1620532 (Refugee)

1620532 (Refugee) [2021] AATA 720 (12 January 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620532
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Jane Marquard
DATE OF DECISION:  12 January 2021
DATE CORRIGENDUM
SIGNED:31 March 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision: The Date of Decision should read 12 January 2021 instead of 12 January 2020

Statement made on 31 March 2021 at 11:45am
Jane Marquard
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620532
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Jane Marquard
DATE:12 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2021 at 9:47am
CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Catholic – Christian convert – fear of harm at the hands of pagan worshippers – Ikolo cult – ritual killing – witnessed human sacrifice as a child – claimed attacks on family members – s.438 certificate – anonymous allegations – natural justice obligations – credibility assessment – discrepancies in visa applications – vulnerabilities of the applicant – delay in seeking protection – Christian population in Nigeria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 375A, 425, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Burton v MIMIA (2005) 149 FCR 20
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Chan v MIEA (1989) 169 CLR 379
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

The applicant is a [age]-year old woman from Nigeria.
She first arrived in Australia [in] August 2011 on a [specified temporary visa] sponsored by [Organisation 1]. She was granted [another temporary] visa on 16 April 2013, which expired in 2015. She applied for a Student Visa (TU-572) on 25 February 2015 and was granted a bridging visa in association with this student visa application. Her student visa (TU-572) was refused on 20 August 2015.
She applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 15 September 2015.
A delegate of the Department for Immigration and Border Protection (the Department) refused to grant the visa on 17 November 2016.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The Tribunal has significant sympathy for the applicant’s situation. She has been living in Australia since 2011 and it is likely that she has settled into Australian life. There has been significant delay in this review which is likely to have been challenging for her, and her referees have attested to both financial and psychological difficulties she has faced. Many people in the church community speak highly of the applicant, who has aspirations to join an order and devote her life to the church. The [Archbishop of Diocese 1] has spoken of his willingness to advocate for her, and other church members have commented that she is a positive and generous person who would make a contribution to Australia. A sister from [Religious Order 1] has confirmed that the sisters would endeavour to fulfil her wish to become a member of the congregation should she get a permanent visa.
However the Tribunal must determine whether the applicant meets the refugee criterion or the complementary protection criterion set out in the legislation. Although she has been living in Australia for a significant period, has many positive character references, and could well contribute to the community perhaps through joining [Religious Order 1], the Tribunal is not satisfied that the applicant meets the criteria set out in the legislation. The reasons for this are set out below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in Attachment B to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in Attachment B to this decision.
Mandatory considerations
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The evidence taken into consideration in this review
The Tribunal has taken into consideration evidence provided to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Nigeria.
Summary of evidence before the Department
The applicant provided information and made claims in her application forms and a supporting Statutory Declaration dated 30 November 2015. She was interviewed by a delegate of the Department on 3 December 2015 and provided a written statement dated 13 December 2015. She claimed to fear physical violence and death at the hands of pagan worshippers if she returned to Nigeria. A summary of her evidence follows.
The applicant stated that she was born in [year] in [City 1], Delta State. She is of Igbo ethnicity and a Christian. She lived in [Village 1], Anambra State from 1988 to 2004. She went to [school] there, and from 2003 was at [another] school in [City 1], Delta State. Both were Christian schools. She moved between [Village 1] and [City 1] through her childhood. [City 1] is six hours’ drive from [Village 1].
Her father was a [Occupation 1], who died in 2010, and her mother a [Occupation 2]. Her brother, [Brother A], passed away in 2015.
Her mother, aunt and two cousins are still living in Nigeria. Her mother lives in [Village 1]. She is in regular contact with her. She does not know where her aunt or her family live.
She said that her family belonged to a pagan tribe from [Village 1] called Ikolo. Her grandfather was the Ikolo leader in [Village 1] and had five wives. She said that her family was raised to believe in paganism. Pagans are the worshippers of a god called Ikolo and believe in human sacrifice. Her grandfather would perform the sacrifices. She said that when she was seven or eight years old, she saw a human body in a basin and there was blood on the basin. She was frightened and crying and her brother carried her home. Later, her grandfather died, and her father and mother remained involved in paganism. Asked by the delegate of the Department at interview if she witnessed sacrifices, she said that she recalled witnessing one when she was little.
She said that her brother, [Brother A], who was 13 years older than her, protected her from witnessing these rituals. He left the village when she was little to pursue a degree in [Discipline 1]. He came home once a month. If there was a ritual taking place, he would come home and take her away from the village. She said that he became interested in Christianity through Christian friends at university. After about eight months he became convinced that ‘Christianity was the religion for him’. In 2007 he became a Reverend after attending seminary school. She said in her written information that in the village nobody knew he was Christian as he still attended pagan rituals until 2007. She said at the Departmental interview that after he became a Reverend, he did not take part in rituals.
She said that when her father found out that [Brother A] was Christian, he was angry and told the villagers. He told [Brother A] not to bring his religion to the village or he would be killed.
She claimed that [Brother A] taught her about Christianity. She was drawn to it and was baptised in 2001. In 2003 he arranged for her to go to a Catholic school in Delta. She was confirmed in 2003 at school after she became more devout. While she was at high school, she learnt more about Christianity. She said in her statement that in her teenage years she moved between her home village of [Village 1] and [City 1] in Delta State. Asked at the Department interview if she returned to the village for holidays when she was going to high school, she said she did not think she did.
She said that her Christian primary and secondary schools were arranged by her brother without her parents’ knowledge. The delegate of the Department asked her how she could attend Christian schools from 1993 to 2007 without her parents’ knowledge. She said that all her life she was under her brother’s care, and ‘he was the one speaking to me in front of my parents’.
She said that she moved schools and states in order to avoid the villagers who wanted her to take part in rituals. She said that between 2003 and 2010 she received threats from villagers who came to her school. She said that she lived in fear of her life. Asked how she was threatened, she said that ‘either they can hire people…sometimes they do phone, but sometimes they kidnap people, like rebel people.’ She said she escaped them through the help of God. She said that once she came back from school and a group of people asked her if she lived there, and they had been there previously to ask if she lived there, so she moved to Anambra state to stay.
The delegate of the Department asked her why Christianity had not reached her area, considering that the vast majority of the population in the lower half of Nigeria is Christian. She said that Nigeria is a big country and there are different tribes and traditions.
She said in her application that from July 2004 to March 2007 she was a [Occupation 3] at [a church bookshop] in [City 1], Delta State. However, in her statement she said that she finished school in 2007 and first moved to Lagos to do voluntary work, then in 2008 went to Ananbra state and did voluntary work in a church bookshop. She went to [Church 1] every day for mass. She said in her application that from 2007 to 2008 she lived in [District 1], Lagos, and from 2008 to 2010 she lived in [City 1], Delta state where she did [Occupation 3 work] at [the Church 1 bookshop].
She stated in her Statutory Declaration that in 2010 her mother was sick, and she and her brother returned home to see her. The applicant told her mother she was Catholic, and her mother said that she should stay home and stay in her brother’s care so that no-one would know what she was doing. She said that her mother told her father, and her father then told the group that she was not pagan. The pagans asked them to go to a meeting, but they refused.
She claimed in the Statutory Declaration that on 15 April 2010 about seven or eight leaders of the pagan group went to their house with sticks, knives and sharp objects. They beat her brother and asked him to denounce the Christian faith. She said that her father got involved to stop them beating her brother and then the pagans got angry and attacked them all. They told them that ‘next time it will be worse’. She said that they all went to the local hospital and then were flown to the city in Anambra where they spent a week in hospital. They then got a taxi back to the village. She said in her Statutory Declaration that her father reported the incident to three police stations, but they refused to help, stating that it was a tribal issue.
In the Departmental interview, she confirmed that in 2010 she and her brother went to visit her mother who was ill. They asked their mother to come to the north of the village so they could take her to hospital. She suffered from anxiety. They took her to the hospital and then home the same day. She said that on the way home they were ‘cut’. The delegate put to her that this information was different to what she had said in her application. She said that after dropping their mother at the house, pagans came to the house and attacked her, her parents and brother. They attacked them because her brother was a priest and she was a Christian, and they had been looking for them for years, but this was the first opportunity they had. They had found out that her brother was a priest when he was studying, and her father went to visit him. After this, he did return to the village, and attended rituals, but was not attacked. In the Departmental interview she said that her father called a taxi to take them to hospital. They had both been beaten up multiple times prior, but this incident was the most severe. Her mother had a broken knee.
She claimed in her Statutory Declaration that her father stopped going to the temple and decided that he did not want to be part of a group that was trying to kill his son. She said that people asked him why he did not attend, and he said that he did not know where his son was and did not want to be a pagan as they were trying to kill his son. On 17 August 2010 her father was burnt to death by the pagan leaders because he refused to disclose his son’s whereabouts. After this, her mother had no choice but to continue to follow the pagans or she would have been killed. She said it was not possible for her to move away from the village.
In 2010 the applicant moved to [District 1], Lagos with her brother. After the death of their father, the pagans left a warning for them. Her brother made arrangements for her to travel to Australia. She said in her Departmental interview that her mother was aware that she was leaving. Her brother told her mother the day before she left. Her mother signed a statement saying that the applicant was Christian. At the Departmental interview she was asked about why there were contradictory address and postal details in her application, including her mother’s residential address. She said that they were mailing addresses in Lagos as documents could not be mailed to their village.
Although in her student visa application there were documents suggesting that she had a sister, and her brother-in-law would support her study in Australia, she said in her interview with the Department that the people stated to be her sister and brother-in-law in the student visa application are in fact friends of her brother, and not her sister and brother-in-law. In her statement dated December 2015, she said that her brother had handled her student visa application.
She said in her Departmental interview that her brother was not harmed until May 2015, but he lived in fear and in hiding. She said in her Statutory Declaration that on 7 June 2015 she was informed by her mother that her brother was killed on 1 May 2015 on the way back to Lagos after visiting her mother. His body was burnt the same way as her father’s had been. He was driving back to Lagos at the time. He had been visiting his mother even though the pagans were looking for him.
She said that after he died, she had delayed applying for a protection visa, as she was not aware of her options. The correspondence submitted by her mother had been written by her brother with consent of her mother, as her mother is illiterate. The correspondence dated September 2015 is an email the applicant sent to a doctor requesting a report in relation to the attack on her family in 2010. The email from [Mr B] was somebody who gave her advice, but he did not prepare her application. She said that her situation is dire, and she had contemplated taking her own life, rather than having to return to Nigeria.
She said that her mother warned her not to return to Nigeria, as the pagan group had come to the house a few times looking for her. She believes that they will kill her because she denounced them. She said that they are a cult, are vicious and believe in witchcraft. She has also heard that they have connections to Boko Haram, who have kidnapped people on behalf of the pagans for ritual practices. She said that she cannot relocate to another part of Nigeria, as the pagan leaders have connections throughout Nigeria and can easily trace people. She said that her mother has been able to remain safe as she practised paganism. Her father, on the other hand, had stopped going to the temple and had challenged them to stop going after her brother.
She said that she did not apply for protection earlier as she thought that she had no reason to apply while her brother was alive, and also, she was not aware she could apply until after the death of her brother.
At the Department interview she was referred to anonymous emails received by the Department, indicating her claims were fabricated. She said that these may have been the result of her email being hacked.
She said that she came to Australia to study as a Reverend Sister. She was sponsored by [Organisation 1]. She arrived in Australia in 2011 and started learning about the religious life in [Suburb 1]. The sisters said that she was not old enough to take her vows, so she went to [State 1] to study [Discipline 2]. She moved to [City 2, State 2] in August 2015.
The delegate of the Department asked her at the interview why she did not apply for asylum until 2015 if she arrived in 2011 and feared for her life in Nigeria. She said that she did not want to apply. She only applied when her brother died, and she was ‘messing up her life’. The delegate asked her why she did not tell the Department about her troubles in Nigeria when interacting with them for her [temporary] visa applications. She said that her brother was sponsoring her, and she had no financial difficulties. She said she did not know a protection visa ‘existed’. The delegate asked her why she told the Department in March 2015, when asked why she could not return to Nigeria, that she had a life in [Australian City 3] and had already paid for her course. She said she did not say anything as her brother was still alive.

