1512488 (Refugee)

1512488 (Refugee) [2019] AATA 6798 (16 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512488
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Rachel Westaway
DATE:16 September 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 16 September 2019 at 10:18pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – race – Igbo tribe – imputed political opinion – Movement of the Actualization of the Sovereign State of Biafra – Indigenous Peoples of Biafra – fears being beaten, killed, detained or tortured by Nigerian government and security forces – well-founded fear of persecution – real chance of persecution throughout country – safe relocation within Nigeria not reasonable – some claims embellished to enhance protection application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant C v MIMA [2001] FCA 229
Kola v MIMA [2001] FCA 630
Kola v MIMA (2002) 120 FCR 170
MIMA v Applicant C (2001) 116 FCR 154
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
WAGH v MIMIA (2003) 131 FCR 269
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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nigeria, applied for the visa on 25 November 2013 and the delegate refused to grant the visa on 4 September 2015.
The applicant appeared before the Tribunal on 14 February 2017 to give evidence and present arguments. The Tribunal heard the matter and given the period of time which passed since the hearing, has reviewed the audio of the hearing again prior to making the decision.
This is a review of that decision by the Administrative Appeals Tribunal. The Tribunal must consider whether the applicant meets the refugee or complementary protection criteria in the Act.
In coming to a decision, the Tribunal has considered the evidence before the Department of Immigration and this Tribunal, as well as relevant independent country sources. A summary of the evidence, findings and reasons is set out below.
RELEVANT LAW
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
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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
The applicant made the following claims in his protection visa application in an attached [statement].
·     He is from the Igbo tribe in the south east of Nigeria. They are a marginalised group of people and have suffered brutality as a result of war. His people have been homeless. They seek to be a sovereign state and independent. The Igbos in agitating for a sovereign state were at war with the Nigerian Government. The war ended in 1967 however the Tribe was affected badly by the war. He claims the Nigerian government have tortured, killed and seized properties.
·     He belongs to a peaceful group called MASSOB (Movement of the Actualization of the Sovereign State of Biafra). They seek to peacefully lobby for independence.
·     He joined in 2007 as a student. He became [an official] in [Unit 1] of the Enugu Province.
·     The group received threats, maltreatment, torture; indifference and killing from the Nigerian government and some people have been detained. Properties have been seized and livelihoods taken away.
·     He claims to be a member of MASSOB is like having a death warrant from the Nigerian Government.
·     On 20 January 2009 he attended a rally organised at Michael Opkara Square in Enugu Province to release detained members. However they were forcefully dismissed by the government security agents who shot their guns in the air as a warning. Many were wounded.
·     As the applicant is [an official], he states that he has faced confrontations and attacks which have nearly taken his life.
·     [In] 2010 known security came to his home and completely searched it for MASSOB documents. They did not present search documents or ID. He was beaten until he fainted. They left as they thought he was dead.
·     [In] 2011 two vehicles carrying security agents drove to his house and raided it. He sustained a bullet [wound].
·     [In] 2012 they returned but he was not there. They tortured his brother and mother and went through his home looking for MASSOB documents.
·     On 11 November 2013 they were attending an EXCO meeting in Onitsha and they were attacked by the government’s killer squad – four members were killed and 80 people sustained injuries. They were denied medical attention due to lack of police medical permit.
·     [Later in] November 2013 he made a call to a fellow [official] and found out that the police are looking for [officials] dead or alive and hence he is seeking protection.
In support of his application, he provided [Document 1, from an independent source]. The [document] explained that [the applicant] is a supporter of MASSOB, a peaceful movement dedicated to Igbos who are a marginalised group and whom occupy South East Nigeria and who want independence from Nigeria. [The document also stated that the applicant joined] in 2007 as a student, [that] the group has continued to receive threats, maltreatment, torture, indifference and [killing]. [It] also claimed he was an [official] of MASSOB’s [Unit 1] and in 2009 he attended a rally to release their members from prison but were forcefully dismissed. [It] also [states that in] 2010 [the applicant] was beaten by security personal at [his home] and they searched the home for papers and left when they thought he was dead. [It] further states that in 2011 his [family members] were tortured when people visited the house looking for him but he was not there. In 2013 [MASSOB’s] members were attacked in Onitsha and four people died and more than 80 were injured and this prompted [the applicant] to seek protection in Australia.
