1620532 (Refugee)

Case [2021] AATA 720

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

  1. The applicant is a [age]-year old woman from Nigeria.

  2. 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.

  3. She applied for a protection visa under s.65 of the Migration Act

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Details
AGLC
1620532 (Refugee) [2021] AATA 720
Case
[2021] AATA 720
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Nigerian national. The applicant claimed to fear harm, including ritual killing, from pagan worshippers of the Ikolo cult in Nigeria due to her conversion to Christianity. The delegate of the Department of Home Affairs had previously refused the application, finding that the applicant had not established a real risk of harm. The applicant sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act), or alternatively, the complementary protection criterion under section 36(2)(aa) of the Act. This involved assessing the applicant's claims of fear of persecution based on her religion and the real risk of suffering significant harm if returned to Nigeria, considering the evidence presented and relevant country information.

The Tribunal considered evidence provided to the Department and before the Tribunal, as well as independent country information regarding Nigeria. The applicant's claims included witnessing human sacrifice as a child and her family's involvement in pagan rituals, contrasted with her brother's conversion to Christianity and subsequent death. The Tribunal was required to make a credibility assessment of the applicant's claims, taking into account any discrepancies in her statements and the vulnerabilities of the applicant. The Tribunal also had regard to Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines. The Tribunal ultimately affirmed the decision under review, finding that the applicant did not meet the criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 REASONSRelevant legal principles

Ratio Decidendi

Legal Principle Established

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 EVIDENCEThe 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.