Asked by the delegate why her mother’s address was in [District 2], [City 1] rather than the village, [Village 1], where the applicant claimed she lived, the applicant said that it was a mailing address. Asked who lived there, she said she did not know but thought it was a friend.
She said that she did not tell the Department earlier about her fears because her brother was alive and catering for her needs. She said that she did not believe there was a need to report her circumstances as she was under a valid visa and starting a new life in Australia.
Documents provided to the Department
The documents provided in support of the application are attached at Attachment A.
Summary of evidence before the Tribunal
Submissions dated 12 March 2020
On 20 February 2020 the applicant’s representative made submissions to the Tribunal. On 12 March 2020, further submissions were made to the Tribunal and the applicant’s representative requested that the earlier submissions be disregarded and not used. A summary of the submissions on 12 March 2020 follows:
·The applicant could not seek protection in any of the countries which are part of the Economic Community of West African States (ECOWAS) as sources indicate that Nigerians are constantly being targeted in xenophobic crimes. This has prompted the Nigerian government to advise its nationals to return home. However, within Nigeria there is the risk of terrorist attacks, religious, tribal and ethnic tension.
·There are also xenophobic attacks in South Africa, and Nigerians have been specifically targeted.
·Nigerians in Ghana and Togo were recently targeted in xenophobic attacks.
·The majority of ECOWAS member countries practise Islam or paganism and have hostile attitudes towards foreigners who belong to the Christian faith. Due to Boko Haram attacks in northern Nigeria, many thousands of Nigerian citizens have taken refuge in various ECOWAS countries which are now saturated with refugees and would not readily admit more refugees from Nigeria.
·The applicant’s brother’s Christian faith was not fully disclosed to the community due to fear of attack from pagan worshippers. He attended the [a] Seminary School in [City 4] and maintained a quiet profile.
·The gruesome attack on the applicant’s father and brother in 2015 is evidence that the applicant’s family is targeted by the Ikolo idol worshippers. There were also ‘minor attacks on the applicant’s family including telephone threats, which are usually followed with attacks.’ It was submitted that research indicates that Nigeria is a country where attacks and religious killings can easily be perpetrated without being detected or investigated and that in the South Eastern part, cults and pagans operate in secrecy and it is difficult to identify who is responsible.
·Based on findings of their agent in Anambra State, [Barrister A], the Ikolo is a shrine worshipped in the applicant’s home town. It has many loyalists and worshippers from [Village 2] in [Town 1], in the Northern part of [Village 1] Zone. Pagans from [Town 1] are loyal to the Ofendum deity, however in various villages they have their own village deity which they can name. The agent advised that in the Igbo dialect, words that have the same spelling may mean different things based on pronunciation. The word ‘Ikolo’ may have different meanings depending on pronunciation. Besides being a musical instrument in [Village 2] in [Town 1], Ikolo is a deity brought into the village by a man called Ikolo Ujama Nwokolo about 215 years ago, and the name of the first chief that presided over the shrine.
·The agent also advised that no state capital is more than 10kms away from another state capital. The distance between the applicant’s hometown, [Village 3], [Town 1] in Anambra, and Onitsha is about 105 kilometres but can take five to six hours depending on heavy traffic and road conditions.
·The applicant attended a public school for primary and secondary school where pagans, Christians and Muslims studied together with no religious restrictions. The applicant was aware that her parents did not approve of the fact that she and her brother changed religion, and they kept the information private from her mother. Her brother [Brother A] warned the applicant not to disclose her faith.
·The applicant’s email was compromised and there is proof that her email was hacked by a person with whom she shared a flat. This person had regular unauthorised access to her account. The information she has provided to the Department is correct and not created for the purpose of an asylum claim.
·There is no requirement for an applicant to demonstrate past harm in order to demonstrate real chance of serious harm. She has fear and trauma because of the death of family members.
·There have been recent cases of kidnapping and rape in Nigeria. In June 2019 a Christian Nigerian woman who was visiting the applicant’s home country with her husband and 9-year-old daughter was kidnapped and raped by Fulani herdsmen. In February 2018 a 14-year-old Christian student, Leah Sharibu, was abducted from her boarding school. Reports suggest that she may have been killed due to her Christian faith.
·Persecutions against Christians have been on the rise. There has been continuous killing of Christians by Muslims and Fulani herdsmen in the Middle Belt and Southern (Igbo) region and Nigeria is ‘one of the most dangerous places to be a Christian’. The applicant has professed faith as a Christian.
·The authorities are not doing enough to stop the continuous killings of Christians. The president, Mr Muhamadu Buhari, is a Fulani Muslim and has been accused of encouraging, aiding or abetting the killings of Christians.
·The applicant arrived in Australia on a [temporary] visa as a member of [a] priory in [State 3]. She left her previous congregation due to an incident with the leadership, which bothered her morality and conscience. She aims to become a religious sister in the Catholic faith and has been in contact with a number of congregations for re-enrolment. She has been approached by other congregations for Sisters, some of whom are willing to sponsor her to become a Reverend sister. She said that it has been her desire to serve God with her life without marriage or children.
The applicant provided documents to support her submissions, which are described in Attachment A.
Letter from Tribunal dated 15 July 2020 and response of applicant
The Tribunal wrote to the applicant on 15 July 2020 to provide her with an opportunity to comment or respond to information which would be the reason or part of the reason for affirming the decision under review, subject to her comments or response. The applicant responded on 28 July 2020. A summary of the questions asked, and her response and comments, is set out below.
The Tribunal asked the applicant why she stated in her student visa application form that she resided in Onitsha, but she had told the Department in her application for the protection visa that in 2010 she moved to Lagos with her brother.
The applicant did not provide a specific response to this question.
The Tribunal asked her why, in a Statutory Declaration signed by her mother as part of her [first temporary] visa application, she states she is a Christian and resided in [District 2], [City 1]. However, the applicant told the Department as part of the protection visa application that she did not tell her mother about travelling to Australia until the day before she left for Australia. She also said that she resided in [Village 1]. The applicant had told the Tribunal that she was illiterate, however this does not explain why her mother would sign the Statutory Declaration stating that she is a Christian and resided in [City 1].
The applicant responded that her mother is uneducated and illiterate. She said that in her home country, affidavits are often written and prepared for people who are not educated, who then endorse or sign the affidavits. The affidavit was prepared by her brother who took it to her mother to endorse as it was needed for her journey to Australia. She said that her mother lives in the village. She lived in [City 1] briefly but later returned to the village. She said that [District 2], [City 1] was the address they used for mail. She said that in her home country both residential and postal addresses can be used interchangeably in affidavits, and there were no addresses in the village so people used city addresses for forms.
The Tribunal asked her why in her student visa application, [Mr C] said that he had written to testify that the applicant was his sister-in-law. He said that he had been married to her elder sister for 20 years and that she lived with them since childhood. He said that he had paid her school fees and was responsible for her financial upkeep and would continue to pay her fees. However, she told the Department and this Tribunal that her only sibling was [Brother A] who passed away, and that [Mr C] was not her brother-in-law.
She responded that in her traditional Igbo culture, people from the same extended family are often referred to as sisters and brothers. She said that [Mr C]’s wife is an ‘extended family member, who in my culture is regarded as a sister’. She said that Nigerians are ‘not good in referring to relatives as cousin, aunt, niece, etc. Sister or brother is commonly used in my home country. I affirm that [Mr C] is my brother in law’.
The Tribunal asked the applicant about information in a letter from her Nigerian lawyers to the Anambra State Police Command dated [in] July 2015. In this letter the lawyers state that after the violent incidents from the Ikolo, she and her mother fled to the city where she completed secondary school and commenced vocational training in her Christian congregation. This information conflicted with information in her application in which she said that she finished secondary school in 2007, thee years prior to the date the lawyer said she moved to the city. She had also told the Department that her mother remained in the village, and that in 2010 she and her brother moved to Lagos after her father’s death.
The Tribunal also noted that the Nigerian lawyers referred to arrest of perpetrators of the assault and the matter being before the High Court. This conflicted with information provided to the Department that her father went to three police stations, but police refused to help.
The Nigerian lawyers also referred to a police investigation after 2015 and threats received by her mother and herself by telephone. However, she had not told the Department about these matters.
The applicant did not provide a specific response to this question.
The Tribunal noted that in communications with the Department in relation to her student visa in March 2015 she told the Department that she could not return to Nigeria because she had already paid for her course and had a life in [City 3]. The Tribunal asked her why she did not mention that she feared returning to Nigeria because of fear of attack from a pagan cult.
The applicant did not specifically respond to this question.
The Tribunal also referred her to information provided to the Department by an anonymous source that she was trying to apply for a protection visa after her student visa was rejected. The source said that one of her accomplices was helping her with forged documents.
The anonymous source also included copies of what appeared to be a template or sample letter for a doctor or hospital to write, and an email from a person called [Mr B] about an incident on 15 April 2010 involving an assault on his son in relation to conversion from Ikolo. It was suggested to the applicant that this information suggested that she had arranged for documents to be prepared using [Mr B]’s story and the hospital template, rather than the documents being generated genuinely.
The applicant responded that she was living in [State 2] at the time, and the anonymous person (whom she named in her response), was living in [State 1] and obtained access to her account. She said that she had shared a flat with him in [State 1] and he sexually harassed her on many occasions, taking advantage of her vulnerable state, as she was new to [City 3] and needed help with accommodation, computer assistance and other matters. He tried to force a sexual relationship and forced her to cook and clean for him. He also assisted her with computer work, and she believes this was when he found out her password. The sexual harassment continued until she reported the matter to another Nigerian friend in Melbourne, whom she considers as a brother. This brother warned the anonymous person that if it happened again the police would be notified. She later moved out with the help of the church and lived with a Christian family until she moved to [State 2].
She said that after leaving his flat the anonymous person became ‘jittery’ that she might report him to police for the molestations and he decided to ‘attack her visa application’ by breaking into her email account from [State 1], while she was in [State 2]. A friend saw him printing documents from her email account and told her to change her password.
She submitted that the Tribunal should not ‘work with the information provided by this anonymous person who illegally accessed my email account without authorisation’ and who criminally stole her password and accessed her account.
The applicant also commented that ‘[Mr B] is not an accomplice. He was only helping me like other Nigerians and non-Nigerians were doing at the time due to the state I was in. I was relatively new to Australia and was visibly struggling. Without the help of good-hearted Australians, I would have given up on life since arriving in Australia due to what I have been through’. She said the information provided to the Department was true, and [Mr B] helped her write in a ‘good English structure’. She said that there were also other people from [Church 2] and [Organisation 2], that assisted at the time, because of her writing and spelling problems. These people are willing to provide statements to the Tribunal.
In her response to the letter from the Tribunal dated 15 July 2020, the applicant also provided general comments about her visa applications. She said that she suffered a lot of trauma as a young person in Nigeria. She claimed that her life events are such that she switches off mentally and is unable to recall events. She said that when she submitted her student and protection visa applications, she was under severe stress and did not recollect most of the events that took place before then. She claimed that this was the reason for discrepancies in her visa applications. She said that the impact of decades of trauma continues to reflect in her daily life at significant levels and it changes her mood, thoughts and memory. She said that she often forgets things she has said, and this has been pointed out to her by her friends. Her intellectual capacity has also been affected and she struggles to comprehend things. When she arrived in Australia, she found it hard to adapt and could not express herself in clear English. She relied on friends and this was how she got in touch with the person called [Mr B].
She commented that ‘noting the discrepancies in my visa applications, the fact is that my life will be at risk if I return to Nigeria. The difficulty in proving the harm I will face with the Ikolo group lies on the fact that the majority of unlawful activities in my country occur in secret, making it difficult to prove. I am at the centre of all of these and fully aware of what I will face it I return to my home country, and this is why I do not want to return to Nigeria’.
She said that it has been her life ambition to become a Reverend Sister in the Catholic faith, and this is why she left Nigeria as a religious worker in the first place. She said that ‘unfortunately things did not work out well for her’ with her previous sponsor. She said that she has been offered opportunities by other religious organisations who are keen to sponsor her for a religious visa or offer her a place in their religious congregation once her visa issues are resolved. She implored the Tribunal to consider in depth the explanations provided in line with her life circumstances and what she suffered in Nigeria and Australia, noting that ‘some of the information that appear contradicting in my visa applications were provided under intense pressure, and sometimes in a confused state due to the traumatic events of my life’.
Evidence of [Sister D]
[Sr D] is a Sister and Director of [Discipline 2] of [Religious Order 1], [Suburb 3].
[Sr D] said that she had known the applicant for three months. The applicant had been ‘discerning a vocation to religious life and visits the sisters and myself regularly to get a better understanding of the Sister’s way of living’.
She said that the applicant has a good work ethic, is an asset to her employer, is positive and friendly.
She said that [Religious Order 1] would endeavour to fulfil her wish to become a member of the congregation should she get a permanent visa.
Evidence of [Ms E], psychologist
[Ms E] is a psychologist with [Trauma Service 1] in [City 2]. She said that the applicant was referred in December 2015 by her case worker from Red Cross due to anxiety, loneliness and ongoing uncertainty.
[Ms E] said that the applicant attended one intake session and one counselling session before her file was closed in November 2016 due to disengagement from services.
Evidence of [Archbishop of Diocese 1], [Archbishop F]
The Archbishop stated that he met the applicant four years ago when she came to see him on the advice of another priest. She was without income and trying to get a job. She had a strong Catholic faith and believed God would help her. She was depressed as she needed accommodation and a job. She sought help from people in church and earned some income through cleaning their homes. She also volunteered at [Church 2] in [City 2]. The Archbishop did his best to help her through this difficult time and admired her tenacity, search for jobs and trust in God.
The Archbishop gave her a fortnightly job doing [specified tasks].
She later moved to [City 5] and then [City 6] for jobs.
He said that she would make a positive contribution to Australia.
Evidence of [Sr G]
[Sr G] is a Sister of [Religious Order 2] in [Suburb 4].
[Sr G] said that she met the applicant in 2015 when she contacted her with an enquiry about the sisters in view of discerning a vocation to religious life.
She said that the applicant shared with [Sr G] how her brother, a Catholic priest, had sponsored her to study in Australia. He desired her to get out of Nigeria for her personal safety as many Christians from her village had been killed, including her father.
[Sr G] said that she was distraught for her family’s safety and very upset as her brother had been killed. She had lost her sponsorship and was in financial difficulty. Various people from Catholic parishes in [City 2] assisted her.
[Sr G] said that when it became clear that she needed $10,000 for an immigration lawyer she became depressed, anxious and desperate. [Archbishop F] kept a close eye on her as her mental health deteriorated and they were concerned that she was suicidal.
[Sr G] said that [Archbishop F] knew of a Nigerian priest who he invited over to connect with the applicant and to ‘check out the situation the applicant had described’. She said that it turned out that the priest had been in the same seminary at the same time as the applicant’s brother. After this [Sr G] launched an appeal to raise money for the applicant’s legal fees.
[Sr G] said that the applicant has initiative and drive and gained skills in youth and community services which would benefit the community.
Evidence of [Father H]

[Fr H] met the applicant when she lived in [City 2] as she was in his parish. She came to the church every day. She asked him if he knew of employment for her. She was studying [Discipline 2]. She found some cleaning work.
He said that he supported her application as she is joyful and positive despite adversity and has developed skills in [Occupation 4].
Evidence of [Mr I]
[Mr I] is the [City 6] Regional President of [Organisation 2].
He said that he had known the applicant for about 12 months. He said that she is extremely hard working, enterprising and honest. He had been impressed with her ability to find employment and her dedication to being an independent and contributing member of society. She also studied in her spare time to improve herself.
He said that she is a valued and well-regarded member of the [City 6] community.
Evidence of [Ms J]
[Ms J] said that she has been a volunteer for [a specified service] of [Organisation 2] since 2006. She assists people with Emergency Relief.
She said that she met the applicant at a backpackers’ lodge in 2015. She had no income support and was requesting help with food and payment for a few days’ accommodation. She was in a shared dormitory. She was very appreciative of the assistance provided. She had a positive outlook despite adverse circumstances.
[Ms J] said that she had helped hundreds of people during her time volunteering but had only given two her private telephone details. One of these people was the applicant. She wanted to help her establish a life, and she was so genuine, enthusiastic and hopeful.
She said that during the next few years she helped her with bedding, money and talked to her a few times, and gave her support through friendship. Most of the progress she made was through resourcefulness, finding temporary accommodation and doing cleaning jobs, later working as a [Occupation 4].
Country information provided by the applicant
The applicant provided the following articles:
·An article from the Catholic Herald about the kidnapping and murder of a seminarian.
·An article about protests in regard to Leah Sharibu celebrating her 16th birthday in captivity.
·An article from Vatican News about the shooting of a Catholic priest in [City 4].
·Articles from Al Jazeera, BBC News and YouTube about xenophobic violence in South Africa.
·Articles about attacks on Nigerians in Togo and Ghana.
·An article in PMNews Nigeria about the lack of response of government to attacks on Christians.
Invitation to a Tribunal hearing and the applicant’s response
On 6 February 2020 the Tribunal wrote to the applicant to inform her that her file was being prepared for allocation to a Tribunal member and a hearing would be scheduled, and advised her to send additional evidence to the Tribunal as soon as possible. On 20 February 2020 the applicant provided additional evidence, referred to earlier in this decision.
On 5 August 2020 the Tribunal telephoned the applicant’s representative and the applicant to ascertain if the applicant or her representative had the technology to participate in a hearing by video due to restrictions imposed by the COVID-19 pandemic. The Tribunal followed this telephone call with a letter on 5 August 2020 confirming that the applicant had told the Tribunal that she had the necessary technology for a video hearing and confirming the details of that technology.
On 17 August 2020 the applicant’s representative notified the Tribunal that the applicant had instructed her that she might not be able to attend the hearing by video due to concerns about her telephone and its ability to handle the proceedings and her lack of knowledge about technology. She was afraid that technological failure would trigger ‘intense fright and anxiety’ and this would impact on the overall quality of the hearing. She requested that the Tribunal consider her case on the papers without a hearing. On 7 September 2020 the Tribunal contacted the applicant to ascertain whether she would like to attend a video hearing with the Tribunal from a location in [City 6] such as the [City 6] Court, such that she would not have to use her own telephone or computer and thus eliminate concerns about technology.
On 11 September 2020 the applicant’s representative advised the Tribunal in writing that she had been instructed that the applicant was content with a decision being made on the papers as she believed that her anxiety would affect the hearing.
The Tribunal has decided to proceed to a decision without a hearing pursuant to s.425(2)(b) of the Act as the applicant has consented to do so with the assistance of a legal representative.
DECISION OF THE DEPARTMENT
The delegate of the Department was not satisfied that the applicant and her family had been targeted by a pagan group or that the applicant would be targeted if she returned to Nigeria. The delegate found therefore that the applicant did not meet the refugee or complementary protection criteria.
FINDINGS AND REASONS
Relevant legal principles

100. The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. A summary of the relevant law is set out in Attachment B. In summary, in order to meet the refugee criterion, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criterion, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.
101. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
102. The findings of the Tribunal, based on the evidence provided, are set out below.
Nationality/receiving country
103. The applicant provided a copy of her Nigerian passport issued in Lagos in 2009, which expired in 2014. The Tribunal is satisfied on the basis of the passport and other information provided that the applicant is a citizen of Nigeria, and that Nigeria is the receiving country for the purposes of the legislation.
Section 438 certificate
104. A preliminary issue for consideration concerned a non-disclosure certificate issued by the Department, which purports to restrict disclosure of certain information in the Departmental file. The delegate has placed this non-disclosure certificate on the Department’s file pursuant to s.438(1) of the Act. The certificate purports to restrict from disclosure folios 88 to 90 of the Department file. The material in these pages consists of emails from an anonymous source containing allegations that the applicant’s protection visa application was not genuine and that a migration agent was assisting her to submit forged documents. It is stated in the certificate that the Department considers that this document and matter contained in the document or information should not be disclosed to the applicant or the applicant's representative because it contains information that was provided in confidence to the Department and that may result in the identification of the informant who provided the information in confidence to the Department. The certificate states that if it was proposed to disclose any matter, then the highlighted portions of the documents should be redacted because they contained information which if disclosed would result in the identification of the informant.
105. There are two issues for the Tribunal; one is whether the certificate is a valid certificate and the other is the nature of the information in the purportedly restricted folios.
106. Whether a document is impressed with the necessary quality of confidence required for s.438(1)(b) is a matter for the Tribunal to decide on its merits.[1] For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or departmental officer by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed, and that the information not be public or common knowledge.[2] In exercising its discretion to release the material to the applicant or another person, the Tribunal may consider whether the consequences of its release may have a detrimental effect on an individual. In some circumstances, public interest immunity might operate to prevent information provided in confidence to be disclosed where it might reveal the source.[3] The emails containing the allegations do appear to have been given to the Department in confidence as they are marked ‘anonymous’. The Tribunal is satisfied therefore that the certificate is valid.
[1] SZTYV v MIBP [2018] FCA 1076 at [42]. An application for special leave to the High Court was dismissed: SZTYV v MIBP [2018] HCASL 382.
[2] See SZTYV v MIBP [2018] FCA 1076 at [42], SZTYV v MIBP [2018] HCASL 382.
[3]SZTYV v MIBP [2018] FCCA 64 at [58]-[59].
107. The Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.[4] The majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP and BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate/notification to the applicant in the review. In Burton v MIMIA,[5] the Federal Court held that a valid s.375A certificate (the equivalent provision in regard to migration matters) does not override the obligation to provide particulars of information under the natural justice provisions. His Honour stated that the provision of particulars need not reveal the information subject to the certificate, and need not involve access to any actual document.[6] As a result of these decisions, while the material subject to a certificate cannot be provided to the applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with natural justice obligations. Although the certificate is valid, to be fair to the applicant, the Tribunal outlined the nature of the material noted in the certificate and provided the applicant with an opportunity to comment or respond, without providing information that could identify the informant. In doing so, the Tribunal noted that the Department delegate had similarly disclosed to the applicant the gist of the content including the name of the person called [Mr B].
[4] Section 438(3)(b).
[5] Burton v MIMIA (2005) 149 FCR 20 at [40]–[42].
[6] Burton v MIMIA (2005) 149 FCR 20.
108. The discussion of the content of these emails is included later in this decision.
Findings of fact
The reasonable approach to fact-finding
109. When assessing claims the Tribunal must make findings of fact in relation to the claims, often involving an assessment of an applicant’s credibility. The Tribunal acknowledges that assessment of credibility can be based on imperfect perceptions of truth[7], and as such is guided by the observations and comments of both the High Court and Federal Court of Australia in decisions about credibility.[8] In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[7] Fox v Percy (2003) 214 CLR 118.
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
110. This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

111. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

112. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor are decision makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:
where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[9]
[9] [1997] FCA 1198 at (11).

113. The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including in this case nervousness and anxiety about Tribunal proceedings, and stress caused by separation from home and family. If the events she described occurred she would have suffered significant trauma. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility[10], in evaluating the applicant’s evidence as a whole. The Tribunal has also taken into account the Tribunal’s Guidelines on Vulnerable Persons[11], in light of the applicant’s anxiety. This is referred to by the applicant herself, although there is no indication of treatment since two sessions with [Trauma Service 1] in December 2015. Church members have also referred to depression and suicidal tendencies due partly to anxiety about the application process and lack of income.
Matters on which the Tribunal is satisfied
[10] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Guideline on Vulnerable Persons, available on the AAT Website, The Tribunal is satisfied that the applicant moved between [Village 1], Anambra State and [City 1], Delta State while living in Nigeria, except for two years in Lagos (2007 to 2008, and 2010 to 2011).
115. The Tribunal is satisfied that the applicant is a devoted Catholic and travelled to Australia with the purpose of joining an order. Numerous members of the church have written letters to attest to her faith and devotion. The [Archbishop of Diocese 1] mentioned that she volunteered at [Church 2] and spoke of her ‘constant trust in God’. The Tribunal is satisfied that she first came to Australia to join an order of sisters and still wishes to do so. [Sr D] has confirmed that she has expressed this wish and that [Religious Order 1] will endeavour to accept her as a member of their congregation.
116. The Tribunal also accepts that the applicant’s brother, [Brother A], studied to become a Reverend and was a devoted Catholic. The applicant’s evidence in this regard is corroborated by [Sr G] from [Religious Order 2] who said that [Archbishop F] invited a Nigerian priest over to ‘check out the situation the applicant had described’ and found that the priest had been in the seminary at the same time as the applicant’s brother.
117. The Tribunal is satisfied that the applicant’s father and brother have passed away. She has provided death certificates.
118. The Tribunal is satisfied on the basis of country sources that paganism is still practised in some areas of Nigeria. In August 2019, Bishop Paulinus Ezeokfar of the Catholic Diocese of Awka called Christians ‘to remain truly faithful to their faith and shun neo-paganism which he described as the love for earthly things.’[12] In April 2019, the Catholic Bishop of Nnewi, Most Rev. Hilary Okeke, condemned ‘what he called the rising spate of idol worship and neo-paganism among Nigerian Christians’ and said ‘any Catholic who wishes to take any title must sign an undertaking that no pagan rituals or idolatrous sacrifices would be involved, or such person would be excommunicated.’[13] While the Tribunal was unable to locate information about the Ikolo in her region[14], only identifying two Ikolo towns in Nigeria, one in Enugu state in the south-east and the other in Osun state in the south-west,[15] the Tribunal accepts that there may be Ikolo cults practising rituals in the [Village 1] region.
[12] Legit, Catholic bishop to Christians: Shun neo-paganism, 25 August 2019.
[13] Punch (Nigeria), Pope has called Buhari on Leah Sharibu’s matter – Catholic bishop, 23 April 2019, 20200319162318.
[14] Sources consulted included CISNET, major government and non-government reports and a range of international and Nigerian news sources.
[15] Vanguard (Nigeria), After clash between Ikolo, Aku normalcy returns to Igbo-Etiti, Enugu state, 24 November 2017; The Guardian (Nigeria), Police take over communities in Enugu over boundary clash', 25 November 2017.
119. The Tribunal is satisfied on the basis of independent information that some pagan groups may practice ritual killing, although the practice is illegal, and reports do not suggest it is prevalent or that pagan cults in Anambra state have recently been involved in human sacrifice.[16]

[16] Sources consulted included CISNET, major government and non-government reports and a range of international and Nigerian news sources.
120. A somewhat dated 2004 media article from the Sahara Reporters[17] states that ‘ritual killing is a nationwide phenomenon, not restricted to one part nor is it the purview of any ethnic group nor indeed peculiar to traditional religion adherents.’[18] Various media reports indicate that ritual killings were carried out in various states prior to 2005, including Anambra, Ogun, Bauchi, Enugu, Imo, Kano, Oyo, Delta, Ondo and Lagos.[19] In 2004, over 30 priests were arrested after 50 mutilated bodies and 20 skulls were found in the forests near the Okija shrines in Anambra state.[20] These priests were accused of committing human sacrifices and using body parts for ritual purposes.[21] In an undated incident from a 2014 media article in Ositsha, Anambra state, two young men cut off a boy’s sexual organ for ritual purposes.[22]
[17] Sahara Reporters is an online community of international reporters and social advocates dedicated to bringing news reports from a Nigerian-African perspective.
[18] Sahara Reporters, Ritual Killings In Nigeria: How To Stop It!, 07 April 2014.
[19] Immigration and Refugee Board of Canada, Prevalence of ritual murder and human sacrifice and reaction by government authorities (March 2000-July 2005), 01 July 2005.
[20] Immigration and Refugee Board of Canada, Prevalence of ritual murder and human sacrifice and reaction by government authorities (March 2000-July 2005), 01 July 2005.
[21] Immigration and Refugee Board of Canada, Prevalence of ritual murder and human sacrifice and reaction by government authorities (March 2000-July 2005), 01 July 2005.
[22] Sahara Reporters, Ritual Killings In Nigeria: How To Stop It!, 07 April 2014.
121. The United States State Department’s Human Rights Country Report on Nigeria states that in January 2019, two women were killed in Bayelsa State: ‘their bodies were found with vital organs missing, and it was suspected that the organs were harvested for ritualist use.’[23] Ritualists who believed certain body parts confer mystical powers kidnapped and killed the women to harvest their body parts for rituals and ceremonies.[24]
Matters on which the Tribunal is not satisfied
[23] United States Department of State, Country Reports on Human Rights Practices for 2019 - Nigeria, 11 March 2020, p.40.
[24] United States Department of State, Country Reports on Human Rights Practices for 2019 - Nigeria, 11 March 2020, p.40.
122. The Tribunal is not satisfied that the applicant’s family were pagans or that pagan villagers targeted her, her father or her brother for reasons of their conversion to Christianity. The applicant’s evidence in regard to paganism, conversion to Christianity and attacks on her family lacked overall coherence and consistency to such a degree that the Tribunal was unable to be satisfied that the events occurred.
123. Firstly, while not the definitive factor, the evidence points towards the applicant’s family having a Christian rather than pagan background. The applicant was baptised in 2001 at the age of [age] and spoke of ‘her communion’ and ‘her confirmation’. It is more likely that this was based on her own family religion, rather than a religion to which she converted, as she was young at the time, and this was well before her brother became a Reverend. Furthermore, her mother, in a sworn Statutory Declaration, stated that she was Christian. Asked about this by the delegate of the Department, the applicant said that her brother prepared the Statutory Declaration and her mother just signed it, and they said she was a Christian to correspond to what the applicant had said. The Tribunal does not accept this explanation as the statement that her mother was a Christian did not correspond with what the applicant claimed in her application forms, that her entire family were pagans. Another factor pointing towards the applicant’s family being Christian was that the applicant attended Christian schools. She said in her Statutory Declaration to the Department that her brother arranged for her to go to a Catholic high school and her parents did not know the name of the school or that she went to the Catholic school. In her protection visa interview with the Department she said that she attended a Christian primary and high school and her parents were not aware of either. After school she worked in a church bookshop and went to mass every day. The Tribunal does not accept that her parents would not know that she attended Christian schools, particularly in primary school when she was living with her parents, or that she worked for a Christian bookshop. Furthermore, Anambra state is a majority Christian area (85%)[25] and Awka is the capital. Igbo people are predominantly Christian.[26] While this does not mean that everyone who lives in Anambra is Christian or that all Igbos are Christian, the fact that her mother stated on oath that she was Christian, the applicant was baptised and confirmed at a young age, attended Christian schools and worked in Christian bookshops and her brother was a Reverend, alongside the country information, does suggest that the family was Christian.
[25] Australia: Refugee Review Tribunal, Nigeria: 1. What is the demography of Nigeria by state, and Anambra state particularly? Please provide particular reference to religious, socio-economic, and state protection issues. 2. Discuss the treatment of Christians in Nigeria, and in Anambra state particularly, including the relationship between Christians and Muslims. 3. Please provide any information on the treatment of Nigerian citizens who have returned to Nigeria with a criminal record from overseas, 7 October 2010, NGA37358, available at: Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018.
124. Secondly, the accounts provided about the attacks on the applicant’s family in 2010 have been quite different, suggesting that the evidence has been formulated for the purposes of a protection visa application rather than being based on actual incidents. In her first account of this incident, in her protection visa application forms, she said that in April 2010 ‘when the pagan leaders first found out that my brother was a Christian, they came to our house and beat all of us until we became unconscious and ended up in hospital’. She elaborated on this in a Statutory Declaration stating that in 2010 she told her mother she was Christian, and her mother told her father who subsequently told the pagan group. She said that the pagans asked them to go to a meeting, but they did not go. Then, on 15 April, the leaders of the pagan group came to the house with knives and sharp sticks and beat her brother. Her father became angry and the pagans beat all of them. They all went to the local hospital and were then flown to the city in Anambra state. In the Departmental interview, she said that in 2010 she and her brother went to visit her mother who was ill. They asked her to come to the north of the village so they could take her to hospital. She suffered from anxiety. They took her to the hospital and then took her home the same day. She said that they did not stay long, and left, but on the way, they were ‘cut’. They took a taxi to hospital. The delegate put to her that this information was different to what she had said in her application and Statutory Declaration. She then said that after dropping their mother at the house, pagans came to the house and attacked her, her parents and brother.
125. Another example of variance in the accounts of what took place was that she said in her protection visa application forms that the pagans had attacked them a number of times prior to April 2010 but the 2010 incident was the most serious. However, she also said that this was the first time they found out that her brother was Christian. She also said in her Department interview that villagers had come to her school to threaten her prior to 2010. However, this evidence does not accord with the information in her Statutory Declaration that she only told her mother that she was a Christian in 2010 and then her mother told her father who told the pagans. They were then asked to go to a meeting with the pagans, which they did not attend, and this led to the attack in 2010.
126. Furthermore, the evidence provided about the police response to the April 2010 incident was also varied. She said in her protection visa application forms and in her Statutory Declaration that her father went to the police station to report the incident, however the police refused to help because it was a tribal issue and told them that it needed to be sorted out by the tribe. She said that her father went to three more police stations and each time was told the same thing. However, a copy of a letter dated [in] July 2015 by the applicant’s lawyers to the Anambra State Police Command is titled ‘Petition against [Mr K], [Mr L], [Mr M] over persistent threat to life of (the applicant) and her family members who are constantly being harassed, assaulted, and intimidated on the account of their religious belief’. The letter recounts the incident on 15 April 2010, in which the applicant’s family members were attacked, and states that the applicant’s father reported the matter at the time to two police stations but no action was taken. The lawyer says that ‘this violent incident compelled our client and her mother to fled to the city where our client completed her secondary education and consequently commenced her present vocational training in her Christian Congregation.’ He notes that police were able to make some arrests in 2012, and the offenders were charged with malicious damage. He notes that the matter is presently before the High Court. He submits that subsequent to the murder of her brother and father, in 2010 and May 2015, ‘something serious had to be done by law enforcement agencies’. He states that the applicant has received threats over the phone, and her mother received threatening messages. The lawyers refer to arrests in 2012, and that the matter was before the High Court. Perpetrators were named. This information suggests that the police did act on the incidents, and perpetrators have been charged, whereas the applicant claimed earlier that no action was taken.
127. Thirdly the email from a person called [Mr B] and the template hospital document provided by the anonymous source indicate that the applicant ‘created’ a story for her protection visa application, rather than it being based on actual events. As referred to earlier, both the delegate and the Tribunal put to the applicant information provided to the Department by this anonymous source, who suggested that the applicant had provided forged information to the Department to establish a claim for protection after her student visa application was rejected. The information consisted of:
·An email from a person called [Mr B] dated 1 September 2015, about which the anonymous source said: ‘she is cooking up lies about what did not happen to her in conjunction with the below email address helping her to write lies in relation to remaining in Australia’. The email from [Mr B] stated that:
on the 15th of April 2011 a group of people came to my house to look for my son and when they saw him, they started beating him up and asking him why he refused to attend the meeting that was scheduled in regards to his conversion of religion despite knowing very well that it was an abomination to leave Ikolo and convert to other religion and also planning to convert your family, as I tried to stop them from hurting. him, they started attacking me, my wife and daughter. They hurt us so bad that we were left in serious conditions, we were taken to the hospital unconscious with serious wounds like cuts on the head, arm and so on. My family and I spent over a week at the hospital, we were discharged from the hospital a few minutes ago, so we decided to come straight to the police station to make a police report against those people, haven't said that, we received a warning whilst we were at the hospital that we will pay with our lives, if we have any plans of leaving the traditional way of worship. Please we really need our lives to be protected as well as to bring those people to justice so that we can have peace of mind and live our lives without fear of persecution or death.
·An email from the applicant dated 3 September 2015 stating: ‘hi (name of recipient) pls find in the attached copy of hospital (doctor’s report) sample letter.’ The attached document stated ‘letterhead’ then listed the names of the applicant’s family. Below this was written ‘this is to state that the above were admitted in my hospital on the 15th of April 2010 concerning the injuries they had. They were treated and discharged one week later. Please don’t hesitate to contact the hospital or myself if there is any problem. Yours sincerely, (Dr, name, phone number and address)’.

128. The Departmental delegate asked the applicant at interview if she knew [Mr B] and why he had provided her information from his asylum claim which appeared similar to her claims. She said that it was not true and when she went to commit suicide, he was always in the email trying to talk to her. She said that the Salvation Army and [Organisation 2] were trying to help her. In written submissions she said that ‘during the course of me looking for a solution to my difficult situation I came across a lot of people who gave me different advice at one point or another.’ She said that [Mr B] assisted her when she was in need.
129. The applicant told the Tribunal that while she was living in [State 2], the anonymous person (whom she named in her response), was living in [State 1] and obtained access to her account. She said that she had shared a flat with him in [State 1] and he sexually harassed her on many occasions, taking advantage of her vulnerable state, as she was new to [City 3] and needed help with accommodation, computer assistance and other matters. He tried to force a sexual relationship and forced her to cook and clean for him. He also assisted her with computer work, and she believes this was when he found out her password. The sexual harassment continued until she reported the matter to another Nigerian friend in Melbourne, whom she considers to be a brother. This brother warned the anonymous person that if it happened again the police would be notified. She later moved out with the help of the church and lived with a Christian family until she moved to [State 2]. She said that after leaving his flat, the anonymous person became ‘jittery’ that she might report him to police for the molestations and he decided to ‘attack her visa application’ by breaking into her email account from [State 1], while she was in [State 2]. A friend saw him printing documents from her email account and told her to change her password.
130. The Tribunal accepts the applicant’s explanation about why this anonymous person has made accusations to the Department about her conduct. The Tribunal notes that she had accused the anonymous person of sexual harassment such that he would have an agenda to accuse her. On this basis and as the Tribunal is unable to test the veracity of the accusations, the Tribunal gives his accusations little weight.
131. The Tribunal notes, however, that the applicant did not dispute the existence of the information from [Mr B] or the hospital template. The applicant commented that ‘[Mr B] is not an accomplice. He was only helping me like other Nigerians and non-Nigerians were doing at the time due to the state I was in. I was relatively new to Australia and was visibly struggling. Without the help of good-hearted Australians, I would have given up on life since arriving in Australia due to what I have been through’. She said the information provided to the Department was true, and [Mr B] helped her write in a ‘good English structure’. She told the Tribunal that she met [Mr B] once at the church and when she told him about her situation, he shared his own experience with her ‘which has nothing to do with mine’.
132. It is possible that [Mr B] and the applicant could both have been harassed by the Ikolo pagan group and that he was sharing his narrative to assist her with her presentation. However, there are some striking similarities between [Mr B]’s account and that of the applicant. These include the date – 15 April, the fact that a meeting was called with the pagans, the fact that the pagans attacked [Mr B]’s son and then the rest of the family when [Mr B] intervened, and the fact that they were all taken to the hospital unconscious. This does suggest that [Mr B] helped the applicant formulate a story for the purposes of a protection visa application.
133. The delegate also asked the applicant about a copy of the hospitalisation document that the Department had received by email. She said that a lot of people had been involved to help her. She sometimes had no food to eat, and people told her she should survive not kill herself. The Red Cross sometimes emailed her and called her. She said in written submissions that she wanted to email the doctor as he requested over the telephone that she advise in an email what she wanted him to say in regard to the family’s admission. She said she wanted to remind him of their admission. The Tribunal notes that it is possible that a person may provide personal particulars to a doctor or hospital to assist the doctor in locating admission details. However, the sample letter goes further than this, providing actual wording for the hospital letter, suggesting strongly that it was provided for the purposes of formulating evidence rather than locating existing evidence. Notably, the UK Home Office reports that any falsified document can be obtained in Nigeria, those involved in the production of acquiring such documents are not prosecuted, and that nearly half of all detections of false-document users attempting to enter the European Union are made up five countries, once of which is Nigeria.[27]
[27] UK Home Office, Country Background Note Nigeria, January 2020, Fourthly, evidence from other applications before the Department does not accord with the information the applicant has provided in relation to this application and the applicant did not tell the Department while applying for other visas about her fear of returning to Nigeria. In her student visa application, a person called [Mr C] testified that he had been married to the applicant’s elder sister for 20 years and that the applicant lived with them. He said that he had paid her school fees and would continue to pay for her. The applicant told the Department at interview, as part of this application, that she did not in fact have a sister and brother-in-law, and that [Mr C] and his wife were other villagers who were friendly with her brother and helped her. While Nigerian culture may use the terms brother and sister more broadly, as claimed, [Mr C] was very specific about being her brother-in-law and being married to her sister for 20 years, such that it is difficult to believe his evidence was concocted or for what agenda. Further, when the applicant was asked by the Department in March 2015 why she could not return to Nigeria, she said that she had already paid for her course and had a life in [City 3]. The Tribunal is of the view that she was provided with an opportunity to tell the Department about her fear of returning to Nigeria because of the pagans, but she did not do so. This does suggest that she did not have such fears.

135. Fifthly, her application appeared to be a last resort application when other visa applications have lapsed. She first arrived in Australia [in] August 2011 on a[specified temporary visa]. She was later granted a [different temporary] visa, which ceased on 16 April 2015. She was then granted a bridging visa in association with a student visa application. She applied for a protection visa under s.65 of the Act on 15 September 2015 when the student visa was refused. If she genuinely had a fear of returning, it would have been expected that she would have applied at an earlier stage, particularly as she was assisted by various people in regard to her application and has had a number of interactions with the Department. The Tribunal notes that she has said that her brother arranged for her to come to Australia on the basis of the family attacks She said that she had no reason to apply while her brother was alive, and that she was not aware of the existence of the visa. Although it may well be the case that she was not fully aware of the existence of the visa, the Tribunal would have expected her to ask for assistance from church members in seeking protection or told the Department if she genuinely feared harm in Nigeria. Given her reasoning, the Tribunal has given some, but not significant weight to the period of time that has elapsed between the applicant’s arrival in Australia and the application for protection, although this is not the sole reason for finding that the applicant’s claims are not credible: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346.
136. Finally, country sources do not suggest that pagan groups generally target or murder Christian converts although there have been some incidents of clashes between pagans and Christians. For example, in September 2016, pagan youths attacked a Catholic priest during a rosary procession in the Obubo community. The priest was stabbed and beaten in the face because the youth thought he had burned down their gods’ shrine. According to one source, pagan youths were suspected of attacking churches in Anambra. In August 2013, 50 Christians were injured after several churches in Awka were attacked by ‘suspected cultists.’[28] In Igboland, shrines have been destroyed and converts have abandoned their traditional names that sound as though they might have ‘pagan’ links in favour of a biblical name.[29] In August 2013, ‘50 Christians, including a 2 year old baby, were injured after several churches in Awka were attacked by suspected cultists’.[30]
[28] Christian Times, Catholic priest beaten into a coma by pagans in Nigeria, 03 September 2016.
[29] The Guardian, Crime and Christianity are killing off our religious traditions, 10 September 2015.
[30] Christian Times, Catholic priest beaten into a coma by pagans in Nigeria, 03 September 2016.
137. However, these incidents do not appear to be widespread and do not indicate that generally, individual Christians are targeted because they have discarded pagan beliefs. The Nigerian Constitution guarantees freedom of religion, as well as the freedom for people to change their religion.[31] Searches of various sources did not reveal information about pagan tribes or villagers harming or killing Christian converts.[32] Indeed, according to a 2018 journal article, amongst the predominately Christian Igbo population, it has become both common and possible for people to regard themselves as Christians while respecting and celebrating aspects of Igbo traditional religion as cultural heritage.[33] Approximately two per cent of the population belong to no religious groups or groups other than Christians of Muslims.[34] Many individuals syncretize indigenous animism with Islam or Christianity.[35] Awka is the capital of Anambra state and according to a 2016 journal article, many residents follow both Christianity and African traditional religion.[36] The Ozoro clan are predominantly Christian but many natives still practice pagan worship as there are several ancestral shrines throughout Ozoro. According to the Ozoro Kingdom webpage, ‘a critical appraisal of the belief system of the average Ozoro indigene will reveal a combination of both Christian and pagan learnings.’[37] A September 2015 media article states that the author’s father is a convert to Christianity but is still ‘close enough to the old ways to feel guilty at the thought of abandoning them.’[38] The Tribunal accepts the applicant’s submission that attacks may not be known as they are in secret, however Nigeria has an active press, and it would be expected that there would be reporting on at least some of these incidents were they taking place.
[31] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018.
[32] Sources consulted included CISNET, major government and non-government reports and a range of international and Nigerian news sources.
[33]Outros Tempos, RELIGION AS HERITAGE IN NIGERIA: Igbo Christians and African traditional religion, 01 June 2018, p.7.
[34] United States Department of State, International Religious Freedom Report Nigeria 2019, 2020, United States Department of State, International Religious Freedom Report Nigeria 2019, 2020, OGIRISI: a New Journal of African Studies, Christianity and Awka socio-religio-cultural identity crisis: Areas of conflict, 01 September 2016.
[37] Ozoro Kingdom, n.d., Ozoro - Religion.
[38] The Guardian, Crime and Christianity are killing off our religious traditions, 10 September 2015.
138. When the above factors are considered cumulatively, the Tribunal is not satisfied that the applicant’s family followed pagan rituals, or that she was pursued by the pagan group for converting to Christianity or that she and her family were attacked in 2010 or that her brother and father were killed because of their Christianity.
139. In reaching this finding, the Tribunal has considered the vulnerabilities of the applicant and how this may have impacted on the evidence, her otherwise good character, and whether there are aspects of the story which are or may be true although other aspects have been formulated.
140. In assessing the evidence, the Tribunal has taken the reasonable approach to fact-finding referred to earlier and made allowances for the vulnerabilities of the applicant, including the fact that she has no family in Australia, has had financial difficulties, and has suffered from anxiety. A report of [Ms E], a psychologist from [Trauma Service 1], mentioned that she had attended two counselling sessions in 2015 due to ‘anxiety, loneliness and ongoing uncertainty’. The Tribunal notes the evidence of various church members, including [Archbishop F], that she has at times faced dire financial destitution in Australia, which may be the reason she has not sought medical assistance after that time. [Sr G] has said that since she knew the applicant, she became progressively depressed, anxious and desperate. The Tribunal notes that the applicant did not want to appear before the Tribunal due to anxiety and in her evidence has spoken of times when she wanted to end her life. When asked to comment on the inconsistencies in the evidence about the attack and its aftermath and in her applications, the applicant referred to the trauma she suffered as a young person in Nigeria, which causes her to switch off mentally and she is unable to recall events. She said that when she submitted her student and protection visa applications, she was under severe stress and did not recollect most of the events that took place before then. She claimed that this was the reason for discrepancies in her visa applications. She said that the impact of decades of trauma continues to reflect in her daily life at significant levels and it changes her mood, thoughts and memory. She said that she often forgets things she has said, and this has been pointed out to her by her friends. Her intellectual capacity has also been affected and she struggles to comprehend things.
141. The Tribunal acknowledges that psychological research on memory of trauma[39] indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. Further, the Tribunal notes that psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[40] The Tribunal has considered carefully, if the Tribunal is wrong, and the applicant witnessed human sacrifice as a child, and her family were attacked by pagans, whether her memories would be so distorted because of the trauma suffered. However, the inconsistencies on numerous key and central aspects of the evidence, such as when the pagans found out about her conversion, the circumstances of the attack on the family and the police action do suggest that notwithstanding confusion about details, her narrative does not emanate from direct experience. In reaching this conclusion, the Tribunal has taken into account all the factors mentioned above, considered cumulatively, including her other applications, the evidence about her Christian background, the document from [Mr B] and the sample hospital document, country information and the delay in application.
[39] Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, 2012, 26 Applied Cognitive Psychology 661; Brewin, C, The nature and significance of memory disturbance in posttraumatic stress disorder, (2011), 7 Annual Review of Clinical Psychology 203.
[40] Cameron, H.E., Refugee Status Determinations and the Limits of Memory, 2010, International Journal of Refugee Law 469.
142. The Tribunal has also taken into account the positive references provided by church members. For example, [Sr D] has spoken of her good work ethic and positive approach to life. [Mr I], the Regional President of [Organisation 2] [State 1], has stated that he found her to be honest and hardworking and noted that she was well regarded by the church community. The Archbishop was prepared to advocate on her behalf.
143. In this regard, the Tribunal has considered whether some aspects of her narrative about what took place in Nigeria were false, but the core story is true. In Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[41] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ There may, for example, be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[42]
[41] (1996) 40 ALD 445.
[42] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

144. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

145. The Tribunal accepts the evidence of numerous church members about the applicant’s good character. The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. Courts have often reiterated that the Tribunal must consider the evidence in its entirety and not in isolated parts, see for example, Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997). In assessing the evidence as a whole, the evidence about Christianity in the applicant’s family, the inconsistencies in accounts of threats and attacks, the omissions in earlier visa applications, the delay in applying for a protection visa, and country sources, the Tribunal is not satisfied that the applicant’s family were pagans, that she and the family were attacked in April 2010 or on other occasions, or that her brother and father were killed because of Christianity. In regard to the formulation of evidence for the purpose of this visa application, the Tribunal notes that such conduct does not accord with the attestations of her good character from numerous referees. However, the Tribunal acknowledges that the applicant was in a particularly vulnerable psychological and financial state when she applied for the visa and relied on others for assistance. While the Tribunal has no knowledge of the circumstances of the formulation of her evidence for this application, given the evidence about her vulnerabilities and her reliance on others, it may well be the case that others helped her formulate a narrative about what took place in Nigeria for the purposes of the application. Again, while the Tribunal has no knowledge of this and it is speculative only, it may be the case that since then she has felt the need to adhere to that account and that otherwise she has been a person of good character as attested to by numerous witnesses.
Does the applicant have a well-founded fear of persecution?
146. Under s.5H(1) of the Act, a person is a refugee if owing to a well-founded fear of persecution, they are unable or unwilling to avail themself of the protection of the country of nationality. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
147. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and
·the real chance of persecution relates to all areas of a receiving country.

148. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
149. The Tribunal is not satisfied that there is a real chance that if the applicant returned to Nigeria, she would be persecuted for reasons of her religion. For reasons set out earlier, the Tribunal is not satisfied that her family were pagans or that pagan villagers killed her father and brother or attacked her family. The Tribunal is also not satisfied therefore that pagans would want to harm her if she returned to Nigeria because she is a Christian convert.
150. The Tribunal has also considered whether there is a real chance of serious harm as a Christian from other parties, such as Fulani herdsmen. The applicant provided an example of a woman visiting her home country who was kidnapped and raped by Fulani herdsmen. She also provided information about Leah Sharibu, a 14-year-old Christian student who was abducted from her boarding school with other students by Boko Haram. Reports indicate that this student has not been released.[43] The applicant also provided reports that the government is not doing enough to prevent killings of Christians.
[43] About half the population of Nigeria is Christian.[44] The applicant has always lived in the Christian south[45]. She lived in Lagos prior to travelling to Australia and prior to that in Anambra and Delta states. There are large Christian populations in all these locations. The Tribunal notes that her mother, aunt and cousins reside in Nigeria, such that she will have family support. She has mentioned that she is in regular contact with her mother. Presumably she will also be part of a church community as her faith is important to her and therefore, she will be able to find community support through the church.
[44] United States Department of State, International Religious Freedom Report Nigeria 2019, 2020, Department of Foreign Affairs and Trade, DFAT Country Information Report 2020, December 2020.
152. Boko Haram operates in the north-east of the country, attacking both Muslims and Christians.[46] Searches of various sources did not reveal a connection between pagan activities and Boko Haram.[47] The conflict between predominantly Muslim Fulani herdsmen and Christians has taken place primarily in the Middle Belt.[48] While there are incidents of attacks on Christians in other parts of the country, the majority of attacks are in these regions.[49] The Tribunal is not satisfied therefore that there is a real chance, in the sense of a substantial or non-remote chance,[50] of serious harm as a Christian given that the applicant would not be living in these regions.
[46] Department of Foreign Affairs and Trade, DFAT Country Information Report 2020, December 2020.
[47] Sources consulted included CISNET, major government and non-government reports and a range of international and Nigerian news sources.
[48] Department of Foreign Affairs and Trade, DFAT Country Information Report 2020, December 2020.
[49] United States Department of State, International Religious Freedom Report Nigeria 2019, 2020, Chan v MIEA (1989) 169 CLR 379.
153. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of her religion. No other reasons have been identified by the applicant or her representative in regard to fear of persecution. Although she will return as a single woman, she does have family support in Nigeria and is likely to join a church community. The Tribunal is satisfied that she would be able to subsist as a single woman, particularly given the resilience she has displayed moving around both Nigeria and Australia as well as family and church support.

154. The Tribunal is satisfied therefore that the applicant does not have a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criterion?
155. If a person is found not to meet the refugee criterion, 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 (the complementary protection criterion).
156. ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
157. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the applicant has a real chance of serious harm on the basis of her religion or for any of the reasons set out in the legislation. Reasons for this are set out in detail earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
158. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
159. 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).
160. 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).
161. 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
162. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A – Documents
On 13 December 2015 the applicant submitted the following documents in support of her application:
·Copy of a police report dated [in] November 2015 titled ‘Interim Report on Investigation’. The report states that the applicant brought a petition to the Commissioner of Police Anambra state alleging that she received a threat on her life from ‘suspected members of Ikolo Cult group’.
·Copy of a letter dated [in] July 2015 from the applicant’s lawyers to the Anambra State Police Command titled ‘Petition against [Mr K], [Mr L], [Mr M] over persistent threat to life of (the applicant) and her family members who are constantly being harassed, assaulted, and intimidated on the account of their religious belief’. The letter recounts the incident on 15 April 2010 in which the applicant’s family members were attacked, and states that the applicant’s father reported the matter at the time to two police stations, but no action was taken. The lawyer says that ‘this violent incident compelled our client and her mother to fled to the city where our client completed her secondary education and consequently commenced her present vocational training in her Christian Congregation.’ He notes that police were able to make some arrests in 2012, and the offenders were charged with malicious damage. He notes that the matter is presently before the High Court. He submits that subsequent to the murder of her brother and father, in 2010 and May 2015, ‘something serious had to be done by law enforcement agencies’. He states that the applicant has received threats over the phone, and her mother received threatening messages.
·Copy of a death certificate for the applicant’s father, [Mr N], which records a date of death [in] August 2010.
·Copy of a death certificate for the applicant’s brother, [Brother A], which records a date of death [in] May 2015.

The following further documents were provided as part of a submission to the Tribunal in March 2020:

Letter from [Barrister A], dated 30 January 2017 providing information about investigations into the word ‘ikolo’ and distances between the applicant’s home town and Onitsha.

Extracts of posts and comments from Naira Forum dated 7 August 2019 in regard to attacks on Nigerians in Togo.

A news article from Catholic Herald dated 2 February 2020 titled ‘Kidnapped Nigerian seminarian has been killed’.

A news article from Daily Advent Nigeria dated 14 May 2019 titled ‘Massive protests and outrage all over the world as Leah Sharibu celebrates 16^th birthday in captivity…see details’.

A news article from NaijaGists.com dated 12 July 2016 titled ‘Photos: Nigerian, Igbo man Otoo stoned and burnt to death in Togo for dumping pregnant girlfriend’.

A news article from Vatican News dated 17 February 2020 titled ‘Nigeria: Catholic priest shot dead in Enugu Diocese’.

A news article from VOA News dated 6 September 2019 titled ‘After a week of xenophobic attacks, South Africa grapples for answers’.

A news article by Al Jazeera dated 9 September 2019 titled ‘One killed, five wounded in new Johannesburg violence’.

A news article by Daily Post Nigeria dated 20 August 2017 titled ‘Xenophobic attack: Ghanaians kill Nigerians’.

Screenshot of a YouTube page for a video titled ‘South Africa Xenophobia: More than 400 arrested for attacking foreigners’.

An article from Sowetan News dated 8 September 2019 titled ‘ South African crowds walk out of anti-xenophobia speech’.

ATTACHMENT B - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 720

12 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction