1709775 (Refugee)

1709775 (Refugee) [2021] AATA 3393 (5 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709775
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:David McCulloch
DATE:5 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 July 2021 at 10:43am
CATCHWORDS
REFUGEE – protection visa – Nigeria – family land dispute – homosexuality – credibility concerns – inconsistent social media information – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nigeria applied for the visa on 1 June 2015. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 24 June 2021 at 9.30am. Appearing as a witness on behalf of the applicant was the applicant’s spouse, [Ms A]. Both the applicant and the witness communicated in English.
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, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
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–5LA, which are extracted in the attachment 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 he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (the complementary protection criterion). 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 the attachment 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 2020.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant applied for an offshore Business Visitor visa on 1 December 2014, which was granted on 24 March 2015. The applicant entered Australia [in] April 2015. The applicant applied for a protection visa on 1 June 2015. The applicant was refused by the Department on 27 April 2017. The applicant applied for a review of that decision on 5 May 2017.
The following information is apparent from the application for protection forms. The applicant was born on [date] and is of Igbo ethnicity. The applicant speaks, reads and writes English, and speaks Igbo. The applicant claims to have never been married or in a de facto relationship. The applicant’s father is deceased, and his mother resides in Enugu, Nigeria. The applicant’s only brother is deceased, and his [number of] sisters reside in Enugu, Nigeria. The applicant resided from January 1990 until 2000 at [City 1], [Village 1] South, Delta State, Nigeria, from 2000 until February 2013 at [Location 1], Enugu, Delta State, Nigeria, from August 2013 until February 2015 at Enugu, Delta State, Nigeria, and from February 2015 until April 2015 at [Location 2], Enugu, Delta State, Nigeria. The highest level of education achieved by the applicant was the West Africa Senior Secondary School Certificate at [School 1] where he attended from June 2000 until June 2006. The applicant is currently unemployed, and states that he was a farmer from July 2007 until (presumably) leaving Nigeria. The applicant has never travelled to another country, nor left Australia since his arrival. The applicant has no recorded convictions.
In his application for protection forms, the applicant claimed the following:
Why did you leave that country(s)? Provide specific details
I LEFT NIGERIA BECAUSE MY LIFE WAS IN DANGER. THOSE THAT ARE AFTER OUR LAND WANTS ME DEAD AND THEY ARE STOPPING AT NOTHING UNTIL THEY GET ME
What do you think will happen to you if you return to that country(s)?
I BELIEVE I WILL BE KILLED ON MY RETURN TO NIGERIA
Did you experience harm in that country(s)?
EVERYTHING THAT I HAD INCLUDING OUR PROPERTY WAS DESTROYED IN THEIR QUEST TO ELIMINATE ME.
(I HAVE INCLUDED MY STORY WITH THIS APPLICATION)
Did you seek help within the country(s) after the harm?
I TRIED SEEKING HELP FROM THE POLICE BUT WAS FRUSTRATED AS THEY WERE NOT FORTHCOMING. THE FEW THAT SHOWED UP WERE COMPLICIT TO THE CRIME PUTTING MY LIFE MORE IN DANGER
Did you move, or try to move, to another part of that country(s) to seek safety?
MOVING TO ANOTHER PART OF THE COUNTRY WILL NOT HELP ME IN ANY WAY BECAUSE THERE IS NO ONE TO RELY ON AS THE POLICE ARE NOT TO BE TRUSTED
Do you think you will be harmed or mistreated if you return to that country(s)?
I HAVE ALREADY ANSWERED THAT I REALLY DO NOT HAVE ANYWHERE TO GO TO AND THOSE THAT WANT ME DEAD WILL ACHIEVE THEIR AIM.
Do you think the authorities of that country(s) can and will protect you if you go back?
THE POLICE IS NOT ABLE TO ASSIST BECAUSE OF THEIR INCOMPETENCE.
Do you think you would be able to relocate within that country(s)?
RELOCATION TO ANOTHER PART OF THE COUNTRY WILL ONLY MAKE MATTERS WORSE AS NO ONE WILL PROTECT ME. THE GOVERNMENT IS INTERESTED IN MY PLIGHT AND THE POLICE IS COMPLETELY INCOMPETENT.
