1511708 (Refugee)

[2019] AATA 2220

1511708 (Refugee) [2019] AATA 2220 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511708

COUNTRY OF REFERENCE:                  Nigeria

MEMBER:Rachel Westaway

DATE:14 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 14 February 2019 at 5:00pm

CATCHWORDS

REFUGEE – protection visa – Nigeria – particular social group – people suffering from mental illness – religion – Christian – imputed political opinion – attacks by Oodua People’s Congress – Reformed Ogboni Fraternity – fear of physical violence – supernatural powers – fear of extortion – availability of mental health services – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5L, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Morato v MILGEA (1992) 39 FCR 401
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Subramaniam v MIMA (1998) VG310 of 1997
Subramaniam, Anandaraj v Minister for Immigration & Multicultural Affairs [1998] FCA 305
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423  
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 on 30 September 2013 and the delegate refused to grant the visa on 6 August 2015.

   The applicant appeared before the Tribunal on 9 February 2017 to give evidence and present arguments.

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

   RELEVANT LAW

4. 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.

   Refugee criterion

5. 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).

6. 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.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. 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.

    CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has determined to remit the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

20. The applicant is [an age] year old Nigerian male who came to Australia on a student visa [in] February 2013 which was valid until [March] 2015. On 13 October 2013 he applied for a protection visa which is the subject of this review. 

21. The applicant claimed he feared for his safety by factional groups in Nigeria. He also stated that his father is a senior member and head of the [Clan 1].  He claimed to have been beaten and shot by these groups and he claims he cannot return because he will be harmed by these factional groups and forced to join them against his Christian beliefs and educational status.

22. The applicant also stated that he is receiving psychiatric care in Australia and such care is extremely expensive in Nigeria and he and his family would not be able to pay for this.

23. He stated that he would therefore be limited in his treatment options and would face serious discrimination and face the risk of being harmed by others in the community due to his mental illness. The applicant stated that the general public in Nigeria treat people suffering from mental health issues very badly and they receive no care and end up living on the streets and confront danger regularly.

24. He claims protection is not available to him because he has a mental illness and he would be discriminated against based on his mental health. He also stated that the authorities do not have the resources and means to be able to provide protection against Boko Haram.

25. The applicant supplied a statutory declaration providing further information to support his claims in his initial application and background information (ff. 113-120, Department File [number]).

26. He stated that his parents separated when he was very young and his father had several wives and children. In his own immediate family he has [specified family members] who live in Australia and [specified family members] in Nigeria. He claims their family would not be considered wealthy but average.

27. He claims to be of the Oruba ethnic group and a Christian. He estimated that his father took on the role of head of the [Clan 1] around [year] when a more senior member died.

28. He stated that due to his father’s position he has spiritual powers which he uses to influence who rules in politics and he is knowns in political circles and with political leaders however because of his powers he lives a solitary life.

29. He claims his father is a member and powerbroker and he is members of the Reformed Ogboni Fraternity (ROF) and most members of [his church denomination] in his area also belong to the ROF. He stated that it is a group where people who want to be political leaders must subscribe. He claims that sons of ROF members must be initiated into the group and he claims that he was informally initiated by his father. He said that the sign of a member is that they use an ‘oja’ which is a white handmade cloth used to cover themselves at night in private. M. he stated that he did not bring it to Australia. Its purpose is to shield the user from night marauders that may attack him including those in his dreams and spiritually. He stated that his family whilst being Christians also worship the God of Iron and they sacrifice a dog with a sharp piece of glass, cook its flesh and eat it and use holy drinks. He stated that this protects him

30. He stated that because he has been living overseas, if he was to return to Nigeria he would be targeted as people would think he has money and try and rob him or hold him for ransom.

31. He claims he faces a higher risk of being targeted due to his mental health conditions.

32. He stated that in 1996, his brother and his brother’s wife paid for him to travel to [Country 1] to study. He claims he was enrolled as a [Subject 1] student in Nigeria but went to [Country 1] to study English; he faced numerous problems with his studies and returned to study [subject 2] and then [subject 3].

33. The applicant also claimed to be an [untrained occupation 1] between [year] and 2013 and would like to do this should he return to Nigeria.

34. He stated he was beaten mercilessly with a [specified weapon] by members of the Oodua People’s Congress around 2004 when he was on his way home from Church. He claims he was left “more or less a vegetable”. He said that when they had finished they delivered him to a landlord’s house and the following day his mother took him to the [named] Hospital where he spent weeks recovering.

35. He stated a separate incident occurred around 2005 when he was accosted by an OPC guard and shot at but the guard missed.

36. The applicant claims on another occasion an OPC guard was at his neighbour’s house and wanted to fight him. The applicant said he walked away from the dispute; he walked a long way until he didn’t know where he was. When he got home the police were there because his mother reported him missing. He walked into his home and went to sleep. When he woke up he was wrapped up like a dead man.

37. The applicant claims that the last occasion was when he was studying at [a named college] to become [an occupation]. He had three girlfriends associated with the OPC. One night while with one of his girlfriends something happened and he passed out. When he went to class she was very scared to talk to him. One of his other girlfriends became pregnant and ran away, but the applicant does not know the identity of the father.

38. The applicant claims that around 2004 or 2005, when he was attending [a named] Church, he took an OPC car from [a named] University campus. There were some ritual events and the car travelled at ‘jet speed’ covering the distance in a very short time.

39. The applicant claimed that in around 2008 he enrolled in a [subject 3] course at the [college] in Ibadan. A misunderstanding with someone led to him receiving unreasonable threats of expulsion; however he finished the course in 2011.

40. In 2008 he claims that he was first diagnosed with mental illness. He saw a psychiatrist at [named] Hospital who diagnosed him with Bipolar Disorder. He was also diagnosed with anorexia and insomnia. The medications made him eat and sleep better, but didn’t really help with his mental health problems, although he stabilised enough to complete his studies in [subject 3].

41. On arrival in Australia the applicant claims that he lived between his sister’s house and his brother’s house because his sister did not want him to have contact with her son. He claims that she refused to have her child undertake a DNA test to prove that the applicant is her son’s father. The applicant spoke to [a legal centre] and was advised that he cannot make her agree to the test. After this the applicant’s sister took him to a psychiatrist who he saw 3 times. He claims his sister pressured the psychiatrist to make him leave Australia because he was threatening the peace in her family. Prior to this the applicant consulted a GP about his mental health.

42. The applicant claims that one night his sister called [Health Centre 1]. They came and questioned him for an hour about his mental health. The applicant’s brother-in-law was furious and abused him. The police were called to take the applicant and his sister told the police to return him to Nigeria, despite her previous promise that she would pay his course fees. The applicant claimed that his case worker from [Health Centre 1] arranged for him to stay ay [a facility] run by [a named health service] and then he move to emergency accommodation provided by [an agency]. Throughout this time he has been seeing [a named doctor] and had regular contact with his mental health nurses who provide all the medications needed to treat his condition.

43. The applicant claimed that his [specified relatives] do not want anything to do with him now.

44. The applicant claimed that the ROF and OPC wish to target him due to his father’s notorious activities. He claims his father is a very dangerous man and well-known because he was the head of those factions before they broke apart. The applicant states that God himself removed the devil from a position that his father was linked to. These factions wish revenge on his father and to eliminate the applicant as his son.

45. The applicant claims that in Australia he has been able to access medication that treats his mental health condition. He stated that his mother lives on a meagre pension in Nigeria and the medication he needs would be unaffordable should he return. He claims his family in Australia will not help pay his medication costs. He siblings in Nigeria cannot assist as they do not have enough money.

46. The applicant explained that his mother is [age] years old and her health would deteriorate if she had to look after him. Once she passes away he will have nobody to care for him and nowhere to live. He would be without money to buy medication and without medication he will not be able to function at all.

47. He claims that he will end up living on the streets and his mental illness will ensure he spirals downwards. He claims the situation would place him in grave danger because mentally ill people are regularly targeted in Nigeria. He states that mentally ill people are sacrificed for rituals. He claims that the authorities in Nigeria do not care about the mentally ill and will not help him.

    Oral Evidence at hearing:

48. The applicant appeared before the Tribunal with his representative. He provided a disjointed and at times confusing account of his background and his claims and it appeared to the Tribunal as if he applicant struggled to decipher between reality and thoughts brought about by his mental illness. However, he understood the questions and spoke with fluidity and conviction

49. He confirmed he came to Australia [in] February 2013 to study a [course] at [a named college]. He stated that he is working in a factory and lives alone and he works five to seven days a week.

1. He confirmed that his [extended] families live in Melbourne but he has minimal contact with them and would see them once in a year. He confirmed his parents and other siblings also live in Nigeria. His siblings are married and have their own families and as he does not have a family he is not as involved in their affairs.

2. The Tribunal progressed to ask the applicant about his claims. Whilst his oral evidence was fluid and spoken with clarity, the content was difficult to follow. It was evident that the applicant struggled to decipher between reality and what was distorted by his mental health issues. However the applicant appeared to understand the tribunal’s questions. The applicant’s representative also confirmed that the applicant had the capacity to understand and give evidence.

3. The applicant explained that ROF is about power and they have unusual traditions and that is like being a member of the Freemasons. He said they looked after him for 4 months. He explained that his student visa was going to be cancelled because of ROF and they would kill his mum and had made attempts on his life.

4. He explained that the OPC are the underdogs and they and the ROF engage in charms and voodooism.  

5. He was asked to outline the details of the harm he has experienced.   He said that when he was returning from church in the night he was beaten up members of the ROF and he lost consciousness and was taken to hospital. He confirmed he was [age] years of age at the time but is [age] now.

6. The Tribunal asked the applicant whether any further attempts were made and he said that he was charmed and he was dragged to a house of a landlord. The landlord knew him personally so took him in. He stated that he cannot recall when it happened. He was given an injection and they placed him care and he was initially beaten but spared because the landlord knew him. The Tribunal asked the applicant about his health and he explained that he was under the care of doctors in Nigeria for 13 years. He said it took a long time for him to be diagnosed. He said he was at [a named] Hospital. The Tribunal asked the applicant if this recollection could be a psychotic episode and he said no.

7. The applicant said that his brother told him he should leave Nigeria and come to Australia and he said that the threat of the ROF is ever present. The applicant explained that he was under nourished and had [a medical condition] however he is healthy now.

8. He said the beating he experienced was a forced attempt to harm him but he has no idea why he was targeted and no one else in his family. He said he does not know why but now his brother understands what he faced.

9. The applicant stated that he was targeted because he was taking over from his father as a leader. He explained that the oldest son does this. When it was pointed out that he was not the oldest son he explained that he had to take the leadership role on following his father even though he is not the eldest because his older brother refused and ran away. The applicant said that he is a Christian and so his father wanted him to replace him. He said that there are no biological children to take over.

10. The applicant stated he was shot at once around the same period. He was staying at his mum’s house. The gun shoot did not enter him and it is a mystery where he was and normally a person who stole things would be shot and they would be left with the stolen items and they didn’t do this to him.

11. The applicant then explained that on another occasion he slept together with three women and one had a special spell and as the applicant was having sex with her he passed out. The Tribunal asked what happened after this and the applicant stated that she dressed and left the room. The Tribunal asked the applicant why he survived and he said it was a miracle and it is a thunderbolt.

12. The applicant explained he was a [Subject 1] student in [Country 2] and completed 3 years of the degree. He was unable to complete it so his brother took out a loan and sponsored him.

13. He claims that last year he re-enrolled at [a named] University to complete his studies in Australia but there was an issue with police and he could not continue.

