1700704 (Refugee)

[2021] AATA 1579

1700704 (Refugee) [2021] AATA 1579 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700704

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Paul Windsor

DATE:30 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 April 2021 at 4:46pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Muslim convert to Christianity – fear of harm from social prayer group – ostracism by family, friends and community – member of particular social group – gang member – fear of harm from gang members and rival gangs – credibility – visitor visa obtained by sophisticated fraud – inconsistent claims and evidence – claim based on gang membership not made in written application – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 424AA, 438(1)(b)

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 January 2017 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Nigeria, applied for the visa on 31 July 2014.  A summary of relevant applicable law is at Attachment A.

3. In his Protection visa application the applicant indicated he was born in Lagos, Nigeria on [Date].  He stated he is ethnic Yoruba, a Christian and has never married or been in a de facto relationship.  He stated that he departed Nigeria legally [in] July 2014 and arrived in Australia [in] July 2014, entering on a Visitor visa.  He indicated that he lived in [Country] from [October] 2009 until [December] 2013 for study purposes.[1]

   [1] See the Departmental file.

4. In his application the applicant indicated he fears harm because he was formerly a member of the ‘Islamic social group’.  He indicated his father and family hate him and fail to support him and he fears he will be caught and beheaded.[2]

   [2] See the Departmental file.

5. The delegate refused to grant the visa because she found the applicant could access third country protection as set out in s.36(3) of the Act because Nigeria is a member of the Economic Community of West African States (ECOWAS) and Nigerians may enter, reside and ‘establish’ in any ECOWAS country (they may enter without a visa for a 90 day stay and may stay beyond 90 days with authorisation by a competent authority).  As the delegate found the applicant has effective protection in a third country she did not make findings of fact in relation to the applicant’s claims or assess the applicant’s credibility.  

6. The applicant applied to the Tribunal for review of this decision on 13 January 2017.  He provided the Tribunal with a copy of the delegate’s decision record.[3]

   [3] See the Tribunal file.

7. The applicant appeared before the Tribunal on 14 April 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims

8. The applicant’s claims for protection were set out in detail in a statutory declaration of 7 December 2016.[4]  Relevant matters raised in this statutory declaration are summarised as follows:

   [4] See the Departmental file.

   ·He fears he will be captured and killed by the [Gang 1] gang because he was once a member and withdrew from them.  He also fears he will suffer serious harm or death from the Muslim group with which he once associated, because he is now a Christian.

   ·He was brought up as a Sunni Muslim.

   ·In Australia he has a [child], born in [date], from a relationship with an Australian citizen.  He is no longer in that relationship but maintains contact with his [child].

   ·After completing High School in Lagos he worked as [an Occupation 1] for [number] years before he was admitted to [Institution 1] in 2007.

   ·After a few months he was forced to join [Gang 1] by the person who gave him a place to stay in the hostel.  This person was a [Gang 1] member.

   ·They were rivals with [Gang 2] and [Gang 3] gangs.  As his first assignment, he and some others were told to beat up, [Mr A], a member of [Gang 3] who lived next to them.  He felt bad about doing this.  Some days later [Mr A] came with friends with guns and all kinds of weapons looking for them.  He had to run for his life.  He missed an examination because of this which led to him missing classes.

   ·He adopted the dress of the [Gang 1] gang.

   ·After his first year he went home for break.  He found guys from his area knew he belonged to [Gang 1].  No place was safe for him and he lived in fear so he joined [Group], an Islamic social prayer group to make the local gangs believe he was no longer a gang member.

   ·When he returned to school he went back to gang life.  They didn’t stay in school but went from one Uni to another to meet other group members to drink, smoke and party with girls.

   ·In second semester of his first year the [Gang 2] gang shot and killed three [Gang 1] members over a girl.  He had no choice but to drop out and run away.  He went home but stayed indoors.  A local [Gang 2] gang member could get a promotion if they identified him and he was killed.

   ·Six months later he was accepted into [Educational Institution 2] in Ejebu Ode.  While he wanted to lay low he was pressured to keep doing the group’s activities.  Because of this he decided to leave Nigeria.

   ·In 2009, with the help of his stepfather, he went to [Country] to study [Subject] at an Islamic college.  To his surprise [Gang 1] was there as well and people were getting killed.  He tried to lay low but after a year and a half [Gang 1] members at a party said they knew who he was.  He made them think he was still with [Gang 1].

   ·He decided to become a Christian because he thought there was too much racism and abuse in an Islamic country.  He attended [a] Church in [Country]. 

   ·His stepfather stopped paying his tuition because he had become a Christian. 

   ·When he went home he continued going to church.  His parents and the Islamic groups were upset with him.  One night when he was returning from church he was attacked by a group of people from [Group].  They threatened to behead him.

   ·He went to Ibadan in the bush, far from Lagos, but had to move again when he ran into some boys he knew from Uni. 

   ·He moved to a church refuge in a remote mountain area called [Location 1] in Ibadan.  He stayed there for months until he found out about [an event] in Melbourne.  He got all the documents together for his visa application then went to Lagos to get money from the bank and post the visa application.  When he got the visa he had to sell a plot of land to get money to purchase the ticket.

   ·Since he has been in Australia he has maintained his Christian faith.

9. Prior to the hearing (on 7 April 2021) the applicant’s representative forwarded legal submissions and a further (undated) statutory declaration by the applicant.[5]  Relevant additional matters raised in this statutory declaration are summarised as follows:

   ·He does not think he could easily go to another ECOWAS country, apply for a visa and stay there permanently.  He does not know anyone in any of those countries and does not think he could get any employment there and survive.  As a Nigerian he would be harassed as all other African countries think they are all criminals and thugs.  The [Gang 1] gang also have networks everywhere in Africa and would easily find him.

   ·The delegate said [Gang 1] are not outside Nigeria, which is incorrect.  There is a large population of them in [Country].

   ·He did not join [Gang 1] willingly, they wanted him because of how he looked.  Every time he resisted he was beaten up and had things in his room destroyed.

