1714228 (Refugee)

1714228 (Refugee) [2023] AATA 3434 (17 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1714228 and
1724487

COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Damian Creedon
DATE:17 July 2023
PLACE OF DECISION:  Perth
DECISION:
With respect to case number 1714228 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
With respect to case number 1724487   The Tribunal does not have jurisdiction in this matter.

Statement made on 17 July 2023 at 3:28pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Christian – supporting Christian missionaries – Christian evangelist – religious violence – attacks on homes and churches – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background:
The applicant, [an age]-year-old citizen of Nigeria, applied for the visa on 20 November 2007. The applicant first arrived in Australia [in] June 2001 as the holder of a [temporary] Visa. The applicant is presently onshore holding a bridging visa pending the outcome of his application for a Protection visa.
The Applicant arrived in Australia [in] June 2001 as the holder of a [temporary visa]. Prior to arrival in Australia, the Applicant worked as [an occupation 1] in Nigeria.
The procedural history of the applicant’s protection visa application is unusual. It is set out in pre-hearing submissions provided by the applicant in the following terms (numbering omitted):
·The Applicant relocated to Australia [in] June 2001, and his wife followed him into Australia [in] June 2002, also as the holder of a [temporary] visa, then working as [an occupation 2] in Australia.
·The Applicant and his wife initially moved to Australia on a [temporary] visa on the basis of working and eventually gaining permanent residency status.
·However, in 2007, the Applicant and his wife believed the situation in Nigeria to have become so dangerous that a protection visa was necessary to protect the family from the prospect of having to return to Nigeria.
·Thus, the Applicant, his wife, and their daughter [named] made a protection visa application together on 20 November 2007 (the '2007 application'), with the Applicant's wife as the primary applicant.
·On 18 February 2008, a delegate of the Minister for the Department of Immigration and Citizenship refused to the Applicant's wife and first child a Protection visa in relation to the 2007 application.
·Importantly, the Applicant was not notified of his refusal in relation to the 2007 application; this prevented him from applying for a merits review of the that application's decision as there was no recorded decision promulgated by the Department in relation to the Applicant himself.
·The Applicant's wife and first child subsequently applied to the Tribunal for a merits review of the decision made in respect of the 2007 application.
·In 2013, a hearing before the Tribunal resulted in the setting aside of that decision, with the Tribunal substituting it with that of its own: that a Protection visa be granted to the Applicant's wife and first child.
·Due to administrative error on the part of the Department, the Tribunal heard the application only in relation to the Applicant's wife and first child- in other words, the Applicant was excluded from the proceedings which resulted in the 2007 application's applicants being granted a Protection visa.
·From the time that the Applicant's wife and first child were first notified of their refusals in respect of the 2007 application, the Applicant had repeatedly inquired with the Department as to his application's status.
·The Department repeatedly communicated to the Applicant in response that his 2007 application was still under review but, eventually, on 4 October 2017, the Applicant was notified of his refusal, a decade after original application.
·Prior to being notified of the refusal of his 2007 application, the Applicant applied for a second time for a Protection visa to be granted, as the delay had severely interfered with his life and right to work.
·Upon doing so, he was informed by the Department that an active application for a Protection visa was already in existence in his name.
·The preceding timeline represents a span of almost 10 years from the date of the Applicant's 2007 application to the date of his notification of refusal.
·Subsequent to these notifications of refusal, the Applicant applied to the Tribunal for a merits review of the 2007 application, which this submission is made in support of.
·The Applicant has been assigned two case file numbers [– t]he explanation for this is as follows:
·In the 10 years from the 2007 application to the 4 October 2017 refusal, the Applicant repeatedly enquired with the Department as to the status of his application.
·After several years of unsatisfactory responses, the Applicant then applied for a new protection visa, which was rejected on 28 July 2017.
·The Department notified the Applicant in this refusal that he had another case file number already, and subsequently notified him of the refusal of his 2007 application, almost a decade after its refusal.
·This is the reason why the Applicant has two case file numbers, and why this hearing is a joint one.
Protection visa application:
In essence the applicant claims that he is unable to return to Nigeria on the grounds of his Christian religion, and his actual political opinion of supporting Christian missionaries in Nigeria.
The applicant did not participate in an interview with the delegate of the Minister.