14. He stated that he never knew about a protection visa until the Freemasons helped him and made him aware.

15. The Tribunal asked the applicant what would happen if he was to return to Nigeria and he said that he would have to face the consequences and he would end up on the streets and he knew that his health issues would mean he could not survive. He explained that he depended on his parents for medication and his brothers but he can’t depend on them now. He said that they have families of their own and his parents are too old and they do not have money to assist him.

16. He claims he is not qualified and could not earn money himself and he said that the country is in a recession. The applicant stated that the family are facing financial difficulties and one brother is unemployed. He explained that his family in Australia are angry at him and will no longer help him because of the biological issues he has raised with his sister about her son whom he believes is also his son.

17. The Tribunal asked the applicant to explain about his mental health issues. He said that he was in [Country 1] when he was diagnosed in [year]. The doctor was a Nigerian and was more harmful to him. He was hospitalised for 18 weeks and then was taken on a plane and sent back to Nigeria. He claims he cried as he left.

18. He said that he was ignorant of his health situation when he returned to Nigeria and stopped taking medication and he had many relapses. He said that every two months he would be taken to hospital and their version of treatment was to tie him to his bed. He said it was hard. He claims he was forced to take an overdose in hospital and he was paying $5000 each week for treatment. The Tribunal asked the applicant who paid for his medical costs and he said that he had no idea who paid. Most of the dollars he received were from his sister in Australia he thinks.

19. He claims his sister will no longer pay because of the issues he has outlined about her son whom he claims is his and he would like to arrange for him to obtain a DNA test.  He also stated that he is dating someone and his sister doesn’t want him to marry her. He said her name is [name] and she is from [a named country]. He met her when she came to his work two years ago and she lives in [location]. He explained that they keep in touch online.

20. The applicant stated that his mother is old and if he returned and she had to care for him it would break her heart. He then asked the Tribunal to remember the issue about the biological brothers. He then stated that they are not biological and that his sister would like to break him down. He said that his sister is [an occupation] and turned into a witch and turned dark. It was affluence and her degree.

21. The applicant stated that he was working for 4 hours and his friends from the night shift were conspiring against him and he was accussed of assaulting an elderly woman. He said he received a summary charge of assault and [a legal centre] assisted him.  

22. The applicant stated his father is a member of the ROF and tried to initiate the applicant. He claims to fear harm from members of the ROF because he did not take up this position. The applicant detailed an event when he tried to ensure his father’s safety by bringing him a special apple which he ate and it saved him. He said that his father is protected and he knows the secrets.

23. The Tribunal asked the applicant to detail his experience pertaining to his mental health is Nigeria. The applicant said that those who suffer from mental health suffer from the stigma.  

24. He said that he was being treated at one point and had an annoying nurse who was looking after him. She restrained him and then he went to urinate and he passed out. He said that treatment was substandard as was the medication.

25. He said that he now knows the truth about his children. He explained that the last time he was at his sister’s house his nephew tried to communicate with him. He said that he was wearing blue jeans and had consciously copied the applicant who was wearing the same. He said that the Pastor at his church told him he had children and he said he can see three children clinging to his body.

26. The Tribunal asked the applicant to clarify further his profile with the ROF. He said he was identified by his father as being the heir apparent.  Because he did not marry he learnt secrets of the fraternity over the years and explained that is why he will be and has been targeted.

27. The Tribunal asked the applicant if there were any further reason he was unable to return to Nigeria and he said that he would not have access to mental health treatment and he would be unable to work.

28. The Tribunal put the following concerns to the applicant and representative:

29. It was not clear to the Tribunal why his other brothers could not take over as head of the ROF. It also stated that it had concerns that there does not appear that the Nigerian government had any intent to withhold medical treatment for the applicant and he has clearly articulated that he has received some treatment albeit in the applicant’s mind ineffective. The Tribunal also explained that the claims outlined by the applicant pertaining to ROF and OPC are not supported with detail sufficient to support his claims. Finally, by the oral provided it appears as if the applicant’s family would support him if he needed assistance with medical support and money as they have in the past.

30. The Tribunal provided the applicant with two weeks to provide further submissions and a response.

    Claims and Evidence

31. The Tribunal has before it a range of material, including, relevantly:

    ·     A letter dated 18 November 2013 from [Health Centre 1] stating the applicant was a resident at the psychiatric facility from [August] 2013 to [October] 2013 and was diagnosed with a schizoaffective disorder since the 1990s and has experienced a relapse and that the symptoms include persecutory delusions of a distressing nature, poor concentration, poor sleep, disorganisation and poor judgement. It outlined that stress may also make the applicant deteriorate.

    ·     A medical report dated 24 January 2017 stating that the applicant has a bipolar affective disorder. It outlined the medication the applicant takes and confirmed that should he cease his medication there would be a high probability of developing psychotic symptoms.

    ·     Attached to the medical report is a case closure statement outlining the applicant’s diagnosis and that he has fortnightly injections and explaining that he was experiencing delusional beliefs that his sperm had been used to father his sister’s children and he was requesting DNA evidence. It outlined he had stalked a fellow student and that he believed he was the father of her child through IVF and he believed that when she asked him to buy her white socks it meant she was a virgin.

    ·     A post hearing submission summarising the applicant’s claims namely, that the applicant fears persecution including assault, kidnapping, torture and or death at the hands of the Reformed Ogboni Fraternity (ROF) and the Oodua People’s Congress and other armed groups.

    ·     The applicant claims he is imputed with a political opinion in opposition to the ROF and the OPC and is the son of a member and leader of the ROF and leader of the [Clan 1]. Furthermore his family members belong to the ROF and/or,

    ·      He fears harm as a returnees from a western country and or failed asylum seekers

    ·     He claims to be a member of a particular social group, namely people suffering from mental illness and believes he faces harm from society more generally and that the authorities do not and cannot protect him.

    ·     He claims that relocation is not possible because his health is an issue wherever he lives in Nigeria.

    ·     A letter from his church attesting to his commitment and membership to the church.