The applicant provided a statutory declaration setting out his claims for protection as follows (not corrected for spelling or grammar):
As a young man, I grow up to understand that I had lost my dad and my elder my brother in a land war problem in my village. It was not easy at all to witness war. Being the only male child of my family now my friends, mother and my siblings had done best to bring me up here in Australia to protect me in from all forms of danger. If you know Nigeria, you would understand how important male child issues are to a family.
We never lived in affluence not for once; although one cannot boldly say we were abjectly poor. My family could at least afford our feeding for one period a day. We did jobs that were enough to keep us from dying of starvation. We were not utterly hopeless. The land upon which we lived belonged to my late father. We lived in one portion and cultivated the remaining small portion for subsistence purposes. It was an inheritance and no strong relative to rely on, I had to help out in our small farm. My late father was the only surviving child of his father, the other child died relatively young.
These village champions were the strong men who had all the connections and they wield enormous power. They control fierce thugs who would do anything on their command. My family never took part in any form of violence. However, there have been episodes of some thinly veiled frictions between my village and our neighbouring community over a large expanse of land. It was a land so big it could go a plot to each 18 years old in the community. The dispute had persisted for quite a while and it appeared no headway was being made to resolve it. The men who represented us in the resolution were the supposed strong men whose personalities, my family always secretly questioned.
The situation grew from had to worse; tension gripped the whole village as rumours of impending violence spread. The place we was not among the boundary land but its close proximity to the disputing land did not help the course of our safety, Had we any other place to run to, we would have done so but fate did not favour us in that respect. At last our biggest fear became reality with every effort to resolve the issue failed, our neighbouring community chose violence to claim what never was theirs, it was a bloody scene to behold. It was as though hell was let loose on us. Many young youth were murdered in cold blood, women and children alike houses were razed down as the clash heated up.
Those who resided in the interior of the village never had it soft till now let alone our seemingly peripheral house. We were caught unaware of course a peace loving people would not have expected that level of violence at that time. The men who spoke for us fled with their families and thugs and we were left to be the sacrificial lambs, many fell victim of that and sad to say, My Dad and my only Brother met the very end of their lives as they was murdered in cold blood. Everything in our house was destroyed and razed down and many were rendered homeless. I was not the only victim of that mass displacement.
The enemy group had ambushed the boundaries of our land and had killed many who attempted escape. Everyone ran for safe life. I was fortunate to have escaped unscathed. I wallowed in emptiness and despair afterwards until I met a man who took pity from my family in my ordeal and had opted to help. [Mr B] was my hope I served him well talking good care of his aged mother years went by, his mother went to be with the lord. I thought I was doomed as the only thing that kept me in [Mr B’s] house had gone. Then he offered to take me away from the country, which was how I came to Australia to seek protection.
I plead that my cause be looked into so that hope would be restored to the hopeless. This is the passion behind my downer.
During the Department interview, the applicant made a new claim that he was a homosexual, was engaged in a homosexual relationship in Nigeria, was vilified by members of his community for being a homosexual and the [sports] team he played for dismissed him from the team for being a homosexual. The applicant referred to the fact that he had had a sexual relationship with the [Mr B] referred to in his statement.
On the Departmental file appears a statement not sourced providing an account of undated violence and deaths in the local government area of [City 1], Delta State.
On the Departmental file is an affidavit of the applicant’s mother who indicates that the applicant’s father was a farmer before his death [in] June 2013 at [City 1] in [Village 1] South Local Government Area of Delta State.
Provided to the Tribunal by the applicant is a death certificate issued [in] March 2021 in relation to the claimed death of the applicant’s father with the death occurring [in] June 2013 together with an affidavit from the brother of the applicant’s father making reference to the father’s various names. The applicant also provided to the Tribunal an uncited media report dated 13 October 2003 referring to violence in [Village 1] village in Delta State with attacks since the beginning of January leaving 103 people dead. The article refers to the violence being as a result of disputes over land. Three photographs are provided which are claimed to be of youths running for their lives in 2003, a photograph of a burnt home which the applicant indicates is his family home in [Village 1] village in 2003 and a photograph claimed to be people fleeing from [Village 1] village in 2003.
In the interview with the delegate, the applicant was given time following the interview to provide evidence establishing his sexuality. In response the applicant provided screenshots of an Internet site with the username [Alias 1] of chats with individuals of a sexualised nature. Dates of the chats are not indicated.
Also provided is a screenshot from [website] of an account in the name of [Alias 2]. The screenshot does not provide details of the date that membership was obtained.