The delegate refused to grant the visa on 18 February 2008 and on 28 June 2016 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegates’ decisions.
Application for review:
The applicant appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. Where relevant, the applicant’s evidence to the Tribunal is referred to below.
The Tribunal will assess the applicant’s claim in respect of matter number 1714228, and all references to file materials will be to that file number. The resolution of that matter will effectively resolve the issues in matter number 1724487.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law:
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-LA, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms dated 29 December 2016;
(b)the applicant’s identity documents provided to the Department, being his Nigerian passport;
(c)the protection visa decision (delegate’s decision);
(d)the application for review form dated 3 July 2017, which includes a copy of the delegate’s decision;
(e)Department file [number] concerning the applicant’s protection visa application, which includes all documents submitted to the Department in support of his protection visa application;
(f)documents submitted to the Tribunal in support of the applicant’s review application, including written submissions, photographs and country information.
The Tribunal has read and had regard to each of these documents; the Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Nigeria, 3 December 2020 (DFAT Report).
Other sources of country information will be referred to below as required.
Country of reference:
The applicant claims to be a citizen of Nigeria. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
Assessment of evidence:
Overview
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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.
The Tribunal also accepts that ‘if the applicant's account appears credible, they 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.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
General background evidence
The applicant’s personal details and the general background to his application is uncontroversial and is succinctly set out in his written submissions to the Tribunal. It is consistent with his evidence at the hearing, and corroborating materials. It provides (materially) as follows:
47.The Applicant submits that he is from a well-known Christian family in Kaduna State, who were heavily involved with the active promotion of the Christian faith in the region – a predominantly Muslim state.
48.The Applicant also submits that he was a lay preacher during the time that he lived in Nigeria - in other words, he actively spread the Christian religion himself, again increasing his public profile as a well-known Christian evangelist.
49.The Applicant's family remains in Nigeria, and the Applicant submits that they are constantly at risk in Nigeria, having to pay to sleep in the local police station every night to avoid harm from religious persecution.
50.The Applicant supports his family's safety by transferring them money to enable them to remain sleeping at the police station for protection.
51.The Applicant also submits that in 2007, when he and his wife agreed that an application for a protection visa was necessary, the family personally had suffered the bombings of their own cars, houses, and even local churches.
52.In the 2007 application, the Applicant's wife, the primary applicant in that application, submitted that she experienced a religious riot in Kaduna State which saw a marketplace be burned down, and the witnessing of violence.
…
116.The Applicant submits that he fears persecution owing to his actual political opinion of supporting Christian missionaries and Christian evangelism in all parts of Nigeria -including Muslim-majority regions such as the Applicant's home area of Kaduna State.
117.According to a 2021 article summarising various data surveys on the demographics of religion in Nigeria, Christianity is in decline, and Islam is "on track to ... become an absolute majority of Nigerian adults ... within a decade"20.
118.Additionally, as previously stated, the Northern Muslim-majority States of Nigeria all implement Sharia law to some degree.
119.In "twelve northern States" of Nigeria which implement Sharia law does the death penalty legally apply for 'apostasy'. Apostasy, in Islam, is the crime committed by a Muslim who converts to Christianity - missionaries who facilitate apostasy are thus viewed with extreme animosity.
120.As stated at the start of these submissions, the Applicant is the trustee of an organisation incorporated in Nigeria as the [Agency 1].
121.The Applicant submits that the [Agency 1] financially supports missionaries across Nigeria, even in the Applicant's home area of Kaduna State, which implements Sharia law, as the [Agency 1’s] constitution and photo evidence of support show.
122.The Applicant submits that the missionaries supported by the [Agency 1] spread the word of Christianity in non-Christian areas (including areas where traditional African religion is still adhered to), usually by way of operating schools, churches, and other essential services.
123.The board of the [Agency 1 variant] comprises the Applicant, several other Nigerians living in Australia, and a sole member currently living in Nigeria's North-West.
124.The Applicant also submits that, since 2018, the Nigerian equivalent of the Australian Securities & investments Commission has frozen the accounts used by the [Agency 1 variant] to financially support the missionaries, allegedly for the purposes of 'auditing' the transactions for instances of corruption. No progress has been made by the Nigerian government on this task in the 5 years since the freezing of the [Agency 1 variant’s] accounts.
125.Thus, the Applicant and the other members of the [Agency 1 variant] now raise money for the missionaries supported by the [Agency 1 variant] through private bank transfers, in order to avoid the ire of the Nigerian government.
Applicant’s oral evidence
The applicant’s oral evidence followed, in general, his submissions to the Tribunal. It is unnecessary for the Tribunal to set out in detail its discussion with the applicant of the procedural history of his matters.
The applicant confirmed his personal details and the general background to his application. The applicant stated that his parents are deceased and that he has [specified family members]. The applicant and his family are from Kaduna State.
When asked by the Tribunal about his fear at returning to Nigeria, the applicant cited his Christian faith. When pressed, the applicant stated that he was born into a well-known Christian family and that his grandfather was [a prominent leader of a] Church in Nigeria.
The applicant stated that initially he was an Anglican but has since changed to an African church. The applicant was educated in Christian schools before completing his undergraduate degree in [course 1] in [year]. He stated that he was one of [few] successful applicants out of 60,000 applications.

The applicant completed his [training] in western Nigeria before returning to the same university to undertake specialist [occupational training]. The applicant’s specialist training took four years to [specified year].
The applicant met his wife in 1994 and the couple eventually married in 2002. [Details deleted].
The applicant and his wife have [specified] children. The applicant’s children are presently [studying].
When asked about his motivation in coming to Australia, the applicant stated that in 1999 he was awarded a national [professional award]. On the strength of this award, he received offers form “all over the world” to continue his studies. One of his “closest professors” convinced him to come to Australia, and “took [him] under his wing” as one of his researchers. The applicant described himself as a researcher in [his field] with a practice on the side. The applicant came to Australia first and his family followed later.
The applicant stated that the family tried to return to Nigeria regularly in order to maintain contact with family, however they found the “temperature [of the country] was changing” and that every time they went there “it was a battle”, and they were forced to hire private security and stay at safe homes. The cause of their concern was their Christian religious identity.
The applicant stated that his wife became uncomfortable at the prospect of returning to Nigeria and so made and application for a protection visa of which he and the couple’s children were secondary applicants. The applicant’s wife and children were eventually assessed as refugees and have since become Australian citizens.
When asked what was making the couple fearful at the prospect of returning to Nigeria, the applicant stated that the incidents of random attacks on Christians, particularly Christian women, was increasing and that the general security situation for Christians was unsafe.
When pressed as to his more recent activities, the applicant stated that he, together with several others, had registered a Christian missionary organisation which aimed to [support children]. He stated that this was sufficient to raise his public profile in Nigeria and placed him at greater risk of attack.
Country information:
In its “2023 Annual Report”, the United States Commission on International Religious Freedom (USCIRF) has “recommended that the U.S. State Department designate Nigeria as a Country of Particular Concern for engaging in and tolerating systematic, ongoing, and egregious religious freedom violations”.[1] In its key findings, the USCIRF reports that:
In 2022, religious freedom conditions in Nigeria remained poor, with both state and nonstate actors committing particularly severe violations of religious freedom. While some officials worked to address drivers of religious freedom violations, others actively infringed on the religious freedom rights of Nigerians, including by enforcing blasphemy laws. Criminal activity and violent armed group incidents impacting religious freedom worsened.
A Shari’a court sentenced Sheikh Abduljabar Kabara to death for blasphemy. Judicial authorities sentenced humanist leader Mubarak Bala to 24 years in prison for blasphemy and other charges. A high court ruled that blasphemy laws in Shari’a penal codes are constitutional and remanded the blasphemy case against Yahaya Sharif Aminu back to Shari’a courts for retrial. In September, armed officers conducted a surprise raid on the residence of the presiding judge of the Kano Court of Appeal, who was the only judge who dissented the ruling. Kabara, Bala, and Sharif Aminu remained incarcerated at year’s end, along with several other individuals accused of blasphemy. Meanwhile, religious police arrested 19 people accused of organizing a wedding ceremony for two individuals of the same sex in Kano State, where Muslims convicted of lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) activity face execution or public flogging under Shari’a legal codes.
