1720380 (Refugee)

[2022] AATA 1313

1720380 (Refugee) [2022] AATA 1313 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720380

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Paul Windsor

DATE:4 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 4 March 2022 at 11:07 am

CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – member of student union and secessionist organisations – profile and chance of harm accepted – availability of protection as permanent resident in The Bahamas – victims of racially targeted crimes there – continued residence and business ownership – risk of crime faced by population generally and remote risk of significant harm – children dual nationals of Nigeria and The Bahamas – their applications invalid – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 91N, 91P, 338, 347, 411, 412
Migration Regulations 1994 (Cth), r 4.02; Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
MIMAC v SZRHU [2013] FCAFC 91
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 August 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 November 2016.  They included their daughter, born [date], and their son, born [date], in the application.  On 11 January 2017 the Department advised [the first applicant] that the applications for his daughter and son had been assessed to be invalid under s.91N and s.91P of the Act, as they are dual nationals of The Bahamas and Nigeria.  They were advised that there is no right of merits review of the assessment that the applications are invalid.

3. In his protection visa application, [the first applicant], who claims to be a citizen of Nigeria, indicated he was born on [date] in Lagos city, Lagos state, Nigeria, is of Yoruba ethnicity, is a Christian and was married in [City 1], The Bahamas on [date].  He indicated he departed The Bahamas, where he had been residing, on [date] January 2015 and arrived in Australia on [date] January 2015, entering on a Student visa.[1]

   [1] See the Departmental file.

4. In her protection visa application, [the second applicant], who claims to be a citizen of The Bahamas, indicated she was born on [date] in [location], The Bahamas, is of African/Caribbean ethnicity and is a Christian.  She indicated she departed The Bahamas on [date] June 2012 and arrived in Australia on [date] June 2012, entering on a visitor visa.  When she entered Australia she was accompanied by the applicants’ daughter and son.[2]

   [2] See the Departmental file.

5. In his application [the first applicant] stated that he left The Bahamas to join his wife and children in Australia because he was racially targeted.  For details of his claims to protection he referred to an enclosed statutory declaration made by him on 26 November 2016.  In her application, [the second applicant] also referred to her husband’s statutory declaration for details of her claims.

6. In his statutory declaration [the first applicant] claimed he could not return to The Bahamas because he was the victim of a shooting in June 2011, his family were victims of a home invasion in mid-2012, and he was involved in a confrontation with and threatened by a man who broke into his car in 2013.  He claims the attacks were targeted at him because he is a foreigner and people of The Bahamas hate foreigners.  He states he could not relocate to Nigeria because of issues he had there before he left in 1995, and on returning to visit in 2003, as a consequence of being involved in anti-government and pro-Biafra secessionist activities.

7. The delegate refused to grant the visas to [the first and second applicants] on the basis that [the first applicant], as a Nigerian citizen, could access statutory effective protection in a safe third country, specifically Ghana, as set out in s.36(3), as Nigeria is one of the 15 member countries (along with Ghana) of the Economic Community of West African States (ECOWAS).  In reaching this conclusion the delegate found that, considering the delay in [the first applicant] submitting a protection visa application, he was not involved with the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and therefore was not of sufficient interest to the Nigerian authorities for them to share his details with other ECOWAS countries.

8. [The first and second applicants] applied to the Tribunal for review of this decision on 3 September 2017.  They provided the Tribunal with a copy of the delegate’s decision record.[3]

   [3] See the Tribunal file.

9. The applicants appeared before the Tribunal by video-link on 18 August 2021 to give evidence and present arguments.  Their two children also gave evidence at the hearing.  The applicants were represented by their authorised migration agent.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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 (the Department), 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims

16. The applicants’ claims for protection, as set out in [the first applicant]’s statutory declaration of 26 November 2016 included with his protection visa application, are summarised as follows:

    ·His wife and children arrived in Australia [in] July (sic) 2012 on visitor visas (as indicated in her application, [the second applicant] and the two children actually arrived in Australia [in] June 2012).

    ·He came to Australia [in] January 2016 (sic) as a secondary applicant on a Student visa to support his wife who was a student at that time (as indicated in his application, [the first applicant] actually arrived in Australia [in] January 2015).

    ·His wife completed a Diploma in [Subject 1] in November 2016.

    ·His application for a [working] visa was refused on 11 November 2016.