   ·When he returned to Nigeria after two and a half years in [Country] he was there for about 4 months.  He had to keep moving from state to state to avoid [Gang 1] members.

   ·He has heard that [Gang 1] has approached his brother to become a member when he starts university, because they cannot get the applicant.

   ·He continues to attend church and go to Bible studies.  He keeps a low profile because even in Australia he does not know who is a member of [Gang 1].

   ·In Nigeria [Gang 1] members approached him many times and beat him because of his conversion.  His family stopped supporting him and he feels he is not welcome in their house anymore.  His friends also reacted very badly to his conversion.

   ·He can’t relocate.  He tried to relocate to places such as Ibadan and [Location 2] but the [Gang 1] members still came after him.  He went to the very remote area called [Location 1] a stayed there for a week before he met a friend at church who helped him leave Nigeria.

   [5] See the Tribunal file.

10. The representative submitted that the applicant has a well-founded fear of persecution in Nigeria on the following two refugee grounds:

    ·Religion, as a Muslim-to-Christian convert; and

    ·Membership of a particular social group, being ex-members of the dangerous [Gang 1] Cult.

11. Alternatively, the representative submits that the applicant should be granted protection under the complementary regime as he ‘clearly still faces the risk of significant harm if they were to be returned to Nigeria’.

12. The representative made a post hearing submission on 21 April 2021 regarding credibility issues discussed at the hearing.  Country information was also cited in support of the assertion that the risk of harm of Islamic violence against Christians in Nigeria extends to Christian-majority communities in the south of Nigeria.[6]

    [6] See the Tribunal file.

    Findings and reasons

    Identity

13. Considering the copy of the applicant’s Nigerian passport provided to the Department, the Tribunal finds that he is a citizen of Nigeria as claimed.  Accordingly, the Tribunal finds that Nigeria is his country of nationality for Refugees Convention purposes and is his ‘receiving country’ for complementary protection purposes.[7]

    Key Issues

    [7] See the Departmental file.

14. The key issues in this review are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Nigeria; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

16. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …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.

17. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

18. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

19. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

20. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

21. For the reasons set out below the Tribunal generally did not find the applicant to be a credible witness.  The Tribunal found his evidence was often vague and inconsistent, contrary to relevant country information and sometimes implausible.  The Tribunal considers he has concocted his claim to have been a [Gang 1] member.

22. In reaching its findings the Tribunal has considered the submissions by the applicant and his representative that inconsistencies in his evidence can be explained by the passage of time since the claimed events occurred and between different statements, and the use of different lawyers at different stages of the process.  The Tribunal does not accept that this explains the significant and material inconsistencies discussed below.

    Assessment of claims

    Background

23. At the hearing the applicant indicated that the only member of his family he is still in contact with is his mother, because she is ill.  He said he last spoke with her 3 months ago.

24. The applicant indicated that his [child] is now [Age] years old.  He said he remains in contact with her and they last spoke about 4 months ago.  He said he is no longer in a relationship with his [child]’s mother.  He indicated that he married another woman in April 2020.  In this context the Tribunal advised the applicant that there is a ‘disclosure’ checklist on the Departmental file which indicates that a document at folio 34 of the Departmental file is subject to the disclosure provisions at s.438(1)(b) of the Act.  The Tribunal observed that the matter raised in this document (a ‘dob-in’ indicating that his relationship with his [child]’s mother had been contrived for migration purposes) had already been put to him for comment by the delegate and he had responded refuting the allegation in an email to the delegate sent on 16 December 2016.[8]  The Tribunal advised that it concluded, therefore, that the material was not given to the Department in confidence.  The Tribunal also advised the applicant that it did not consider this issue to be relevant to the matter under review and accordingly gives no weight to this information in considering his protection visa application, noting that he did not apply for a partner visa on the basis of the relationship and has indicated that the relationship has ended and that he has married another woman.  The applicant did not have any comments he wished to make.

    The [Gang 1] group

    [8] See the Departmental file.

25. At the hearing the applicant said he became involved with [Gang 1] because when he went to university he came under pressure from people around him to join.  He commented that he is a very friendly, open minded person who likes people and he thought that is what attracted them to him.  He said he came under a lot of pressure and felt he had no choice but to join.

26. The Tribunal asked the applicant if he was referring to when he went to [Institution 1] in 2007.  He indicated that was correct.  The Tribunal asked the applicant what happened when he arrived.  The applicant said he went to his classroom and there were two men waiting at the door for him when he came out, who said they wanted to chat.  He said they indicated they had been watching him, that he was a good guy and they would give him protection.  The applicant indicated that he told them people like him and he didn’t need protection, and they walked away.  He said they were there again the next day and offered him food, drinks and cigarettes which, being a friendly person, he accepted.  He indicated, however, that they kept insisting and then started attacking him physically.  He said they would come into his room and destroy his stuff, trying to intimidate him.  The Tribunal asked the applicant why he joined the group if they changed from being nice to physically attacking him.  The applied replied that there was no other way as they were everywhere, adding that they are now recruiting people from high school.  He said if you don’t join you lose your life and the only way is to play along so that is what he did.

27. The Tribunal asked the applicant to describe the process for joining.  He said every fortnight they would march to a secret place in the bush where 40, 50 or 60 new members would take an oath that they would not betray their membership and would do whatever ‘they’ say and would donate money to the group.  He indicated there was no membership or monthly fee but members were expected to donate depending on how much the group ‘needs’.  He said they have ranks and whatever rank you fall into you have to donate a certain amount of money every month.

28. The Tribunal asked the applicant what he did as part of the group once he had joined.  He replied that he didn’t really do much because it was not something he was interested in and he just had to play along simply because he wanted to be able to graduate and get a good job and lead a good life.  He said what they want to do is go around intimidating others to get more members and intimidate members of other groups, for example to take a girl they like away from a member of another group.  He added that this was not in his nature so he always made sure that when something like that was about to happen he stayed away a bit to keep himself out of it.

29. The Tribunal asked the applicant whether he was involved in any criminal activities.  He said he was not involved in physical beatings of people or any criminal activity that he can remember.  The Tribunal asked how he was able to avoid doing that, observing that country information suggests the [Gang 1] group is involved in all sorts of criminal activity (including physical violence).[9] The applicant said they appoint a leader to particular groups and if you are closer to the leader they don’t choose you to do the criminal activities.  He commented that it is the ‘officers’ who do the dirty jobs.  He said he was not promoted to that level because he was not really interested and was just trying to play along and find a way to get himself out.

    [9] [Deleted].

30. When asked, the applicant indicated that [Gang 1] was not a religious group but has members from various religions.  The Tribunal asked the applicant how the ‘party’ lifestyle he describes at paragraph 15 of his initial statutory declaration sat with his Islamic upbringing.  He commented it doesn’t fit properly but Islam was not something he was called to, adding that Islam suits some people to cover up their bad character or bad behaviour and because he was not deeply into it he had the freedom to do other things.

1. The Tribunal asked the applicant what happened at the meetings he stated he felt he had to attend (described in paragraph 19 of his initial statutory declaration).  He indicated these meetings were called at random times when they needed to bring a particular group together if there was a conflict between different groups and they needed to decide what to do or appoint the officers to deal with it.  He gave the examples of wanting to have a party or to go to another university, or needing donations to raise money for something.

2. The Tribunal asked the applicant why there was no mention of him being involved with [Gang 1] in his protection visa application (lodged on 31 July 2014), observing that this matter was not raised until his first statutory declaration made on 7 December 2016, over two years later.  He replied that when he went to [Country] [Gang 1] were there, commenting they are everywhere, so when he came to Australia he had to make sure he was safe before he said something ‘personal’ like that.  The Tribunal observed that the protection visa application form makes clear that the process and all the information provided is confidential.  The applicant reiterated that he still felt like he needed to be safe.

3. The Tribunal queried the applicant why there was no mention of him being beaten/his property being destroyed in his initial statutory declaration (noting that it was first mentioned in his most recent (undated) statement submitted in April 2021).  The applicant said he thought he had mentioned it.  The Tribunal read to him paragraph 7 of his initial statement which does not refer to this but states he felt compelled to join [Gang 1] because the friend who gave him a place to stay in the hostel so he could study was a [Gang 1] member and said he had to join.  The applicant did not address the inconsistency but commented that the person who gave him a place to stay was a full-blown member of [Gang 1] and that is how the people who beat him got into his room.  He said it was him versus 10-12 ‘boys’ who told him he had no place to hide.  The Tribunal asked whether he thought about leaving and going home when this happened.  The applicant indicated he did but thought he needed an education as education is the key to a better life.  He added that he thought he could ‘manoeuvre’ and eventually get out of the group.

4. The Tribunal asked the applicant if he had to undergo any initiation to join the [Gang 1] group, noting he did not mention any initiation previously in the hearing or in his statements, and observing that country information (including that cited by his representative in her submission) indicates that initiation rites reportedly involve violent and humiliating rituals including beatings and rapes.[10]  The applicant scoffed and commented ‘not all’.  He reminded the Tribunal that he said they marched into the bush to a secret place and that is where the initiation takes place where you take the oath. 

   [10] Ibid.

5. Observing that he indicated he was not involved in any violence with the group, the Tribunal asked the applicant why he had not mentioned that he was involved in beating up a member of [Gang 3] called [Mr A], as referred to in paragraph 8 of his initial statutory declaration.  The applicant replied that he was not assigned to carry out the beating.  He said he was part of the group but was not an officer yet.  He said he had to go with them to give them confidence that he could do such things.  The Tribunal asked how he managed to avoid ever being promoted to the level of officer and having to do such things.  The applicant said that is ‘way too much’ and if he got to the stage of officer he would have to beat or murder someone which is ‘nuts’ and there is no way he could do that.  The Tribunal observed that country information (including that cited by the applicant’s representative in her submission) suggests that is what [Gang 1] group members do.[11]  The applicant indicated that he did not have comments he wished to make on this information.

   [11] Ibid.

6. The Tribunal asked the applicant how he was able to avoid retribution from [Mr A], noting his comments at paragraph 9 of his initial statutory declaration that [Mr A] had returned to ‘school’ with his friends, armed with guns and other weapons, looking for them, which was the start of him being ‘on the run’.  The applicant indicated he wasn’t the brain behind [Mr A]’s situation he was just part of the group which sought to intimidate him to force him out of the hostel.  When pressed that he had not explained how he managed to avoid [Mr A], the applicant said [Mr A] did not stop but they have to find you alone to attack you.  He said that is part of the reason he had to leave the institution because one day they would have found him alone.

7. The Tribunal queried the applicant why he raised in his second statutory declaration (at paragraph 17) that he had been beaten by [Gang 1] members due to converting to Christianity and attending church but did not raise this in his initial statutory declaration.  He replied that he believes he did say something about the [Group] Islamic prayer group who threatened him when they saw him attending church.  The Tribunal acknowledged that he mentioned he was attacked by people from [Group] but reiterated that he did not mention he was beaten by [Gang 1] members for the same reason.  The applicant replied that the members of the Muslim prayer group were also members of [Gang 1].  The Tribunal queried this, observing that in his first statutory declaration he indicated that he joined the [Group] Islamic prayer group to make the local gangs think he was not a gang member anymore (paragraph 14).  The Tribunal asked, if [Gang 1] were also members of that prayer group, how would joining them have helped him.  The applicant replied that you don’t know who is a member until you meet them and while he tried to join to withdraw from [Gang 1], unfortunately a number of them were part of [Group]. 

8. The Tribunal observed that, related to his comments, he had indicated that it is hard to leave these groups and asked why he though associating with [Group] would make members of other groups think he had left [Gang 1], especially if he is now saying there are [Gang 1] members within [Group].  The applicant commented it made him feel good and comfortable and he did it because he was trying to regain himself and find himself and also to get away from the [Gang 1] group and the meetings, drinking and partying.

9. When asked, the applicant said he went to [Country] towards the end of 2009 and was there for two years, returning at the end of 2011.  When queried that in his application he stated he was there from [October] 2009 until [December] 2013, the applicant said he thinks it was January or February 2013, commenting that he was in Nigeria for 9-10 months before he came to Australia.  Noting that he arrived in Australia [in] July 2014 the Tribunal commented that would indicate he was in [Country] until towards the end of 2013.  The applicant replied that he is pretty sure it was January or February 2013 and that he was in Nigeria for 7-8 or 9 months.  The Tribunal observed that if he was in Nigeria for that period on his return from [Country], he must have returned at the end of 2013.  He said he could check his passport.  After the hearing the Tribunal examined the copy of the applicant’s passport on the Departmental file, which has a [Country] stamp indicating he departed [Country] [in] December 2013.

10. The Tribunal asked the applicant why he went to [Country].  He indicated when he withdrew from the group and made it clear he did not want to be a member anymore there were a lot of threats to his life which became too much for him, he felt there was no-one who could save him and it was easiest for him to get to [Country].  He said he undertook and completed a two year course in [Subject].  He said he then wanted to do further study to obtain a degree but by this time the [Gang 1] people had discovered him and he had to leave as his parents stopped providing financial support for his fees and expenses.  He said he was not able to and did not do any work in [Country].

11. Noting he indicated that [Gang 1] had a presence in [Country] and he was recognised by some members in [Country], the Tribunal asked the applicant how he was able to avoid being drawn into [Gang 1] activities in [Country].  He said they tried but he did not give his address to anyone, kept his activities secret, lived far away from others and kept a low profile.

    Decision to embrace Christianity

12. The Tribunal asked the applicant when and why he decided to embrace Christianity.  The applicant commented that he had it in his mind to do that even before he went to university, adding that it gives him a lot of freedom and joy and makes him feel good inside.  He said he made up his mind when he went to [Country] because it is a Muslim country but the way people were treated there was ‘mind-blowing’.  He said he thought if African Muslims can be treated so badly by local Muslims this is not the religion for him or anyone seeking freedom or who wants to have a good life.  The Tribunal asked if he could provide an example.  The applicant said as an African Muslim he could not get a job in [Country], the racism was out of control, he was treated like an animal and people don’t care even if you are praying together you cannot ask them their business.  He commented that their Islam seems like something to help them cover up their bad doings.

13. The Tribunal asked the applicant if anyone influenced him to convert.  He said he was seeing a Christian girl who helped him to find himself and that path.  He said he is following the Church of God.  The Tribunal asked the applicant what he liked about Christianity as opposed to being a Muslim, noting he indicated he was brought up in a Sunni Muslim family, joined the [Group] prayer group and attended a Muslim college in [Country], which is a Muslim majority county (about [Number] per cent Muslim).  The replied he feels like almost everything is better because it is free, peaceful, it is about the way you feel inside and the blessings that come with it.  He commented that it is unstoppable, he can pray in the corner of his room and it makes him feel good.  When asked he said he has not been baptised because this does not occur in the Church of God, but commented you ‘give your life to Christ’, by renouncing all your sins, which he had done.  He indicated he first started attending church in [Country].  When queried that he indicated in his second statutory declaration (at paragraph 13) that he first attended in Nigeria, he indicated that is an error.

14. The Tribunal asked the applicant what some of his favourite passages from the Bible are and why.  He indicated that at the moment one he really loves is Psalm 118, verse 8 which says put your confidence in God, not in man (‘It is better to take refuge in the LORD than to trust in man’) and his favourite one is verse 7 which says ‘I shall not die, but I shall live to glorify the work of the LORD (this is verse 17 rather than 7)).  He said he likes these verses because he thinks God does everything whereas men are human and can let you down whereas if you put your faith in God you will never be disappointed or let down.  He said with everything going on around the world now, including COVID-19, it is like a motivation to carry on no matter what is going on because ‘we’ are the chosen ones and will not die.

15. The Tribunal asked the applicant to tell it what he thinks were some of the key events in the last week of the life of Jesus.  He said we have just had Easter and Good Friday which is the death of Jesus Christ.  He did not offer more so the Tribunal asked what were some of the things that happened in the week leading up to the death of Jesus.  The applicant said He was betrayed by his own people, was sought out and was crucified because people did not believe He was sent by God to change us away from sin.  He added that this is the same as the way his own life was turned around.   He said Jesus was subjected to abuse and crucified but while he died as a body he rose up and lives as a spirt as he said he would.

16. The Tribunal discussed with the applicant the following country information drawn from the current DFAT Country Information Report on Nigeria (emphasis added):[12]

    ·Article 10 of the Constitution prohibits either the federal or state governments from adopting any religion as a State Religion, while Article 23 includes religious tolerance as a defined national ethic.

    ·Articles 15(2) and 42(1) prohibit discrimination on the grounds of religion, while Article 38(1) guarantees freedom of religion, including the freedom to change religion or belief, and the freedom (either alone or in community, and in public or private) to manifest and propagate their religion or belief through worship, teaching, practice and observance.

    ·While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity.

    ·The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions.

    ·From 1999, sharia Penal Codes and Criminal Procedure Codes were reintroduced in 12 northern states with predominantly Muslim populations (having been abolished under British colonial rule). These are Zamfara, Kano, Sokoto, Katsina, Bauchi, Borno, Jigawa, Kebbi, Yobe, Kaduna, Niger and Gombe states.

    ·Although the Constitution guarantees religious freedom, both of Nigeria’s parallel court systems (customary and sharia) have laws against public insults to, or renunciation of, religion. Under the customary system, applicable nationwide, insulting religion is prohibited under Section 204 of the Criminal Code, which penalises intentional public insults to religion with up to two years’ imprisonment. Sharia penal codes, applicable to Muslims in 12 northern states, include apostasy (the abandonment or renunciation of Islam by a Muslim) in the list of hudud crimes (those considered to be against the rights of God), punishable by death or banishment.

    ·In-country sources report Nigerians residing in southern states who publicly profess not to follow any religion or who are perceived as being against religion are unlikely to face the risk of legal action by state authorities. However, they are likely to face family ostracism or dismissal from employment at the same level as those in the north.

    [12] DFAT Country Information Report, Nigeria, sections 3.11-3.12, 3.17 and 3.24-3.28

17. The Tribunal observed that the country information indicates that the Constitution of Nigeria guarantees freedom of religion, including the freedom to change religion or belief.  The Tribunal noted that while insulting religion is an offence and Sharia law applies in 12 Muslim majority northern states (Nigeria comprises 36 states and a Federal Capital territory), including the offence of apostasy, this would not affect the applicant as he is from the south of the country where sharia law does not apply.  The Tribunal commented that while the applicant might be ostracised by family and face some social discrimination from other Muslims, there are no legal sanctions where Sharia law does not apply.

18. The applicant agreed that there is no law against religious conversion where he comes from.  He added that, in some cases it not about the law where you come from but is about the religion.  He said that where he is from people are being harassed and killed for blasphemy and sent to jail for blasphemy.  He added that the Muslims from where he comes from still practise the same culture and religious practices, so it happens in the south as well even though it is not the law.

19. The Tribunal commented that it had considered an article referred to by the representative in her pre-hearing submission, which indicated a Nigerian student had been arrested after converting from Islam to Christianity.  The Tribunal observed that this occurred in the central state of Nasawara when a 19 year old Muslim women decided to become Christian after she became friends with a 33 year old Christian man.  The article indicates that both the woman and the man were arrested after a local church leader informed the Jama’atu Nasril Islam (JNI) under a protocol existing between JNI and the Christian Association of Nigeria (CAN) that the organisations should contact the other in relation to sensitive issues such as conversions.  The article suggests the arrests came after the woman’s father, who is described as having ‘connections’, reported to State Security Services that his daughter had been forcefully abducted and brainwashed into becoming a Christian.  The Tribunal commented that the existence of such a protocol suggests the issue of conversion, while potentially sensitive, is not uncommon.  The applicant said he did not have any comments he wished to make on that observation.  The Tribunal found this article had little relevance to the applicant’s circumstances.

    Visitor visa application

20. The Tribunal asked the applicant where he made his visitor visa application when he applied to come to Australia for the [event].  The applicant replied that he did not do it, commenting that he met someone at the church camp where he was hiding in Nigeria and this person told him about the [event], offered to help him and prepared the application for him.  The Tribunal asked the applicant if he had to go anywhere to lodge the visitor visa application.  He replied, ‘no, no’.  When asked if he was interviewed by immigration officers, he replied ‘no I wasn’t’.  The Tribunal sought to clarify that he was saying this person took care of everything for him.  The applicant indicated that was the case.  The Tribunal asked what supporting documents had to be provided.  The applicant said his passport and a bank account statement which he downloaded.  He commented he thinks that is all he gave the person who helped him and that person did the rest.

21. The Tribunal commented that it has seen the visitor visa application and the supporting papers that were included and it is quite a sophisticated application.  The Tribunal observed that the delegate commented on the application a little in her decision record (a copy of which the applicant provided to the Tribunal) and read to the applicant what she wrote - that most of it contained inauthentic documents, including letters relating to his employment, family composition and the amount of savings in his bank account, that he obtained a genuine [Country 2] visa based on fraud simply for the purposes of his visitor visa application and obtained a [Country 3] visa for no reason.  When asked if he had any comments on the delegate’s observations the applicant responded indicating that he did not know what was included because he was not the one who put the application together.

22. The Tribunal queried the applicant that in his first statutory declaration (paragraphs 26-28)  he indicated that for months he was at a church refuge in a very isolated mountain area called [Location 1] with hardly any phone or internet coverage, and had to walk miles every day to where he could get internet coverage to start putting together all the documents  for the application.  He indicated he then went to his bank in Lagos to get the money it would cost and posted the application and then went back to his mountain hide-out.  The Tribunal observed that this is different to what he had just told the Tribunal as it indicates he put all the documents together and went to Lagos to post the application.  The applicant replied that it was a long time ago and what he meant in his statement was all the documents were put together by the person who assisted him, which is what he said at interview with the delegate.

1. The Tribunal put to the applicant, in accordance of with the requirements of s.424AA of the Act, that there is some information before the Tribunal that, depending on his comments or response, would be the reason or part of the reason for affirming the decision under review.  The Tribunal indicated that there were a lot of documents included with his application for a visitor visa and it seems to have been a very sophisticated fraudulent undertaking to get that visa.  The Tribunal indicated the documents provided included:

   ·A letter, purportedly from [Employer], stating he is [an Occupation 2], of 4 years standing with them.

   ·Copy of work ID card for that organisation.

   ·A bank statement.

   ·A form, signed by the applicant, consenting to the immigration officers verifying the bank statement with the bank.

   ·Copy of a visa for [County 2], issued 5 May 2014.

   ·Copy of letter from the [event] organisers inviting him to the [event].

   ·Copy of a [Country 3] visa.

   ·Copy of receipt of payment and registration confirmation for the [event].

   ·Copy of paid Public Transport Victoria (PTV) public transport voucher for the period of the [event].

   ·Copies of three letters from the purported employer – an initial Employment offer letter, a remuneration letter, and an introduction letter from [an employee] of [Employer] about the [event].

   ·Accommodation booking confirmation from a hotel in Melbourne for the duration of the [event].

   ·Flight itinerary.

   ·Travel insurance certificate.

   ·Copy of a Marriage certificate (for a marriage that he hadn’t entered into).

   ·Letter from claimed wife (indicating they have three children and that she is happy for him to be attending this [event]).

2. Furthermore, the Tribunal indicated that when it looked at the application form, which was signed by him (on 16 May 2014), it is clear it was lodged at the Australian Visa Application Centre run by [Company] and there is a receipt issued for the sum of 33,030 Naira on 16 May 2014 at 9:26 am in Lagos, which is signed by him.

3. The Tribunal explained that the information is relevant to the Tribunal’s decision both because it indicates that it was a very sophisticated fraudulent operation to get the visa and because the extent of his involvement seems to be much more than what he told the Tribunal earlier in the hearing, including that he did go to Lagos and to the [Company] office to lodge the visitor visa application and signed both the receipt for the visa application fee and the form consenting to inquiries being made to verify his bank balance.  The Tribunal indicated that this goes to the credibility of what he told the Tribunal about how he made the visa application and may reflect on his overall credibility and, depending on his comments or response to the information, ultimately would be the reason or part of the reason for the Tribunal affirming the decision that is under review.  The applicant indicated he understood why the information is relevant to the Tribunal’s decision.  The applicant indicated that he would like some time to consult with his representative before commenting on the information.  In consultation with the applicant and his representative, the hearing was adjourned for 10 minutes to allow this to occur. 

4. After the adjournment, the applicant responded to the information, indicating he was really shocked by the information and had no idea where the documents came from.  He said the documents were brought to him in a brown paper bag and he did not get a chance to open it and go through it because he was really desperate and just wanted to get out of the country.  He said the only thing he gave to the person who prepared the application was the bank statement.  The applicant indicated that after this person delivered the document to him he went straight to Lagos and lodged the application there himself, commenting ‘but that was it’.  He indicated he then returned to the same place where he had been in hiding.

5. The applicant indicated that he and his representative have also discussed that there are some inconsistencies in the answers to the questions asked of him.  He commented that the reason for this is because of the length of time since he made his first statutory declaration which was done by ‘the first lawyer’ who helped him and different lawyers ask different questions to try to elaborate on the story.

6. The applicant said he also wanted to explain that Christianity is something he has always been interested in and wanted to do.  He said even when he was in Nigeria he wanted to be a Christian but wasn’t able to do that because he was still living with his parents, but once he went to [Country] he had the freedom to do what he felt was best for him.

7. The Tribunal queried the applicant why he did not tell the Tribunal when asked earlier that he went to Lagos and made the visitor visa application there.  He replied that he was surprised by the question and the point is that he did not put up all the documents so he barely knows what was put together.  He said he just lodged it and went back to his hideout.  The Tribunal reiterated that this seems to have been a very sophisticated fraud and commented that while he is presenting it as him having had a chance meeting with a man on a religious retreat in an isolated mountainous area who told him about the [event], this person has been able to produce a very sophisticated set of documents to fool Australia visa authorities into believing he is someone who is genuinely going to an [event].  The Tribunal observed that it was not just a few documents but involved the creation of a whole false employment and personal history, supported by a range of documents, plus [event] related bookings to the extent of getting a relevant PTV travel voucher for the duration of the [event]. The Tribunal observed that this is a major enterprise and doesn’t sound like something that would be done by a fellow Christian he met on a retreat in the middle of nowhere.  The applicant replied that he believes this is what this person does for a living.  He said this person offered to help him and given the situation he was in he had no choice but to accept.  The Tribunal asked the applicant how much he paid this person.  The applicant said he did not pay him for what he did he just gave him the money he requested for the [event], which he thought was $100 or $140.  He added that he feels the person pitied him and felt he could help, and that is why this person assisted him.

8. The Tribunal asked the applicant why he said in his first statutory declaration that he posted the application (paragraph 27) when he went to the visa agent’s office.  The applicant said when he went to the venue to deliver the documents they had drop boxes.  The Tribunal queried if he just dropped the application in a box how was a signed receipt produced.  He replied that you have to get a receipt for what you put in.

9. The Tribunal asked the applicant how long he spent in [Location 1].  He said he thought it was 2-3 months, then settled on 2 months.  The Tribunal queried that while he said in his first statutory declaration he was there ’for months’ (paragraph 27) in his second statutory declaration he stated he stayed there for a week (paragraph 23).  The applicant replied indicating that he was there for months/weeks and the inconsistency is due to ‘different writing’.

10. The Tribunal asked the applicant if he did anything else before he left Nigeria.  He indicated he did not.  When asked if he still had money for his airline ticket, he said ‘no’.  When asked how he was able to fund the ticket he indicated the ‘same guy’ helped him raise the money by selling a property his grandmother left him.  The Tribunal asked the applicant how he was able to sell a block of land if he was in hiding in [Location 1].  He indicated he let the person who helped him with the visa have or sell the property in exchange for money.

    Assessment – claim to have been a member of the [Gang 1] group

11. Having carefully considered all the available evidence, the Tribunal does not accept that the applicant was ever a member of the [Gang 1] group.  This is for the following reasons, considered cumulatively.

12. Firstly, the applicant made no mention whatsoever in his protection visa application, lodged on 31 July 2014, of having being involved with [Gang 1].  His claims, whilst not spelt out in any detail, only related to fearing harm for having left the Islamic ‘social group’.  He did not mention [Gang 1] until his first statutory declaration, made over two years later on 7 December 2016, two days before his interview with the delegate on 9 December 2016.  The Tribunal found unconvincing his explanation for this provided at the hearing suggesting he was concerned that [Gang 1] might be present in Australia and might find out.  If he had concerns regarding the confidentiality of the protection visa process these could readily have applied equally to Muslims in Australia finding out he had converted to Christianity from Islam.

13. Second, there were significant and material inconsistencies in his evidence regarding how he came to be a [Gang 1] member.  In his first statutory declaration he indicated he felt compelled to join because ‘the friend’ who gave him a place to stay in the hostel enabling him to study was a member.  At the hearing, however, he did not mention this at all until queried about it by the Tribunal, but indicated he was approached by unknown men waiting for him at his classroom who initially sought to befriend him and then resorted to beating him and destroying his possessions to force him to join, matters that were never mentioned in his written statement. The Tribunal considers if the applicant was beaten and intimidated into joining he would have indicated that in his statutory declaration.

14. Third, the Tribunal found the applicant’s description of the initiation ceremony was inconsistent with relevant country information, including that cited by his representative in her first submission, which indicates that ‘Initiation rites reportedly involve severe human rights violations with violent and humiliating rituals including obligatory rape, armed robbery or attacks of faculty members’ and ‘usually involves a violent beating (with many reports of rape)’ (see page 13 of the submission).

15. Fourth, the Tribunal found the applicant’s evidence regarding what he was expected to do as  a member of [Gang 1] to be both inconsistent with the country information and implausible.  The country information cited above clearly indicates that the group is involved in a wide range of criminal activities, including violent assault.  In her submission the representative cited information indicating student cults engage in ‘criminal activities such as killings, human trafficking, drug trafficking, smuggling, extortions, and prostitution networks’ (see page 10 of the submission).  The Tribunal found implausible the applicant’s evidence at hearing indicating that he was able to avoid getting involved in any criminal or violent activities by just trying to play along until he could find a way to get out of the group.  This is also inconsistent with his comments in his initial statement (paragraph 15) that when he went back to his gang life after a break, things got worse and he and his gang members didn’t stay in school anymore they just went from one Uni to the other to meet other group members to drink, smoke and party with girls.  The Tribunal considers that if this was the case, the applicant almost inevitably would have been drawn into criminal activities with the group to finance such a lifestyle.

16. Fifth, the applicant failed to mention spontaneously at the hearing anything regarding the claim in his initial statement that his ‘first assignment’ after becoming a member was to beat up [Mr A], a member of [Gang 3], with some other guys.  When queried about this he said he was not assigned to carry out the beating.  The Tribunal finds this contradicts the evidence in his written statement.

17. Sixth, the Tribunal considers the applicant was not able to offer a plausible explanation for how he was able to avoid retribution from [Mr A] and his associates, given the comment in his written statement that [Mr A] had come with weapons including guns looking for them and that from that day he had to start running for his life.  The applicant had suggested in his written statement that [Mr A] was highly motivated to kill him, but at the hearing sought to downplay the threat by commenting he wasn’t the ‘brain’ behind what happened to [Mr A].  His comment that they needed to find him alone was also unconvincing if [Mr A] and his associates were armed with guns and highly motivated to exact revenge as indicated in the statement.

18. Seventh, the Tribunal found the applicant’s evidence regarding the involvement of [Gang 1] members with the [Group] Islamic prayer group to be inconsistent and unconvincing.  He indicated in his initial statement that he joined [Group] to make members of other groups think he had left [Gang 1].  He never suggested that there were [Group 1] members within [Group] and it is implausible that if there were, he would not have mentioned this.  He only raised this issue where queried about another inconsistency – why he indicated in his second statement that he was beaten by [Gang 1] members many times because they saw him going to church and approached him about his conversion to Christianity - something he had not raised previously.

19. Eighth, while the Tribunal accepts that country information indicates [Gang 1] has a presence in [Country], the Tribunal finds it difficult to accept that if the applicant was in [Country] for over four years, from October 2009 until December 2013, and had met [Gang 1] members at a party who recognised him as a member, he would have been able to avoid being drawn into the group’s activities in [Country].

20. Ninth, the Tribunal finds totally unconvincing the applicant’s evidence that after returning to [Country] in December 2013 he met someone at a church refuge in a remote mountain area ([Location 1]), where he stayed for months, who gave him the idea to go to the [event] in Melbourne.  The applicant’s evidence on this matter is riddled with inconsistencies.  In his first statement he indicated he met a guy in [Location 1] who was going to the [event] and gave him the idea to go as well.  He indicated that he put together all the documents himself by walking miles every day to get access to the internet, then went to Lagos, took out the money ‘it would cost’ from his bank and ‘posted’ it all.  In his second statement, however, he said he went to [Location 1] for a week, had to keep moving between Ibadan and [Location 1] until he met a ‘friend’ at church, who helped him leave Nigeria.  At the hearing, he indicated this ‘friend’ prepared all the documents for the visitor visa application for him (apart from the bank statement) and he knew nothing about the documents that were prepared and did not go anywhere to lodge the application.  When it became clear that the applicant had attended the [Company] Office in Lagos to lodge the application, signing a number of documents in the process, he altered his account, acknowledging that he did go to the office in Lagos.  The Tribunal considers the applicant was deliberately untruthful because he was seeking to downplay his involvement in what clearly was a very sophisticated fraudulent operation to produce a very detailed application package to secure a visa to Australia.  This would not have been a cheap or straightforward endeavour.  For these reasons the Tribunal does not accept that the visa package was put together without the applicant’s knowledge or assistance by a person he met by chance at a remote church camp or refuge.  The Tribunal considers the applicant clearly was assisted by an experienced and capable people smuggler and considers that the applicant would have actively sought this person out.  The Tribunal also does not accept that this person assisted the applicant without being paid, because he pitied the applicant, as initially indicated by the applicant at the hearing.  In this regard the Tribunal notes that, when pressed, the applicant subsequently indicated he gave this person a property his grandmother left him to have or sell, in exchange for some money, indicating that this person was likely well-rewarded for his efforts.

21. Considering the above, the Tribunal concludes that the applicant was never involved with the [Gang 1] group and therefore never participated in [Gang 1] activities.  The Tribunal finds, therefore, that the applicant never became a member of the [Group] Islamic prayer group to make local gangs believe he was no longer a member of the [Gang 1] group.  Consequently, the Tribunal finds the applicant was never beaten or threatened by [Group] members that he would be beheaded because he had left [Group] and had started going to church.  The Tribunal finds that the applicant was never beaten by [Gang 1] members for having attended church.  The Tribunal finds that the applicant did not seek to relocate in Nigeria when he returned from [Country] because of fear of being located by [Gang 1] and/or because he was beaten and threatened by [Group] members that he would be beheaded.  The Tribunal does not accept that the applicant has heard that [Gang 1] has approached his brother to become a member when he starts university because they cannot get the applicant.  The Tribunal finds that the applicant does not face a real chance/risk of being captured, harmed or killed by [Gang 1] members or members of rival groups because he was once a member of [Gang 1] and withdrew from them.  Accordingly the Tribunal finds that the applicant does not face a real chance of suffering persecution involving serious harm from [Gang 1] members or members of rival groups because he was once a member of [Gang 1] and withdrew from them, if he was to return to Nigeria now or in the foreseeable future.

    Assessment – claim to have converted from Islam to Christianity

22. The Tribunal accepts that the applicant was brought up as a Sunni Muslim.

23. As the Tribunal has significant concerns regarding the applicant’s overall credibility and has found that he has concocted his claim to have been a [Gang 1] member, the Tribunal has doubts regarding the applicant’s claim to have converted from Islam to Christianity while he was in [Country].  In this regard the Tribunal also notes that the applicant has not provided any supporting documents or statements from church figures regarding his claims to have been a member of churches in [Country], Nigeria and in Australia. The Tribunal also finds that his comment that he has not been baptised as that does not occur in the Church of God is contradicted by information from the website of the Redeemed Christian Church of God, founded in Lagos Nigeria, which indicates that the church believes in water Baptism as well as Holy Spirit baptism (‘We believe that all members of this Church should receive immersion Water Baptism, in the Name of the Father, Son, and Holy Ghost, as believers who would not add to, or take out of the Word of God. Matt. 28:19. C.’) .[13] 

    [13] ‘Our Beliefs’, The Redeemed Christian  Church of God official website, RCCG – The Official Website Of The Redeemed Christian Church of God

24. Notwithstanding these concerns, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that he has been drawn to Christianity and has attended church and Bible studies.  The Tribunal found that the applicant demonstrated some familiarity with Christian teachings at the hearing and was able to give a plausible explanation for why he was attracted to Christianity when he was in [Country].

25. The Tribunal accepts, therefore, that the applicant may wish to practise Christianity if he was to return to [Country], and may decide to become a Baptised Christian.

1. The Tribunal accepts that religious conversion is a sensitive matter and that the applicant attending church in [Country] and Nigeria may have resulted in him being ostracised by his parents and other family members, Muslim friends and his local Islamic community.  The Tribunal does not accept that this amounts to serious or significant harm.

2. As discussed above, because the Tribunal does not accept that the applicant ever associated with the [Group] Islamic prayer group, the Tribunal does not accept that the applicant was ever beaten and threatened by [Group] members that he would be beheaded because he had left the group and was seen attending church.  The Tribunal does not accept that the applicant ever sought to relocate in Nigeria after he returned from [Country] because he was fearful of [Group] members.  Accordingly, the Tribunal does not accept that the applicant faces a real chance/risk of suffering serious or significant harm or death from members of [Group] because he is perceived to have converted from Islam to Christianity.

3. Considering the relevant country information which indicates there are no laws, including Sharia laws, against religious conversion in the Christian majority southern states of Nigeria, including Lagos state of which Lagos city is the capital, and the neighbouring states, the Tribunal finds that the applicant is not at risk of legal sanction for religious conversion.  The applicant accepted this at the hearing but suggested the issue is a cultural one and that where he is from people are being harassed, sent to jail and killed for blasphemy.  In this regard the Tribunal notes that there are laws against criticising religion per se, but finds this is different to choosing to change religion, without being publicly critical of any religion, which is guaranteed by the constitution.  The Tribunal finds there is no evidence the applicant was ever accused of blasphemy.

4. The Tribunal found that the applicant and his representative did not advance any information to indicate that people in the Christian majority southern states of Nigeria who have converted from Islam to Christianity face a real chance of suffering treatment amounting to serious harm or a real risk of significant harm from their families or members of the broader Islamic community in those states.  The representative cited country information indicating that Boko Haram, which opposes Christianity in general as well as less restrictive forms of Islam, has targeted Christians and churches in the north-eastern states (where it is based) and occasionally in the central state of Plateau.  These attacks are described as opportunistic and infrequent and highly unlikely to target individual Christians.  In her post-hearing submission the representative contended that there is a network of Islamic militants emerging in the southern states which is connected to Boko Haram but the reported incident, an attack by a female suicide bomber on a fuel tanker at Apapa port in Lagos, was described as Boko Haram’s first attack in Lagos.  The Tribunal finds this was an isolated incident directed at oil industry infrastructure rather than indicative of any broader targeting of Christians or persons who have converted from Islam to Christianity by Islamist groups or Muslim community members in southern Nigeria.

5. The Tribunal concludes that the applicant does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm from Islamist groups, members of the [Group] Islamic prayer group, his family members, Muslim former friends or members of the broader Muslim community in southern Nigeria because he has or is perceived to have converted from Islam to Christianity, should he return to Nigeria now or in the reasonably foreseeable future.

   Conclusion - refugee criterion

6. The Tribunal concludes, therefore, that the applicant does not face a real chance of suffering persecution involving serious harm from [Gang 1] group members or members of rival groups because he was once a member of [Gang 1] and withdrew from them; or from Islamist groups, members of the [Group] Islamic prayer group, his family members, Muslim former friends or members of the broader Muslim community in southern Nigeria because he has or is perceived to have converted from Islam to the Christian religion, or for any other Convention reason, should he return to Nigeria now or in the reasonably foreseeable future.

7. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection criterion

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act. 

9. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Nigeria, the Tribunal notes that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[14]

   [14] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

10. The Tribunal, having regard to the findings of fact set out above, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nigeria, there is a real risk that the applicant would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment, by [Gang 1] group members or members of rival groups, Islamist groups, members of the [Group] Islamic prayer group, his family members, Muslim former friends or members of the broader Muslim community, or anyone else, should he be returned to Nigeria.

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

    Member of the same family unit

12. 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, he does not satisfy the criterion in s.36(2).

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Paul Windsor

    
    

    Member

    ATTACHMENT A   Relevant law

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

    Refugee criterion

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

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

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

17. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

19. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

20. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

21. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

22. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

23. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

24. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

25. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

26. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

27. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Member of the same family unit

28. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.

    Section 499 Ministerial Direction

29. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.