The delegate accepted that the applicant was a member of MASSOB however did not accept the applicant’s evidence that he was targeted in demonstrations relying upon country information regarding regular members of MASSOB. The delegate did not accept the [information] supplied by the applicant based on country information confirming the high rates of document fraud and the [document’s details] which mirrored the applicant’s claims. The delegate expressed concern about the applicant’s inability to explain why the applicant would be of interest to the authorities.
[Photocopied] articles were also provided at hearing and these included Amnesty International articles and links to articles dated 2016 which reported that the Nigerian Military opened fire and killed supporters of IPBO. Another UNHCR article outlined the politics of BIAFRAN and the ongoing issues supporting the view that IPBO supporters are targeted by government. An undated document from the Immigration and Refugee Board of Canada was supplied outlining what MASSOB members have faced and their treatment at the hands of the government and bribery.
The following articles were supplied and considered by the Tribunal in the context of the applicant’s claims:
·     [Document 1, from an independent source, that claims the applicant] will be harmed because he is a Member of MASSOB.
·     [A newspaper article] referring to the applicant as an Australian based activist who was appealing to the current government to release prisoners including the IPBO leader. (Original paper supplied). The article appeared to appeal to the government for fair treatment of supporters of MASSOB and IPOB (Indigenous people of Biafra).
·     The Guardian, 8 November 2016, “Armed men injure DPO” (An article claiming MASSOB was behind the attack)
·     The Guardian, 8 November 2016, “Uwazurike restates Commitment to actualise Biafra”
·     The Guardian, 9 November 2016, “Govt re-arraigns IPOB’s Nnamdi Kanu, three others” (an article covering the Leader of IPOB who was before the courts charged with treason and illegal possession of fire arms).
·     The Guardian, 24 November 2016, “60 shot dead in two days over Remembrance Day)
·     The Guardian, 24 November 2016, “150 Prop-Biafra activists killed, says Amnesty”
·     The Guardian, 25 November 2016, “S East senators seek probe into killing of IPOB members”
·     The Guardian, 30 November 2016 “MASSOB Chiefs task Buhari on killer herdsmen”
·     The Guardian, 30 November 2016, “IPOB accuses govt of launching military operation against members”
·     Saturday Telegraph, 7 January 2017, “Biafra: IPOB alleges plot to poison Kanu” (regarding a conspiracy between Britain and the Nigerian Government to kill their leader
·     New Telegraph, January 11 2017, “Uwazuruike to testify against Kanu” (an article demonstrating the tensions between IPOB and MASSOB)
·     Saturday Telegraph, 14 January 2017, “IPOB: Why FG cannot win case against Kanu”
·     New Telegraph, 16 January 2017, “IPOB plans mega rally for Trumps Inauguration” (a planned rally)
·     Saturday Telegraph, 21 January 2017, “IPOB MASSOB: allege shooting, killing of members”
·     The Guardian, 21 January 2017, “One Killed, journalist, Others Injured as IPOB Rally Support for Trump, Kanu in Rivers”
·     Sunday Telegraph, 29 January 2017, “Change Strategy – Igbo groups tell Kanu”
·     New Telegraph, 18 November 2017, “Ohanaeze backs IPOB, MASSOB for Kanu’s release”
The applicant applied for review of the delegate’s decision and supplied the Tribunal with a copy of the decision.
Issue
The first issue in this case is for the Tribunal to determine whether the applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2) (well-founded fear of persecution). Specifically, the applicant claims to fear persecution in Nigeria because:
·He is a Nigerian of Igbo ethnicity
·He is a supporter of the Movement for Actualization of the Sovereign State of Biafra (MASSOB) and joined the Indigenous Peoples of Biafra (IPOB) movement in Australia.
·He fears being targeted by police and security agencies in Nigeria because he is a MASSOB supporter.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
He applicant was born in the south east of Nigeria. He was [age] at the time of the hearing. In his protection application he described himself as a Catholic Christian from the Igbo tribe.
In reviewing the application, the delegate had some concerns about aspects of the applicant’s evidence. In particular the delegate questioned the credibility of the applicant’s evidence regarding the applicants claimed profile however did accept that the applicant was a member of MASSOB. The applicant has since provided further evidence to address these concerns.
At hearing, the applicant explained that he works as an [Occupation 1] [number of] hours a fortnight.
He confirmed that he is [age] and single however he stated he has an Australian girlfriend. He has no family who live in Australia.
He explained that prior to coming to Australia he attended an EXCO meeting in Onitsha on 11 November 2013 and they were attacked by the government’s killer squad – four members were killed and 80 people sustained injuries. They were denied medical attention due to lack of police medical permit.
He came to Australia [in] November 2013 on a [temporary visa]. He came to Australia to attend a [conference] regarding [a certain subject] and he was representing his [employer]. He was the only employee from that organisation attending and he explained that he was employed as a [Occupation 2] and had worked there for three years in a full time capacity. He described his role as middle-management. The conference was for [number] days and he intended to stay for [number] weeks.
On [a day in] November 2013 he made a call to a fellow [official and] found out that the police are looking for [officials] dead or alive and hence he is seeking protection.
He explained that he was told there was an incident targeting MASSOB members and he was aware he was a person of interest and police were looking for him. He explained that he did not know anyone personally that was injured or killed in the incident but he called to find out details. He explained that it was like jungle justice and it was random but anything could happen to members. Based on his concerns about the security situation he decided to apply for protection. On 25 November 2013 he applied for the visa which is the subject of this review. He was lawful when he applied for protection. He confirmed he has not travelled anywhere else since applying for protection.

The applicant confirmed he has maintained an interest in MASSOB and has written articles whilst in Australia. The applicant presented an article to the Tribunal as evidence of his ongoing involvement. He said he writes often but not all articles are published.
He stated he has called [a specified media organisation] on a program where people speak their mind. He stated that he called at the beginning of last year. There was a regular time slot and people can call in and speak their mind. He said he called because members are treated badly and are sent to jail without a fair trial.
The applicant was asked if he mixed in Australia with supporters of MASSOB and he said he did not. He said that whilst his family are supportive, they are not members or active like he is. He said that he became involved as a student when he was at university in 2007. He was asked how many members of MASSOB were at his university. He said he could not recall but clarified that it wasn’t on campus. He explained his initial involvement and said that he went to a meeting and registered and he had to assist with campaigning and recruit people. He claims that he spoke to lots of people. He said that he managed to secure 30 members during this time. He explained that MASSOB is a political group seeking independence for the state and it wasn’t successful and the mission is to control the sovereign state.
The applicant spoke with clarity and detail regarding MASSOB. He outlined his involvement and explained that he took on more senior roles in 2008 after the election. He said that this was for [Unit 1] which had [number] members. He said that [he] held the position until he came to Australia in 2013.
He was responsible for [specified tasks].
He attended regular monthly meetings and on call meetings and devoted approximately three evenings a week to the organisation. There was a fortnightly meeting [where] they would plan demonstrations or discuss tip offs or potential financial sponsors. When asked where they would meet, he said that there were never permanent places in order to remain safe so they would move around to avoid attacks. He was asked what would happen to him if he was caught and he said that they would attack them, arrest and detain them and they would be shot.
The applicant was asked to outline to the Tribunal his concerns and examples of when he was targeted.
He said the first time he recalls an incident was in 2009 when he attended a rally and security agents and police fired guns in the air and protesters ran for safety.
He explained that in 2010 he was attacked in his home. People came looking for documents. He said he was beaten and fainted and the perpetrators left because they thought he died. He explained it occurred quickly and could not clearly recall who was at his home except for his mother. He said that he woke up in hospital. The Tribunal asked the applicant if he recognised the perpetrators but he stated he did not.
The applicant provided an account of the news articles he supplied to the Tribunal and explained that in one instance, MASSOB members were detained and then they were killed and their bodies were disposed of in the river.
The applicant explained that in 2011 he was attacked again in the same house. He explained that there were two vehicles carrying security agents. They bashed in the door and then he ran away and hid. They attempted to shoot at him and he claims a bullet grazed his foot. The Tribunal put to the applicant why he remained in the house when he had been identified and targeted. He said that harassment is common in Nigeria. He said people are harassed regularly in order to discourage them from doing the things that others oppose. He said the attackers were after details of sponsors and members of MASSOB. He explained he was known as a MASSOB member and that he believes someone gave them a tip off as to where he lived.
The applicant was asked about the structure of the group and he explained that there was a Chief who is the founder and then there is an information officer and general executive and directors of provinces and then the unit in which the applicant operates is duplicated based on the bigger structure.
The applicant confirmed that he had met the chief. The applicant was able to name people on the executive and told the Tribunal he had met some because they are invited to the monthly meetings.
The Tribunal asked the applicant if he retained documents from his work and the meetings he attended. He explained that minimal information was in writing to avoid being exposed. Occasionally there would be correspondence. The Tribunal asked if he keeps [certain] records and he confirmed he did.
The applicant was asked to explain any further attacks and he spoke of the incident in 2012 when he was not at home. He said that they visited again and his mother and brother were there and they were ‘tortured’ for not giving information to them about the applicant. The Tribunal asked the applicant to provide clarity on what he meant by tortured and he said they were not physically hurt but harassed and were asked to provide information on the applicant. He said he was at work that day and only learnt about it on his return.
The Tribunal explained that it finds it unusual that his family would not call him and warn him and he would only find out on his return from work. He said he was at work and there are no personal phones permitted.
The applicant outlined to the Tribunal that in 2013 at [a] meeting in a house in Onitsha, he experienced another attacked by twenty or more police and security agents. He believes there was a tip off. He said that there were more than one hundred people from different units and it was a general meeting. He said he was inside when it happened. He said that he fell when he was running but was not hurt in the attacks. He said that four people from another unit to his were killed but many were hurt. The applicant does not know them by name. He explained that he knew it was dangerous to attend and to stand up for what he believes in but he can’t give up his fight for a sovereign state. He said he feels it is unsafe to return to Nigeria.
The applicant was asked if he could recall who has taken over [his role] however he could not. He was asked about the documents which appear to be the reason why he was targeted and where they were kept. He confirmed that the [documents] were moved regularly to other places. He said that every 24-72 hours they would move the documents from place to place and rotate between members houses.
The applicant said if he talks for a long time he can get confused or experience a headache. It can start or stop at any time. The Tribunal acknowledged that the applicant had provided evidence of his health issues and offered an adjournment.
When the hearing resumed, the Tribunal put its concerns to the applicant explaining that it expected that he would be able to provide more specific details regarding the first attack such as who was at his home at the time. He said he was unconscious and the beating resulted in a brain injury and he forgets things and can only outline what he remembers. He said he forgets how things happened. He confirmed that the brain injury and its effect on his memory have never been tested but stated that he experiences a loss of memory at times.
The Tribunal explained that it found some of his explanations pertaining to specific events implausible. For example why he would return to a home where he has been targeted. He reiterated that he such harassment is common in Nigeria. The Tribunal stated that he initially said that his mother and brother were tortured but later explained they were not physically injured. In response he said he it was psychological torture. He claimed it is mentally torturing to stare at guns.
In assessing the applicant’s claims the Tribunal has had regard to DFAT’s most recent country information report, which provides the following relevant information:
Igbo
The Igbo people constitute 18 per cent of Nigeria’s total population and are one of the most politically influential groups in Nigeria. Some Igbo have campaigned for an independent state since 1999.
The Igbo originate in south-eastern Nigeria and live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. Many Igbo have migrated to other areas of Nigeria including northern states. The Igbo speak a number of Igbo dialects. They are predominantly Christian.
There are no legal provisions directed towards the Igbo population in Nigeria. The Igbo are able to participate in political, social and cultural life in Nigeria without interference. The Igbo, like all Nigerians, are able to move freely within Nigeria.
The Igbo have faced attacks from Boko Haram in the middle belt and northern states of Nigeria. In January 2011, forty Igbo people were taken from a bus and killed after the bus had entered a predominantly Muslim area in the city of Jos in Plateau State. In November 2011, Igbo residents in the middle and northern states of Plateau, Kaduna, Nasarawa, Niger and Borno evacuated to the south in response to attacks by Boko Haram. However, there are no recent reports of Igbo specifically targeted due to their ethnicity. Past attacks have been opportunistic, isolated and infrequent. DFAT assesses the Igbo people do not face societal violence on a day-to-day basis in Nigeria.
Movement for the Actualization of the Sovereign State of Biafra (MASSOB)
Formed in 1999, the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) campaigns for the independence of the Igbo people in the southeast region known as Biafra. The organisation reflects a lingering Biafran secessionist sentiment that has continued to exist since the end of the Nigerian Civil War (also known as the Biafran War) in 1970. MASSOB members are commonly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo.
Clashes between members of MASSOB and Nigerian security forces have occurred from time to time since 1999 and the federal government has threatened to ban the group on several occasions, most recently in June 2013. The current leader of MASSOB, Ralph Uwazuruke, has been arrested on at least four occasions while participating in MASSOB events. Uwazuruke was arrested in September 2005, for participating in a Biafra Day ceremony, along with six MASSOB deputies on charges of treason. Uwazuruke remained in custody for two years during a protracted bail hearing in the High Court. Most recently arrested in 2011, Uwazuruke was released shortly after on order of President Jonathon.
Government security forces have previously injured, arrested and killed MASSOB supporters participating in protest rallies. In June 2013, local media reported that government security forces killed ten individuals during a MASSOB protest in the southern state of Anambra. The Nigeria Police Force claimed security forces had acted in self-defence after attempting to stop the protesters from looting local businesses.
Factional fighting has plagued the MASSOB during the past two years, with the creation of splinter movements such as the Biafran Zionist Movement. However, the splinter groups have not been particularly successful or influential in building mass popular support.
DFAT assesses that individuals associated with MASSOB live free from violence and discrimination on a day-to-day basis, however individuals participating in protests face a low risk of being arrested or injured by security forces. Leaders may face a higher risk of arrest when engaged in MASSOB events.
The Indigenous People of Biafra (IPOB)
The Indigenous People of Biafra (IPOB) also seeks the creation of a Biafran state. The Nigerian government on 14 October 2015 detained the leader of IPOB, political activist and Radio Biafra Director Nnamdi Kanu. He was released on bail in April 2017. Since August 2015, members and supporters of IPOB have held a series of protests, marches and gatherings. According to an investigation published by Amnesty International in November 2016, Nigerian security forces killed at least 150 peaceful activists between August 2015 and 2016. Biafra Remembrance Day on 30 May 2016 saw the largest number of deaths when an estimated 1,000 IPOB members and supporters gathered for a rally in Onitsha, Anambra State. Amnesty International found that security forces killed at least 60 people on this occasion. IPOB and MASSOB themselves claimed that 2 000 people had died, while 750 people were missing. Another 567 people went to different hospitals for related injuries.
IPOB has led a resurgence of independence protests in the southern region of Biafra in recent years, some of which have degenerated into violence. In 2016, police killed 17 protesters and arrested 100 IPOB supporters during demonstrations that Amnesty International described as ‘peaceful’.
DFAT assesses that individuals associated with IPOB do not face official violence on a day-to-day basis; however, individuals participating in Biafran protests, particularly on Biafran Remembrance Day, face a high risk of violence by security forces during protest activity.
In 2016 Amnesty International provided a comprehensive report on the crisis brewing in the southeast of Nigeria, where IPOB campaigns for an independent state of Biafra. Amnesty International reported that President Buhari has repeatedly expressed his opposition to Biafran independence. Amnesty International reported:
Since August 2015, the security forces have killed at least 150 IPOB members and supporters and injured hundreds during peaceful assemblies. The exact number remains unknown because the government has not independently investigated any of these incidents.
By far the largest number of pro-Biafra activists were killed on 30 May 2016, Biafra Remembrance Day, during events to mark the 49th anniversary of the declaration of the Republic of Biafra, when an estimated 1,000-plus IPOB members and supporters gathered for a rally in Onitsha, Anambra state. The night before the rally, a joint security force task force raided homes and a church where IPOB members were sleeping.
Amnesty International has documented seven incidents in which Nigeria’s military and police used arbitrary, abusive and excessive force to disrupt gatherings. In some cases the military and police were assisted by the DSS and other security agencies. In all of these cases, the research found a worrying pattern of arbitrary arrests and excessive use of force by Nigeria’s military and police.
The government’s response to pro-Biafra activism has been to subject people to fear and silence. Relatives of those killed are mostly too frightened to speak out and accept that they will not find out what happened to their loved ones. As more IPOB leaders are arrested in their homes, the climate of fear is growing. Some of those arrested have been tortured or otherwise ill-treated. Others face treason charges, which carries the death penalty. Those who are lucky enough to be released come out traumatized and in fear of state surveillance.
The security forces have arrested hundreds pro-Biafra activists. In addition, DSS has arrested eight IPOB coordinators; some at IPOB events and others at their homes. While some have been released, many others were charged with treason, which carries the death penalty under Nigeria law. Amnesty International was not able to confirm the exact number of people who have been arbitrarily arrested and detained in connection with the Biafra independence campaign in various parts of southeast Nigeria.
Many of the people arrested after IPOB events have told Amnesty International that they were beaten or subjected to other forms of ill-treatment. Some were tortured in detention. In addition, there is a consistent pattern of the security forces denying injured victims medical treatment.
More recent country information documents an escalation of tension with the Nigerian government officially naming IPOB a terrorist organisation. Specifically, in September 2017 the Nigerian military launched an operation called ‘Python Dance II’ with the intention of crushing separatist aspirations ‘once and for all’ with 60 supporters of the Biafran separatist movement being imprisoned by court order and charged with conspiracy, terrorism, attempted murder and membership of an unlawful society.[1]
FINDINGS AND REASONS
[1] David Goggins, ‘Biafran Separatist Movement in Nigeria’, Refugee Documentation Centre, The Researcher Vol.12 Issue 1, November 2017, p.25.
Findings of fact
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
Taking a reasonable approach to findings on credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2]
[2] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992
This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal is guided by these decisions, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility[3], both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[3] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal has considered carefully the overall consistency and coherency of the applicant’s account, as truthful witnesses often present coherent, consistent and detailed accounts of events. The Tribunal notes, however, that psychological research on memory of trauma[4] indicates that inconsistencies, fragmentation of memory and lapses in memory do not necessarily reflect lack of veracity in relation to recalled events. The Tribunal notes that the applicant had particular regard to the Tribunal’s Guidelines on Vulnerable Persons[5], as the applicant has said that he has memory lapses from the head trauma he experienced. The Tribunal accepts that the applicant’s mental state may have impacted on his evidence.
[4] Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, 2012 26 Applied Cognitive Psychology 661
[5] AAT, Migration and Refugee Division , Guidelines on Vulnerable Persons, available on the AAT Website, type="1">
The applicant arrived in Australia [in] November 2013 on a [temporary] visa. On 23 November 2013 he applied for protection. The Tribunal is mindful of the delay that exists between when an applicant comes to Australia and when they apply for protection. The fact that the applicant has sought protection on arrival into Australia does not necessarily support his claims but it does not detract from his credibility.
Findings of fact in relation to the applicant’s political activities
The Tribunal is satisfied that the applicant is a Catholic male from the south east of Nigeria and belongs to the Igbo Tribe. There is nothing before the Tribunal to dispute these claims and the applicant was able to speak persuasively and with detailed knowledge of his people and their struggle.
The Tribunal accepts that the applicant was a member of MASSOB (Movement of the Actualization of the Sovereign State of Biafra) and protested for independence when he was in Nigeria. The applicant demonstrated a detailed understanding of MASSOB and the history of the Igbo people and their treatment by the Nigerian Government. He explained without embellishment his role as [an official] of [Unit 1] of the Enugu Province. On 14 February 2017 the applicant sent the Tribunal a further statement detailing the issues raised by the Tribunal at hearing. These include the likelihood that there would be a document which authorities would want from the applicant. The applicant outlined his role as [a specified official] and also the details which would be included in [certain documents]. He specified details of [supporters] including government officials and captains of Industry and explained that their identities should never be disclosed or they would face persecution or loose contracts. He explained that this provided the impetus to obtain the [document]. The Tribunal accepts the applicant’s claims pertaining to his membership of MASSOB and his [position] as [an official] based on his detailed account. The Tribunal finds that the applicant’s profile would be enhanced as [an official] within MASSOB and notably the Enugu Province in which he operated.
The applicant has claimed that his membership of MASSOB has affected his employment opportunities within [his employer] and he has been denied promotions and incentive. The Tribunal has considered the applicant’s claims in this regards and does not accept them. The Tribunal notes the applicant was permitted to attend the conference which brought him to Australia and has also considered country information whereby DFAT assesses the Igbo people do not face societal violence on a day-to-day basis and that individuals associated with MASSOB live free from violence and discrimination on a day-to-day basis.
Whilst the Tribunal does not accept the applicant was discriminated against from an employment perspective, it does acknowledge that DFAT assesses individuals participating in protests face a low risk of being arrested or injured by security forces and that leaders may face a higher risk of arrest when engaged in MASSOB events. Given this information, the Tribunal accepts that the applicant was part of a rally by MASSOB in 2009, when police shot at protesters and dispersed them.
The Tribunal has considered the applicants claims of security personal searching his home, looking for him and looking for documents and attacking him and his mother and brother. The Tribunal put to the applicant its concern regarding the plausibility of someone repeatedly returning home given the number of attacks he claims to have experienced in his home and why his family did not contact him to warn him about visits by security forces looking for him. The Tribunal is not satisfied with the explanation and limited detail provided by the applicant regarding the claimed attacks. It is implausible that the attack in 2010 resulted in the applicant being beaten so badly unknown security thought he was dead. The applicant provided no medical evidence of his injuries and was unable to recall who was at his home at the time. The Tribunal believes it reasonable for the applicant to be able to source such medical evidence given his family are still in Nigeria. He further changed his statement regarding the gunshot wound in the claimed 2011 attack and stated that his foot was grazed but the bullet did not go through. This inconsistency in specific details causes the Tribunal to doubt the veracity of these claims. In the attack in 2012 he claims his brother and mother were there and were tortured. However he then stated they were not physically harmed and explained he meant they were tortured psychologically. The Tribunal is concerned that this claims appears to be embellished for the sake of his migration claims. He also claims his family did not warn him of the search and torture they endured because they could not contact him at work on his mobile. The Tribunal does not accept this explanation as reasonable and they could have attended his work or called the land line in such an emergency where his safety may have been threatened. In the context of country information available to the Tribunal and the applicant’s explanation as to the documents and information in those documents he was privy to, the Tribunal accepts that the applicant would have a profile that came to the attention of authorities and that it is reasonable that his home would be searched for documents and that security personal would have carried guns and threatened the applicant, his mother and/or brother. The Tribunal does not accept that the applicant was physically harmed to the degree that he was beaten and considered dead or that he sustained any form of bullet wound. The Tribunal finds that the applicant embellished these claims to enhance his protection claims.
Although the Tribunal finds that the applicant has not been personally harmed in the past the Tribunal notes that the test for determining refugee status is forward looking and must not only assess the persecution the applicant has suffered in the past but also the likelihood of the applicant suffering persecution in the reasonably foreseeable future. The Tribunal has considered the country information above pertaining to pro-Biafra activists. It confirms security forces have arrested hundreds pro-Biafra activists at events and others at their homes and they have been arbitrarily arrested and detained in connection with the Biafra independence campaign in various parts of southeast Nigeria. Some were beaten or ill-treated and other tortured in detention.
The applicant provided numerous examples of his ongoing involvement as an activist in Australia. The Tribunal accepts that the applicant would make contact with MASSOB members and continue his involvement in protests if he were to return to Nigeria. Having regard to the applicant’s profile and activism the Tribunal finds that there is a real chance that he would voice his opposition to the Nigerian government if he was to return to Nigeria in the foreseeable future.
The Tribunal further finds that there is a real chance of the applicant coming to the adverse attention of the Nigerian authorities which is heightened by the fact that he has been profiled in [documents] about his involvement in MASSOB and that he is critical of the Nigerian government and its treatment of protesters and leaders currently incarcerated in Nigeria due to their involvement in MASSOB. The Tribunal notes that the delegate was concerned as to the veracity of the [documents]. The Tribunal has given consideration to one [document] which was written in an identical fashion to the applicant’s protection application. The delegate also noted this and relied on country information which reported on the degree of fraudulent documents in Nigeria. However, the Tribunal notes that the [nature of the document meant it] would logically be consistent in its content with that of the applicant’s claims. The Tribunal cannot be satisfied that it is not a genuine document and by all accounts it appears to be. Furthermore at hearing, the applicant provided the entire [document] about the applicant and mentioning his name. Additional [documents] were also presented in their original form and vary in their [details] on the applicant and then more generally on the issues facing MASSOB members as well as the applicant’s contribution to [a named media organisation]. The Tribunal accepts the applicant was and is publically critical of the Nigerian government and is documented as a supporter of MASSOB. Furthermore, the Tribunal accepts that the applicant’s advocacy does not appear to have been developed simply to support his migration claims given the Tribunal accepts he has been a long tern supporter of MASSOB well before his protection application.
Having considered the country information and the applicant’s profile the Tribunal finds that there is a real chance that the applicant would face serious harm if he was to return to Nigeria in the reasonably foreseeable future because of his MASSOB membership and public opposition to the Nigerian authorities and his previous position as [an official]. He fears being beaten or killed or being arbitrary detained and tortured. The Tribunal finds that the applicant’s fear of persecution because of his imputed political opinion is well-founded.
In relation to state protection, the Tribunal finds that as the harm the applicant faces is at the hands of the Nigerian government and security forces, he will be unable to obtain protection from them. The Tribunal also finds that the real chance of persecution exists in the country as a whole and that safe relocation within Nigeria is not reasonably open to the applicant.
Third country protection
Having found the applicant meets the criteria set out in s.36(2)(a) of the Act, the Tribunal has considered whether the applicant has not taken all possible steps to avail himself of a right to enter and reside in any country apart from Australia: s.36(3).
Subsection 36(3) of the Act provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
The right to which s.36(3) refers is not merely a right to enter, but must consist of a right both to enter and reside.[6] The Federal Court has held that a ‘right to enter and reside’ as envisaged in s.36(3) must be a ‘legally enforceable right.’[7] The Australian courts have held that the right referred to in s.36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy.[8]
[6] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[7] Applicant C v MIMA [2001] FCA 229 (Carr J, 12 March 2001), Kola v MIMA [2001] FCA 630 (Mansfield J, 30 May 2001) at [36], upheld by the Full Federal Court in MIMA v Applicant C (2001) 116 FCR 154 and Kola v MIMA (2002) 120 FCR 170 at [63] respectively.
[8] [2001] FCA 1391 (Gray J, 2 October 2001).
Country information states that Nigeria is a member of the ECOWAS. There are 15 member states of ECOWAS including Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.
In May 1979 the member states of ECOWAS signed ‘Protocol A/P.1/5/79 Relating To Free Movement Of Persons, Residence And Establishment’ that formed the foundation for further steps to provide freedom of movement and residence within member states. Since the signing of this protocol, ECOWAS has gradually implemented a number of related (and supplementary) protocols over three phases that have outlined the legal requirements of member nations.
The delegate found that the applicant had an existing legal right to enter and reside in an ECOWAS country as holder of a Nigerian passport. However, the delegate did not consider the applicant’s substantive claims.
In theory the ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[9] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[10]
[9] ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.23 < ‘Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Liberia country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92317 < ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.42 <>
The Tribunal notes that although the ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, evidence also suggests that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment and extortion on the part of member states.
However, reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws.[11]
[11] ‘Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Ghana country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92316, pp.46 & 47 < ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.27 < ‘New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol’, United Nations High Commissioner for Refugees, 1 December 2007, CIS20876, pp.9 &11 <>
A UNHCR report provides the following information on the implementation of the ECOWAS treaty and protocols in practice:
Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[12]
[12] UN High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, p.86 <>
The UNHCR report continues:
At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds”….. The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[13]
[13] Ibid, p.87.
An April 2008 report from the Ghana News Agency, appearing on the Government of Ghana Official Website, refers to a meeting between ‘Representatives of civil society, the private sector and the media from the ECOWAS member-states’ held in Accra, Ghana, that attempted ‘to fashion out practical ways to stem harassment on the highways and borders within the region’. The report further commented on restrictions to ‘free movement’ between ECOWAS member states, such as ‘illegal barriers and roadblocks’, ‘the extortion of money from travellers’, ‘systematic racketeering’, and some ‘immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document’.[14]
[14] ‘Ghana Hosts ECOWAS Meeting On Border Harassment’, Ghana News Agency, 3 April 2008 <>
As stated above the delegate found that the applicant had a Nigerian passport and therefore was legally able to enter ECOWAS countries. According to the delegate’s decision the applicant provided certified photocopies of his most recent passport issued to him in Nigeria. The Tribunal also finds that the applicant’s passport expired on 8 March 2017.
The Tribunal notes that Article 3 of the Protocol Relating to Free Movement of Persons makes it a requirement of entry to any ECOWAS state that the applicant possess a valid travel document and international health certificate.[15] The Tribunal finds that without a current Nigerian passport the applicant does not have the right to enter or reside in any other ECOWAS country.
[15] Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, ECOWAS, 29 May 1979 >
The Tribunal is satisfied that the applicant does not have a right to temporarily or permanently enter and reside in any country, other than Nigeria and that s.36(3) does not apply in the applicant’s case.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
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

[2019] AATA 6798

16 September 2019

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