Mob violence in Zamfara killed Christian university student Deborah Yakubu due to blasphemy accusations. Officials in Bauchi State arrested Christian healthcare worker Rhoda Jatau for blasphemy for comments she shared on social media in the aftermath of the violence. Authorities only brought minor charges against two of the instigators of violence against Yakubu and no charges against the instigators of violence against Jatau.
Rampant violence and atrocities across Nigeria continued to impact freedom of religion or belief, including militant Islamist violence; some forms of identity-based violence; mob violence; and criminal, political, and vigilante violence impacting worship. The Islamic State in West Africa Province (ISWAP) claimed several attacks against Christian communities, including allegedly killing 40 people in an attack on a Catholic Church in Ondo State during Pentecost Sunday services and bombing a market in Borno State that sold alcohol.
In many of the country’s complex violent crises, armed actors targeted worshipers and religious leaders. Attacks targeted churches and mosques in Kaduna State, mosques in Zamfara and Katsina states, and several Christian leaders in other parts of the country. Tensions at the intersection of ethnicity, religion, and geographic heritage yielded atrocities in several regions, including in Plateau, Benue, and Anambra states.
Federal authorities accelerated efforts to address violence impacting religious freedom, including by institutionalizing harsher punishments against perpetrators, improving military efforts to neutralize Islamist fighters in the north, and strengthening efforts to investigate and arrest perpetrators of the most egregious attacks. The effectiveness of these efforts remained in question, while in some regions state and local officials failed to fully prosecute individuals who incited mob violence against alleged blasphemers.
Security and judicial sector reform aimed at deterring and providing redress for religious violence remained stagnant, with such efforts largely absent from or peripheral to leading politicians’ policy priorities. The government’s human rights record continued to be poor, with reports emerging of a decades-long forced abortion campaign facilitated by the Nigerian military against rescued abductees of Boko Haram.
[1] See: <>
A Christian non-governmental organisation, Open Doors, has included Nigeria in its list of top 10 countries in which Christians face persecution;[2] Nigeria features at number 6, having entered the list for the first time in 2021 at number 9. In its “Nigeria” country profile, Open Doors states that:
The persecution facing Christians in Nigeria is extreme and often brutally violent, as Islamic militants and armed bandits attack with increasing impunity.
This mostly affects believers living in the Muslim-majority north and Middle Belt, but it’s also spreading to the south. Although all civilians are subject to threats and violence, Christians are often specifically targeted because of their faith. Boko Haram and the Islamic State West Africa Province (ISWAP), for example, want to eliminate the presence of Christianity in Nigeria. More Christians are killed for their faith in Nigeria than in the rest of the world combined - 14 every day, on average.
Men and boys are often specifically targeted by extremist groups, with the aim of destroying livelihoods and stifling Christian population growth. Christian women and girls in northern Nigeria, and increasingly further south, are vulnerable to persecution for their faith and gender – they are frequently targeted for abduction, sexual assault and forced marriage by armed groups. Christians are dispossessed of their land and their means of livelihood, and many live as internally displaced people or refugees.
In northern states that operate under Sharia (Islamic law), Christians can be treated as second-class citizens, whilst Christians who convert from Islam are also at risk of pressure and persecution. Christians from a Muslim background also face rejection from their own families, pressure to give up their faith, and often physical violence.
…
Nigeria has moved up one place on the World Watch List this year, reflecting the increasing jihadist violence across the country. Christians continue to be attacked indiscriminately and brutally in northern Nigeria, and the violence has now spread to southern Nigeria. As the government persists in its official position of denial of religious persecution, Christians' rights continue to be violated with impunity.
[2] Open Doors World Watch List 2023: The Persecution of Christians <>
To similar effect is the report by Genocide Watch, Nigeria Is Worst in the World for Persecution of Christians in 2021, in which it is stated, somewhat rhetorically:[3]
Nigeria: The World’s Greatest Enemy of Christianity
The Federal Republic of Nigeria ended the year 2021 with the ignominious distinction of being the country most hostile to Freedom of Worship. Nigeria also became “the Greatest Enemy of Christian Faith in the World” and “a country with the world’s largest Christian Deaths for the Year 2021.” No fewer than 5,191 of the victims were unarmed citizens hacked to death or shot by Islamic radicals or hostile members of the country’s security forces
According to the Open Doors’ 2022 World Watch index on global killing of Christians: “4,650 Christians were killed in Nigeria between Nov 2020 and Oct 2021, higher than 3,530 deaths recorded in the previous year (Oct 2019-Nov 2020) and 2500 Christians were abducted between Nov 2020 and Oct 2021 as against 900 abducted in the previous year”. For the fifteen months from January 2021 to March 2022, Nigeria saw a total 6006 Christian deaths.