    ·     Screen shots of email conversations with family members indicating a fractured relationship.

    ·     A letter from the applicant’s friend supporting the argument he has a fractured family relationship.

    Country of reference / receiving country

32. The applicant claims to be a Nigerian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

33. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    FINDINGS AND REASONS

34. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

35. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

36. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

37. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

38. The Tribunal noted the applicant appeared to have come to Australian as a genuine student having enrolled in a course  and made a protection visa application seven months into his course. The Tribunal notes that the applicant visa had a further fifteen months validity. It also notes that the applicant had a pre-existing mental health condition which has required ongoing treatment and which forms part of his claims.

39. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

40. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

41. The Tribunal acknowledges that the applicant did not declare his mental health issues on his visa application and this does detract from the applicant’s credibility. However, overall the applicant provided consistent evidence and whilst it was at times unbelievable, the Tribunal is satisfied that it was not due to credibility but rather his profound mental health issues and it cannot impute anything adverse into its assessment of the genuineness of his claims on this basis in all of the circumstances.

    Medical Conditions

42. The Tribunal considered and took account of the various medical reports and opinions submitted in support of the applicant’s claims.

43. The Tribunal, having interviewed the applicant at hearing and reviewed the medical reports accepts the profound state of the applicant’s mental health disability.

44. The Tribunal accepts that the applicant suffers from Bipolar Affective Disorder and psychotic symptoms and would be perceived as having a mental illness based on his behaviour.

    Political Opinion

45. The applicant claims he is imputed with a political opinion in opposition to the ROF and the OPC and is the son of a member and leader of the ROF and leader of the [Clan 1]. He also claims his family members belong to the ROF. He fears persecution including assault, kidnapping, torture and or death at the hands of the Reformed Ogboni Fraternity (ROF) and the Oodua People’s Congress and other armed groups.

46. The applicant’s evidence at hearing lacked sufficient detail. His oral evidence was mixed with thoughts which were clearly affected by his mental health. As such the Tribunal has progressed to assess the applicant against his claims pertaining to his mental health and has chosen not to make findings against his other claims.

    Country Information DFAT report Nigeria

47. The representative submitted numerous pieces of country information, which the Tribunal considered in addition to the DFAT Report dated 9 March 2018.

48. The DFAT Report[1] notes that:

    [1] DFAT Country Information Report Nigeria, 9 March 2018 paragraph 2.21

    Mental health issues remain highly stigmatised in Nigeria, with many families hiding conditions or blaming family members’ mental illness on curses or witchcraft. DFAT is aware of several cases in rural areas of individuals suffering from a mental illness being chained and/or caged in churches or dwellings.

49. It further notes that[2]:

    ….health care and services within Nigeria are extremely limited, stating that "access to and availability of quality medical services are inadequate, with most Nigerians unable to afford health care.

50. The United States Department of State: Nigeria 2016 Human Right Report[3] notes that:

    ….Nigeria suffers "serious human rights problems', including discrimination based on disability[4], and states that persons with disabilities faced social stigma, exploitation, and discrimination, and relatives often regarded them as a source of shame. Many families viewed children with disabilities who could not contribute to family income as liabilities and sometimes severely abused or neglected them. Many indigent persons with disabilities begged on the streets. Persons with intellectual disabilities were stigmatized, sometimes even within the community of persons with disabilities.

    [2] Ibid, paragraph 2.16

    [3] United States Department of State: Nigeria 2016 Human Rights Report, at pages 36 – 37

    [4] Ibid, page 1

100.   Akhidenor[5] refers to the Report on the Implementation of the Convention on the Rights of the Child by Nigeria (2005), stating that:

"...people with disabilities are the least cared for, and discrimination against them is widespread both within the family and in society: 'They live on the margins of society, often ignored, neglected, and mistreated; they remain targets of abuse and exploitation.'"

[5] Charles D Akhidenor, Nigerians' Attitudes Toward People with Disabilities (Doctor of Philosophy Thesis, Capella University, 2007)

101.   A 2017 online article published on This Day entitled 'Ending Discrimination against Persons with Disabilities'[6] notes:

"On Saturday March 21st 2015, President Muhammadu Buhari, the then presidential candidate of the All Progressives Congress (APC) pledged during a Town Hall Meeting in Lelia, Nasarawa State, to end discrimination and stigmatisation against physically challenged Nigerians if elected into office.

He said at the time, that with over 20 million Nigerians living with disability, there was no way he would abandon their welfare and interest if elected as President, adding that every obligation expected of a legitimate social contract in the Bill on Persons with Disabilities will be squarely tackled so that they will have a sense of belonging in his government and the society In general.

But fast forward to December 2017 President Buhari has served for two years plus, yet he has not fulfilled that cardinal campaign promise of signing the Bill of Persons with Disabilities passed for the third time by the Nigerian Senate in June 2016.

In fact, Nigerians living with disabilities have continued to lose their sense of belonging in the society, as growing stigmatisation and discrimination persist, living them at the mercy of what the society and government think of them."

[6] 'Ending Discrimination Against Persons with Disabilities', THIS DAY (online), 7 December 2017 <  In that same article it is noted that the Executive Director of a non-governmental organisation, Disability Rights Advocacy Centre (DRAC), considers that in Nigeria:

"...most stigma and misconception about disabilities have some religious roots, and therefore urged religious leaders to disabuse the notion that disability is a punishment from God."

103.   The author of 'A review of Stigma and Mental Illness in Nigeria' (2015)[7] published in the Clinical Journal of Case Reports, outlines that there is widespread stigma associated with mental illness in Nigeria. Armiyau states:

"….the misunderstandings of society about the various mental disorders results in stigma..."

"Stigmatization deprives victims of mental illness their full measure of human dignity and participation in wider society by undermining social support and compromising opportunity for treatment. And this is done by individual and Institutional discrimination resulting from misconception, prejudicial stereotypes and negative public and professional attitudes about mental illness."

"A national survey on stigma and mental illness among nursing professionals in Nigeria conducted in the six geopolitical zones of the country by Obeme et al. reported that 40% of their studied population viewed mentally ill individuals as violent, 26.5% would distance themselves from the mentally ill and a third associated mental illness with lack of self-discipline and will power but generally they held less negative views about mental illness. Another study conducted by Abasiubong on stigmatizing attitudes towards the mentally ill in a Nigerian university teaching hospital among the hospital population found that 52% of the respondents believed witches were responsible for the causation of mental illness, 44.2% thought it was due to demon possession, and close to one third felt it was due to the consequences of divine punishment The respondents generally held strong negative views about the mentally ill. Most of the respondents believed being authoritarian and restrictive in their attitudes towards the mentally ill and placing emphasis on custodial care is the best approach to treatment".

"Several individuals within the general public/communities assume that persons with psychotic disorders are unpredictable and incapable of being managed, even by the best efforts of the health system, and therefore are considered a threat to the social order and to public safety"

'There is wide spread stigma and discrimination among the mentally ill in Nigeria even in populations that are expected to be enlightened in their aspect"

[7] Aishatu Yushau Armiyau, 'A Review of Stigma and Mental Illness in Nigeria' (2015) 5(1) Clinical Case Reports 1,1.

104.   The authors of 'Religion, culture, and discrimination against persons with disabilities in Nigeria' (2016)[8] published in the African Journal of Disability provide that stigma associated with mental illness in Nigeria stems from ancient belief mythology. Further Etieyibo and Omiegbe note that people with mental illness are killed in rituals and are at risk of being kidnapped. Etieyibo and Omiegbe state:

"A number of beliefs in respect of disability have been Isolated in the literature on disability in Nigeria. Abosi and Ozoji  (1985), for example, note that beliefs about disability are attributable to different factors such as witchcraft, sex, God, the supernatural and juju... Okafor (2008) has also recognised another aspect of disability beliefs. He notes that 'some local ancient mythology has it that people with disabilities are social outcasts serving retribution for offences of their forefathers."

'People with mental illness are killed as part of rituals, practices that flow from various beliefs that people hold about disability. Many who hold negative beliefs about persons with mental illness claim that their hands are unclean (Omiegbe  1998, 2001)."

"According to reports in some Nigerian newspapers, a number of missing persons (many of which include persons with disabilities) in various cities and communities in Nigeria are kidnapped, trafficked and killed for rituals (Next.com News Report 2009). In one report presented by Odejobi (2010), individuals who were fortunate to escape from their kidnappers recounted stories of how people that were kidnapped were killed for ritual purposes. Such ritual killings have either a personal or a communal dimension [ie, done in order to cleanse the community from some sin or evil claimed to have been committed by people with disabilities or other community members (Nigerian Tribune News Report 2011]. Given this common knowledge, persons with disabilities for the most part live, eat and sleep in fear (Odejobi 2010). In support of these reports about the killings of people with disabilities, Emmanuel Ojukwu, the public relations officer for Nigeria police force, in an interview with the news Agency of Nigeria, made the point that many kidnapping cases in Nigeria result in the dismemberment of bodies for rituals (Next.com News Report 2009)."

[8] Edwin Etieyibo and Odirin Omiegbe, 'Religion, Culture, and Discrimination Against Persons with Disabilities in Nigeria' (2016) 5(1) African Journal of Disability 1, 2-3.

105.   The mentally ill in Nigeria also fall prey to 'reformers' who attempt to heal individuals but in fact cause death through dangerous procedures. A story of a 'reformer' attempting to heal a mentally ill patient was reported in Roads and Kingdoms in the article 'Medicine Men'(2013).[9] The article states:

"IBADAN, Nigeria-A-He Mojeed thinks of himself as a reformer. After he welcomed me to the offices of his Olaiya Naturalist Hospital in lbadan, Nigeria, he led me to a small, windowless room where a patient was shackled to a rusty engine block, recovering, as Mojeed put it, from "head surgery" Three days earlier, Mojeed had used a razor blade to make a long incision in the patient's scalp, then filled the gash with herbs in order to allow malevolent spirits to escape through the wound,"

"Back in his room, Mojeed's patient was sprawled out on a mat across the entrance, using his arms to shield his head as he slept. A chain around both ankles left him enough slack to sit up and face the street or to run and lean against the wall. Beside him, his mother sat silently, smiling. She planned to stay with her son at Mojeed's hospital for the next two months."

"Whether they're Christians, Muslims, or animist complementary providers (medical jargon for traditional and faith healers), they are present in nearly every community in the country. In lbadan, Nigeria's second-largest city, a single Muslim healer operates a facility that houses twice as many patients as the only psychiatric ward in town."

[9] Rowan Moore Gerety, 'Medicine Men', Roads & Kingdoms (online), 29 November 2013 <  The Washington University Global Studies Law Review 'Mental Health Legislation and Involuntary Commitment in Nigeria: A Call for Reform' (2011)[10] notes that in Nigeria:

"Many families that find their relatives' mental health issues too difficult or expensive to handle at home simply pass the responsibility to the prisons, creating a class of persons known as "civiI lunatics." Instead of obtaining treatment at hospitals or mental health institutions, these "civil lunatics" are jailed in asylums within prisons, generally receiving no treatment".

Oliver Lewis (previously the Executive Director of the Mental Disability Advocacy Centre and currently a Barrister in the United Kingdom and a Professor of Law and Social Justice at the University of Leeds) reports that,[11] representatives from the Nigerian prison service, the Attorney General's office and the Ministry of Justice:

“….gave numerous examples of how people with disabilities are discriminated against in various settings, including by their own families at home, in healthcare facilities, on the streets, in police lock-ups and in prisons."

[10] Andrew Hudson Westbrook, 'Mental Health Legislation and Involuntary Commitment in Nigeria: A Call for Reform' (2011) 10(2) Washington University Global Studies Law Review 397, 398

[11] Oliver Lewis, 'Nigeria's Lunatic Laws and Evil Spirits: What Place for Human Rights?' on Oliver Lewis, Oliver Talks (6 March 2013) <  Lewis then provides that:

"Workshop participants were unanimous in their view that even educated people in Nigeria believe that madness is caused by the devil (I use the term 'mad' rather than using illness or disability terms to avoid either the suggestion that madness is viewed by the average Nigerian as a medical defect or a social phenomenon). People who have mad thoughts or exhibit mad behaviour are thought to be possessed by evil spirits, and thus the cure is to ensure that the spirits leave the possessed person's body Spiritual healers therefore beat the affected person to drive out the evil spirit, or shackle the person and deprive them of food or water, The fact that this practice involves inflicting physical and mental violence on another human being is seen, at best, as a minor inconvenience."

108.   Lewis further states:

"A disability activist at the roundtable gave an example of a traditional healer who burned a child's legs and then cut them off in order to cure some ailment"

109.   The US State Department 2012 Country Reports on Human Rights Practices — Nigeria[12] states:

"The constitution and law prohibit discrimination based on community, place of origin, ethnic group, sex, religion, or political opinion; however, the government did not enforce the law effectively. The constitution prohibits discrimination based on the circumstances of a person's birth. However, the constitution does not explicitly prohibit discrimination based on disability"

[12] United States Department of State, above n 1, 25.

110.   The same US State Department report notes:

"The constitution does not prohibit explicitly discrimination based on disability; however, it prohibits discrimination based on the circumstances of one's birth. No laws prohibit discrimination against persons with physical, sensory, intellectual, or mental disabilities in employment, education, air travel and other transportation, access to health care, or the provision of other state services. At year's end the president had not yet signed into law a disabilities bill passed in 2007 that sought to ensure education and accessibility for persons with disabilities."

111.   The US State Department Country Report on Human Rights Practices 2009, Nigeria, released on 11 March 2010[13] states:

"There are no laws that prohibit discrimination against persons with physical or mental disabilities in employment education, access to health care, or the provision of other state services. There are no laws requiring physical accessibility for persons with disabilities.

[13] United States Department of State, above n 2, 29.

112.   The Freedom House 2010 Countries at the Crossroads,[14] published on 7 April 2010, Nigeria Report states that:

"Nigeria signed the UN Convention on the Rights of Persons with Disabilities in 2007 but has not yet ratified it. Disabled people continue to face stigmatization in society, with social and economic barriers forcing many to resort to begging. While state governments such as the Lagos State government have made a concerted effort to empower the disabled by allocating funds to organizations devoted to disabled advocacy and assistance, the challenges facing disabled people remain substantial. In March 2009, the Senate passed the Discrimination against persons with Disabilities (Prohibition) Bill which bans discrimination against the disabled, establishes a requirement that public organizations provide access into their buildings, and imposes fines for violations of the law."

[14]Freedom House, Nigeria (2010) 11-12 <

113.   On 24 September 2010, Nigeria ratified the UN Convention on the Rights of persons with Disabilities. The Nigerian Government was due to provide a report of the UN Committee on the Rights of Persons with Disabilities (the Committee') by May 2012. To date the Nigerian Government has failed to provide a report to the Committee.[15]

[15] See, e.g. United Nations High Commissioner for Refugees, Reporting Status for Nigeria <  Sango notes that:

“regardless of the large number of people with disabilities in Nigeria, little support, if any is given to individuals living with disabilities.”[16]

Support is usually provided by the families of the disabled:

"... due to the limited resources allocated to social agencies (e.g social workers, carers etc) and the lack of robust legislation currently safeguarding the rights of people with disability in Nigeria, the social care provision system in Nigeria resumed the traditional African system of support via families, charities, and religious communities."[17]

"Although charities and/or families take on the responsibility for the social support of a person with disability, these support systems are however limited or non-existent due to the stigma attached to disability within the society, as these individuals are often seen as a disgrace to their families, for example by neighbours and relatives. As a result people with disability are subject to neglect and isolation. In extreme cases, for example, these individuals are abandoned to become homeless/living on the streets; or family members keep them indoors away from public notice or institutionalise them, especially the wealthy families, in governmental institutions."

"In addition to stigma and negative attitudes, the most common problem associated with the poor social care situation for the disabled in Nigeria is the lack of recognition and financial support social agencies faced in Africa, particularly in Nigeria... Lack of financial resources also means lack and/or inadequate means of communication, record keeping or visiting individuals and groups in need of support, specifically those residing in rural areas where most of the vulnerable population live."[18]

"Although the limited disability awareness initiated by individuals and non-governmental organisations (such as Abike Dabiri-Erewa), prompted the promulgation of the Nigerian with Disability Decree (1993); however the provisions postulated by the Decree, such as free regular medicine and medical care, free education, transportation and subsidized housing for the disabled in Nigeria has not yet come into fruition."[19]

[16] Precious Sango, 'Visible But Invisible: People Living With Disability in Nigeria' on Precious Sango, Books2Afilea (13 November 2013) < Ibid

[18] Ibid

[19] Ibid

115.   Akhidenor[20] describes the negative plight of people with a disability living in Nigeria, and particularly those who do not have family support:

"Generally, families bear the brunt of caring for the disabled throughout their lives. Those who cannot stay with their families are usually ostracized and their legal rights, including the right to live peacefully, are threatened because of the general misconception that disabled people are either fiends or witches not worthy of human status. Thus, they often become homeless because of poverty and/or shame. According to Okafor (2003), people with physical disabilities in Nigeria have a heavy psychological burden due to social deprivations coupled with their struggle for economic survival".

[20] Charles D Akhidenor, Nigerians' Attitudes Toward People with Disabilities (Doctor of Philosophy Thesis, Capella University, 2007)

116.   A study into the disability services available in Nigeria found that:[21]

"….for the vast majority of disabled people living in Nigeria, particularly those living in rural areas, there is no access to disability services whatsoever".

[21] Raymond Lang and Lucy Upah, &aping Study: Disability Issues in Nigeria (2008) 6-7

117.   The Tribunal is persuaded by the strength of the country information considered above. It accepts that Nigeria offers little, if any, support to disabled people.

118.   The Tribunal is satisfied that access to and availability of quality medical services are inadequate, with most Nigerians are unable to afford medical care.

119.   The Tribunal accepts that care for the disabled is by and large left to the families of the disabled, and it notes further that the applicant has alienated his family by way of claiming his sister impregnated herself with the applicant’s semen and that her son is also the child of the applicant.

120.   The applicant provided in his submissions emails from his family. The emails displayed a family and particularly his siblings as being angry and unwilling to support the applicant. The applicant would be alone in Nigeria. Whilst the Tribunal is of the view the applicant’s parents may care for him, the Tribunal notes that life expectancy is low at 53 years for men and 55 for women and the applicant is in [age range] already so his parents may not be in a position to care for him for an extended period of time.

121.   It was apparent to the Tribunal when the applicant delivered his oral evidence that he had a mental illness. His recollection of events and claims were consistent, stated in a clear and definitive manner but were at times unbelievable.

122.   Given the applicant is a person with a diagnosed and medicated mental illness, if he is returned to Nigeria, the applicant will be targeted and persecuted based on his mental health.

Conclusions and Findings

123.   The Tribunal accepts that on the basis of his diagnoses and presentation at hearing and his oral evidence and on the basis of the country information above, there is a real risk and chance that the applicant will be perceived by the Nigerian populace to have a mental illness.

124.   Having concluded that the applicant would be regarded as such a person in Nigeria, the Tribunal has considered the representative’s submission that the applicant is a member of a particular social group, namely being a person in Nigeria who is imputed as having a mental illness.

125.   The representative has submitted that:

·     the applicant is a member of a particular social group;

·     the applicant's membership of the particular social group is the essential and significant reason for the persecution;

·     the persecution feared involves serious harm to the Applicant

·     the persecution feared involves systematic and discriminatory conduct; and

·     there is a real chance that, if the Applicant returned to Nigeria, he would be persecuted for reason of his membership in the relevant particular social group.

126.   The Tribunal has considered the application of s5L of the Act as to whether the applicant is a member of a particular social group. A characteristic must be shared by each member of the group; the applicant shares, or is perceived as sharing, that characteristic and that characteristic is:

·     An innate or immutable characteristic;

·     So fundamental to a members identity or conscience, the member should not be forced to renounce it;

·     The characteristic distinguishes the group from society;

·     AND the characteristic is not a fear of persecution.

127.   In Morate v MILGEA Lockhart J said:

“The interpretation of the expression “particular social group” calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons. …

In my opinion for a person to be a member of a “particular social group” within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognizable or cognizable group within a society that shares some interest or experience in common.”[22]

[22] Morato v MILGEA (1992) 39 FCR 401 at 416.

128.   The Tribunal accepts, that in the case of the applicant:

·     The characteristic of a mental illness is shared by each member of the group;

·     the applicant shares the characteristic of serious ongoing mental health and is prone to psychotic episodes. He is perceived as sharing the characteristic of mental illness due to these conditions;

·     the characteristic is innate and immutable characteristic to the applicant; it is internal to him, and he has no ability to change it as a medical condition. The doctors have indicated that his current condition is medicated but not likely to improve over time. His psychotic episodes are characterised by verbalised illogical thoughts and as such this distinguishes the applicant and others with this characteristic from society at large;

·     the applicant is perceived as sharing the characteristic due to his illogical and unbelievable thoughts and beliefs which the Tribunal noted that even when medicated he portrayed;

·     The characteristic of mental illness is cognisable as a group in society and further distinguishes the group from society at large.

129.   The Tribunal is satisfied that the fact that the applicant is a person with a mental illness, or is imputed to have a mental illness, is the essential and significant reason for the feared persecution in Nigeria.

130.   The Tribunal is satisfied that the persecution involves serious harm to the applicant.

131.   Under subsection 5J(5), serious harm can include:

·     a threat to the person’s life or liberty;

·     significant physical harassment of the person;

·     significant physical ill treatment of the person;

·     significant economic hardship that threatens the person’s capacity to subsist;

·     denial of access to basic services, where the denial threatens the person’s capacity to subsist; and

·     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

132.   The Tribunal considered country information and has found that Nigeria offers little, if any, support to people with mental health issues. The Tribunal has found that access to and availability of quality medical services is inadequate, with most Nigerians unable to afford medical care. The Tribunal accepts that care for the mental disturbed is by and large left to the families of these people, and it notes further that the applicant will have limited family support in Nigeria. The applicant would potentially be alone if returned to Nigeria.

133.   The Tribunal has considered the applicant’s medical conditions, need for ongoing medication and the possibility that as he has done in the past, he may not continue taking his medication or he may not have access to the type required. It has accepted the medical reports and opinions submitted by the representative in support of the applicant’s claims of suffering from a mental illness. The Tribunal has accepted the profound state of the applicant’s mental health and also his previous experiences. The Tribunal accepts that the applicant suffers from Bipolar Affective Disorder and has portrayed psychotic symptoms.

134.   The Tribunal accepts that the applicant has a well-founded fear of the following types of serious harm, on the basis of this:

A threat to his life or liberty, significant physical harassment and/or ill treatment.

135.   The violence and abuse is a result of the stigmatisation caused by the belief that he is severely mentally ill and the stigmatisation of persons with mental health issues. This stigmatisation and discrimination of these particular social groups often results in severe abuse, violence, and physical harm, as noted in the country information extracted above.

136.   In addition, the recent DFAT report supports the view that persons may believe that, due to the applicant's mental illness, the applicant is cursed or has been involved in witchcraft. Therefore, the applicant could fall victim to being chained and/or caged.

