1611208 (Refugee)

[2019] AATA 6769

1611208 (Refugee) [2019] AATA 6769 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611208

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Irene O'Connell

DATE:27 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2019 at 10:27am

CATCHWORDS

REFUGEE – protection visa – Nigeria – Religion – Christian – social group – son of military officer – targeted by Muslim Militia – nationality – Stateless – renunciation of citizenship – cut off from home state – involvement in student groups – political affiliation with People Democratic Party – perceived as wealthy upon review – adequate state protection – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who came to Australia as a citizen of Nigeria but now claims to be stateless, arrived in Australia [in] February 2014 on a student visa (Subclass TU-572). On 20 April 2015, he applied for a protection visa.  He sought review of the delegate’s refusal to grant the visa on 23 July 2016.

3. The applicant has set out many reasons why he cannot return to Nigeria. He claims to fear harm from groups such as Boko Haram, Fulani herdsmen and Delta militants. He believes that as a Christian he will be targeted by Muslim militia and unable to practise his religion freely in Nigeria. He also claims to have been denied access to his farming lands by militia groups. He claims that as the son of a military officer he has faced harm from militia groups. He claims that whilst at university he was involved in student groups and experienced harm because of this and because of his political affiliation with the People’s Democratic Party. He claims that if he was to return to Nigeria from Australia he would be perceived to be wealthy and this would make him a target. He also claims that there is a lack of state protection in Nigeria and that he would not be safe anywhere in Nigeria from the harm he fears.

4. For the reasons that follow, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

   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, 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.

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 because the person is a refugee.

7. Section 5H of the Act defines a refugee as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

8. Under s.5J(1) of the Act a person is taken to have 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.

9. Section 5J(2)–(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution in the following manner:

   (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.

10. 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’).

11. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) as follows. 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.

12. Section 36(2B) of the Act sets out 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 non-citizen personally.  

    CLAIMS AND EVIDENCE

    Claims as set out before the Department

13. In his protection visa application, the applicant states that he was born on [date] in [Town 1], Benue state. He lists his ethnicity as Idoma, his religion as Christian and his occupation as Student. He reads, writes and speaks English, Igbo and Yoruba. He lists as his next of kin his parents and 12 siblings.

14. He states that he holds [Qualification 1] from [a university] and that after completing his studies in [year] he spent a year with [Organisation 1] and [went] to Edo State.  Since his arrival in Australia in 2014 he has completed a Certificate in English proficiency and a [certificate in another course] followed by a [diploma].

15. He lists his citizenship at birth as Nigerian and his current citizenship as stateless. In respect to his claim to be stateless he states that “our home state has been cut off by and under the illegal control of Boko Haram and other forces like the Fulani rather than the Nigerian federal government. Yet I am not yet an Australian citizen.”

16. The applicant states that he left Nigeria because he was fleeing war and persecution. He goes on to state that “When I first came into Australia however, I did so as a student via the education pathway but now due to a well found fear of persecution at home it has rendered me stateless which is why I wish to seek asylum”.

17. He states that “violent clashes between the government forces and armed Fulani herdsmen groups in the country have triggered large waves of internally displaced persons including members of his family”.

18. He goes on to state that the Nigerian government is incapable of protecting people from the Boko Haram and the Delta militants and is unable to provide state protection to its citizens or provide a lasting solution to the violence and insecurity in Nigeria. He states that it is not safe anywhere in Nigeria.

19. In regards to his personal circumstances the applicant states:

    At my age and as a male, I will be at significant risk of harm from opposing forces in Nigeria where the Islamists, the armed Fulani Herdsman and the Niger Delta militants operate. If I joined one group willingly or unwillingly, I would automatically become an enemy of the other group. I would face conscription, confiscation of property, kidnappings, killings, there is a denial of access to food, clean water, shelter, medical care and education that I am enjoying in Australia and almost taking for granted. The armed Fulani herdsmen would primarily be those responsible for the mistreatment or harm I would face and they would do so for no apparent reasons other than shameless hate of other Nigerian.

20. The applicant provided a copy of his passport to the Department and a copy of his Federal Republic of Nigeria National Identity Card.

21. He also provided a psychological assessment dated 6 January 2016 from [a provider]. This report indicated that he had met for face-to-face counselling on two occasions on Tuesday 22 December 2015 and on Monday 4 January 2016. It states that the applicant is experiencing anxiety and is distressed by reason of his experiences in Nigeria and his fears on returning to Nigeria.

22. The applicant was interviewed by a delegate of the Department on 7 January 2015 and the Tribunal has listened to a recording of this interview.

    Oral claims made out to the Tribunal

23. The applicant gave oral evidence to the Tribunal at a hearing conducted on 2 May 2019. The hearing was conducted in the English language. The applicant’s representative [a person] was present at the hearing. The Tribunal also took oral evidence from the applicant’s partner, [another person].

24. At the commencement of the hearing, the Tribunal noted the psychological assessment provided by the applicant on the Department file and asked the applicant whether he was currently undergoing counselling. The applicant stated that it is now some three years since he saw the psychologist and that he is no longer undergoing counselling. He indicated that he felt able to give his evidence.