The applicant also provided photographs of the applicant himself with other men, including who appear to be [sports] colleagues.
The applicant also provided a statement from [Brother C] who indicates that he is the applicant’s brother indicating that it was noted from an early age that the applicant was homosexual. When the applicant was 13 the applicant’s parents announced the applicant’s sexuality to the family at dinner. The family agreed that they would stand by the applicant and protect him. The statement indicates that over the years the family have watched the applicant grow into a man and he is still homosexual and family have continued to stand by the applicant. The family love the applicant.
On the Departmental file are a number of screenshots from a [social media] page of an individual with the profile [Alias 3], who is the applicant (as confirmed by the applicant in the Tribunal hearing). The information reveals that [Alias 3] is very active on [social media]. Based on the [social media] information, the delegate wrote to the applicant noting various pieces of adverse information including the following.
The letter indicates that [the social media] information indicates that the applicant has a child and wife in Nigeria and also indicates that he had engaged in a heterosexual relationship in Sydney. The letter indicates that the [social media] information indicates a level of either indifference or hostility towards issues facing the LGBTI community.
The applicant provided a written response on 1 November 2016. The applicant indicates that he was not married in Nigeria or in Australia and has never been married. The applicant requests that the delegate provide proof of marriage. The applicant indicates that he does not have a child but that his sister and Pastor have a child who were the children referred to in [the social media] posts.
The applicant refers to [social media] being an unreliable source of information.
The applicant indicates that he has never had a girlfriend in Sydney nor a heterosexual relationship.
The applicant indicates that there is nothing to indicate that he is indifferent or hostile towards issues facing the LGBTI community. Again, the applicant indicates that [social media] cannot be relied upon as an authentic and credible source of information.
Independent information
The 2020 DFAT report on Nigeria provides the following information:
SECURITY SITUATION
[2.54] While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethnoreligious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019. [1]
[1] DFAT, Country Information Report – Nigeria, 3 December 2020, para [2.54].
Crime and Politically - Motivated Violence
[…]
[2.58] Long-standing tribal, religious, political and community disputes often lead to serious violence and unrest. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic or social grievances in 2019. The majority of these (2,758) occurred in northeastern Borno state, followed by Zamfara state (1,274) and Kaduna state (487), also in the north. Over half of these deaths were related to the Boko Haram insurgency, although deaths have occurred in all parts of the country. According to human rights observers, security forces have often responded to civil unrest with disproportionate force, causing fatalities (see Extrajudicial Killings). [2]
[2] DFAT, Country Information Report – Nigeria, 3 December 2020, para [2.58].
[…]
Sexual Orientation and Gender Identity
[3.94] Although the Constitution offers general guarantees to the rights to life, privacy, association, assembly, dignity and freedom of expression, Article 15(2) does not include sexual orientation or gender identity as one of the grounds for which discrimination is prohibited. There are no laws explicitly protecting sexual minorities from targeted violence or discrimination.
[3.95] A number of federal and state laws criminalise same-sex sexual acts. Section 214 of the 1990 Criminal Code criminalises ‘carnal knowledge against the order of nature’ for men and women, carrying a maximum penalty of 14 years’ imprisonment; while Section 217 penalises ‘gross indecency’ for men with up to three years’ imprisonment. The federal Same Sex Marriage (Prohibition) Act (2014) (the SSMPA) imposes sentences of up to 14 years for individuals who enter into a same-sex marriage or civil union, and penalises ‘administering, witnessing, abetting or aiding the solemnisation of a same sex marriage or civil union’ with up to 10 years’ imprisonment. Article 5(2) of the SSMPA penalises public displays of same-sex attraction with up to 10 years’ imprisonment.
[3.96] In the 12 northern states that have adopted sharia, adults convicted of engaging in same-sex sexual activity may be subject to execution by stoning. DFAT is not aware of any cases in which such penalties have been imposed, although there have been some cases in recent years in which sharia courts have reportedly sentenced individuals convicted of same-sex activities to lashings.
[3.97] According to the US Department of State, the SSMPA effectively renders illegal all forms of activity supporting or promoting lesbian, gay, bisexual, transgender and/or intersex (LGBTI) rights, or being perceived to do so. In addition to the provisions mentioned above, Article 5(3) of the SSMPA provides for up to 10 years’ imprisonment for anyone who ‘registers, operates or participates in gay clubs, societies or organisations, or supports their activities’. LGBTI persons have reported increased harassment and threats against them in the years following the SSMPA’s passing. Human rights organisations have reported the SSMPA has become a tool used by police and members of the public to legitimise human rights violations against LGBTI persons, such as torture, sexual violence, arbitrary detention, extortion and violations of due process rights. LGBTI advocates have also claimed in some cases local authorities have used the SSMPA to deny members of the LGBTI community access to amenities and education.
[3.98] There have been a number of widely reported cases in recent years in which LGBTI individuals have been arrested on the basis of their perceived sexual orientation or gender identity. These include (but are not limited to):
· In January 2020, religious police in Kano state announced the arrest of 15 university graduates who were reportedly ‘planning a gay sex party’. A religious police spokesperson said those arrested had been transferred to a correctional centre to undergo reorientation programs.
· In November 2019, police in Edo arrested two women rumoured to be in a relationship and publicly declared a ‘war on lesbians.’
·In August 2018, police in Lagos arrested 57 individuals at a hotel party, subsequently charging them with public displays of same-sex amorous affection under Section 5(2) of the SSMPA. In December 2019, 47 of the men began trial, making them the first people to go on trial under the Act.
Media and LGBTI advocates have also reported cases in which police have arrested LGBTI individuals but released them without formal charges after paying a bond, thought in some cases to be a bribe.
[3.99] In-country sources report all socioeconomic groups in Nigeria hold negative views of
homosexuality, which many consider to be alien to traditional African culture. According to a 2017 survey on lesbian, gay and bisexual rights in Nigeria, 90 per cent of respondents supported the introduction of the SSMPA, 90 per cent agreed Nigeria would be a better country without homosexuals, and 83 per cent indicated they would not be willing to accept a homosexual family member. Further, 56 per cent of respondents supported the view that homosexuals should be denied access to public services such as health care, housing and education.
[3.100] LGBTI advocacy groups report that individuals accused of homosexuality face a risk of losing their jobs, being compelled to leave their village or neighbourhood, or being subjected to violence which has in some cases been lethal. LGBTI individuals have reported feeling unsafe accessing health care due to the fear of discrimination from nurses and doctors should their sexual orientation or gender identity become known, including being reported to police. In order to avoid societal isolation and discrimination, members of the LGBTI community report feeling compelled to take steps to hide their sexuality. Both gay men and lesbians face considerable societal and family pressure to enter into heterosexual marriages. DFAT considers credible reports of gay men being ostracised and forced out of their family homes once their sexual orientation had become known.
[3.101] Despite the operating restrictions imposed by the SSMPA, several NGOs have provided LGBTI groups and individuals legal advice, training in advocacy, media training and health services, focusing primarily on HIV and AIDS work. One human rights NGO launched a mobile application in 2017 called ‘Quickcare’ to help LGBTI people access health services and other LGBTI-friendly facilities across Nigeria. Authorities have largely not impeded the work of these groups. In 2018, however, a group called Lesbian Equality and Empowerment Initiatives lost their appeal challenging the refusal of the Corporate Affairs Commission to register them under the Companies and Allied Matters Act, with the judge ruling their name was in breach of the SSMPA.
[3.102] DFAT assesses LGBTI individuals face a high risk of legally sanctioned official discrimination and targeting under federal and state law, and a high risk of societal discrimination and violence. These risks increase in the northern states in which sharia applies. [3]
[3] DFAT, Country Information Report – Nigeria, 3 December 2020, para [3.94]–[3.102].
Hearing, credibility, findings and assessment

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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that “in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising”. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
The Tribunal has multiple, including significant, credibility concerns with the applicant’s claims based both on the family land issues and as to the applicant’s sexuality.
These concerns follow.
Firstly, [social media] information of the applicant is not consistent with claims by the applicant to the delegate that he is homosexual and has never engaged in heterosexual relationships. Evidence to the Tribunal hearing that he is in fact bisexual was not convincing to the Tribunal.
In the hearing, the applicant acknowledged that his [social media] profile was ‘[Alias 3]’, [social media] pages of whom were sourced by the Department.
The Tribunal put to the applicant at hearing the following information pursuant to the procedural requirements of s.424AA of the Act. This was information on the applicant’s [social media] page which showed a significant presence on [social media] by the applicant between 2014 and 2016. The [social media] information indicates that the applicant has a wife and child in Nigeria. The information indicates that he is in a heterosexual relationship in Australia. The [social media] information shows a hostile attitude of the applicant towards the LGBTI community.
The Tribunal put to the applicant that this information was relevant because it is inconsistent with his claim that he is either homosexual or bisexual and his indication to the delegate that he had never engaged in heterosexual activity.
In relation to claims based on sexuality, the applicant at hearing indicated that he had married [Ms A] [in] May 2021 and that they had met the previous year. The applicant initially indicated an intention to retract evidence that he had provided to the delegate concerning his sexuality, but upon questioning, the applicant maintained that he had been accused of being homosexual in Nigeria and then indicated that he had indeed had a sexual relationship with [Mr B]. The applicant indicated that he was in fact bisexual. The applicant indicated that prior to his relationship with [Ms A] he had never had a relationship with a woman.
In response to the s.424AA adverse information, the applicant indicated that the photograph on [social media] that shows him with an infant who he describes as ‘his son’ was, in fact, his godson which is why he referred to the infant as his son. The Tribunal is not persuaded of this explanation. If true, the Tribunal sees no basis on which the [social media] reference would not have made specific reference to the infant being his godson, rather than his son, which creates a very different impression.
The applicant indicated that a negative [social media] comment by him in relation to homosexuals was as a product of the applicant wanting to create the impression to those that had had an adverse view of his sexuality in Nigeria that he was in fact heterosexual.
The Tribunal has doubts with this explanation, particularly considering the cumulative impact of all the other credibility concerns identified.
The applicant did not in response to the s.424AA information counter [social media] evidence which suggested he had been (prior to the date of the interview on 9 September 2016) in a heterosexual relationship in Australia or that he had a female spouse in Nigeria. This is inconsistent with the applicant’s evidence in the hearing that the only heterosexual relationship he had entered into was with [Ms A], who he met in March 2020. These inconsistencies are adverse to the applicant’s credibility as to his sexuality and sexual history and that he is either homosexual or bisexual.
[Ms A] was asked questions of the Tribunal about her knowledge of the applicant’s past sexuality, and she indicated that she was aware that the applicant had been accused in Nigeria of being homosexual. When asked if the applicant had had any homosexual relationships or encounters, [Ms A] indicated that it is not an issue that they readily discuss. She was not able to indicate whether the applicant was bisexual.
While the Tribunal can accept an understandable reluctance for a husband to discuss with his female spouse the details of prior same-sex relationships, [Ms A] was presented to the Tribunal as a corroborating witness of the applicant’s claims. In that context, it strikes the Tribunal as unusual that the applicant would not have provided [Ms A] with more detail of his relationship and sexual history in Nigeria for the important reason of [Ms A] being able to corroborate the applicant’s claims to the Tribunal.
The above evidence and inconsistencies create credibility concerns for the Tribunal that the applicant engaged in homosexual activity in Nigeria and/or was accused in Nigeria of being homosexual. The evidence also undermines claims that the applicant is in fact bisexual.
Secondly, credibility concerns with claims based on sexuality are significantly reinforced by the failure by the applicant to make any claims on these grounds in his application for the protection visa, including in the fairly detailed written statement that the applicant provided as part of that application.
Claims based on sexuality were made for the first time at the interview with the delegate.
The Tribunal put to the applicant in the hearing the failure of his initial application to indicate claims based on sexuality. In response, the applicant indicated that he was fearful of making such claims because homosexuality was illegal in Nigeria, implying its lack of acceptance in Australia. The Tribunal noted to the applicant that if he had left Nigeria including on account of his sexuality to a country in which homosexuality was lawful that he would quickly have discovered this. The applicant referred to homosexuality in Australia only recently becoming lawful.
The Tribunal pointed out to the applicant that in fact it was recently that same-sex marriage became lawful, and that homosexuality had been lawful in Australia for a not insignificant period.
The Tribunal maintains the view that if the applicant was homosexual or bisexual and had left Nigeria for a significant reason of his sexuality that he would have discovered at an early stage, most likely before he arrived, the lawful status of homosexuality in Australia. The Tribunal finds it significantly adverse to the applicant’s claims based on his sexuality and otherwise that he failed in his relatively detailed written claims for protection to make any claim at all based on sexuality.
Thirdly, evidence by the applicant in interview with the delegate that he had not attended many gay venues in Australia because he was afraid he would break the law and that he was told that he needed to be an Australian citizen to attend is not plausible or credible to the Tribunal.
Claims in relation to the former are not credible for the reasons outlined above that the Tribunal considers that the applicant would have quickly and readily learned that homosexuality was lawful in Australia, most likely as a precondition to travelling here if claims based on his sexuality were true.
As put to the applicant in the hearing, the Tribunal also has plausibility concerns that a bar/club or entertainment establishment in Australia would tell an individual that they were not entitled to enter if they were not an Australian citizen. In response, the applicant indicated that him being told this may have been a joke by the staff.
Whilst these are issues on matters of relative detail, that implausibility and lack of credibility reinforce more substantive credibility issues identified.
Fourthly, the applicant has not provided in the hearing consistent evidence as to the date of his father’s death as claimed as a result of family land disputes. There is also inconsistent evidence as to the respective dates of the deaths of the applicant’s father and brother.
In the hearing, the applicant indicated that he had returned from Enugu to his family home in [Village 1] village in February 2013. The applicant indicated that the local land disputes escalated in March 2013 which resulted in the family home being destroyed and his father and brother being killed. The applicant indicated that his father and brother were killed on the same day.
The Tribunal asked the applicant if he was sure that the death of his father occurred in March 2013. The applicant said that he was.
The Tribunal put to the applicant the death certificate provided of his father’s death which indicates a date of death of 13 June 2013. This date of death is confirmed in an affidavit provided by the applicant’s mother. The Tribunal noted to the applicant that this is inconsistent with the applicant’s clear evidence that the death in fact occurred in March 2013.
In response, the applicant indicated that the death certificate actually refers to the date of the burial not the date of death.
The death certificate clearly indicates that 13 June 2013 is the date of death rather than the date of burial. The Tribunal finds it quite unlikely that an official death certificate would mistakenly confuse the date of death with the date of burial approximately three months later.
The Tribunal also put to the applicant that in his interview with the delegate he indicated that his brother had died two months after his father had died. The Tribunal put to the applicant that this was inconsistent with his evidence in the hearing that they had both died on the same day.
In response, the applicant indicated that this is because the delegate had not understood the applicant’s accent, and in fact he had given evidence that they had been killed on the same day.
The Tribunal takes on the interpreter’s translation of the applicant’s evidence that his brother died two months after his father at face value. The inconsistency is undermining of the applicant’s credibility.
These inconsistencies in relation to dates and respective timings of the deaths of the applicant’s father and brother are undermining of the deaths occurring in the circumstances claimed by the applicant and of the applicant’s credibility generally.
Fifthly, the applicant has provided inconsistent evidence as to the year in which the family home was destroyed. Written claims, as confirmed by the applicant’s evidence in the hearing are that the family home was destroyed at the time that his father was killed in March 2013.
However, in additional documents provided by the applicant accompanying his response to the hearing invitation, the applicant provided several photographs of people fighting, seemingly fleeing, and a ruined home. Captions provided by the applicant of these photographs indicate they refer to conflict in [Village 1] village in 2003. The caption of the photographs showing a ruined home reads ‘My family home in [Village 1] Village (2003)’.
The Tribunal put to the applicant in the hearing that this would appear inconsistent with other evidence by the applicant that the family home was in fact destroyed in 2013.
In response, the applicant indicated that this was in fact a home of his grandfather that was indeed destroyed in 2003. The applicant acknowledged that he had never lived there. The Tribunal noted that this was not strictly his family home.
While the Tribunal accepts that there might be an understandable nuance in the applicant referring to his grandfather’s home as his family home, considering the cumulative impact of all of the credibility concerns, the Tribunal remains concerned at the applicant providing inconsistent evidence of his own stated family home being destroyed in years very far apart.
Sixthly, the applicant has provided inconsistent evidence as to when he moved (after the destruction of the family home) from [Village 1] village to Enugu in 2013. In the Tribunal hearing the applicant indicated that he definitely moved to Enugu in March 2013. The Tribunal indicated to the applicant that this was inconsistent with information in the protection visa application form that the move happened in August 2013.
In response, the applicant indicated that he possibly confused or could not remember the exact date when he filled in the protection visa application form.
The Tribunal notes that this is an inconsistency on a matter of relative detail and accepts the potential for understandable confusion between dates. This is not an inconsistency which is given significant adverse weight, but it does nevertheless buttress the number of more substantial credibility concerns identified.
Seventhly, evidence provided by the applicant in the hearing of a number of instances of harm and threats after he moved to Enugu in 2013 until travelling to Australia in April 2015 is not indicated at all in initial written claims.
The Tribunal asked the applicant in the hearing if he had suffered any specific harm either on account of his sexuality or as a result of the land issues after he moved to Enugu in 2013. In response, the applicant indicated that there were multiple physical attacks on him and threats as a result of both issues. The applicant also indicated that in one encounter he was shot at.
The Tribunal noted to the applicant that claims to this effect had not been made in his application for the protection visa or the accompanying written statement. The Tribunal noted that these were not insignificant claims which, if true, should most likely have been included in initial written claims. In response, the applicant indicated that he did not include everything including because he was depressed. The applicant when questioned further indicated that he thought he should keep the story short.
The Tribunal struggles to accept that if there had been multiple occasions on which he had been physically attacked for the reasons claimed, including having been shot at, that such claims would not have been indicated in initial written claims. The Tribunal also notes that claims to this effect are not made in the interview with the delegate.
This is undermining of the applicant’s credibility.
The Tribunal considers these seven issues cumulatively. Considered together, they are very significantly undermining of the applicant’s credibility. A number of the credibility concerns are significant and core to the applicant’s claims. The Tribunal is not satisfied that the applicant is a truthful or credible witness or that it can be satisfied as to any of the applicant’s substantive claims.
The Tribunal is not satisfied that there was a land dispute involving the applicant and/or his family which resulted in the family home being destroyed in 2013 or 2003 and his father and brother being killed for that reason in 2013. The Tribunal is not satisfied that there was any subsequent threat or harm directed towards the applicant in Nigeria based on a land dispute. The Tribunal is not satisfied that the applicant fled to Australia for reason of feared harm from a land dispute. The Tribunal is not satisfied that there remains in Nigeria any adverse intention towards the applicant as a result of a family land dispute.
The Tribunal is not satisfied that the applicant is either homosexual or bisexual or has engaged in any homosexual activity in Nigeria, or has been accused of being homosexual. The Tribunal is not satisfied that the applicant was sacked by his [sports] club as claimed in the interview with the delegate for being homosexual. The Tribunal is not satisfied that the applicant was otherwise threatened or harmed in Nigeria based on his sexuality. The Tribunal is not satisfied that the applicant would return to Nigeria as a homosexual or bisexual resulting in potential harm to him on these grounds. The Tribunal is not satisfied that there are individuals in Nigeria who have any adverse intention towards the applicant as a result of his sexuality or a view as to his sexuality.
The Tribunal acknowledges probative evidence concerning the death of the applicant’s father in June 2013. The Tribunal accepts that the applicant’s father died at this point. However, for the reasons indicated, the Tribunal is not satisfied that it happened in the circumstances claimed by the applicant or that his death results in any risk to the applicant, for the reasons claimed.
The Tribunal accepts that there is independent evidence of violence and difficulties suffered by individuals in the vicinity of where he and his family have lived, however, as a result of the credibility issues indicated, the Tribunal is not satisfied that these difficulties have been suffered personally by the applicant or by his family in the circumstances claimed such as to create a requisite risk of harm to the applicant.
The Tribunal has considered evidence provided by the applicant to the Department of engagement of an individual or individuals on gay dating sites. Given the credibility issues identified, particularly relating to the applicant’s claimed sexuality, the provision of this information does not persuade the Tribunal that it reflects the applicant engaging in online dating with a genuine intention to facilitate homosexual encounters or relationships.
While the Tribunal accepts not insignificant generalised security and crime difficulties in Nigeria, it is not satisfied that the independent evidence before it that the extent of those difficulties results in every Nigerian resident facing a real chance of serious or significant harm. The Tribunal considers that for this to meet the requisite chance of harm there need to be particular individual risk factors. The Tribunal is not satisfied that there is any risk factor attaching to the applicant which raises the chance of him facing harm in Nigeria as a result of the crime and security environment to a real chance of serious or significant harm.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, that there is a real risk of him facing significant harm.

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).
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).
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT – 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.
…
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.
…
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.
…
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 3393

5 July 2021

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Immigration

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