45,644 Christian and 30,000 Muslim Lives Lost In 13 Years
From July 2009 (year of the Boko Haram Uprising) to March 2022, the Christian death tolls rose to 45,644. Approximately 30,000 moderate Muslims were also killed during the period by the country’s Jihadists, who are chiefly indigenous Fulani Herdsmen, Fulani Bandits and other jihadist pastoralists or mercenaries. Trends associated with killing of moderate and defenseless Muslims in the country especially in the last five years have been centered on ‘Muslim Fulani-Muslim Hausa rivalries in the Muslim dominant Northern States of Zamfara, Sokoto, Katsina, Kebbi and North and Central Kaduna while patterns and trends associated with their fractional killings dating back to 2009 are centered on ‘collateral and revenge killings’. In all, 75,644 Nigerians have been killed in the previous 13 years – among them 45,644 Christian deaths and 30,000 deaths of moderate Muslims.
5,191 Christians Killed In 2021
The year 2021 ended disastrously for Christians and their sacred places of worship with the killing or abduction of at least 25 Christian clerics and attack or destruction of between 400 and 420 Churches. Also, not less than 3,800 Christians were abducted, and of these, scores were killed in captivity by jihadists. That is to say, that while 4,400 Christians were killed between January and September 2021, an additional 700 others were killed between October and December 2021. The latter group included 231 Christian deaths perpetrated by Jihadist Fulani Herdsmen or Fulani Bandits as opposed to 70 killed by Boko Haram and ISWAP in Niger. No fewer than 400 defenseless Igbo civilian Christians were killed by security forces in “open” (street shootings and killings) and “closed” (custodial killings) quarters in Old Eastern Nigeria. The Jihadist Fulani Herdsmen/Bandits’ killings from October to December 2021 included “the Nasarawa Tiv Christian massacre of Dec 20, 2021” during which no fewer than 52 Christians were hacked to death.
[3] See: <>
In respect of the applicant’s home state of Kaduna, the Council on Foreign Relations notes in its 2021 article, Ethnic and Religious Violence Worsen in Kaduna:[4]
Kaduna is increasingly the epicenter of violence in Nigeria, rivaling Borno state, the home turf of Boko Haram. In rural areas, conflicts over water and land use are escalating, and Ansaru, a less prominent Islamist group, is active. Over the past year, some four hundred people were abducted for ransom in the state by criminal gangs; more than two hundred violent events resulted in nearly one thousand fatalities, and some fifty thousand are internally displaced. These estimates apply to the state as a whole, including the city of Kaduna, the capital of the state. The city of Kaduna has long been a center of political, ethnic, and religious violence. The city has undergone ethnic "cleansing," with Christians now concentrated in south Kaduna city and the Muslims in the north. Since the end of military rule in 1998–99, Kaduna city saw election-related violence that soon turned into bloodshed along ethnic and religious lines.
…[I]n the city of Kaduna, violence is multifaceted in origin, and no one strategy is likely to bring it under control. At best, small steps to improve services to the population could buy some time for the larger political, economic, and social changes that will be necessary to restore the health of the city.
[4] See: <>
The United States Department of State’s 2021 Country Reports on Human Rights Practices: Nigeria also notes:[5]
Significant human rights abuses included credible reports of: unlawful and arbitrary killings by both government and nonstate actors; forced disappearances by the government, terrorists, and criminal groups; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government and terrorist groups; harsh and life-threatening prison conditions; arbitrary arrest or detention; political prisoners; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; serious abuses in a conflict, including killings, abductions, and torture of civilians; serious restrictions on free expression and media, including violence or threats against journalists and the existence of criminal libel laws; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association; serious government corruption; lack of investigation and accountability for gender-based violence, including but not limited to domestic and intimate partner violence, sexual violence, child, early and forced marriage, female genital mutilation/cutting, and other harmful practices; crimes of violence targeting members of national/racial/ethnic minority groups; the existence or use of laws criminalizing consensual same-sex sexual conduct between adults; and the existence of the worst forms of child labor.