25. The applicant stated that he is currently employed [in an occupation]. He also stated that he is in an ongoing relationship with an Australian citizen. He has not applied for a partner visa because she is resistant to it and because it costs $12,000 to apply.

26. He stated that he has a current Nigerian passport but did not bring it to the hearing. He indicated that he would provide a full copy of his current passport to the Tribunal after the hearing.

27. In respect to his family he stated that his parents reside at [Town 2]. His father has had several wives and as a consequence he has 13 brothers and sisters. A sister resides in [Country 1] and that this sister had studied in Australia and had lodged a protection visa application in Australia before moving to [Country 1]. A further sister resides in [another country], and her husband was kidnapped in Nigeria and released following the payment of a ransom. Other siblings reside in [Town 3], [and other locations] and other siblings reside in various parts of Nigeria.

28. With the aid of a map of Nigeria the Tribunal explored with the applicant his places of residence in Nigeria. The applicant stated that he was born in [Town 1] in Benue state and at the age of [age] years moved to [Town 2] where he resided with his family in military barracks. He explained that his father had left the military but was still entitled to live in military housing and that as the son of an ex-military person he attended a military secondary school.

29. He attended university at [City 1] in Imo state and did [Organisation 1] in Benin City in Edo state. He stated that he has an aunt in [Town 3] in Plateau state and he lived with her for a short period of time and that he was living in Lagos immediately prior to coming to Australia.

30. The Tribunal noted that all of these places were in the south and central south of Nigeria. The Tribunal noted that groups such as Boko Haram, which he claimed to fear harm from, were active in the northern states and not in areas where the applicant had lived. The applicant responded that these Muslim groups wished to Islamise the whole of Nigeria and were extending their reach and were not confined to the northern parts of Nigeria. He stated that militant groups are now active in parts of Lagos. He stated that he could not freely practise his religion in Nigeria because he feared he would be targeted by these groups because he is a Christian.

31. He also stated that he owned farming land in Benue state and that he could no longer farm there because of the militants. He stated that he feared the Fulani and Boko Haram. He stated that the Fulani are now well armed and better armed than the Nigerian military. He stated that you are forced by militant groups to radicalise or face death.

32. The Tribunal noted that the applicant had referred to the circumstances of Nigeria but had not made reference to any past experiences where he was harmed. The applicant referred to experiences of his friends and stated that he had received threats.

33. The applicant also stated that he is active with the People’s Democratic Party. The Tribunal put to the applicant that he does not have a profile as a political activist, particularly given his absence from the country for the past five years.

34. The applicant stated that he has now lived in Australia for six years and is integrated into society here.

35. The witness gave evidence that the applicant is a Pentecostal Christian and that his religion is a significant part of his life and that it would be difficult for him to practise as a Christian in Nigeria.

    Documents submitted at hearing

36. The applicant provided a document headed “decision sought”, dated 2 May 2019, prepared by the applicant’s representative suggesting that the AAT remit the applicant’s matter to the Department. It contains claims such as that the applicant’s father was [an] officer in the military, who nearly lost his life to the militia. A relative fought in the Biafran civil war and another was active as [an official] in the Revolutionary Committee and People’s Guard against the Fulani Armed Groups. It stated that if the applicant were returned to Nigeria he would continue to take part in political and religious activities whether or not he is able to do so freely.

37. The representative also provided several documents to the Tribunal relating to the applicant’s citizenship application, which is currently before the Department for reconsideration. These include a copy of a letter sent by the applicant to the Minister of Immigration (dated 7 March 2019). The letter urges the Minister to exercise his discretion and grant the applicant citizenship on the grounds of hardship and the applicant’s unique and exceptional circumstance. This letter states in part: ‘Presently I only speak will my old parents who are still living in Nigeria only phone. Both of these retired parents are now aging if the Minister doesn’t intervene I may not get the opportunity to spend much time with them now while they are still alive.” A copy of a letter dated 1 May 2019 from the Department of Home Affairs to the applicant acknowledging receipt of an application for Australian citizenship has also been provided.

    Post hearing submission

38. At the hearing the applicant provided only his expired passport. In a response to the Tribunal’s request that he present his current passport to the Tribunal, the adviser, by written response dated 9 May 2019, set out the following:

    Following up on your request to uplift pages of the entire passport of [the Applicant] to your office with a view to determining whether he is re-assuming the complete protection of his home country and his country of origin Nigeria in matter before the Department of Home Affairs and therefore losing his Stateless Status as claimed, I am accordingly giving this Notification of his loss of that same renewed passport back to the Nigerian High Commission Authorities in Canberra.

39. Attached was a copy of a blank application form from the Embassy of Nigeria for the renunciation of Nigerian Citizenship.

40. On 3 June 2019 the Tribunal received from the applicant’s adviser several media articles and a statement by the applicant dated 18 May 2019. The applicant restates that he fears harm on returning to Nigeria by reason of his religion. He further claims that the fact that “I have lived here in Australia for over 5 years not only makes me look affluent in their eyes and therefore somebody of greater means and resources for evangelism which I would surely do upon my forced return to Nigeria…” He goes on to state that he has an “indelible right to practice my religion or Christianity freely within a certain amount of safety and security…”

41. The applicant states that he was persecuted in Nigeria not only because of his religious beliefs but also because of his father’s military career. In terms of experiences of past harm by reason of his father’s military career the  applicant sets out the following:

    In my younger years, while living in [State 1] the main source of my fear arose from the Niger Delta militant groups. My father's career was a threat to them. This made me a target…There were many instances when these men came knocking at our family home..

    Another incident from my youth was when I decided to go to the shops with my friends after school instead of going home. We had gone to the shops to look around when suddenly two men were there and exclaimed, "you must be [person’s] son?" and the tried to grab me. I knew them for being agents of Niger Delta Militants due to what they wore and the weapons they carried with them…

    ...The sheer constant worry, subterfuge as well my constant attempts of staying out of sight of these militants took a toll on me and my family. Never knowing what would happen to me on a daily basis or if we would all make it back home at the end of the day this fear was heightened in 1998 when the armed conflict between the Niger Delta militants and the Nigerian military turned to war in 1998 to 2000 for a period of 2 years…

1. The applicant then goes on to describe his experiences at university:

   I attended my University education in [City 1], Imo State where I eventually graduated with [Qualification 1]. During that time however, the University was one of the key target areas where recruitment was very active and remains so by these militant groups.

   Some students willingly participate and try to recruit other students. I will say, there was no room to be exempt as belonging to a political group afforded you some type of protection…I became a key target for recruitment.

   To stop this, I joined a local Christian political group and by the end of the first year I became [an official]. The idea of the group was to increase awareness of the damage done by the government and to discuss ways that by the time we completed our University degree programmes we could make a positive impact to influence change

   In my last year of University, due to the popularity of the group the recruitment started. The people that I thought were my friends and who I thought would stand with me suddenly became my enemies.

   They had been recruited by the Militant's local commander and they too had been given the directive to increase their numbers. I am not very certain why my friends in the struggle with changed the way they did but it could have been due to many reasons. This happened at the end of the last semester of my final year.

   Earlier, I had been approached many times to join political groups after University with especially one of my friends being very persistent. But each time I denied them, they got angrier with me and they started to get they way around me with threats. By the end of the semester, as I was leaving University Campus I was ambushed and taken hostage.

   With fear pumping heavily through my veins the only thought running through my head was that after all my escapes, this was now going to be the end. I was taken to an abandoned room and tortured. It was physical torture which included a hot iron being placed on my [body] besides being violently hit. The smell of my burnt flesh and the pain I went through are hurtful memories that remain with me to this day

   …After the University graduation and the incident mentioned above, I went to [Town 3], Plateau State to stay with my Aunt and while at [Town 3], there was Fulani incident followed by the bus incident where I was a passenger.

2. The applicant concludes with the following and quotes several verses from the Bible:

   Furthermore as a practicing Christian I am already a target of the Fulani Herdsmen and other overzealous Muslims like Boko Haram and others because I have to evangelize all creation albeit in a peaceful way unlike themselves according to the great commission of our Lord and Saviour Jesus Christ…

3. Media articles provided by the applicant included a news report by [newspapers] dated [date] reporting the deaths of Christians during the attacks on some churches in [Town 3], and several “top stories” titles of articles from the Persecution: International Christian Concern website, relating to an attack on Christians by Boko Haram. He also provided a BBC News article dated [date] discussing the persecution of Christians in various parts of the world. The article notes that “[details deleted]”.

4. The articles also included reports on Former President Obasanjo’s comments regarding the activities of Boko Haram and how they have developed into a world-rated terrorist group.  The articles in P.M.News, dated 19 May 2019, and in the Daily Post Nigeria of the same date, relay Former President Obasanjo’s comments regarding the activities of Boko Haram and how they have developed into a world-rated terrorist group. A further article by Sahara Reporters on 7 May 2019 reports on suspected Boko Haram attacks in Maiduguri.

5. On 9 September 2019, the adviser emailed copies of the correspondence sent to the General Division of the Tribunal in relation to the applicant’s citizenship review.

   Country information

6. In accordance with Ministerial Direction No.84 made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes. The Tribunal has had regard to the DFAT Country Information Report Nigeria (dated 9 March 2018).

   Demography

   2.6 Nigeria comprises 36 states and the Federal Capital Territory (FCT) of Abuja. The states and the FCT are grouped into six geographical zones:

   ·North East: Bauchi, Borno, Taraba, Adamawa, Gombe and Yobe

   ·North West: Zamfara, Sokoto, Kaduna, Kebbi, Katsina, Kano and Jigawa

   ·North Central: Niger, Kogi, Benue, Plateau, Nassarawa, Kwara and FCT

   ·South East: Enugu, Imo, Ebonyi, Abia and Anambra

   ·South West: Oyo, Ekiti, Osun, Ondo, Lagos and Ogun

   ·South South: Bayelsa, Akwa Ibom, Edo, Rivers, Cross River and Delta.

   Security situation

   2.35 The security situation in Nigeria is volatile and numerous terrorist attacks have occurred in recent years on the civilian population and on foreign buildings. Conflict and terrorism killed a reported 4,751 people in 2017; the actual number of deaths is likely to be higher. Nigeria’s northeast remains under a state of emergency due to conflict between government security forces and the terrorist group, Jama’atu Ahlis Sunna Lidda’awati Wal-Jihad, commonly known as Boko Haram. The number of civilian deaths decreased in 2016 reportedly due to increased military operations and the Boko Haram factional split. Nonetheless, the group continues to launch deadly suicide attacks and wield considerable influence in the north-east.

   2.36 Southern Nigeria is also volatile due to confrontations between armed criminal groups and security forces predominantly in relation to the theft of and control over oil resources in the Niger Delta region. Inter-ethnic land disputes in the central region of Nigeria, known as the middle belt, and the central north escalated in 2016. Conflicts between the largely Muslim Fulani nomadic pastoralists and Christian farmers of the Berom tribe have traditionally occurred mainly in Plateau state over the past decade. The conflict has recently moved into the central northern states of Katsina, Nassarawa, Benue and Kaduna states.

   Boko haram (jama’atu ahlis sunna lidda’awati wal-jihad)

   2.37 Boko Haram is a radical Islamic movement that seeks to impose a strict form of sharia, or Islamic law, in northern Nigeria. ‘Boko Haram’ means ‘western education is sinful’ in the Hausa language and the movement forbids Muslims from taking part in political or social activities associated with western society including voting in democratic elections or receiving a secular education. Notwithstanding recent forays into Cameroon and rhetoric of establishing an Islamic state across the region, Boko Haram is primarily a domestic insurgency in Nigeria, not an international operation.

   2.38 Boko Haram was initially a fringe movement, which provided social and financial help to Muslims and called for strict observation of sharia. The group transitioned into an insurgency in 2009 following the extrajudicial killing of its founding leader, Muhammad Yusuf, when tensions with government security forces escalated over the application of sharia law in the northeast states of Borno, Yobe and Adamawa. Since 2009, 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.

   2.39 Boko Haram has carried-out targeted assassinations against Muslim preachers who refuse to join the group, including prominent clerics such as Bashir Kashara (killed in October 2010), Ibrahim Ahmad Abdullahi(killed in March 2011), and Ibrahim Birkuti (killed in June 2011). In July 2014, Boko Haram targeted a prominent moderate cleric, Sheikh Dahiru Bauchi, with a bomb attack in Kaduna.

   2.40 In 2013, the Office of the Prosecutor in the International Criminal Court (ICC) declared the fighting in north-eastern Nigeria to be a non-international armed conflict. The government has deployed thousands of troops to Borno, Yobe and Adamawa States but has thus far been unable to defeat Boko Haram. International observers have expressed concerns over a lack of discipline in military operations and have accused the military of killing Boko Haram members without due process (see Extrajudicial Killings).

   2.41 In April 2014, Boko Haram abducted more than 200 female students from a secondary school in Chibok, Borno State. Schools in the area had been closed for weeks due to violence, but the girls had returned to sit their final exams when they were abducted. In May 2017, 82 of the girls were freed in a prisoner swap with Boko Haram. Over 100 girls are still in captivity.

   2.42 In 2016, Boko Haram split into two factions. One faction, headed by Abu Musab al Barnawi, pledged allegiance to the Islamic State of Iraq and al-Sham (ISIS), calling itself the Islamic State of West Africa (ISIS-WA). The other, headed by Abubakr Shekau, retains the original Boko Haram name, Jama’atu Ahl as-Sunnah li-Da’awati wal-Jihad (JASDJ). Most Nigerians still refer to both groups collectively as Boko Haram.

   2.43 The conflict in the north-eastern states of Borno, Yobe and Adamawa acts as a push factor for internal and external migration. Thousands of Nigerians have fled into neighbouring Chad, Cameroon and Niger in response to the conflict. Boko Haram violence has led to the internal displacement of as many as 2.5 million Nigerians. Internally displaced people in Nigeria lack adequate humanitarian support, and displaced women and girls are vulnerable to sexual violence and abuse from security forces and vigilantes. In its 2017 world report, Human Rights Watch states that military operations against Boko Haram intensified in 2016, with most areas controlled by the group recovered by security forces, noting there was also a decline in civilian deaths from 3,500 in 2015 to 550 in 2016.

   2.44 Targeted attacks increased in June to September 2017, with bomb blasts at the Dalori IDP camp, Maiduguri University, Molai general hospital in Maiduguri, and a major coordinated gun attack on the Maiduguri city itself. On 21 November 2017, suicide bombers killed 50 men and boys at a mosque during morning prayers. Fighters believed to be Boko Haram abducted up to 115 schoolgirls from a science and technical college in Dapchi, Yobe State in February 2018.

   Militia Groups in the Niger Delta

   2.45 Violence in the oil-rich Niger Delta continues to recur between militia groups competing for land and resources, and between militia and security forces sent to restore order. Several vigilante groups operate in the region, including the Movement for the Emancipation of the Niger Delta (MEND) and the Niger Delta Avengers (see MEND). The federal government has had varied results in suppressing their activities. Security forces occasionally directly target civilians in the region. DFAT considers credible international and local reports that Nigerian security forces have damaged property, and killed and injured several villagers accused of harbouring militia members in the Niger Delta region.

   Religion

   3.11 The Nigerian Constitution guarantees freedom of religion, as well as the freedom for individuals to change their religion and to propagate their religion or belief through worship, teaching, practice and observance. State and local governments are prohibited from adopting a state religion or from giving preferential treatment to any religious community. All religious groups must apply to the federal Corporate Affairs Commission to build a church, mosque or other religious facility. In accordance with the Constitution, school students must receive religious instruction in their own religion. The Government observes a range of religious holidays including Eid-El-Maulud, Good Friday, Easter Monday, Eid-El-Fitr, Eid El-Adha, and Christmas.

   3.12 Christianity is the major religion amongst the Ibgo and Yoruba people in the south and Islam is the major religion of the Hausa-Fulani and Kanuri people in the north. Many observers continue to propagate the historical Christian-south, Muslim-north divide, although in-country sources insist the divide is not clear-cut. Muslims and people of predominantly Hausa-Fulani and Kanuri ethnicity are the majority in the northern states, and Christians of predominantly Igbo and Yoruba ethnicity are the majority in the southern states. However, many Christians live in the north and Muslims live in the southern states. A mix of Muslims and Christians of various ethnicities comprise the middle belt, and major cities remain a fluid mix of different ethnicities and religions.

   3.13 In accordance with the Constitution, twelve northern states maintain courts that adjudicate civil matters, including divorce, inheritance and domestic disputes, in accordance with sharia.

   Boko Haram – Christians and Muslims

   3.14 Both Christians and Muslims have suffered violence at the hands of Boko Haram due to their religious beliefs. Boko Haram opposes Christianity as well as less restrictive forms of Islam. DFAT considers credible local and international advice that Boko Haram attacks Muslim communities more frequently than Christian communities and that the groups has kidnapped and assassinated individual Muslims. Christians are less commonly targeted individually.

   3.15 Numerous attacks have been perpetrated on predominantly Muslim occupied villages in the north-eastern states of Borno, Yobe and Adamawa. Boko Haram attacks in Nigeria have killed more than 100 civilians since November 2017, though Amnesty International claims the real figure may be higher still as some attacks may have gone unreported.

   3.16 The girls abducted from Chibok in April 2014 by Boko Haram (see Security Situation – Boko Haram) are understood to include both Muslims and Christians. Boko Haram has targeted Christians in the north-eastern states of Borno, Yobe and Adamawa and occasionally in the central state of Plateau.

   3.17 DFAT assesses that both Christians and Muslims living in the north-eastern states of Borno, Yobe and Adamawa face a moderate risk of violence from Boko Haram, particularly if they live close to the fighting. Attacks on Christians by Boko Haram are opportunistic and infrequent, and highly unlikely to target individual Christians. Many Christians have moved internally within Nigeria to escape the risks posed by the Boko Haram insurgency. DFAT assesses that Christians and Muslims residing in the middle belt and southern states face an extremely low risk of violence from Boko Haram or ISIS-WA.

   Political Opinion (Actual or Imputed)

   3.18 Political protests relating to the 2007and 2011 national presidential elections resulted in a number of deaths. The protests represented complex ethnic and religious differences along the north-south geographic divide more than differences arising from strongly held political views (see Religion). Politicians often switch between the two major parties, the People's Democratic Party (PDP) and All Progressives Congress (APC). International observers viewed the 2015 presidential elections as the most peaceful and fairest yet, with very little violence compared to previous elections.

   Election Violence

   3.19 The 2015 presidential election represented Nigeria’s first peaceful transfer of power when incumbent President Goodluck Jonathan conceded electoral defeat to former military head of state, Muhammadu Buhari (see Recent History).

   3.20 DFAT assesses that individuals engaged in election protests face a moderate risk of violence, in the form of excessive use of force by police and security forces responding to the violence. Outside election cycles, individuals affiliated with political parties or processes are unlikely to face violence or discrimination on a day-to-day basis.

   State protection

   5.1 Security and law enforcement in Nigeria is managed at the federal level through the Nigerian military, DSS, NPF and periodically through newly established forces including the C-JTF. 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.

   Internal relocation

   5.21 There are no legal impediments to internal relocation in Nigeria. Freedom of movement is one of the fundamental rights provided in Nigeria’s Constitution.

   5.22 Nigeria has as many as three million internally displaced persons (IDPs) due to the insurgency in northeast and internal conflicts in the middle belt states. The United Nations High Commissioner for Refugees reported that IDPs in Nigeria represent all religions and ethnicities. The majority have settled freely in host communities where they have familial connections or in state-run camps established in response to the conflicts. While some IDPs have moved to southern Nigeria in response to the insurgency, differences in language and culture pose impediments to large-scale migration from the north to the south.

   5.23 Many Nigerians move to different parts of the country for economic reasons. High rates of poverty, particularly in the north, lead many individuals to seek opportunities in new industries such as telecommunications, construction, wholesale and retail trade and manufacturing in different locations across Nigeria.

   5.25 DFAT assesses that Nigerians can and do freely relocate internally. Internal moves can be more difficult for non-indigenes due to language, religious and cultural differences, particularly between northern and southern states.

7. The Tribunal has also had regard to: Nigeria – Guidance note and common analysis (dated February 2016) prepared by the European Asylum Support Office (EASO) Country Guidance, which provides the following overview of actors of persecution in Nigeria:

   Boko Haram, including JAS and ISIS-WA

   A number of armed groups are operating on the territory of Nigeria, among which Boko Haram is considered the most powerful one. Boko Haram is a Salafi-jihadist group fighting for the replacement of the secular Nigerian state with an Islamic one based on a strict compliance to the Sharia law, throughout the country. It operates in the North East of Nigeria, exerting violence against westerners, Christians, and Muslims considered ‘infidels’.

   Since 2011 and as of April 2018, the reported deaths resulting from Boko Haram violence were approximately 17 000; another 14 645 persons had lost their lives in the clashes between Boko Haram and State actors. The group was added to the UN Security Council sanctions list in 2014.

   Militant groups in the Niger Delta

   The Niger Delta comprises of the states of Ondo, Edo, Delta, Bayelsa, Rivers, Imo, Abia, Akwa Ibom and Cross River. A number of militant groups operate in the area. Their members demand an improvement of the conditions in the region and protest against its environmental degradation due to oil exploitation.

   Between 2006 and 2009, after the decline of the Niger Delta People’s Volunteer Force (NDPVF), the most active militant group was the Movement for the Emancipation of the Niger Delta (MEND). MEND is an umbrella organisation whose political objectives have focused on demanding local control over oil resources and development of the region. The group has made use of kidnapping and car bombing with the aim of kidnapping of foreign oil workers, attacks against oil pipelines, oil bunkering.

   Currently, MEND has a limited presence due to the imprisonment of some of its leaders and due to a large-scale amnesty and Disarmament, Demobilisation, and Reintegration (DDR) programme introduced in 2009. The DDR has also provided financial benefit for approximately 30 000 former militants.

   The cut to the programme funding in 2015, along with the government’s failure to improve the socio-economic conditions in the Delta region, and actions by security guards of oil installations, led to a new insurgency in 2016 and to the emergence of several militant groups, in particular of the Niger Delta Avengers (NDA). NDA is currently active in the Niger Delta. Although it shares the same objectives as MEND, it distances itself from the latter, and calls for the autonomy of the region. In 2016, the group launched a large number of attacks on oil infrastructures. The tactics of NDA mainly focus on attacks on oil and gas installations.

   Herders and farmers

   Among the non-State actors of persecution or serious harm, herders and farmers participating in armed groups have become increasingly relevant. Herders’ groups are mainly composed of Fulani Muslims, while the farmers are mainly Christian. The origins of the conflict are rooted in the difficulties to access natural resources such as water and land. Nowadays, it also has profound ethnic and religious implications and is becoming more politicised.
   The conflict escalated in January 2018. In the first six months of the year, more than 1 300 fatalities and 300 000 people fleeing their homes have been reported. Severe violations of human rights are reportedly committed by both, herders’ and farmers’ groups, including massive killings and massive destruction of houses, crops, cattle, etc. Fulani herders are also reported to have committed rape, abduction, robbery, etc. The violence has affected numerous states across Nigeria, but in particular Adamawa, Taraba, Plateau, Nasarawa and Benue.

   Student cults

   Student cults in Nigeria, also referred to as ‘university cults’ or ‘confraternities’, resemble criminal gangs. Some of the most well-known cults are the Black Axe and Eiye.
   Student cults are characterised by violent initiation rites and conduct illegal activities such as: killings, human trafficking, drug trafficking, smuggling, extortions, kidnapping, forced recruitment, etc. Approximately 1 863 deaths are likely to be connected to student cults between 2006 and 2014. Cult-related violence in 2017 reportedly resulted in 442 fatalities and 290 victims of kidnapping. Political parties often recruit cult members and use them to kill or attack political opponents or to exercise violence during elections.

   Some sources report that it is ‘extremely difficult’ to leave a cult after being initiated. Persons who quit the confraternities or cults may be killed, out of fear of revealing the cult’s secrets. Student cults mostly operate in the southern states of Nigeria and are particularly strong in Rivers, Bayelsa, Delta and Edo.

   Members and perceived supporters of political parties

   In this profile, the focus is on members and perceived supporters of the People's Democratic Party (PDP) and the All Progressives Congress (APC), being the main political parties in Nigeria. Similar issues may occur with regard to members and supporters of other political parties.  The PDP was the ruling party from 1999 until 2015, after which the APC came to power. In February 2013, the APC was formed by the merge of the All Nigeria Peoples Party (ANPP) with the Action Congress of Nigeria (ACN), the All Progressives Grand Alliance (APGA), and the Congress for Progressive Change (CPC).

   In some states, there are reports of incidents involving supporters of the parties. These mostly occur during election periods.

   There are reports that both parties use criminal gangs or cult members against each other.
   Intra-party violence also takes place. Such incidents mostly occurred during primaries and party congresses, and include political assassinations of rivalling candidates, skirmishes, and riots between opposing factions within a party.

   Procedural matters regarding a notification certificate

1. A certificate pursuant to s.438(1)(b) of the Act was placed by the delegate on folios 53 to 62 of the Department’s file. The certificate states that the basis for the certificate is that the information was given in confidence or contains information about a third party. The disclosure of the information would affect personal privacy.

2. The Tribunal is of the view that the certificate is valid. It describes the nature of the material captured by the certificate and explains how non-disclosure of the information would be in the public interest.

3. At the hearing the applicant was informed of the existence of the certificate and informed that the material captured by the non-disclosure certificate related to [social media] posts which the Tribunal notes were discussed with the applicant by the delegate at the departmental interview. The Tribunal informed the applicant that the material subject to the certificate was not in the view of the Tribunal relevant to its review. The applicant was invited to comment but indicated that he had no comment to make.

   FINDINGS AND REASONS

   Country of reference

4. Although a citizen of Nigeria at birth the applicant claims to be stateless. In his protection visa application he states that he considers himself to be stateless because he has been cut off from his home state by the actions of Boko Haram and Fulani. The Tribunal reads this to refer to a particular state within Nigeria. Nigeria is comprised of 36 states and the Federal Capital Territory (FCT) of Abuja (see point 2.6, DFAT Report Nigeria, March 2018). He also suggests that he is stateless because he does not yet have Australian citizenship and is rejecting his Nigerian citizenship.

5. At the hearing before the Tribunal, the applicant presented his expired Nigerian passport on which he had entered Australia. When asked if he had a current passport, the applicant indicated that he had and that he had renewed his passport at the Nigerian High Commission in Canberra. He was asked to provide to the Tribunal his renewed passport (see folio 139-140, Tribunal file) but declined to do so. In a post hearing submission the applicant’s adviser claims that on 9 May 2019, a week after his hearing at the Tribunal, the applicant was required to hand in his passport to the Nigerian High Commission.  Without any additional information the adviser also attached to the submission a blank application form for Renunciation of Nigerian Citizenship.

6. The Tribunal does not accept that the applicant is stateless and finds him to be a national of Nigeria. The Tribunal makes this finding on the basis of the following. The applicant has stated in his protection visa application that he is a citizen of Nigeria by birth. He has provided to the Department his National Identity Card for Nigeria (a copy of which is located at folio 46 of the Department file). He has also provided to the Department and the Tribunal his Nigerian passport with which he entered Australia. He has also indicated that this passport was renewed at the Nigerian Embassy in Canberra.

7. Accordingly the Tribunal finds that Nigeria is the country of reference with respect to the refugee criterion and the receiving country in respect to the complementary protection criterion.

   Does the applicant have a well-founded fear of persecution should he return to Nigeria?

8. As set out above the applicant has set out multiple reasons why he claims to have a well-founded fear of persecution on return to Nigeria.  The Tribunal accepts the country information set out above at paragraphs 47 and 48 from DFAT and EASO indicating that there is an interrelationship between ethnicity, religion and land ownership in Nigeria. Christianity is the major religion amongst the Ibgo and Yoruba people who reside predominantly in the south of Nigeria and Islam is the major religion of the Hausa-Fulani people who reside in northern Nigeria.  Land ownership also features in the ethnic religious divide. As EASO notes, “Herders’ groups are mainly composed of Fulani Muslims, while the farmers are mainly Christian” (see paragraph 48).

9. The Tribunal accepts that the applicant is a Christian of Pentecostal background. The applicant’s oral evidence about his religious beliefs was persuasive. He was detailed in his responses about his religious beliefs and practices which he recounted in a natural and ready manner. He indicated that he attended a local church in [a city] regularly. The evidence of his witness as to the applicant’s religious convictions was also persuasive.

10. The Tribunal does not accept, however, that the applicant faces harm by reason of his religion on return to Nigeria. The DFAT report indicates that the constitution guarantees freedom of religion. The Tribunal notes that Christian communities at risk from Muslim militia groups are those in the northern states, not in the south where the applicant resides.  In this respect the Tribunal places weight on the DFAT Report at point 3.17 which “assesses that Christians and Muslims residing in the middle belt and southern states face an extremely low risk of violence from Boko Haram or ISIS-WA. “

11. At the hearing the applicant disputed that Muslim militias are confined to the northern states of Nigeria. He suggested that the Fulani Herdsmen are well-equipped and active in the southern parts of Nigeria. The Tribunal does accept that there may be sporadic attacks by extremist groups in places such as Lagos and as such the Tribunal cannot discount the possibility that the applicant could be caught up in a random act of violence. However, the Tribunal does not accept that there are systematic attacks by Muslim extremist groups on Christians in the southern parts of Nigeria.

12. The applicant claims that he would be prominent as a Christian because he would evangelise. In his post hearing submission he provided 33 Bible verses about evangelising but he did not provide to the Tribunal in either his written or oral evidence any detailed account of his past or current evangelising activities that would satisfy the Tribunal that the applicant would evangelise on his return to Nigeria. As such, the Tribunal does not accept that the applicant would have prominence as a Christian and would be targeted by Muslim extremists because of his religion.

13. Nor does the Tribunal accept that because of his age or male gender militia groups would seek to forcibly recruited into a militia group and then become the target of the opposing group. As set out above the applicant’s places of residence are not in areas of conflict. The Tribunal notes that the applicant completed a year [at Organisation 1] in Edo State.

14. The Tribunal accepts that the applicant’s family owns farming land in Benue state and accepts that past generations may have needed to flee their farm lands because of ethnic religious conflict.  The country information from EASO indicates that there are ongoing conflict between herders and farmers. The report notes that conflict escalated in January 2018, and that there have been severe violations of human rights reportedly committed by both herders’ and farmers’ groups, including in Benue state where the applicant’s family owns farming land.

15. However, the Tribunal does not accept that the applicant has faced or would face serious harm by reason of his family’s ownership of farming land in Benue state. The Tribunal makes this finding on the basis of the applicant’s evidence as to his personal history. He indicated in his evidence that he lived his early years at [Town 2] at a military establishment and attended military secondary school. He then attended university and acquired [Qualification 1] and next came to Australia on a student visa.  The applicant has not claimed to have resided on the family farm lands or worked as a farmer in Benue state. Nor has he suggested that that he is dependent on these farm lands for his economic survival such that his inability to access them because of conflicts in the area gives rise to serious harm to him.

16. The Tribunal accepts that the applicant’s father was a military officer with the Nigerian army. The Tribunal notes, however, that the applicant indicated in his oral evidence that his father had already left the military when the applicant was a young child of [age] years of age approximately. That is, the applicant’s father ceased being a military officer in the mid to late 1980s. The applicant indicated in his oral evidence that despite his father’s retirement from the military, the family were entitled to military housing and he was able to attend a military secondary school.

17. The Tribunal accepts the applicant’s evidence made in his post hearing submission that as a child when living in [State 1] he was threatened by Niger Delta militia who threatened to kidnap him because of his father’s role in the military. The Tribunal accepts this claim as it accords with the country information set out in the DFAT report on Nigeria at point 2.38, which notes that individuals seen as supporting the government including military personal have been attacked by groups such as Boko Haram.

18. However the Tribunal does not accept that the applicant’s experience as a child gives rise to a well-founded fear of serious harm on his return to Nigeria. The applicant’s father retired from the military some 20 years ago and apart from the applicant’s childhood experiences, the applicant has not given evidence of any ongoing or recent threats from militia groups by reason of his father’s past involvement with the Nigerian military.

19. The Tribunal accepts that the applicant was involved in a student group when he was attending university and that he may have experienced intimidation at university from members of opposing student groups. The Tribunal accepts this claim because it accords with the country information set out above, particularly the EASO report which indicates the existence of student cult groups.  However, the Tribunal does not accept that the applicant was at a point in time taken hostage and tortured by a cult group as he claims in his post hearing submission.

20. Given the significance of the claimed harm of forcible detention and torture the Tribunal considers that if this had occurred, the applicant would have raised it at the hearing when asked about past experiences of harm or made some reference to it in his earlier written submissions. Rather, the Tribunal considers it to be an embellishment of his circumstances in response to the fact that the Tribunal had indicated to the applicant at the hearing that he had not recounted any claims of personal harm but was rather speaking of general events in Nigeria of which he had no part. 

21. In terms of the applicant’s claim that he will face harm on return to Nigeria because he will be perceived to be wealthy (and with means to evangelise) as he would be returning from Australia the Tribunal finds as follows.  The Tribunal accepts that kidnappings occur in Nigeria and accepts the applicant’s account that a brother-in-law was kidnapped and only released on payment of a bribe. The Tribunal considers this to be a random act of violence and criminal activity. The Tribunal does not accept that state protection would be withheld from the applicant in a discriminatory manner in respect to this harm he fears.

22. In respect to the applicant’s involvement with the People’s Democratic Party, the Tribunal notes that the DFAT report at points 3.18-3.20 indicates that individuals affiliated with political parties may experience violence during election campaigns but are unlikely to face violence or discrimination on a day to day basis. As such, the Tribunal does not consider that the risk the applicant faces rises to a real chance of serious harm by reason of his political opinion.

23. The DFAT report indicates that the security situation is volatile in Nigeria and that the apparatus of state protection is weak. There are areas of Nigeria where there is inadequate state protection, most particularly in the northern parts of Nigeria. However, as discussed with the applicant at the hearing, the applicant has resided in various areas in the southern parts of Nigeria where there is adequate state protection.

24. For all the reasons set out above and considered cumulatively, the Tribunal does not accept that there exists a real chance of the applicant facing serious harm by reason of his race, religion, political opinion or membership of a particular social group or any combination of these on his return to Nigeria.

25. The Tribunal accepts that the applicant’s access to clean water, medical care and education may well be of a lower order than what the applicant has experienced in Australia. However, the Tribunal does not accept that this circumstance would be deliberate or targeted at him, rather than a result of the differing standards of living between the two countries.

26. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)a of the Act.

    Is there a real risk that the applicant will suffer significant harm on his return to Nigeria?

27. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), that being whether on the evidence, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Nigeria.

28. For all the reasons that are set out above, the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Nigeria. There are areas of Nigeria where there is inadequate state protection and where there is increased risk of harm of the types defined in s.36(2) most particularly in the northern parts of Nigeria. However, as discussed with the applicant at the hearing, the applicant has resided and can return to the southern parts of Nigeria where there is adequate state protection. 

29. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

30. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

31. 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 criteria in s.36(2).

    DECISION

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

    Irene O'Connell
    Deputy Division Head