1618576 (Refugee)

[2021] AATA 1858

1618576 (Refugee) [2021] AATA 1858 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618576

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Kate Millar

DATE:4 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

Statement made on 04 May 2021 at 10:35am

CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – support of Biafran independence – beliefs about the treatment of Igbo people – Igbo Youths Association – Movement of the Actualisation of the Sovereign State of Biafra (MASSOB) – credibility concerns – bogus documents – likely actions in the future if returned to Nigeria – response of the government to protests – use of force against demonstrators – relocation to another ECOWAS Country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
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. [The applicant] is a citizen of Nigeria.  He came to Australia on a student visa [in] May 2014, and on 30 July 2014, he applied for a Subclass 866 (Protection) visa.  In summary, he claimed to fear harm if he returned to Nigeria because of his religion, ethnicity and his political opinion in advocating for the independence of Igbo people in Nigeria.

2. 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).

3. [The applicant] appeared before the Tribunal on 13 November 2020 to give evidence and present arguments and was represented by his registered migration agent.  

   BACKGROUND

4. [The applicant] was born in Enugu in Nigeria in [year] and is of Igbo ethnicity.   

5. His father is deceased, and his mother lives in Enugu.  He has one full brother, [number of] half-brothers and one-half sister who all live in Enugu. 

6. He studied [subjects] at [Education Institute] and completed tertiary education but said he could not be assessed due to the financial position of his family. 

7. He started work in 2006 at [Employer 1] in Enugu as a [Position 1].  During the time he was employed, he was promoted to a higher level of [Position 1]. 

8. [The applicant] applied for a student visa, which was granted on 9 April 2014.  He arrived in Australia [in] May 2014. While he was granted paid study leave from his employment to come to Australia his employment ceased in May 2014, and he says this was because his employers were too scared to keep him due to his political activities. 

9. [The applicant] applied for a protection visa on 30 July 2014.

10. Since arriving in Australia, he has completed a [specified] course and worked in a [business] as a [Occupation].  He has also [worked] for [Company 1].   He has completed courses in [specified subjects] and worked in [specified industry].  He currently works in [specified industry].

11. He has now married a citizen of Nigeria who is in Australia on a Subclass 489 (Skilled) visa.  [The applicant] has applied as a secondary applicant on this visa.

12. [The applicant] said his health has been good since he has been in Australia other than some emotional ups and downs, for which he received treatment from a psychologist while he lived in [his current city].  He did not have any formal diagnosis and was advised by the psychologist to talk more and communicate.  He said he saw the psychologist a number of times 

    CLAIMS

13. [The applicant] made his original claims in a statement dated 28 July 2014, and provided a statutory declaration dated 12 October 2016, a statutory declaration dated 5 September 2016, and a statement dated 9 October 2020.  He was interviewed by the Department on 15 September 2016 and attended a hearing and gave oral evidence on 13 November 2020.

14. In his statutory declaration of 5 September 2016, [The applicant] claims to fear he will be:

    … seriously harmed by the Nigerian authorities, including the government ‘killer squad’ and the military.  I fear this harm on account of my Biafran identity; Igbo ethnicity; Christian religion; political opinion that Biafran and Igbo people should have the same human rights as everyone else; membership of Association merged with the Movement of the Actualisation of the Sovereign State of Biafra (MASSOB); and political activities against the Nigerian government and in support of MASSOB and the broader Biafran independence movement. 

15. [The applicant] worked for [Employer 1] until May 2014 when his study leave approval was cancelled and his employment was terminated.  He states this was because of constant harassment by government agencies.  In his later statement he said before he left he arranged for paid study leave, but a few weeks after he left Nigeria a letter was sent to his family home stating his study leave had been terminated and he no longer worked there, and they told his brother that because he was anti-government he could not work for a government agency. 

16. [The applicant] claims he joined the Igbo Youths Association in or about [year], and in the same year became the [office bearer] of this organisation.  The Igbo Youths Association merged with the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and he started conducting meetings, rallies and activities moving from one state to another with the aim of educating and mobilising people to put pressure on the Government to recognise them as an independent state.  In his statutory declaration of 5 September 2016, he expands on these activities, stating he travelled to various areas in Biafra educating people about what was happening, why they should not accept the Nigerian Government’s mistreatment of their people and trying to convince them to join MASSOB.  He claims to have organised community meetings going from house to house to talk to people individually.  The security agencies targeted MASSOB members, and in particular the leaders of the movement, and he became a target of a government killer squad. 

17. In support of his claims [the applicant] provided a membership card for MASSOB.

18. [The applicant] claims that as a result of his membership of MASSOB:

    ·On 15 February 2004 MASSOB tried to have a rally to release 300 members detained in Abuja.  The group were attacked by guards who were hitting and kicking the attendees.  He sustained an injury that resulted in him being hospitalised for three days.

    ·[In] July 2006 his family home in Enugu was attacked by masked men who were searching for him.  When [the applicant] was unavailable, they attacked his father who was hospitalised for 18 days.

    ·[In] May 2008 his home was ransacked by government security forces looking for documents or written evidence.  This was reported to the police who said they could not find the culprits.

    ·[In] March 2011 the family home was ransacked while the family was celebrating his younger brother’s birthday. [The applicant] was blindfolded and taken to an unknown destination where he was held for 22 days and tortured.  He said he was beaten, a pin was used on his genitals and he was slashed with a knife to try and obtain information from him.  He states the people who held him wanted him to publicly denounce his membership and identify executive members of the group which he refused to do.  He states he was dumped by the side of the road and left to die but was rushed to hospital by a good Samaritan.

    ·[In] December 2012 his car was set on fire while he left it parked to attend the zone meeting.  A passer-by said people came from an un-numbered/un-registered car and ignited the car.

    ·[In] January 2013 [the applicant] claims he and other members of MASSOB were attacked at the meeting centre. As the executives were running for safety some were shot.  He states he was shot [and] hospitalised for 33 days.

    oHe provided a letter from a doctor of [Clinic 1] dated 4 February 2014 stating he was admitted to hospital [in] January 2013 with a gunshot wound [sustained] during MASSOB activities and he had been in hospital for 33 days.  He also provided a sick leave certificate with the stamp of the State Health Board for sick leave [from] January 2013 for 33 days.  

    ·In his statutory declaration of 5 September 2016, he claims that after this attack he tried to avoid being found by the authorities by constantly moving from place to place.  He arrived in Australia [in] May 2014.

    ·On 23 June 2014 he received a call from a family member stating their family home had been ransacked and property destroyed.  He states the Government killer squad advised his family members that they have a standing order to “get [the applicant] dead or alive”.  During this incident his main sponsor, [Mr A], lost his life.  The Civil Liberty Organisation and MASSOB made a complaint to the Inspector General of Police but no action was taken. 

    o[The applicant] provided an article dated [in] 2014 from [Publication 1].  This article cites a press document issued by MASSOB that [the applicant] and another were being “hunted like flies” over their role in pro-Biafra activities.  It reports that the police invasion of his home had led to the death of [Mr A] [in] June 2014.

    oHe provided a death certificate for [Mr A] from [a hospital] in Enugu dated [in] July 2014 stating the cause of death was [deleted]. 

    oIn his statutory declaration of 5 September 2016 [the applicant] claims his sponsor ([Mr A]) was taken to hospital after the attack and died [the] next day.   

    oIn his statutory declaration 12 October 2016, he refers to the newspaper articles shown to him to show his brother [Mr A] is alive, and says he was shocked.  He says he telephoned his mother and other MASSOB members in Nigeria who told him [Mr A] had died.  He states his mother went to visit [Mr A]’s wife who confirmed he is dead and provided a burial poster about his death.

    ·On 25 July 2014 he purchased a ticket to return home to save his family from further attacks and attend his sponsor’s burial but was advised it was not safe and he would be at risk. 

    ·In his statutory declaration dated 5 September 2016 he claims his mother called him to say his brother [Mr B] and his half-brother [Mr C] had been kidnapped by authorities and were released over a week later. [Mr B] and [Mr C] told [the applicant] they had been badly beaten and were interrogated about his whereabouts. He thinks the authorities targeted his brothers because his name and photos were used in the MASSOB meeting, and they thought he had returned to Nigeria. 

    ·He claims that now he has left the country he will be even more of a target as the authorities will believe he has more knowledge and skills to fight for the independence of his people.  He does not believe there is anywhere in Nigeria he can live safely, and he will be at risk in all of Nigeria due to his profile.  He cannot live elsewhere as he is Christian and will be harassed by Yarouba or Hausa people or those who are of Muslim faith.  He states his experiences have had a profound affect on his mental health and he would not cope with moving to a new city in Nigeria as he does not have family or friends outside of Enugu state. 

    ·He has not become involved with Biafran groups in Australia because he is scared for his safety and the safety of his family.  He believes there are spies in Australia and if he continues his pro-Biafran activities his family will be targeted. 

    oIn pre-hearing submissions it is stated he had been a member of the group “Biafrans in [deleted]” and provided a [social media] screen shot stating he is no longer a participant in this group.

    ·He has remained in contact with MASSOB members in Nigeria by telephone, and they keep him updated about what is happening.  On occasion he sends money to family to pass on to MASSOB when they need funds for things such as hiring lawyers for MASSOB members who have been arrested. 

    o[The applicant] provided a MAASOB membership card for another person and information showing money transfers to that person in support of his claim to have provided funds to MASSOB. 

    oThe same person provided a statement dated 28 October 2020 that reports it is from the treasurer of MASSOB Ward [number] in Enugu and that [the applicant] has been supporting the organisation financially. 

    ·He is passionate about the plight of the Biafran people and if forced to return Nigeria will continue to fight for Biafran independence. 

    oIn his further statutory declaration, he states he has not attended any protests in Australia, but he has remained in contact with MASSOB members in Nigeria and has been quoted in a newspaper as well as having posted on [social media].  He is fearful Nigerian authorities have seen his [social media] page.  He attached copies of his [social media] account posting articles in support of the Biafran movement, [details deleted].  The posts included are dated in 2015. 

    oA newspaper article in [Publication 2] dated [in] 2016 quotes [the applicant] as supporter of an independent [Biafra].  He states the report that he will return home at the appropriate time to join forces with the home front was misreported. 

    oHe provided copies of his [social media] posts dated September 2017 reposting comments and photographs about Biafran freedom and reports of Igbo ethnic cleansing.

    ·He married in Australia [in] March 2019, and his wife is also Igbo and Christian.  She is also from Enugu state. 

19. At hearing, he summarised his current fear of returning to Nigeria as being a result of what he has suffered at the hands of the government as a supporter of MASSOB, his religion as a Christian, as a supporter of independence for Biafra, and because he is of Igbo ethnicity. 

    RELEVANT LAW

20. 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

21. 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).

22. Australia is a party to the Refugees Convention and has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) 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.

23. 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.

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

25. 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.

26. 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.

27. 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.

28. 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 a 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.

29. 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.

30. 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

31. 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’).

    Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

2. After the hearing, DFAT issued a new assessment for Nigeria,[1] and a report on the Economic Community of West African States (ECOWAS).[2] [The applicant] was provided with a copy of these documents and given the opportunity to comment on these documents.

   [1] DFAT Country Information Report Nigeria, 3 December 2020 (DFAT Report)

   [2] DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in this case is whether [the applicant] meets either the refugee criterion or the complementary protection criterion.  In this case, of particular relevance is looking to the likely actions of [the applicant] on his return to Nigeria and the response of authorities to this action. 

   Membership and support of MASSOB

4. [The applicant] claims to have been a supporter of MASSOB and involved in community activities in support of MASSOB.  He claims as a result he was targeted, and as he has continued to support MASSOB would again be targeted if he returned to Nigeria. 

5. The most recent DFAT Report provides an overview of the Biafran movement and the inception of MASSOB:

   … Nigeria fought a civil war from 1967 to 1970 against a secessionist movement in the southeast that titled itself the Republic of Biafra. The war came after coups and counter-coups around the central government, followed by a pogrom in which an estimated 30,000 Igbo were killed in the north, causing over a million people to flee into the east. While the exact number is unknown, most estimate the number of civilian deaths caused by the conflict to be 2-3 million, mostly due to famine.

   Targeted re-engineering of the country occurred in the immediate aftermath of the Biafra conflict, aimed at preventing any further attempts at secession and encouraging national unity and peaceful coexistence among Nigeria’s more than 250 ethnic identities. These moves included greater federalisation, including through the creation of additional states, and the introduction of constitutional diversity requirements to prevent both monopolisation of leadership, and economic and political exclusion. Informal ethnic quotas and arrangements continue to seek to maintain ethnic and religious harmony.

   Despite these moves to encourage greater national unity, there has never been a national reckoning or dialogue in relation to the issues that led to the Biafra conflict, which is not officially commemorated. According to observers, many in the southeast report feeling ongoing resentment at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation in national life. Such feelings have reportedly grown stronger in the years since President Buhari came to power, with many of his major political and military appointments tending to favour individuals from the north. As a result, in recent years there has been a noticeable resurgence of calls from the southeast for greater self-determination in the form of an independent Biafran state.

   While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.[3]

   [3] DFAT Country Information Report Nigeria, 3 December 2020 at [3.45] to [3.48]

6. [The applicant] says he has been a member of the Igbo Youths Association, and in the same year became the [officer bearer], which has merged into MASSOB since 2004.  He said he attended a demonstration and saw how police officers acted, scattering the demonstrators, and this provided the impetus for further involvement.  He provided a history of the Biafran movement and the civil war during 1967 – 70.  He said the Biafrans’ money in the bank was seized after the civil war, and they did not have a choice in government or input into government plans.  He gave a passionate account of Biafran people being treated like slaves and being killed for being Christian, for being Igbo and for being Biafran. He said if they try to express their opinion they will be assassinated or be put in prison. 

7. [The applicant] said he was the MASSOB [specified role] for Ward [number] of Enugu.  [Details deleted].

8. He said there were three different executive levels within MASSOB; ward, local and state.  His role was in a ward.  Ward [number] covers [specified area] and is one of 17 wards. 

9. [The applicant] has been consistent since his application in 2014 about his role in MASSOB and in his support of Biafran independence.  The Tribunal finds he was a member of MASSOB and was involved in [its activities].  It accepts he was a [a specified] for the zone.  He is passionate about Biafran independence and what he considers the ill-treatment of people who are Igbo.  The Tribunal is satisfied that his [social media] posts and transfer of money are because he believes in this cause, and not for the purposes of strengthening his claim to be a refugee. 

10. However, elements of his account were not convincing. 

11. [The applicant] claims his study leave and employment with [Employer 1] were terminated because of his political activities.  This is not consistent with his employment with [Employer 1], and promotion while employed by [Employer 1] during a period he was involved in MASSOB activities.  [Employer 1] gave him leave of absence to travel to Australia to study, including after he claims he was shot and required sick leave due to his activities in MASSOB.  It is not credible that he was later dismissed [in] May 2014 for his activities in MASSOB when he states he was active to the extent that he was shot and went into hiding from 2013. 

12. [The applicant] claimed that his brother [Mr A] was killed.  [Mr A] is referred to by either of his first two names in various places in the statements and documents, however the Tribunal considers nothing turns on whether [Name 1] or [Name 2] is the first name that is used. 

13. The delegate prior to the decision and the Tribunal at the time of the hearing located information showing that [the applicant] is living at the time of the hearing.  The information located by the Tribunal was put to [the applicant] under s.424AA of the Act. 

14. [Mr A]’s activities are reported in the [Publication 3],[4] [Publication 4][5] [Publication 5],[6] [Publication 6][7] and [Publication 7][8].  The report from [Publication 3] states that [office bearer] [Mr A] was a member of [specified government agency] before his appointment as a [officer bearer] in 2017. 

    [4] [Source redacted]

    [5] [Source redacted]

    [6] [Source redacted]

    [7] [Source redacted]

    [8] [Source redacted]

15. [The applicant] was advised that if the Tribunal relied on this information this would result in it finding that [Mr A] was not dead, that the death certificate was bogus, that [Mr A] was a member of [Employer 1], and that he is currently a person of influence who could provide some protection to [the applicant].  [The applicant] chose to respond at the hearing and denied [Mr A] had been a member of that [specified government agency]. 

16. In light of the media reports that [Mr A] is living, the Tribunal finds the report that [Mr A] was killed is false and the death certificate and burial notice are bogus documents.  [The applicant] submits the documents relating to the death of [Mr A] were provided by his family, and he is relying on the reports of his family.  Given the level of detail provided in his statements, such as that his brother was not killed at the time but died later in hospital, the Tribunal does not accept he did not engage or participate in providing bogus documents.   

17. As [the applicant] has provided bogus documents this means that the Tribunal approaches with some caution other documents he has provided.  

18. [The applicant] claims his profile as a supporter of an independent Biafra is shown by being quoted in [Publication 2].  A report independently obtained from [Publication 6][9] about the launch of [Publication 2], means the Tribunal finds this newspaper is a media source available in Nigeria.  However, the report in this paper is a report of what [the applicant] himself has said, and as such is self-serving. 

    [9] [Source deleted]

19. [The applicant] also provided a copy of [Publication 1] [from] June 2014, stating he and another were being hunted like flies.  The information used for this article is stated to be a MASSOB document.  The Tribunal consider this is not reliable to establish the truth of what it reports as it also reports the death of [Mr A].   A further article from [a website] is a screen shot of a cover of [deleted] with the comment that [the applicant] was shot in the [body part] when he was at a MASSOB meeting [in] January 2013.  The Tribunal does not find this convincing to show he was shot in the [body part] at a MASSOB meeting.

20. As the account in newspaper reports are either sourced from [the applicant] himself, or a report from MASSOB that is incorrect, the Tribunal does not consider it can rely on these reports to show the truth of what is reported. 

21. While at a meeting of the local and state executive to talk about his plans for MASSOB to get Biafran independence [in] January 2013, [The applicant] claims that he was shot [and] hospitalised for 33 days.  He said two others were killed.  The Tribunal could not locate any reference to this incident in open source media. 

22. [The applicant] provided a letter from [Clinic 1] and a medical certificate to support this claim.  The medical certificate asserts he suffered the gunshot wound due to his activities with MASSOB.  The medical certificate does not appear genuine, with the writing generally going around the stamp, indicating it was stamped before it was written.  [The applicant] has provided other documents that are not genuine, including a death certificate for [Mr A], as discussed below, which shows a willingness to produce documents to bolster his claims.  As a result, the Tribunal is not satisfied either the letter from [Clinic 1] or the medical certificate are genuine documents.

23. [The applicant] has been in Australia since 2014 and was able to leave Nigeria without being apprehended or arrested.  He was employed by a government organisation before his arrival.  He has renewed his passport since he arrived.  The Tribunal is not satisfied he would be specifically targeted because of his profile as a MASSOB member or leader if he returned to Nigeria. 

24. The more difficult question this poses is whether the lack of satisfaction about specific parts of [the applicant]’s claims and the provision of documents which the Tribunal is not satisfied are genuine affect his claims to fear harm if he is returned to Nigeria in light of the prevailing circumstances and in the reasonably foreseeable future.

25. The Tribunal is mindful that applicants may embellish their claims in looking to a favourable outcome, which can undermine their claims, or obscure a genuine basis for the claims.

26. In this case, the Tribunal finds that [the applicant] has been and remains a member of MASSOB and that he remains committed to the Biafran cause. 

27. The Tribunal is satisfied [the applicant] was a politically active member of MASSOB and remains passionate about the cause of Biafrans in Nigeria.  This is mixed with his views about Muslim people and the ownership and management of oil companies in Nigeria.  He has some views not supported by the country information, for example, about the role of people who are Muslim in Nigeria.  However, the Tribunal accepts that he is passionate about issues affecting Igbo people and the Biafran separatist cause.   

28. Since the decision of the delegate, the circumstances in Nigeria have changed.  At the time of the delegate’s decision, the prospects were better for ordinary members of MASSOB.  In the most recent DFAT report, it is stated:

    DFAT understands that, although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to conduct public activities. There have also been recent reports of deaths, injuries and mass arrests of MASSOB members in the context of clashes with security forces during pro-Biafra demonstrations. In May 2019, two MASSOB members were reportedly killed and 15 wounded following clashes with police at a MASSOB anniversary event in Onitsha, Anambra state, while in the same period a MASSOB member was reportedly arrested and tortured at a police station in Mgbidi, Imo state. In September 2018, 125 MASSOB members were reportedly arrested, with some sustaining injuries, during a rally in Anambra state.

    DFAT assesses that, as members of a proscribed organisation, IPOB members face a risk of arrest that is likely to be higher for those in leadership positions. Ordinary members of IPOB, MASSOB and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.[10]

    [10] DFAT Country Information Report Nigeria, 3 December 2020 at [3.51] to [3.52]

29. His oral evidence was consistent with his written statements and statutory declarations that he would feel compelled to fight for independence as he considers his people are treated like slaves.  In looking to his likely actions were he to be returned to Nigeria, the Tribunal accepts he would feel compelled to join in protests and act on his political beliefs. 

30. The Tribunal finds this is the case regardless of where he is located within Nigeria, although the likelihood of [the applicant] being able to join protests and otherwise act on his political beliefs increases in areas where there is a concentration of people who are Igbo or who support Biafran independence. 

31. In relation to political protests, DFAT reports:

    While generally respecting the rights of freedom of expression and assembly, federal and state authorities have occasionally banned and targeted gatherings that they have concluded might lead to unrest (due to the gatherings’ political, ethnic, or religious nature). Human rights groups have criticised federal and state governments for prohibiting or dispersing protests that are critical of authorities or associated with controversial groups. Security services have occasionally used excessive force when dispersing protesters, which has resulted in fatalities.[11]

    [11] DFAT Country Information Report Nigeria, 3 December 2020 at [3.33]

32. This has been shown more recently in the response of the authorities to the protests about the Special Anti-Robbery Squad (SARS) at the Leki Toll Gate.  These protests against police brutality resulted in men in military camouflage firing on the protesters, which is reported to have resulted in the death of a dozen of protesters.[12]  Supporters of the protests are reported to have been charged with financing terrorism and had their bank accounts suspended.[13]  While this protest is not related to the Biafran movement, it shows the response of the government to protests.  In the context where the government is reported to be sensitive to the secessionist movement in light of the civil war, the Tribunal considers it likely there is a real chance that further protests would result in similar action.

    [12] >

    The Tribunal accepts that [the applicant] holds a political opinion regarding the independence and the experience of the Biafran states and would feel compelled to protest in support of his beliefs. 

33. A well-founded fear of persecution looks to the reasonably foreseeable future, and the Tribunal must consider [the applicant]’s likely actions in the future if he returns to Nigeria and the risk to him as a result.  

34. While the Tribunal is not satisfied about many of [the applicant]’s claims, he was convincing in his support of Biafran independence and his beliefs about the treatment of Igbo people.  While these beliefs, such as the beliefs regarding Muslims preventing Christians from obtaining jobs, was not always supported by country information, the Tribunal considers the depth of his belief is such that he would protest if returned to Nigeria.  If he protests, in the current prevailing environment in Nigeria, there is a real chance that he may be arrested, beaten or shot.  His fear relates to the use of force by the authorities, and as such he would not be able to seek protection from authorities in Nigeria. 

35. The Tribunal finds that [the applicant] fears returning to Nigeria, and that there is a real chance of serious harm as defined in s.91R(2) such as arrest, torture and death because of his political opinion. As it considers his political beliefs are such that he would be involved in protests and MASSOB activities regardless of where he is located in Nigeria, the Tribunal finds that this is a well-founded fear as it applies to all parts of Nigeria. 

    Relocation to another ECOWAS Country

36. DFAT has produced a report on the Economic Community of West African States (ECOWAS).[14]  ECOWAS is an association of 15 states founded with the aim of promoting regional economic integrations.[15]  The Anglophone countries within the region are The Gambia, Ghana, Liberia, Nigeria and Sierra Leone.[16] 

    [14] DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020.

    [15] DFAT ECOWAS Report at [2.1]

    [16] DFAT ECOWAS Report at [2.2]

37. DFAT reports that the ECOWAS Treaty confers ECOWAS community citizenship on all the citizens of ECOWAS member states.  This includes Nigeria.  A right of entry provides all ECOWAS citizens in possession of travel documents and international health certificates the right to stay in any ECOWAS state for 90 days without any administrative or security-based immigration requirements.[17] 

    [17] DFAT ECOWAS report at [3.3]

38. [The applicant] has a current passport, and there is nothing to indicate he could not obtain the required health certificates.  As a result, he has the right to enter any ECOWAS state for a period of 90 days. 

39. To obtain a right of residence, a person must apply for and obtain a residence permit or work permit like a non-ECOWAS immigrant.[18]  Refusal of a right of residence is possible on public order, public security or heath grounds.[19]

    [18] Ibid

    [19] Ibid

40. There are also some barriers to employment of ECOWAS citizens in other member states.  DFAT reports that many member states have provisions in their local labour laws and regulations that protect certain economic sectors and public sector jobs from foreign nationals.[20]  This could provide a barrier to [the applicant] as his previous work in Nigeria was the public sector for [Employer 1].  However, as he is relatively young and has no physical problems, the Tribunal considers he could obtain employment in fields that would allow for employment. 

    [20] DFAT ECOWAS Report at [3.6]

41. Ghana is another Anglophone country, and has been reported as being sympathetic to the Biafran movement during the civil war.[21]  As such, it is the logical country to look to regarding relocation. 

    [21] Aremu, J (2014) “Ghana’s role IN the Nigerian War:  Mediator or Collaborator” International Journal of Humanities and Cultural Studies Vol 1, Issue 3. 

1. The DFAT ECOWAS Report states that some member groups have differing views on which groups of interest are considered terrorists or political activists and therefore who is considered a national security threat.[22] 

   [22] DFAT ECOWAS Report at [4.22] 

2. [The applicant] said if he returns to Nigeria his chances of surviving are narrow.  His friend who was a MASSOB member ran away to Ghana but was told to go back to Nigeria and the Igbo in Ghana were asked to leave.  The Tribunal could not locate any reports of Igbo people in Ghana being expelled from Ghana. 

3. [The applicant] is a member of MASSOB, and there is a risk he would be seen by another ECOWAS country as a security threat.  In other ECOWAS countries he would have to apply for a residency permit after 90 days. As a result, he does not have a durable or certain ability to enter and reside in another ECOWAS state.

   CONCLUSION

4. [The applicant] is outside of his country.  The Tribunal has found he fears persecution on account of his political opinion, in particular his opinion about the treatment of Igbo people and the independence of a Biafran state. 

5. The persecution involves serious harm such as arrest or arbitrary detention or a risk of being assaulted or killed in a demonstration.  Country reports of the use of force against demonstrators support his fear as being well founded.  His fear relates to the authorities in Nigeria, and therefore he cannot seek the protection of authorities.

6. The Tribunal is satisfied this exists in all part of Nigeria, and that his likely political activities would occur regardless of his location.

7. 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, he satisfies the criterion set out in s.36(2)(a).

   DECISION

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act1958.

   Kate Millar
   Senior Member