[5] See: <>
As regards the effectiveness of state security forces, DFAT notes that:[6]
5.1        Security and law enforcement in Nigeria is managed at the federal level through the Nigerian Armed Forces (NAF), the Department of State Services (DSS) and the Nigerian Police Force (NPF). The government also utilises groups created for specific purposes, such as the CJTF (which supports security operations against Boko Haram).
5.2        Capacity constraints have limited the NPF’s ability to control societal violence, particularly in areas under a state of emergency and in Middle Belt conflict zones between mostly Fulani herders, and Muslim and Christian farmers (See Security Situation). As a result, the government routinely relies on the military to provide community policing in areas that experience high levels of violence. In 2019, the Nigerian military reportedly conducted active security operations in almost all 36 states, effectively replacing policing operations in many areas.
5.3        As noted elsewhere, there have been numerous reports of human rights violations or other abuses of power committed by the security forces and other government officials or agents. While the government has taken some steps to investigate alleged abuses, there have been few public reports of prosecutions of officials who have committed violations and impunity remains widespread at all levels of government. DFAT assesses a complaint lodged by an ordinary citizen of a violation committed by a state official is unlikely to result in either prosecution or restitution.
[6] Ibid.
The Tribunal also notes the current Australian Government Travel Advice on Nigeria, issued 1 June 2023,[7] which advises:
Reconsider your need to travel to Nigeria overall due to high threats of terrorist attack and kidnapping, the volatile security situation, possible violent civil unrest and high levels of violent crime.
[7] See: <
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[8]
[8] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[9]
[9] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
When considered with his corroborating documents, and in the context of the country information set out above, the Tribunal considers the applicant’s evidence to be coherent and plausible, and to not run counter to generally known facts. Overall, therefore, and save as set out below, the Tribunal regards the applicant’s evidence as credible.
In tandem with the credibility of the appellant’s account is the question of whether he himself is in fact a bona fide adherent of the Christian faith, and in particular of a missionary disposition. There are two competing considerations in this regard which the Tribunal keeps to the front of its mind. The first is the ease with which a claim to adhere to a certain belief system can be fabricated. At the same time, the Tribunal is in no doubt as to the predicament for an individual trying to establish such a claim, given the internal nature of a belief system.
On balance the Tribunal is prepared to accept that the applicant is and has at all material times been of the Christian faith. However, the evidence as to the applicant’s missionary activities is relatively scant, and it is impossible for the Tribunal to be satisfied in respect of the applicant’s bare claims in this regard on the balance of probabilities. The Tribunal therefore accepts that there may be doubt about the veracity of this aspect of the applicant’s claims.
The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:
62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
[Emphasis in original]

While the Tribunal has some doubts about the veracity of the applicant’s claims as to his missionary activities, it has had regard to the corroborating evidence he has provided, specifically:
a.a copy of the constitution of the “[Agency 1]” dated 12 September 2018;
b.a copy of an announcement form from the [Bureau 1] naming the applicant as a trustee of the “[Agency 1]” dated 20 September 2018; and
c.a copy of the “Certificate of Incorporation” issued by the [Bureau 1] in respect of the “[Agency 1]” dated 20 September 2018.
The matter is finely balanced. In this case, given the otherwise credible evidence of the applicant, the Tribunal considers it appropriate to allow the applicant the benefit of the doubt. Making that allowance, the Tribunal accepts the possibility that the applicant will be perceived as having engaged in, and continuing to remotely engage in, Christian missionary activities in Nigeria. The country information set out above suggests, and the Tribunal finds, that the risk of the applicant being subjected to significant physical harm for doing so were he to return to Nigeria cannot be ruled out as remote or speculative.
Overall, in light of the cumulative effect of these matters, the Tribunal considers that if he is returned to Nigeria now or in the reasonably foreseeable future, there is a real chance that the applicant will experience conduct there which meets the definition of ‘persecution’. It also accepts that any such persecution would be based upon the applicant’s religious and/or political beliefs. For these reasons the Tribunal accepts the applicant has a well-founded fear of for the reasons stated.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Damian Creedon
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.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3434

17 July 2023

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