claims on her own behalf, for the avoidance of doubt, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as a result of being separated from her family, or for any other reasons. The Tribunal is also not satisfied that the second named applicant has a well-founded fear of persecution for a Convention reason.
102. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
103. The Tribunal affirms the decision not to grant the applicants Protection visas.
David McCulloch
Member

Applicant’s notated migration history as set out in the delegate’s decision
[date]/08/1999            [Visa] Granted LUD: [date]/12/1999 (8101, 8201 & 8205)
[date]/09/1999            Arrived in Australia on [visa] using [Country 1] passport
[date]10/1999            Protection Visa Commenced
[date]/10/1999            Associated WA010 Granted LUD: [date]/07/2000
[date]/12/1999           Protection Visa Refused

21/12/1999                 RRT Commenced
08/06/2000                RRT Review Otherwise Finalised — Ineligible no yard application
[date]/07/2000            Became UNC
[date]/07/2000            Combined Spouse (UK 820/BS 801) Commenced
[date]/07/2000            Associated WCO30 Granted LUD: [date]/12/2000 (8101)
[date]/12/2000            WCO30 Granted .LUD: [date]/01/2011

[date]/05/2001            Combined Spouse (UK 820/BS 801) Refused
[date]/06/2001            XA785 (Temporary Protection Visa) Commenced
[date]/06/2001            Associated granted LUD: [date]/07/2003 (8101)

[date]/03/2002            XA785 (Temporary Protection Visa) Refused
17/04/2002                 RRT Commenced
[date]/02/2003            Arrested
30/04/2003                 RRT Affirmed
[date]/04/2004            1st s417 MI Commenced
[date]/11/2004            Convicted and sentenced for serious drug offences
[date]/12/2004            WE050 Commenced & Granted LUD: [date]/02/2009
[date]/04/2005            1st s417 MI Outcome Not Considered
[date]/05/2007            WE050 Commenced & Granted LUD: [date]/02/2009
[date]/02/2009            Released from criminal custody
[date]/02/2009            WE050 Cancelled under s1 16(1)(a) and detained under s189(1)
[date]/02/2009            1st s48B & 2nd s417 & 1st s195A MI Commenced
[date]/03/2009            WE050 Commenced
[date]/03/2009            WE050 Withdrawn
[date]/03/2009            1st s48I3 Result Subsequent .Application not allowed
[date]/04/2009            2nd s4 17 & 1st s195A MI Outcome Not Considered
[date]/05/2009            3rd s417 MI Commenced
[date]/05/2009            3rd s417 MI Outcome Not Referred
[date]/06/2009            4th s417 & 2nd s48B MI Commenced

[date]/07/2009            2nd s195A MI Commenced
[date]/07/2099            2nd s195A MI Outcome Not Referred
[date]/09/2009            1st s197AB MI Commenced
[date]/12/2009            3rd s195A MI Commenced
[date]/05/2010           Combined Spouse, (UK 820/BS 801) Reversed Refused Hasan     Affected & WCO30 Reversed. Affected by Vean/Chand Case Law.

[date]/05/2010            4th s417 MI & 2nd s48B Outcome Not Referred
24/05/2010                MRT Commenced
[date]/06/2010           1st s197AB & s.195A MI Outcome No Power as client was released          from [immigration detention]

22/12/2010                MRT Affirmed
[date]/12/2010            Ist 8351 MI Commenced
[date]/01/2011           WE050 Commenced e.„4 Granted LUD: [date]/04/2011 (8401 &     8506)
[date]/04/2011           W1050 Commenced & Granted LUD: [date]/07/2011 (8401 & 8506)
[date]/07/2011           WE050 Commenced & Granted LUD: [date]/10121)11(8401 & 8506)
[date]/09/2011           Arrested

[date]/10/2011            Became UNC
[date]/03/2012            Protection visa Commenced but s48 barred
[date]/10/2013            4th s195A MI Commenced Not Referred
[date]/04/2014           Protection visa application commenced. Deemed to be valid for r    easons noted at heading No. 2 above

[date]/09/2014 1st s351 MI outcome inappropriate to consider

[2017] AATA 276

15 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction