1610333 (Refugee)

[2019] AATA 6761

1610333 (Refugee) [2019] AATA 6761 (10 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610333

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Nora Lamont

DATE:10 October 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 10 October 2019 at 1:52pm

CATCHWORDS

REFUGEE – protection visa – Nigeria – religion – traditional religion – political opinion – support for APC political party – inherited position of chief priest – refused to follow the traditional practice for chief priests – threats of killing – torture – abduction of family – state protection – Economic Community of West African States (ECOWAS) – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R
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

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

2. The applicant, who claims to be a citizen of Nigeria, applied for the visa on 12 June 2014 and the delegate refused to grant the visa on 24 June 2016.

3. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments.

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

   RELEVANT LAW

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

   Refugee criterion

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

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

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

8. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    ·He has [specified family members]. His father was the chief priest of the [Religion 1] religion. The position of chief priest is passed from father to the firstborn son. After his father’s death, he took over the position of Chief priest. There is no other way to appoint another person as long as he is alive.

    ·As he grew up he realised that [Religion 1] is not what he respects or wishes to follow. He is a strong believer of Lord Jesus and will not be party to “idol worshipping”. Because he refused to follow the traditional practice, extreme followers of the [Religion 1] faith want to “destroy” him so they can appoint another Chief priest. [Religion 1] follower’s tried to “assassinate” and destroy him many times. His wife and children were also subjected to this “torture”. His son was kidnapped [in] December 2013. He was threatened that his son will not be released until he accepts and preserves the lineage and performs religious rituals. On February 2014, an attempt was made on his life where his vehicle was shot at. His [colleague] was killed because of the shooting.

    ·He was as successful businessman in Nigeria and supported his community when required. He operated [Business 1] since 2002, and was the sole proprietor of that [business]. On numerous occasions, he offered his [business premises] for APC political party meetings and gatherings. Because of this, he became “enemies” with members of the PDP party.

    ·The situation in Nigeria is becoming violent and destructive with Boko Haram and other political influences. The [Religion 1] people are also demanding his life. The authorities in Nigeria cannot protect him or guarantee his safety. If he returns to Nigeria he will be killed.

    Claims and Findings

20. On the basis of the available information, the Tribunal finds that the applicant is a national of Nigeria. The Tribunal finds that the claims should be assessed against Nigeria for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

21. The applicant was born in Benin Nigeria in [year] and his father died in [year] whilst his mother died [later]. He has [a specified family member]. He was married in [year] and has [number] children. He is now divorced from his first wife. The applicant said he opened [Business 2] and operated that [business] for many years. His wife at the time held a [specified qualification] and they opened [Business 1].

22. The applicant’s father was the Chief Priest of [Religion 1] who practice voodoo and idol worship. The applicant as the oldest son took over as Chief Priest when his father died. The applicant explained he practiced the religion with his family and then when he was a priest. He told the Tribunal that he did and saw many horrible things such as animal sacrifices and worse. It was clear to the Tribunal that the applicant was deeply troubled by the things he saw and maybe he did whilst practicing this worship. He told the Tribunal that there was no church so to speak but when someone wanted or needed something they would come to him to get assistance. The applicant was reluctant to talk about these practices and when pressed he told the Tribunal it was shameful and too horrible to talk about. The Tribunal found that the applicant did have a general reluctance and an inability to speak of the things he or others had done.

23. The Tribunal accepts that the applicant was a chief priest that he was so after his father passed away and that he found it to be abhorrent and so much so he finds it difficult to speak about. Further, the Tribunal has found that the Kingdom of Benin and its related history as to witchcraft, sacrifices and voodoo is well documented and backs up the applicants assertions. (see below)

24. The applicant says he found God and Christianity and that he turned away from his traditional religion and he wanted to build a church. He was not able to leave his religion because he was rightfully the chief priest and no matter what he did the extremists who practiced kept coming after him. There were phone calls and threats made to him. All the chief priests essentially work for the Oba and he was going against the Oba. The applicant called Benin “the land of blood”. The Tribunal was able to find many documents pertaining to this reference which started from a book written after 1897 about what a British expedition found when arriving in Benin. [1]The applicant attempted to move on with his life. He got married (to a Christian) and had children. He was running [Business 2] then along with his wife opened [Business 1]. The applicant told the Tribunal that [Business 1] was vandalised and burned and had to be closed. The applicant said that he would often let the APC political organisation use the rooms at the [Business 1 premises] for meetings. The applicant had by this time been suffering from harassment and abuse for not living up to his duties as chief priest so he was unsure who did the damage to [Business 1] whether it was for religious purposes or if it was because of his involvement in politics. However, after a discussion at the Tribunal the applicant did not feel that his political views were the cause of his problems, it was his religious views.

    [1] Persee.fr/doc/cea

25. The Tribunal accepts on the evidence before it that the applicant operated [Business 1] with his ex-wife and that [Business 1] was vandalised and burned leaving the applicant without his business. Whether it was the religious [Religion 1 group] or political party members the applicant did not know. However, the Tribunal finds it more likely that it was the religious people as the applicant’s involvement in politics was limited.

26. The delegate found that since they could not find information about the applicant’s religion then perhaps it didn’t exist. Further, the delegate pointed out DFAT country information that stated the country was divided by Muslim and Christian. However, the Tribunal is aware that in Nigeria and most African countries history, rituals and beliefs are passed on through oral methods not written methods. Therefore the Tribunal is of the opinion that these subcultures do actually exist and whilst the majority may be Muslim and Christian even a large portion of those populations carry their traditions and traditional religions onto this day. [2] In addition, many Christians continue to also practice voodoo and rituals in Benin City. [3]

    [2] Refworld.org/docid/3df4be8314.html

    [3] Globalsecurity.org/military/world/Africa/bn-religion

27. The applicant said that his son was abducted and held for ransom. His [age] year old son was abducted coming from his school. The applicant went to the police and was told that he should make peace with his people. Not long after in February of 2014 the applicant said that his [colleague] was shot and killed. The car had tinted glass and the applicant believes that he was the intended target. The applicant also provided a police extract.[4] The police did little to nothing about both the kidnapping and his [colleague’s] killing. The applicant said that the police are corrupt. Less than a month later the applicant had arrived in Australia. The applicant moved his wife and children out of town and eventually his wife went back to Nigeria and divorced him. The Tribunal accepts that the applicant’s son was kidnapped and his [colleague] killed. Several news reports and articles point out that kidnappings are prevalent in Nigeria. [5]

    [4] [File number] page 64

    [5] Saharareports.com/2019 Current Wave of Kidnapping in Nigeria is different / Kidnappings: Edo NBA talks tough, bans members from defending kidnappers

28. The applicant provided extracts from a Nigerian Crime Diary which outlines that the applicant attended the police on several occasions including [a date in] December 2013 stating he was receiving threats saying they would eliminate him and his entire family. [6] The delegate did not accept these documents due to the high document fraud in Nigeria. The Tribunal notes that there are spelling documents on the police reports, but the applicant’s evidence was consistent with his claims and the Tribunal found his evidence and story of his son being kidnapped to be credible. The applicant said his [colleague] went to pick up his son from [an event] and he was blocked by a car and his son was abducted. He was gone for 24 hours, they called the applicant demanded $5000 and he agreed and his son was given back to him. In the meantime the applicant went to the police and the police told the applicant that he should sort it out himself as he was the one needed to sort out with his people (the [Religion 1 people]).

    [6] [File number] page 63-65

29. The applicant also made claims under generalised violence and destruction of the country under political influences and Boko Haram.  Country information backs up the applicant’s claims. DFAT reports that ‘the poor capacity of the NPF has limited its ability to control societal violence, particularly in relation to areas under a state of emergency and between Muslim farmers and Christian settlers in the middle belt states. As a result the government continues to turn to the military to provide community policing given high levels of violence. [7] Boko Haram continues to operate in the north of Nigeria and has led to the internal displacement of some 2.5 million Nigerians. [8] Given the above information and the applicant’s claims that not only was his son kidnapped for ransom, but that the applicant fears generalised violence, kidnapping and lack of state protection the Tribunal accepts the applicants claims in relation to generalised violence and that his son was kidnapped for ransom.

    Economic Community of West African States (ECOWAS)

    30.      The Tribunal notes that Nigeria is a member of the Economic Community of West African States (ECOWAS) and therefore the applicant as a Nigerian national may have a right to enter and reside in another ECOWAS member country, under Section 36(3) of the Act.

    31.      The Tribunal notes the DFAT Country Report, Nigeria, 10 February 2015, which states:

    5.28    Nigerians can freely enter the fifteen other ECOWAS (Economic Community of West African States) countries with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS nations. [9]

    32.      Nigerians have additional privileges provided under the Economic Community of West African States (ECOWAS), a regional grouping of fifteen African nations focused on economic integration. ECOWAS gives Nigerians freedom of movement and residency in the fourteen other ECOWAS nations.

    33.      There are 15 member states of ECOWAS including Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. The Tribunal has considered information from a number of sources in respect of ECOWAS, including the rights of nationals of member nations to enter and reside in member countries.[10]

    34.      The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[11] 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.[12] 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. 

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

    [7] DFAT Country Information Report Nigeria 9 March 2018 page 29

    [8] DFAT Country Information Report Nigeria 9 March 2018 page 13

    [9] DFAT Country Report, Nigeria, 10 February 2015

    [10] The ECOWAS Protocol 1979: Revised Treaty of the Economic Community of West African States July 1993: COISS Research Response CI150325110636777 April 2015: UNHCR January 2011 ‘Protecting Refugees and Other Persons on the Move in the ECOWAS Space’ Adepoju, A, Boulton, A & Levin, M 2010, ‘Promoting integration through mobility: Free movement under ECOWAS’ -

    [11] ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697,  p.23, < 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, type="1">

30. In consideration of the evidence as a whole and on the basis of the available information, the Tribunal finds that there is a real chance that the applicant would suffer serious harm, in the reasonably foreseeable future. The Tribunal is satisfied that it is not remote that the applicant would face harm.

31. With respect to state protection, given the above country information the Tribunal finds that the applicant will not be given adequate state protection. The Tribunal finds that the traditional religious practices throughout Benin and the power of the Oba places the applicant in a precarious and dangerous situation from which he will not receive protection.

32. The Tribunal is also not satisfied that the applicant can safely relocate to another part of Nigeria to avoid the harm he fears in his home area. The applicant cannot safely relocate given his profile and the country information which points to his claim that his well-founded fear extends to other areas in Nigeria. On the basis of the available information, the Tribunal is satisfied that internal relocation is not an option because there is a risk that non-state actors will persecute the applicant in other parts of Nigeria. The Tribunal is satisfied that there is a real chance that the applicant would be targeted in other areas of Nigeria.

33. Whilst considering the evidence as a whole, the Tribunal is satisfied that the applicant has a well-founded fear of persecution if he returned to Nigeria now or in the reasonably foreseeable future and it is unreasonable for him to relocate to other areas within Nigeria. The Tribunal considers that the persecution which he is at risk of suffering involves serious harm as required by s.91R(1)(b) of the Act, in that it involves significant physical harm, harassment or ill treatment.

34. The Tribunal finds that the applicant’s Religion and by that his imputed political opinion in relation to the  and forgoing his duties as Priest and the APC party involvement even as minimal as it was, would be the essential and significant reason for the persecution as required by s.91R(1)(a) of the Act. On the evidence before it, the Tribunal is satisfied that the persecution he is at risk of suffering involves systemic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reason.

35. There is no evidence before the Tribunal that the applicant has a legally enforceable right to enter and reside in any other country other than Nigeria and therefore the Tribunal finds that he is not excluded from Australia’s protection by s.36(3) of the Act.

36. 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

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

    Nora Lamont
    Member