137.   The nature and type of the applicant's medical conditions mean that his actions (through no fault of his own) regularly cause misunderstandings and disputes (for example, in the case of his claim that his nephew is his son). Given the stigmatisation and discrimination suffered by mentally ill people in Nigeria, and the likelihood of being perceived as affected by witchcraft, there is a strong chance that these types of disputes may result in abuse and severe violence against the applicant.

138.   The applicant has limited personal or family support in Nigeria who could shield him from this type of violence.

Denial of access to basic services

139.   The applicant requires numerous amounts of daily medication to manage his mental health or he has a very high probability of developing psychotic symptoms greater than that which he lives with on a daily basis.  

140.   The relevant country information notes that persons with severe mental illness are subject to significant discrimination, isolation, and stigmatisation. The country information further notes that health care and services in Nigeria is relatively limited in scope, and requires significant financial resources to access.

141.   The applicant whilst medicated clearly suffers from mental health issues which are evident when you speak with him.  Because of his health issues, his capacity to decipher what is real and not has alienated him from his family and as such he would have limited support in Nigeria to assist him in accessing what little support services for persons with mental health exist in the country.

142.   On his return to Nigeria, he is likely to be isolated and alone, shamed and discriminated against due to the fear and stigmatisation that attaches to persons with mental illness.

143.   The applicant is highly unlikely to receive any kind of assistance from the local community to assist him in accessing the type of services he will require as a minimum to secure the basics of subsistence: food, shelter, and health care. Without some form of assistance, the applicant is likely to become homeless, without access to food and the critical ongoing health services he will need to survive.

144.   As a homeless person, he will be much more likely to be subject to threats to life, physical harassment or ill-treatment.

145.   The Tribunal is satisfied that the persecution feared involves systematic and discriminatory conduct.

146.   As per the Refugee Law Guidelines, 'systematic conduct' requires "more than situations of random violence of which the applicant was the victim". The Refugee Law Guidelines further state that "if victims of persecution have been targeted because they belong to a prescribed category, for example, a particular race or religion, that targeting is by nature discriminatory"[23]

6   [23] Department of Home Affairs, Refugee Law Guidelines, paragraph 11.5.

147.   The applicant will be targeted because of his membership of the particular social group described above. The applicant will be specifically targeted for the harm described above due to his personal characteristics, specifically his inability to at times decipher between reality and fiction. These characteristics will be immediately evident to any person who speaks to the applicant, however without medication or with a change in the type of medication it may and is highly likely to become more apparent.

148.   Mason CJ in Chan v MIEA[24] observed that various expressions have been used in other jurisdictions to describe a well-founded fear - ‘reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility.’ The term ‘real chance’ was preferred because it conveyed the notion of a substantial chance, as distinct from a remote chance, of persecution occurring. “Real chance” is a substantial chance, as distinct from a remote or far-fetched possibility. It may be below a 50% chance. A fear can be well-founded without any certainty, or even probability, that it will be realised. A real chance is one that is not remote, regardless of whether it is less or more than 50%. A real chance does not weigh the prospects of persecution, but equally, it discounts what is remote or insubstantial.

[24] At p389

149.   The Tribunal is satisfied, after having considered all of the country information referred to above, that there is a real chance that if the applicant was to be returned to Nigeria, the applicant will be killed, severely injured or physically harassed by members of the community and/or prevented from accessing basic services, that affect his capacity to subsist.

150.   The Tribunal is satisfied that this harm will occur as a direct result of the applicant's membership of a particular social group (as a person with a mental illness).

151.   Given the country information referred to above, it is clear that the likelihood that the applicant will suffer harm due to his membership of the particular social groups is not remote or insubstantial, is not a conjecture or a far-fetched possibility. Instead, given the nature and severity of his medical conditions, and the discrimination and abuse that persons with mental illness receive in Nigeria, it is in fact more likely than not that the applicant will suffer serious harm were he to return to his home country.

152.   The Tribunal has considered whether the applicant could obtain, from an authority of Nigeria, protection measures in Nigeria. The independent country information set out above indicates a high level of corruption, inaction and inefficiency in Nigeria’s criminal justice system.  Considering the country information and the country information submitted by the applicant’s representative, the Tribunal finds that the applicant would not be able to access a level of state protection in Nigeria in accordance with the principles of MIMA v Respondents S152/2003.

153.   The Tribunal accepts that the applicant's mental  characteristics make him a particularly vulnerable person within the Nigerian state, who would be wholly and completely unable to access and avail himself of any form of effective State Protection in Nigeria, when and if he needed to do so.

154.   The Tribunal is satisfied that there is no evidence that the circumstances that will confront the applicant should he be removed to Nigeria would be any different in any particular location within the country. The Tribunal is satisfied that in terms of access to services, the situation is similar across the country. The applicant has previously experienced some treatment options which have included having him tied to a bed and being provided with a limited and non-effective range of medication and this will not be improved through relocation to another part of Nigeria.

155.   The Tribunal further accepts that due to these same severe mental impairments, it is neither reasonable, possible nor practicable for the applicant to relocate to another area of Nigeria in order to avoid the harm. He has limited personal or family support in Nigeria, and would be face further stress in taking the steps required to relocate to a different location in Nigeria which could exacerbate his condition. The Tribunal notes that the applicant has undergone prolonged and intensive mental health treatment in Australia and was residing in a mental health treatment centre in Victoria at the time of making his protection visa application.

156.   Accordingly, the Tribunal is satisfied that the real chance of persecution does relate to all areas of the receiving country.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

157.   Having concluded as it has above, the Tribunal has not had to consider whether there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Nigeria.

Refugee Criterion

158.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reason of membership of a particular social group. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.

Complementary Protection

159.   The Tribunal has not had to consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria that there is a real risk that he will suffer significant harm.

Conclusion

160. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

161. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Rachel Westaway
Senior Member