1606569 (Refugee)

1606569 (Refugee) [2019] AATA 5703 (8 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606569
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Roslyn Smidt
DATE:8 May 2019
PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2019 at 11:42am

CATCHWORDS
REFUGEE – protection visa – Nigeria – fears harm from Boko Haram – low caste status – Osu status– involvement with cult – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2), 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
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 on 6 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Nigeria, applied for the visa on 18 February 2015. The delegate refused to grant the visa on the basis that his claims lacked credibility.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
S438(1)(A) ISSUES
A document entitled Certificate and notification regarding the disclosure of certain information under s438 of the Migration Act 1958 is attached to the applicant’s file and states that it was contrary to public interest to disclose information held at folios 83 and 111 because they relate to internal working documents and business affairs. Both of these folios contain checklists relating to tasks to be performed by Department officers. In my view the Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. In any event, neither folio contains information of any relevance to issues before me.
ALLEGATIONS MADE TO THE TRIBUNAL
The Tribunal has received anonymous allegations which, in essence, state that the applicant is not estranged from his wife and is not at risk of harm in Nigeria for any reason. At the hearing I advised the applicant of the substance of these allegations. I also advised him that as I had no way of determining the motivation of the person who made these allegations or of testing their veracity I would not be giving them any weight.
BACKGROUND
The applicant is an [age] year old man of Igbo ethnicity and Catholic religion from Nigeria. He was born in Imo State but claims that he lived in Adamwa State from 1987 until about 1990 when he moved to Kastina where he remained until 2004. Following that time he moved between Kastina[1] and his residences in Imo and Abia State.
[1] Kastina State is located in the north west of Nigeria, about 1100 kilometres from Aba City in Abia State and about Ngor Okpala in Imo State. The population of Kastina state is mainly Hausa and Muslim. The population of Imo and Abia States is predominantly Igbo and Christian.
The applicant’s parents are deceased. He claims to be divorced from his wife. He has [number] children, all of whom were born in Imo state between [year] and [year]. At the hearing he said that he had not been touch with his family for about a year. He has [number] siblings, all of whom were born in Imo State. [Number] remain in Nigeria, one resides in Australia.
The applicant obtained a visitor visa on 19 November 2014 and arrived in Australia [in] December 2014. His applied for a protection visa on 18 February 2015.
CLAIMS AND EVIDENCE
Summary of claims
The applicant claims that he is at risk of serious or significant harm on return to Nigeria because of his work as a [Occupation 1] in his village which angered local villagers and Boko Haram; his status as a member of the Osu caste and his refusal to cooperate with members of an Ogboni cult.
Country information
Boko Haram is a radical Islamic movement that seeks to impose a strict form of sharia, or Islamic law, in northern Nigeria. It was initially a fringe movement, which provided social and financial help to Muslims, but transitioned into an insurgency in 2009 when tensions with government security forces escalated over the application of sharia law in the northeast states of Borno, Yobe and Adamawa.
Boko Haram has attacked individuals seen as supporting the government, including police, military and politicians; individuals seen as supporting ‘western’ concepts including secular education; and Muslims that do not support its cause. This violence has led to the internal displacement of as many as 2.5 million Nigerians and thousands have fled the north-eastern states of Borno, Yobe and Adamawa into neighbouring countries. Boko Haram members have also carried out occasional bombing attacks on churches in the south of Nigeria.
The government has deployed thousands of troops to Borno, Yobe and Adamawa States. In its 2017 world report, Human Rights Watch stated that military operations against Boko Haram intensified in 2016, with most areas controlled by the group recovered by security forces and a decline in civilian deaths from 3,500 in 2015 to 550 in 2016.
Female genital mutilation (FGM) is widely practised in Nigeria, particularly in southern states. The federal government publicly opposes FGM, but it has not criminalised the practice. The government has predominantly focused on public education campaigns run by the Ministry of Health. Several international and local NGOs are also working to reduce the practice in Nigeria, including the World Health Organisation, United Nations International Children Emergency Fund and the African Union.
Nigerian scholars returning from the United States in the 1950s introduced university or varsity cults, adapted from the US confraternity model. DFAT understands several ‘cults’ now have a presence in high schools as well as the streets, operating more like gangs rather than religious cults. Young men in particular are targeted to join cults for protection and because of peer pressure. However, many young men and women voluntarily join as cult membership can mean access to money and power. Membership generally involves a violent initiation, which can include beatings and rape.
According to a report prepared for the Canadian Immigration and Refugee Board in 2012[2] the Reformed Ogboni Fraternity was formed in 1918. It has a website on which it describes itself as a voluntary organization, "religious in character" and but not a religion. According to advice from an academic from the University of Birmingham the group draws on Christianity and traditional Yoruba practices. It is not a secret organisation and not involved in criminal activities. Other sources suggest that it is a powerful institution with considerable political influence in Yoruba communities. Some suggest that the true nature and extent of its activities is known only to members.
[2] Canada: Immigration and Refugee Board of Canada, Nigeria: The Reformed Ogboni Fraternity (ROF), including the nature of its belief system and its purpose; whether membership is compulsory, especially for children of members, and consequences for refusing to join the ROF; whether positions within the ROF are inherited, 13 April 2012, NGA104054.E.
The term Osu refers to people of Igbo who were traditionally considered outcasts. They were shunned by society, banished from communal land, banned from village life and refused the right to marry anyone not from an Osu family. These practices were banned in the 1950s. According to a BBC report[3], these traditions have weakened significantly over the past 50 years and the only trouble the Osu encounter is when they try to marry a non-Osu. However, the fear of social stigma remains strong. Most Osu’s hide their background, which appears to be relatively easy to do for those who reside in urban areas.
[3] BBC News Nigeria The story of Nigeria's 'untouchables', 7 April 2009 /2/hi/africa/7977734.stm; see also articles provided by the applicant.
Submissions to the Department
The applicant’s claims are set out in a statement dated 10 January 2015, a statement dated 15 February 2015 and handwritten note on his application form.
Statement dated 10 January 2015
This statement is somewhat confused and gives no indication of when any of the events it mentions occurred.
The applicant claimed that his family belonged to the Osu caste. He said that Osus are seen as evil spirits and cannot marry or even befriend anyone outside the caste. He claimed that he had run away to the Muslim north when he was [age] to avoid these problems. When he returned to Imo State he faced the challenges and discrimination associated with his caste and in order to protect himself he was forced to join the Ogboni cult.
The cult told him to bring his mother for sacrifice so that he could get a government appointment. They sent an evil spirit to kill his mother and also killed his first [child] when he was about to leave the cult. After he decided to leave the cult he was warned him that he would be killed if he left because he knew the cult’s secrets. In addition, members of the cult wanted to kill him because they believed that he had revealed that they were involved in killing one of their members who was gay.
The applicant [started a business] and the Ogboni cult took over part of it for their activities. He later discovered some of them were gay and they had engaged in gay activities at his [business]. People in the community began to accuse him of being gay because of his association with the group. His wife left him because of this.
Statement dated 15 February 2015
In a statement dated 15 February 2015 the applicant claimed that members of his local community and Boko Haram wanted to kill him because of his work as a [Occupation 1] for the [Employer 1] in [Location 1] which is [in] Imo State (the [Employer 1]). He said that he was put in charge of conflict resolution and his role involved working to end female genital mutilation (FMG) and negotiating for peace with Muslim communities following bombing of churches. He claimed that many members of his group had already been killed or kidnapped because of their involvement in this work.
The applicant claimed that he escaped death when the [Church] in [Town] [was] bombed [in] December 2011. He said that he was in Abuja on a family holiday and claimed that the attack had been triggered by his appointment as [Occupation 1] in [Location 1] and claimed that three of his members were killed.
The applicant claimed that one morning in October 2012 members of Boko Haram burned down his home and about 20 other homes in the area. He, wife and [children] nearly died during this attack. After the attack Boko Haram continued to search for him and he hid in the bush for seven days.
The applicant claimed that [in] June 2014 he and other members of the [Employer 1] were attending a function at the [Chapel] in [Location 2] in Imo state when Boko Haram attempted to bomb the church. He claimed that this was an attempt to kill him and other members [because] they were attempting to make peace between Christians and Muslims and also because he had revealed their hidden zone in [Location 2].
The applicant claimed that village heads and leaders arranged for him to be assaulted by area boys for his work opposing FGM after which he left for Australia.
The applicant claimed that he decided to come to Australia because there was about to be an election and it appeared that a supporter of Boko Haram was about to become the governor of Imo state, which would have made his situation worse.
The applicant claimed that he planned to leave from [a specified] Airport, but Boko Haram militants were blocking the road. He received information that they were searching for particular individuals they wished to kidnap, so he changed his flight and left from Lagos the following day.
The applicant said that he had hoped that the attacks against him would cease after he left Nigeria, but this did not occur. [In] December 2014 Boko Haram terrorists destroyed parts of his [business] and area boys from his village killed some men at his [business]. Then [later in] December 2014 his [relative] was attacked on his way to church and is now disabled.
Handwritten Notes on the application form
In addition to some of the claims set out above, these notes state that the applicant attended a [conference] in Kano [in] October 2013 which was attacked by Boko Haram who somehow obtained his name, mobile phone and home address. After that he received many threatening telephone calls. The notes also state that the people of [Location 1] rejected him as their leader because he was an Osu and that a group of militant boys kidnapped him and abused him in the forest for about seven days [in] May 2014
Supporting documents
The applicant provided a number of documents in support of these claims, including
·a newspaper article which states that [number] people were killed during an attack on [Church] in [Town] near Abuja [in] December 2011. The article states that this was one of many explosions in Nigeria around that time. It does not mention the applicant.
·a letter dated [December] 2013 from [Employer 1] which states that the applicant had been appointed to the position of [Occupation 1] for the [Location 1] Community.
·a letter dated [December] 2013 from [Employer 1] which states that an urgent meeting had been called following a report that the community was against the applicant. It states that the [Employer 1] is aware of the applicant’s situation in the local area and throughout Nigeria and urges him to stay protected and safe.
·a medical certificate issued by a clinic in Aba, Abia State dated[June] 2014 which states that the applicant was injured in an attack by an unsuspected individual and had been released after two weeks management.
·a letter dated [October] 2014 from [Employer 1] which states that following a meeting regarding a report from the community the [Employer 1] was unable to control the culture of the community. It notes that the Osu outcast system remains a problem.
·a photograph from a [Social media] page dated 2013 which includes an article and a photograph of two men, identified as an Igbo traditional priest and an Osu. According to handwritten notes these men are the applicant’s father and grandfather. The applicant claimed that he was present at the back of the photograph. The post provides a brief overview of the situation of the Osu in Nigeria.
·a newspaper article states that the six suicide bombers had been arrested after attempting to bomb the [Chapel] in [Location 2] in Imo state [in] June 2014. It does not mention the applicant.
·a photograph of what appears to be a small [business] with what could be some burn marks on the fence and photograph of what appears to be a motorcycle which has been burned
·a photocopy of an article entitled [Title] from a [magazine] dated [March] 2015. The article states that the applicant was subjected to kidnapping attempts and attacks and has been reported missing by his friends. It suggests that Boko Haram may be involved in his disappearance.
·a report [dated] [December] 2015 which states that the applicant had reported being psychologically affected by uncertainty regarding his protection visa application and fear of threats on return to Nigeria.
·a number of newspaper articles which report on Boko Haram activities including one dated [June] 2014 which states that Boko Haram was infiltrating west and south east of Nigeria and reports on explosions in Abuja, Lagos and Adamawa.
·two newspaper articles which mention the Ogboni group. One which states that an unnamed candidate for political office had been asked to disqualify himself because he was a member of a secret cult called the Reformed Ogboni Fraternity. The other reports on a man who said that the Ogboni cult had promised to make him wealthy, despite paying them significant sums of money over a period of fifteen years he had not become wealthy. The article stated that the man was angry and speaking out against the cult.
Delegate’s interview
The applicant was interviewed on 25 June 2015. I have listened to the recording of this interview. Much of his evidence was confused and difficult to follow. The following is a summary of the main points.
The applicant said that he had lived in Aba City in Abia State[4] for about ten years before coming to Australia. He said that he [started a business] in Aba in 2011 and managed that business until he came to Australia. He said that he had not held any other jobs during that time, but said that he had been involved in politics and had been appointed [Position 1] of his village community in [Location 1]. The delegate noted that the applicant’s visitor visa stated that he was a state government employee prior to coming to Australia. The applicant said that this referred to his position as a community leader, which was a paid position. The delegate noted that this was at odds with his earlier evidence that his only job was managing a [business]. He said that he had not mentioned his community job because he assumed it would be discussed later in interview.
[4] Aba City Abia State is located about 50 kilometres from Ngor Okpala in Imo State

The applicant said that he feared harm from the people in his village because of his Osu background and his involvement with the [Employer 1]. In addition, the Ogboni people wanted to harm him because they believed he would reveal their secrets and Boko Haram wanted to harm him because they objected to his involvement in anti-violence activities.
The applicant said that he was kidnapped in 2010 by unknown people and released when money was paid. He said that he did not know why he was kidnapped, but he believed it was done by the same group was responsible burning down his house in 2012 house.
The delegate noted that one of the letters from the [Employer 1] said that the community in his village was against him and asked why the community had opposed him. He said that the problems related to his Osu background, but also to his problems with Boko Haram.
The applicant said that he obtained his job as a community job with the assistance of Ogboni people who came to [his business]. He joined the group in 2012, but later they wanted to harm him because they believed he had or would reveal their secrets and because he had refused to take his mother to be sacrificed. He said that he had taken some of his mother’s blood to the group in January 2013 so it could be used to help him get a government job and she had been killed using that blood in December 2013.
The applicant was asked about his problems with Boko Haram. His responses were very confused. He said that he was targeted because of his work as [Position 1] of the [Employer 1] and also spoke about being contact with people from the south of the country who had moved to the north and communicating with Hausas in his village who were originally from the north. He said that local people wanted to kill the northern people and he opposed this.
When asked about his work on the [Employer 1] the applicant said that he would call people together and tell them about government plans and he had also been involved in meetings regarding the problems between the different communities in his area. When asked for details of these meetings he said that the first one had been held in Kano State, which is in the north of the country. It was a large meeting attended by people from all over Nigeria. The applicant said that he gave a speech which resulted in a misunderstanding after which members of Boko Haram attacked the meeting and he had to flee. He dropped his phone and it was picked by members of Boko Haram. After that he got a new phone, but kept that same number. He began to receive calls from people who accused him of causing problems at the meeting.
The delegate noted that the applicant appeared to have been appointed to the [Employer 1] in December 2013, which was after the Kano meeting and asked why he had been at the Kano meeting. He said that he had been appointed to [Employer 1] informally in 2011.
The delegate asked if the applicant had experienced any other problems with Boko Haram. He said that he had faced problems because he criticised Boko Haram slightly in Kano. He said that he had fallen down and injured his [body part] while he was running away from the group, but he had not faced other problems.
The delegate advised the applicant that she was aware that Boko Haram had attacked some churches and other targets in the south of Nigeria, but most of these attacks had occurred in the north and the attacks in the south were not directed at individuals. She observed that it appeared unlikely that the applicant had been targeted by the group. The applicant maintained that he was at risk of harm from Boko Haram throughout Nigeria.
Tribunal hearing held on 29 April 2019
The applicant confirmed that he had moved to Kastina when he was about [age]. He said that his father had died and he was having some issues with his community. Some of his brothers were already living in Kastina. His mother remained in Imo State. He returned to Imo State in 2004, but continued to travel to Kastina on business for a number of years. He said that he had many jobs between 2004 and 2011.
I asked the applicant about his place of residence and work between 2012 and 2014. He said that he mainly lived in Imo State, but his main work was managing a [business] in Aba in Abia State which he purchased in 2012. He also managed [another business] in Imo State. In addition he began to work [for Employer 1] on a voluntary basis in 2012 and was officially appointed as a [Occupation 1] in 2013.
I asked that applicant for more information about his work as a [Occupation 1]. He said he worked five days a week and his main tasks were passing information from the government to the people and telling the government about the problems and wishes of the people. I asked how he carried out this work. He said that he listened and sometimes held meetings. I asked him to tell me about the campaign against FGM mentioned in his earlier submissions. He said that he tried to enlighten people so that they would stop this practice. He held meetings in the community at which he told them it was a dangerous practice. He said that he was also involved in campaigns for peace and reconciliation which involved arranging meetings between Hausas and others in the community. He did this many times.
I asked the applicant when he first experienced problems in Nigeria. He said that he had been kidnapped by unknown people in 2010, before he worked for [Employer 1] and held until a ransom was paid about 8 days later. I observed that this appeared to be a common crime. He said that he believed it was because he is an Osu and he was having issues with his community who wanted to cut him down.
I asked the applicant if he had experienced any other problems before 2010 because he was an Osu. He said that his father was killed when he was young and he had problems before moving to Kastina. I asked if he had experienced any problems in Imo State between 2004 and the time he was kidnapped in 2010. He said that his life was threatened by masked people and sometimes he had to run away from his house. He said that this happened frequently, about once a week. Sometimes they beat him.
I asked if the applicant had experienced any other problems before 2010. He said that he was denied any rights in his village and claimed that his house in the village was burned down by local people in 2010. After that he lived in the bush for a time and then he went to stay with an Osu friend before moving to Aba.
I asked the applicant whether he had returned to his village after 2010. He said that he could not go to the village because of his problems. I advised him that I had great difficulty accepting that he would have been appointed to the position of [Occupation 1] [Employer 1] after the villagers had forced him out of the area. He said that he received the information that he needed for his work from a friend. I noted he had previously stated that he held meetings in the village. He said that he mostly worked through his secretary and sometimes “touched” the village. He said that he arranged meetings by telephone through his secretary and one of his friends attended these meetings. He said that he pretended he was at the meeting, but he never returned to the village after 2010.
I asked the applicant what problems he had faced after 2010. He said that his [business] in Aba was burned down in 2014 after he left Nigeria and he suspected that people from his village were responsible because they wanted to kill him.
I asked the applicant if he had experienced any other problems after he went to live in Aba in 2010. He said that he had attended a [meeting] involving Christian and Muslim Kano in about July 2013. He said that Christians from his village had been involved in organising the meeting. I advised him that I had difficulty accepting that Christians from his small village had been involved in organising such a meeting and that I also had difficulty accepting that he would have been sent to represent people from his village if they hated him. He maintained that his claims were true and added that only the indigenous people in his village hated him.
The applicant said that he had made a speech at the meeting and while he was speaking men with machetes started to attack him and others. He thought that they were from Boko Haram. He was cut on the [body part] and lost consciousness. When he regained consciousness he was some distance from the place where the meeting had been held and his phone and wallet were missing. After that he went back to Imo state immediately. He obtained telephone with the same number and received threatening telephone calls.
I asked the applicant if he had experienced any other problems between 2010 and this meeting in 2013. He said after he was expelled from his village and he had joined an Ogboni cult in order to protect himself from the villagers and Boko Haram. They told him that they could help him if he gave them some of his mother’s blood. He did this and then his mother got sick and died in late 2010. He believed he was responsible for her death.
I asked the applicant why he believed the Ogboni cult would cause him problems if he returned to Nigeria now. He said that said that members of the cult had threatened to kill him because he had threatened to expose their secrets. I asked what secrets he knew. He said that they had killed his mother. I noted that he had remained in Nigeria for several years after his mother died and did not appear to have experienced any problems. He said that from early 2010 members of the cult used to meet in his [business] for homosexual sex and in late 2010 or early 2011 he told them that he would expose their sexual activities. After that they stopped coming to his [business] and began to threaten him. I observed that it appeared he had not exposed their secrets and had not been harmed during the time he remained in Nigeria. He said that he had been in hiding, moving from place to place.
I asked the applicant if he had experienced any other problems before he attended [the] conference in 2013. He said that he could not remember any other problems.
I reminded the applicant that he had previously claimed that his house and about 20 others was burned down by Boko Haram in October 2012 and observed that he seemed to have forgotten this significant event. He said that his house had been burned down in 2012 and he suspected that members of his community were responsible.
I asked the applicant if he had faced any problems after the [conference] in 2013. He said that he had been kidnapped. I observed that he had previously claimed he was kidnapped in 2010. He did not dispute this, but said that he was harassed by unidentified people. Later in the hearing I noted that he had claimed in his earlier submissions that he was kidnapped in May 2014 and asked him to clarify this apparent contradiction. He said that he was kidnapped on two occasions, once in 2010 and again in 2014.
I asked the applicant why Boko Haram would wish to harm him if he returned to Nigeria. He said it was because of his speech at the conference in 2013 and also because his friend had spoken against Boko Haram on his behalf in meetings at the village. He said that people had come up to him in the street and told him he might be killed for speaking against someone, although they did not say who might harm him.
I asked the applicant if he had experienced problems because of Boko Haram. He said that in 2013 he was the target of a planned attack on a Catholic church in [Location 2]. I asked why he believed he was the target of this attack. He said it was because of his speech in Kanu. I asked how far the church was from his home and if anyone had gone to [Location 2] with him. He said that it was long way from his home and he had gone by himself. I reminded him that that he had previously claimed that he attended the church with other members of the [Employer 1]. I also noted that the newspaper article he had provided indicated that the attack was in June 2014, not 2013. I advised him that in light of these problems I had great difficulty accepting that he had been at the church [Location 2] on the day the suicide bombers were caught or that he was the target of the attack. He maintained that his claims were true and said that he believed he was the target of the attack.
I asked the applicant if he had been present during any other attacks by Boko Haram. He said that he could not remember any other attacks. I reminded him that he had previously claimed that he and his family had been present when [Church] in [Town] near Abuja had been bombed [in] December 2011 and that he had claimed that attack had been triggered by his appointment as [Occupation 1] and that three of his members were killed. He said that this was true. I advised him that I had great difficulty accepting this as he appeared to have forgotten the incident until I reminded him of his earlier evidence. I also advised him that I found it extremely unlikely that Boko Haram would have targeted him in 2011 because he had been appointed to [position]. He maintained that his claims were true.
I noted that the applicant had provided a medical certificate regarding an injury he sustained in June 2014. He said it related to treatment he had received following the attack by Boko Haram in Yobe State. I noted that he had previously stated that the conference was in October 2013. He said that this was incorrect.
I asked the applicant about his earlier claim that he had left Nigeria in part because he feared that a pro-Boko Haram government was about to be elected. He said that Rochas Okorocha, the sitting Christian Governor of Imo was supportive of Muslims and he did not think he would provide him with proper protection if he was re-elected. I observed that being supportive of Muslims did not mean he was pro-Boko Haram and advised him that I found it unlikely that was the case. He maintained that Mr Okorocha would not provide him with protection because of his views on Muslims.
I asked the applicant if he had experienced any problems on the way to the airport. He said someone had put up a road block and he feared it might have been Boko Haram. I observed that this appeared to be highly unlikely as while I was aware that Boko Haram had carried out some attacks on churches in the south it was not my understanding that they had a strong presence in Imo State or Abia State. He maintained that they were targeting him and his life was in danger.
I asked the applicant if he believed that the people who had put these road blocks were looking for him. After some confused discussion it was established that other drivers who had stopped were suggesting that the people who had put up the road block were looking for particular individuals and he believed that they were probably looking for him.
I noted that the applicant had claimed that Osus were rejected everywhere in Nigeria, but he had provided letters from the [Employer 1]in [Location 1] which suggested they were aware of his problems and were supporting him which suggested that this was not the case. He said that the government was aware of what was happening.
I advised the applicant that it was my understanding the Osu system had been outlawed in Nigeria and that many people with Osu backgrounds were able to live normal lives, with the possible exception of being able to marry outside the caste. The applicant said that the government had tried to end the system but could not eradiate it at the village level, which was where he faced problems. I observed that according to his evidence he had not lived in his village since 2010. I also noted that he appeared to have received a good education and to have operated businesses in Nigeria, which suggested that he had not faced serious problems because he was an Osu. He said that he had tried to avoid these problems without success and he would be in danger if he returned to Nigeria.
I noted that the applicant had provided a copy of an article from a magazine [which] set out some of his claims and said that he was missing. I observed that it seemed rather strange that the article would say he was missing when he was in Australia and his family and friends would surely have known this. He said a friend had given the information to the magazine and he could not tell them where he was. I observed that this article could have been manufactured by anyone with a computer and advised him that I doubted that the document was genuine. He maintained that it was genuine.
I asked the applicant to explain the significance of the photograph of the men he claimed were his father and grandfather. He said that it showed were Osu were kept. I asked when his father had died. He said that he had died about 20 years ago. I noted that the article which accompanied the picture he claimed showed his father and grandfather had been published in 2013 and asked why it would have included a photograph of his father who had died some years earlier. The applicant appeared unable to provide an answer. I noted that the photograph and article had been posted on someone’s [Social media] page and asked how he had found the article. He was unable to say whose [Social media] page it was or how he found the article. I advised the applicant that I had great difficulty accepting that the photograph showed his father and grandfather.
FINDINGS OF FACT
Employment in [Location 1] and fear of Boko Haram
Central to the applicant’s case is the claim that he faced problems with Boko Haram and people in his home village largely because of his work for the [Employer 1] in [Location 1] between 2011 and 2014. As set out below, his evidence regarding his employment and the problems it caused is confused, contradictory and much of it implausible.
In his written submissions to the Department the applicant said that he worked as a [Occupation 1] in [Location 1] from 2011 until 2014. In his oral submissions to the Department and the Tribunal he claimed that his main work from 2012 until his departure was managing a [business] he owned in Aba. During his interview with the delegate he said that the [business] was his only job and described his work with the [Employer 1] as political in nature, but changed his evidence when the delegate reminded him of his earlier statements.
When asked about his tasks as [Occupation 1] in [Location 1] during the hearing, the applicant spoke in general terms about listening to local villagers and arranging meetings, but failed to provide the level of detail which I would expect from someone who had been engaged in these tasks for a number of years. In addition, the claim that he listened to villagers and held meetings with them while working as [Occupation 1] is at odds with his later claim that he was driven out of the village in 2010 and never returned.
According to notes on his application form, the applicant was kidnapped and abused by a group of militant boys for about seven days [in] May 2014. According to the statement dated [February] 2015 village heads and leaders arranged for him to be assaulted by area boys because of his work opposing FGM. During his interview with the delegate he said he had been kidnapped by unknown people in 2010 and released after a ransom was paid. At the hearing he claimed that he had been kidnapped for ransom in 2010 and while he did not know who was responsible he was having issues with his community at the time because of his Osu background. When reminded later of the claim that he had been kidnapped in 2014, he claimed for the first time that he had been kidnapped twice.
According to information on his application form, the applicant’s house was burned down by Boko Haram in October 2012. During his interview with the delegate he said that he believed that the unidentified people who kidnapped him in 2010 were responsible for this. At the hearing he claimed for the first time that his house in [Location 1] was burned down by villagers in 2010, but said nothing about his house in Aba being burned down in October 2012 until reminded I him of his earlier claim, when he said that he believed members of his community were responsible for burning his house in Aba.

In his written submission to the Department the applicant claimed that he and his family had been present when [Church] in [Town] was bombed in December 2011 and that he and others from the [Employer 1] had been present when suicide bombers unsuccessfully attempted to attack the [Chapel] in [Location 2] in June 2014. He claimed that he was the target of both attacks and said that they were linked to his work for the [Employer 1]. At the hearing he repeated the claim that he had been the target of the attack on the [Chapel] in [Location 2], but claimed that it occurred in 2013 and said that he had been alone in [Location 2]. Despite being given ample opportunity to do so, the applicant made no mention of the December 2011 attack in [Town] until I reminded him of his earlier evidence.
The applicant claims that as part of his work for the [Employer 1] he attended a [conference] in Kano where he gave a speech with angered Boko Haram. He initially claimed that the conference was held in October 2013, but when he was asked about a medical certificate dated June 2014 at the hearing he changed his evidence and said that the conference had been held in 2014 and his earlier evidence was incorrect.
The applicant claims that he was targeted by Boko Haram because of his work supporting peace and co-existence while he was employed by the [Employer 1] and in particular because of his comments during the Kano [conference]. As set out in the country information section above, Boko Haram’s stronghold is in the northern Muslim majority areas. While the group has bombed churches in other parts of the country I am unaware of any evidence which suggests that they target people working for peaceful coexistence in their local community in mainly Christian areas such as Imo State or Abia State. In these circumstances, even if I accepted that the applicant was involved in promoting peace as part of his work for the [Employer 1] [which I do not], I find the claim that he was of particular interest to Boko Haram and that members of the group pursued, threatened or attempted to harm him while he was living in Imo State or Abia State to be far-fetched and implausible.
It is not uncommon for applicant’s to be somewhat confused about past events, particularly in stressful settings like Tribunal hearings. Furthermore, I acknowledge that comprehensive information on events in areas such as a Nigerian village may not be available and care should be taken when assessing claims relating to events in these areas. However, after considering all of the relevant evidence I do not accept that the problems with the applicant’s evidence arose for either of these reasons. I believe that his evidence was confused, contradictory and implausible because his claims were concocted to support his protection visa application.
I do not accept that the applicant worked as a [Occupation 1] in [Location 1] between 2011 and 2014. It follows that I do not accept that he was threaten or harmed by people from [Location 1] village for any reason associated with his employment prior to or following his departure from Nigeria.
In reaching this conclusion I have considered the letters provided by the applicant which purport to be from the [Employer 1]in [Location 1] and to confirm his employment and that he faced problems with the local community and the article in the [magazine]. As pointed out at the hearing, these documents could have been manufactured by anyone with access to a computer. In light of my finding regarding the applicant’s employment in Nigeria and his general credibility, I find that these documents were manufactured by the applicant or on his instructions and I have given them no weight. I have also considered the medical certificate dated June 2014. It may be that the applicant was assaulted by an unknown person in June 2014. However, I do not accept that the assault, if there was one, was carried out by members of Boko Haram at a [conference] in Yobe as claimed by the applicant.
I do not accept the applicant was of adverse interest to Boko Haram at any time because he was employed by the [Employer 1] or for any other reason. I do not accept that the applicant was targeted, threaten or harmed by Boko Haram prior to or following his departure from Nigeria.
Osu status
The applicant claims that he is an Osu, that he was forced to flee Imo State at the age of [age] because of this and that he was rejected and abused by people from his village after he returned in 2004.
At the hearing the applicant claimed that he was threatened by masked people about once a week after he returned to Imo State in 2004 and that he sometimes had to run away from his home because he is an Osu. I do not accept these claims. There is no mention of these problems in his earlier submissions and they are at odds with the evidence earlier in the hearing that he first experiences problems when he was kidnapped in 2010. If he had experienced these significant and continuing problems from 2004 onwards I believe he would have mentioned them in his earlier submissions.
Most of the applicant’s claims regarding the problems he faced because of his Osu status are closely interlinked with his claims regarding the problems he faced because of his work for [Employer 1]. As discussed above, I find these claims to be lacking in credibility.
There is no credible evidence before me which suggests that the applicant has faced harm or discrimination because his is an Osu. As noted at the hearing, he has received a reasonably good education and was able to purchase and operate a modest [business]. In these circumstances, and in light of his demonstrated willingness to fabricate claims, I am not satisfied that he is an Osu. I believe this is another example of him concocting claims to support his protection visa application.
I have also noted the applicant’s claim that he was forced to leave Imo State in 1987 because of his Osu status. However, in light of the many problems with his evidence and my conclusion that he is not a truthful or a credible witness and is not an Osu, I am not satisfied that this is true.
In any event, there is no credible evidence before me which suggests that he had faced problems because of this since he returned to Imo State in 2004. Furthermore the country information does not suggest that education Osu who lived in urban areas are at risk of serious harm amounting to persecution. According to the evidence, they are unlikely to be identified as members of the caste and that the only problem they are likely to encounter is if they wish to marry outside their caste. In these circumstances, even if I accept that the applicant was an Osu (which I do not), he does not face a real chance of experiencing serious or significant harm for this reason if he returns to Nigeria.
In reaching this conclusion I have considered the photograph and article which the applicant claims show his father and grandfather and proves that he is an Osu. The people who appear in the photograph are not identified by name. It was posted to a [Social media] page in 2013. Early in the hearing the applicant said that his father died before he left for Adamwa in 1987. When the photo was discussed at the hearing he said that his father had been dead for about 20 years. In either case, the applicant’s father had been dead for a number of years when the photograph was posted on [Social media]. When asked why a photograph of his long dead father would appear on a [Social media] post in 2013, who had posted the photograph and how he became aware of its existence he failed to provide a coherent explanation. I do not accept the men in the photograph are the applicant’s father and grandfather.
Ogboni cult
The applicant claims that members of an Ogboni cult will kill him if he returns to Nigeria.
The applicant has given inconsistent evidence about when he joined the cult and when his mother died. In his submissions to the Department he said that he joined the cult in 2012, that he gave them some of his mother’s blood in January 2013 and they had used this blood to kill her in December 2013. At the hearing he said that he had given the cult some of his mother’s blood in early 2010 and she died in late 2010 or early 2011. While it is not uncommon for applicant’s to be confused about dates, I do not accept that the applicant would have forgotten whether his mother was killed some three years before he left Nigeria or only about a year. In addition, these events were discussed at some length at the hearing and the applicant stated repeatedly and confidently that they had occurred in 2010 and 2011.
The applicant claims that members of the Ogboni cult threatened to kill him because he knew their secrets, but he has given inconsistent evidence regarding the nature of these secrets. In his written submissions to the Department he said that one of these secrets was the cult’s involvement in the murder of a gay man. When I asked him about the secrets at the hearing he said that they had killed his mother and that that he had threatened to expose them for having homosexual sex in his [business] in late 2010 and early 2011. The latter claim does not sit well with his earlier evidence that he purchased his [business] in 2012. It is also at odds with his earlier evidence that the community was aware the group was engaging in these acts at his [business] and believed that the applicant was also gay.
When I observed at the hearing that it appeared that the applicant had not exposed the group’s secrets or experienced any problems with them after they ceased coming to his [business] in 2010 or 2011, he claimed that this was because he was in hiding following this. If the applicant had been in hiding for most or all of the time following late 2010 or early 2011 because the Ogboni cult was threatening to kill him, I believe this would have been mentioned prior to the hearing.
I also note that the evidence in the applicant’s January 2015 statement that his wife left him after he was accused for being gay because of his association with the Ogboni group does not sit well with his evidence at the hearing that they were still married in April 2014, some three years after the group ceased coming to his [business] according to his evidence at the hearing.
In light of these problems and the applicant’s generally lack of credibility I do not accept that he had any involvement with the Ogboni group in Nigeria. I do not accept members of the group harmed any member of his family or that they threatened to harm him because they feared he would expose their secrets or for any other reason. I do not accept that members of the group engaged in homosexual sex in his [business] or that the applicant was suspected of being a homosexual because of this. I believe that these claims were also concocted by the applicant to support his claim for protection.
CONCLUSIONS
For the reasons set out above, I do not find the applicant to be a truthful or a credible witness. I do not accept that he was employed as a [Occupation 1] by the [Employer 1] or he is an Osu or that he joined an Ogboni cult. I do not accept that he had any involvement in campaigns or activities against FGM or promoting peace between people of different religions or ethnicities in Nigeria. I do not accept that he was threatened, harassed, beaten, kidnapped or otherwise harmed by anyone in Nigeria. I find that these claims were all concocted to support his application for protection in Australia.
There is no credible evidence before me which suggests that there is a real chance that the applicant will suffer serious or significant harm for any reason if he returns to Nigeria. I am therefore not satisfied he has a well-founded fear of persecution in Nigeria for any of the reasons set out in Under s.5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria there is a real risk that he will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5703

8 May 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

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