    ·He applied for a protection visa because he cannot return to The Bahamas, where he had been living with his wife, who is a citizen of The Bahamas, since 1998.

    ·In June 2011, while at work at [Business 1] at [location], he was shot by an armed gunman who entered the premises demanding money.  The gunman screamed that ‘such foreigners deserve to die’ before shooting him in the [body part].  The perpetrator was arrested but he has not heard anything from the police since.

    ·He fears for his life as victims are commonly killed in The Bahamas to do away with vital evidence.

    ·Just before his family left for Australia around mid-2012 they were attacked when their house was broken into.  A gunman tried to rape his wife but abandoned the idea when the others had completed the burglary and they had to leave.  The matter was reported to the police but nothing happened.

    ·Sometime in 2013 a man broke into his car.  He confronted the man who said ‘you came by plane you will leave in a bag’.  He reported the matter to police but heard nothing from them.

    ·He believes he was targeted because he was a foreigner.  He is afraid to return because people in The Bahamas have a hatred for foreigners, similar attacks have happened to a lot of foreigners, and an attack on a foreigner means nothing to the police.

    ·He cannot return to Nigeria because of issues he had there before he left in 1995.  He took part in demonstrations against the military government advocating for human rights and democracy. 

    ·He advocated for the Ogoni people against the destruction of their land for oil exploration and production.

    ·He also advocated for the Biafra people as he lived in the south and some of his mother’s family are from Biafra.  He has always been in support of the south splitting from the rest of Nigeria because all Nigeria’s problems originate from the north.

    ·While he was preparing materials for demonstrations he was being watched by northern neighbours.  His activities became known to the military authorities and he was among people detained at an unknown military camp in 1994.  They were maltreated and beaten.

    ·On return from a protest in Port Harcourt in April 1995 their houses were raided.  He evaded capture but a friend is still missing after being arrested and another was paralysed due to the mistreatment he received.

    ·He relocated from Lagos to Ifo in Ogun state.  He and some friends planned a massive demonstration in Enugu City.  The meeting was postponed by a day but the meeting place was burned down the night the meeting was supposed to have taken place.  In August 1995, he went to hide at his uncle’s place in Ifo while his uncle organised his departure from Nigeria.  Some of his friends were arrested and his house in Lagos was searched.

    ·After about 7 years in The Bahamas he decided to visit Nigeria in 2003 because the political climate had changed for the better.  While he was welcomed by his family and friends, he was threatened by some of their northern neighbours who commented that all his ‘idols’ who supported the Ogoni and Biafra causes are dead.  They thought he came to support the movement working towards the resuscitation of the state of Biafra.

    ·He felt threatened so went into hiding until he left.  Just after he departed security personnel raided their house looking for him.

    ·His family hired people to take him through airport security.

    ·He is afraid to return to Nigeria as recently the Nigerian government has been arresting and killing insurgents who continue to campaign for the separation of Biafra from Nigeria.

17. The applicants were invited to attend an interview with the delegate to be held on 19 June 2017.  Their representative made a pre-interview submission dated 13 June 2017.  Included were copies of photographs of [the first applicant] in hospital in The Bahamas.  Also included was a copy of a letter dated 25 November 2016, purportedly from the Officer In Charge of [specified] Division, Royal Bahamas Police Force, indicating that [the second applicant] was the victim of a ‘Breaking’ sometime after 12:00 am on Saturday 16 June 2012 when a male armed with a handgun entered her residence demanding cash.  The letter indicates that she handed over $400 cash to her assailant who then sexually assaulted her before making good his escape.  The letter also indicates that [the first applicant] was the victim of a shooting [in] June 2011 when he was shot in the [body part] area while standing in front of a [Business 1], located on [street].  The letter states that no one has been arrested in relation to both matters and investigations are continuing.

18. In his submission, the representative asserts that attacks on foreigners in The Bahamas are rampant and that the crimes committed against [the first applicant] were racially motivated because he is a foreigner in The Bahamas.  A number of media articles regarding crime in The Bahamas, including against tourists and foreigners, were cited in support of this contention. 

19. In relation to Nigeria, the representative claimed that when [the first applicant] returned to Nigeria in 2003, his northern neighbours who approached and threatened him that all his idols who supported the Ogoni and Biafra emancipation are dead, ‘coincidentally’ thought he had returned to Nigeria to participate in the formation of MASSOB.  The representative stated that the applicant made contact with some senior members of MASSOB to join before leaving Nigeria, but felt threatened by the actions of his neighbours so went into hiding until he left Nigeria and returned to The Bahamas, following which his house was searched by Nigerian security forces, who were looking for him.  It is asserted that [the first applicant]’s past dissident activities and his continued support for MASSOB make him a target for arrest and detention if he returned to Nigeria. 

20. The representative contended that the applicant cannot avail himself of the right to enter and live in any of the ECOWAS countries because they have a security pact and it is likely he would be arrested if he tried to enter any of the ECOWAS member countries.  He also notes that the applicant’s wife and children, as citizens of The Bahamas, may not be able to enter and reside in ECOWAS countries.

21. Following the interview with the delegate on 19 June 2017 the representative provided a post-interview submission dated 23 June 2017 in support of [the first applicant]’s claims to fear persecution in Nigeria and in The Bahamas.  In relation to Nigeria it was stressed that [the first applicant] has not visited Nigeria since 2003 because of his fear of persecution there due to his previous involvement in dissident activities to ‘resuscitate the State of Biafra’.  The arrest of the head of MASSOB in Togo in 2000 is cited in support of the view that ECOWAS nations share ‘security and intelligence’.  It is also asserted that the Nigerian Government favours and uses northerners to arrest and crush dissident activities in the south.  In relation to The Bahamas, it is asserted that [the first applicant] did not pursue the man who shot him because he was warned that he would be killed if he did so.  The defeat of a referendum proposing citizenship for foreign men who marry Bahamian women is cited as evidence that Bahamian men hate foreigners.  It is claimed that, because of the attacks on foreigners, it was difficult for the applicant to live, move around and interact freely in The Bahamas as he was afraid to talk to people for fear his accent would identify him as a foreigner.

22. A further statutory declaration by [the first applicant] sworn on 2 September 2017 was submitted with the review application.[4]  This essentially restated the claims made in his original statutory declaration of 26 November 2016.

    [4] See the Tribunal file.

23. On 12 August 2021 the representative provided a pre-hearing submission.  In this submission he states that [the first applicant], having previously joined MASSOB when he visited Nigeria in 2003, has now switched allegiance to The Indigenous People of Biafra (IPOB) movement, which is classified as a terrorist group by the Nigerian government.  The representative asserts that [the first applicant] is a prominent member of the group in [City 2], provides financial support to the group and has contacted the [IPOB leader], who has since been arrested.

24. The representative also comments that the applicant delayed making a protection visa application after arriving in Australia because he was advised by two migration agents that such an application would have little or no chance of succeeding.  It is asserted that he abandoned the idea of making a protection visa application when his brother decided to include him in his subclass 457 visa as a dependent.

25. The representative also submitted that the Department’s finding that the protection visa applications submitted by the applicants’ two children were invalid (due to the application of sections 91N and 91P of the Act) was erroneous, and requested that the Tribunal ‘validate’ the applications.

26. Attachment to the submission was a range of documents including relating to money transferred to MASSOB; IPOB membership; donations to IPOB; a Zoom meeting with IPOB leader Nnamdi Kanu; letters from family members; evidence in support of the assertion that the applicant could not safely relocate to an ECOWAS member state; and supporting statements in relation to the [applicant] family’s contribution to the Australian community.

27. On 28 October 2021 the representative provided a copy of a letter from [Dr A], Consultant Surgeon at [Hospital 1] in [City 1], The Bahamas, indicating that the applicant was treated at the hospital for a gunshot wound to the [body part] region sustained [in] June 2011 and remained hospitalised post-surgical procedure until [July] 2011.  The letter notes that his stay was complicated by the development of [symptoms].

    Identity

28. On the basis of the copies of their passports submitted to the Department,[5] the Tribunal accepts that [the first applicant] is a citizen of Nigeria and [the second applicant] is a citizen of The Bahamas, and that their identities are as claimed.  The Tribunal accepts that Nigeria is [the first applicant]’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes and The Bahamas is [the second applicant]’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. 

    Issues

    [5] See the Departmental file.

1. The issues in this review are, firstly, whether [the first applicant] has a well-founded fear of being persecuted in Nigeria for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Nigeria, there is a real risk he will suffer significant harm.  Second, as [the first applicant] is a permanent resident of The Bahamas, which is also [the second applicant]’s receiving country, it is also relevant (for the purposes of s.36 (3) of the Act), whether [the first applicant] has statutory effective protection in The Bahamas.  Third, as [the second applicant]’s receiving country is The Bahamas, the Tribunal must consider whether she has a well-founded fear of being persecuted there for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of The Bahamas, there is a real risk she will suffer significant harm.

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

   Credibility

3. 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.

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

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

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

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

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

   Assessment of claims

   Request that the Tribunal ‘validate’ the protection visa applications made by the review applicants’ children.

8. As noted above, protection visa applications for [the first and second applicants]’s two children were included with the applications made by [the first and second applicants] on 30 November 2016, but on 11 January 2017 were found by the Department to be invalid under s 91N and s 91P of the Act on the basis that the children are dual citizens of The Bahamas and Nigeria.  The applicants were advised that there is no right of merits review of the assessment that an application is invalid and did not seek to make a review application to the Tribunal in relation to these applications.

9. In his pre-hearing submission of 12 August 2021, however, the representative asserted that the Department’s finding that the protection visa applications submitted by the applicants’ two children were invalid was erroneous, and requested that the Tribunal ‘validate’ the applications.  The Tribunal noted at the hearing that this issue had not been raised previously, and reiterated the Department‘s advice that a finding that a protection visa application is invalid is not a merits reviewable decision.

10. In relation to this matter it is relevant that the Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that [the first and second applicants’] children have not been refused a relevant visa, rather their applications for protection visas were found to be invalid. This is because they were found to be nationals of two or more countries and therefore their visa application are affected by s 91N and s 91P of the Act, which prevent persons who, at the time of visa application, are nationals of two or more countries, from making a valid application for a protection visa. There is no basis therefore, for the Tribunal to consider ‘validating’ the protection visa applications made by the two children on 30 November 2016.

    [The first applicant]’s immigration status in The Bahamas

11. The available evidence indicates that [the first applicant] resided in the Bahamas from January 1998, married his wife (who is a citizen of The Bahamas) there in May 2001, and continued to reside in the Bahamas until he came to Australia in January 2015.  At the hearing [the first applicant] confirmed that he has permanent resident status in The Bahamas as the spouse of a citizen of The Bahamas.

    Family Background

12. At hearing, [the first applicant] indicated that he grew up in Lagos and neighbouring Ogun state, in the South West zone of Nigeria. 

13. [The first applicant] indicated that while his father is ethnic Yoruba, his maternal grandmother has Igbo ethnicity and he has Igbo cousins.  DFAT indicates that the Igbo, who comprise the third largest ethnic group in Nigeria, originate from the south eastern Nigerian states where in 1967 predominantly Igbo separatists sought to declare an independent state, known as the Republic of Biafra, which was the catalyst for the Biafran war of 1967-70.[6]  [The first applicant] commented that his Igbo family members told him what they went through during the Biafra war.  He added that during the 1970’s, when he was little, an Igbo uncle who had been living with his family was detained by police and never heard from again.

    [6] DFAT Country Information Report, Nigeria, 3 December 2020, sections 3.7-3.10

14. [The first applicant] said his parents settled in [Country 1] 11-12 years ago, having first gone there to work in the 1950s (his father was [an Occupation 1] and his mother was [an Occupation 2]).  He said his brother was born in [Country 1].

15. He indicated one of his sisters settled in [Country 2] in around 2001 and lives in [specified state]. 

16. He also has a brother and a sister living in Australia.  He said his brother first worked as [an Occupation 3] in regional areas in Australia, then returned to [Country 2] before returning to Australia around the time the applicant came.  He indicated he was not sure when his sister came to Australia but said she is a citizen now and manages a [business] in [Town 1].

17. The applicant confirmed that he studied [Subject 2] in Nigeria and worked as [an Occupation 4] in The Bahamas.  He indicated that prior to settling in The Bahamas he studied [Subject 3] in [Country 3].  He said his interest was in [Occupation 5], particularly [in specialisation], which he still does.

    Protest activities in Nigeria

18. At the hearing [the first applicant] indicated that he was a member of the student union at college and actively participated in demonstrations against the government.  He indicated that they protested against the government reducing funding to universities, which mostly affected the south, military rule, and the failure to allow transition to civilian rule following an election.

19. [The first applicant] said he supported and joined the Ogoni peoples’ movement in the Niger River Delta started by Ken Saro-Wiwa because the oil companies were spilling oil and polluting Ogoni lands and water, adding that he was always involved in activism where the government is denying people their wellbeing.  He said from 1993 through until 1995 he was active in demonstrating against the government, adding that the pro-Biafra movement was also starting to gain a little traction at that time. 

20. [The first applicant] said when Ken Saro-Wiwa was arrested and sentenced to death for treason they travelled to Enugu in the South East Zone to demonstrate but encountered problems when the military government was tipped off and raided the proposed protest location.  He indicated that two of his colleagues were arrested but he managed to escape.  He said that when they went subsequently went to Port Harcourt to support Ken Saro-Wiwa he was detained for 8 days and mistreated but one of his friends was left paralysed and another disappeared.

21. The applicant said when he returned to his home in Lagos he was told the house had been searched so he went to Ota in neighbouring Ogun state where his uncle lives and then to a friend’s farm in nearby Ifa.  He added that he later got information that his uncle’s place was also searched.

22. The Tribunal queried the applicant regarding the references in his written statements to his northern neighbours informing on him.  He said he thought the military government was using them as informants.  The Tribunal asked how his neighbours knew about his activities.  He said they saw him and his colleagues making placards.

23. The applicant said his uncle was able to organise his travel and departure from Nigeria because he has contacts who work at the airport.  He indicated his uncle arranged for him to go to The Bahamas because they didn’t require a visa be arranged prior to travel.

24. The Tribunal asked the applicant why, given his claimed experiences before he left Nigeria in 1995, he decided to return in 2003.  He said there was a civilian government and MASSOB, which started in 1999, was operating on the ground, so he thought it would be safer.  When asked, he indicated he talked to people who said he should come because the situation was calmer than when the military government was in place.  He said he was planning to go for 3-4 weeks and had a wedding to attend, but had to cut the trip short and spent a little over a week there.  He said he stayed with a friend in Lagos.

25. The applicant said he decided to meet with some MASSOB leaders while he was there and they invited him to a forum which he attended.  He said at the end of the forum he was asked if he would like to make a financial contribution which he did as well as pledge his continued support.  The applicant said he went to his home neighbourhood to visit his parents and while there they told him the Imam who lived nearby had lost his wife so he went to pay his condolences.  He said while he was doing that, a ‘group from the north’ made threatening comments regarding all his idols and supporters being dead.  He commented he thought they may have said that because he attended the MASSOB meeting, so decided he had to leave Nigeria.  He indicated he did not return to his family home and left Nigeria after the wedding. 

26. The Tribunal queried why the applicant would have gone to the Imam to convey his condolences given his past experiences with his ‘northern neighbours’ (DFAT advises the population of Nigeria is broadly divided between the Muslim north and Christian south).[7]  He commented that the Imam is elderly and would not have informed on him but it is the younger people around him who are the problem.

    [7] DFAT Country Information Report, Nigeria, 3 December 2020, section 2.9.

27. The Tribunal queried why he decided to make contact with the MASSOB leaders if he was just coming to Nigeria to attend a wedding.  [The first applicant] commented that he had been having contact with a small Igbo community in The Bahamas and he thought while he was in Nigeria he had time to contact the MASSOB leaders.  He said his friend took him to meet three of the leaders and he introduced himself and told them what he was doing.  The Tribunal queried why, if MASSOB was operating without problems at that time, his meeting with them and donating some money would have caused any problems.  The applicant replied that he was not saying MASSOB operated without problems, adding that there has never been a time when the government has not gone after the pro-Biafra groups.

28. The Tribunal observed that the current DFAT Country Information Report states DFAT understands that although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to undertake public activities.[8]  The applicant commented that he believed MASSOB was among three groups declared to be a threat to the government during the period when Goodluck Jonathan was President. (According to Britannica this was from 2010-15).[9]  The representative interjected, commenting that the applicant left the country because of the threat from his neighbours, which made him feel unsafe.  The applicant added that he felt he had to leave the country because the comments by his neighbours made him feel unsafe given his past experience of them having informed on him.

    [8] DFAT Country Information Report, Nigeria, 3 December 2020, section 3.51.

    [9] Goodluck Jonathan | Biography & Facts | Britannica

29. The Tribunal observed that in his initial statutory declaration, while he stated his neighbours threatened him and thought he had come to work with the Pro-Biafra movement, he did not mention having actually met with MASSOB leaders or attending a MASSOB meeting during his visit.  [The first applicant] said his written statement was just a summary of his claims.  The Tribunal commented that these seem to be significant matters yet he made no mention of them at all.  The applicant indicated he thought he had talked about his involvement with MASSOB in the statutory declaration. The Tribunal noted that he mentioned it at the interview with the delegate, but not in his statutory declaration. 

30. The Tribunal asked why his house was raided after he left.  [The first applicant] said he felt his neighbours must have contacted security and informed on him.  The representative again interjected, commenting that that the applicant did not know who actually reported him.  The Tribunal observed that in his statutory declaration he indicated his previous troubles arose because his northern neighbours were watching him, saw him preparing placards, and after this, his activities became known to the military authorities, clearly implying that his neighbours had informed on him.  The applicant said he was told by some of ‘his people’ who were within the security organisation about what was going on regarding his situation.

    Activities in Australia in support of MASSOB/IPOB

31. The Tribunal asked [the first applicant] about his claimed activities in Australia in support of MASSOB and more recently, IPOB.  He commented that Biafra has always been in his heart because of what happened to his uncle, which really affected him.  He said his grandmother told him how their cities were bombed, farms destroyed so there was no food, and how they were reduced to eating leaves and even dead bodies.  He commented that while the north is in power, the resources are in the south, so they do not want anything to do with people who support Biafra and won’t allow any Biafran people to rule.

32. The applicant commented that MASSOB members have been killed or arrested so he joined IPOB in [City 2] to participate in the struggle against the government.  He referred to a September 2017 security operation at the home of IPOB leader Nnamdi Kanu (after Kanu’s release from detention in April 2017 failed to end nationwide protests and clashes with security forces) which reportedly resulted in up to 150 deaths.[10]  He said Biafra is his passion and therefore he is constantly contributing to the cause.

    [10] DFAT Country Information Report, Nigeria, 3 December 2020, sections 3.48-3.52.

33. The Tribunal observed that the documents [the first applicant] has provided seem to indicate that only he and one other person (who he indicated is the leader of the group) have made any financial contribution to the [City 2] branch of IPOB in the period from September 2020 to 30 April 2014.  [The first applicant] commented that the [City 2] branch only opened recently and most IPOB members in Australia are in Sydney or Melbourne.

34. Having carefully considered the available evidence, the Tribunal is satisfied that the applicant engaged in political protest activity in the period from 1990-1995 as claimed.  The Tribunal found the applicant spoke passionately and knowledgably about issues that were of concern to him, particularly the struggle of the Ogoni people against environmental damage to their lands caused by oil interests.  The Tribunal also accepts the applicant’s evidence that he supported calls for greater self-determination (in the form of an independent Biafran state) for the Igbo majority located in the southeast of the country, including because of the experiences of ethnic Igbo family members from his maternal grandmother’s side of the family.  The Tribunal accepts [the first applicant]’s evidence that he fled Nigeria in 1995, at a time when there was a repressive military government in place, because he feared for his safety because of his protest activities.

35. The Tribunal found less convincing the applicant’s evidence that when he returned to Nigeria in 2003 he cut short his visit because he was threatened by ‘northern neighbours’, which made him concerned for his safety, and after his departure he was advised security personnel had come to his family home looking for him.  The Tribunal found the evidence in relation to these matters to be inconsistent and confused.  As discussed with the applicant at the hearing (where he indicated that he both met with three MASSOB leaders and, at their invitation, attended a MASSOB forum and made a financial contribution), in his statutory declaration of 26 November 2016 he made no mention at all of having met with MASSOB leaders and attending a MASSOB forum, but indicated that he went into hiding after being approached and threatened by some ‘northern neighbours’ (who he indicated commented that all his idols that supported the Ogoni and Biafra causes are dead).  The only allusion to MASSOB was the comment that ‘they thought I came to participate with Movement that was working towards the resuscitation of the State of Biafra in 2003’.  In his pre-interview submission of 14 June 2017, the representative introduced the claim that the applicant made contact with some MASSOB senior members ‘to join’ before leaving Nigeria.  The delegate’s decision record, a copy of which was provided by the applicants to the Tribunal, indicates that the applicant claimed at the interview with the delegate that he attended one meeting with MASSOB when he returned to Nigeria in 2003, but provided inconsistent information regarding whether names were taken (and did not indicate that he joined MASSOB at that time).  In his pre-hearing submission, the representative asserted that while names were not taken at the meeting, the names of those who made a financial contribution, including [the first applicant], were taken.

1. The Tribunal found the applicant’s evidence at hearing (discussed above) did not explain why [the first applicant] put himself in a position where he would again come into contact with ‘northern neighbours’ who he clearly indicated in his written statement he considered had informed on him in the past; how his northern neighbours would have had any knowledge of what he had been doing in relation to meeting with MASSOB; and, if he had taken soundings with family/friends and felt it was safe to return to Nigeria because there was a civilian government in place and things were calmer (and presumably that meeting with MASSOB would be okay), why his meeting with MASSOB leaders and/or attending a MASSOB forum would have brought him the adverse attention of security forces.  The Tribunal suspects that the applicant has embellished his claims regarding what happened when he returned to Nigeria 2003 and doubts that his visit resulted in security personnel searching his family home and looking for him after he had departed Nigeria.

2. Notwithstanding these concerns, the Tribunal accepts the evidence that the applicant has provided financial support to MASSOB while in The Bahamas and in Australia and has now joined IPOB and is part of a small group of IPOB supporters in [City 2].  The Tribunal accepts that the applicant was involved in a Zoom meeting with IPOB leader Nnamdi Kanu in June 2021, shortly before Kanu’s arrest.  The Tribunal finds this reflects [the first applicant]’s long-standing commitment to the pro-Biafran cause and therefore does not consider his activities in Australia were engaged in simply for the purpose of strengthening his claims to be a refugee (s 5J(6) refers).

3. The Tribunal accepts that, were he to return to Nigeria, the applicant would continue to support IPOB and the Biafran secessionist movement generally.  The DFAT report makes clear that Nigerian authorities have strongly rejected calls for Biafran independence to occur through peaceful means; the arrest of Kanu in October 2015 on treason and sedition charges sparked protests among his followers, leading to serious clashes with security forces; Kanu’s release in April 2017 failed to quell the situation in the southeast; and since that time there has been further security operations and clampdowns resulting in hundreds of deaths; and IPOB was designated a terrorist organisation.  DFAT assesses that, as members of a proscribed organisation, IPOB members face a risk of arrest and ordinary members of IPOB, MASSOB and other Biafran secessionist groups who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.

4. The Tribunal finds, therefore, that there is a real chance that [the first applicant] would suffer persecution involving serious harm, for reason of his political opinion, should he return to Nigeria now or in the reasonably foreseeable future.  The Tribunal finds that the persecution involves systematic and discriminatory conduct and [the first applicant]’s political opinion is the essential and significant reason for the persecution.  The Tribunal considers the real chance of persecution relates to all areas of Nigeria, his receiving country.  As the agent of persecution is the Nigerian state authorities the Tribunal finds that effective protection measures are not available to the applicant in Nigeria.

   Is safe third country protection available to [the first applicant] in The Bahamas

5. Having found that [the first applicant] faces a real chance of suffering persecution should he return to Nigeria, the Tribunal has gone on the consider whether [the first applicant], as a permanent resident of The Bahamas, could obtain safe third country protection there.  Unlike the delegate, given [the first applicant]’s particular circumstances as the spouse of a citizen of The Bahamas, the Tribunal has not considered whether [the first applicant] could obtain safe third country protection in one or more of the ECOWAS member states.

6. Subsection 36(2) of the Act regarding persons in respect of whom Australia has protection obligations is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

   Protection obligations

   (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4) However, subsection (3) does not apply in relation to a country in respect of which:

   (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

   (a) the country will return the non-citizen to another country; and

   (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A) Also, subsection (3) does not apply in relation to a country if:

   (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

7. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if they have not availed themself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

8. The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

9. [The first applicant] resided in the Bahamas for approximately 17 years from 1998 until he came to Australia in January 2015.  He has indicated that he is a permanent resident of The Bahamas on the basis his spousal relationship with [the second applicant], who is a citizen of The Bahamas.  Accordingly, the Tribunal finds that [the first applicant] has a right to enter and reside in the Bahamas.  As [the first applicant] has not raised concerns that The Bahamas might return him to another country, the Tribunal is satisfied that s.36 (5) and (5A) do not apply in his case.  [The first applicant] has claimed, however, that he faces a real chance of persecution involving serious harm if he was to return to The Bahamas on the basis that Bahamian’s hate foreigners and as a Nigerian (race, nationality) he is a seen as a foreigner.

10. The issue, therefore, is whether s.36 (4) applies in [the first applicant]’s case because he has a well-founded fear of being persecuted for reasons of his race and/or nationality should he return to The Bahamas and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him availing himself of his right to enter and reside in The Bahamas, there would be a real risk that he will suffer significant harm there.

    Incidents in The Bahamas

11. In his statutory declaration [the first applicant] stated he was shot in June 2011.  At the hearing he indicated that they owned a [Business 1] which was located next to a [business].  He said they also sold [products].  He indicated he was there one night with the person who was working there when a man approached him saying he wanted to buy a [product].  When he told the person they were closed, the man insisted that he needed a [product].  After [the first applicant] agreed to assist him, however, the man reached into his pocket, [the first applicant] felt a popping in his [body part], and the man said you ‘f…ing foreigner, you all don’t deserve to live’.  [The first applicant] commented he didn’t realise initially that he had been shot until he saw blood coming out of his mouth when he spoke.  The man then asked where the money was, got the money and left.  [The first applicant] said the person who was with him was standing right behind him and was hit by the same bullet that passed right through him, but was able to run away some distance before he fell.

12. The Tribunal asked [the first applicant] whether the offender was arrested.  He replied that he heard he was.  He said he was in hospital for almost three months.  He said when he was released from hospital he went to the Police Department and they told him they had some suspects, but they were released due to lack of evidence.  The Tribunal observed that the copy of the police report he submitted states that no-one had been arrested, contrary to what he stated in his statutory declaration.  He reiterated that the police said they had suspects but they were released.

13. The Tribunal notes [the first applicant]’s statement in his statutory declaration that the perpetrator was arrested but finds the weight of evidence indicates this was not the case.  The Tribunal also notes his statement that he fears for his life as victims are commonly killed in The Bahamas to do away with vital evidence, and the statement by the representative that [the first applicant] did not pursue the man who shot him because he was warned that he would be killed if he did so.  The Tribunal finds that as the perpetrator of this crime was not arrested, [the first applicant] did not have the opportunity to pursue the matter in court.  The Tribunal also finds that there is no evidence that [the first applicant] faced an ongoing risk of harm from the perpetrator over the ensuing three and a half years, during which time he continued to reside in The Bahamas without having any contact with this person or any associates of this person.

14. The Tribunal took evidence from [the second applicant] and the two children regarding the claimed home invasion incident in mid-June 2012.  [The second applicant] indicated she woke because there was someone in her room and she thought it must be one of her two older sons (from a previous relationship) but the person did not answer and left the room.  She said she got up to speak with what she thought was her son but when she realised it was not, tried to lock herself inside the room.  She said the person then stuck a gun in the door so she couldn’t close it, pushed the door open and asked her where he husband was.  She said she told the man that her husband had just left for work.  She said the man wanted to know where her husband was but she did not know exactly, only that he was working security detail.  She commented that when she could not say where her husband was, the man decided to rob them.  She said when she commented that they did not have money the man commented that her husband is a foreigner and foreigners like to make money.  When she reiterated there is no money, the intruder threatened to rape her daughter, who was [age] at the time.  [The second applicant] indicated she then decided to get the money she had been saving to travel.  She said when he was about to leave, the intruder actually went to try to rape her daughter, but she pleaded with him that her daughter was only [age] and he should rape her instead.  She said the man suggested there was another man in the house as he kept referring to ‘we’, but she had already worked out it was just him as she did not hear any other noises in the house.  She commented that when the intruder approached her daughter she was planning to make a run for the door, run and raise the alarm, and suggested that the intruder must have seen her thinking that and suddenly just left.

15. The Tribunal observed that the description of the incident in the statutory declaration is somewhat different, as it refers to a person trying to rape her but abandoning the idea when ‘the others’ had completed the burglary and they had to leave.  [The second applicant] commented that the intruder said there was someone else but she did not see anyone else.  The Tribunal observed that the copy of the police report they submitted also refers to there being a single intruder.  [The second applicant] commented that the police could not attend until the next day, they searched the house and by then she realised it was just the one person who was there.

16. The children, who are both young adults now (aged [age] and [age] years), were present during the hearing and nominated as witnesses who could evidence in relation to this matter.  They both commented in support of their mother’s account of the incident.  Her son said ‘they’ were asking for his father, who was at work and they could not get help from the police on the night of the incident.  Her daughter said the intruder did ask for her dad and did come after her and touched her inappropriately before her mother tried to stop him attacking her and he left.

17. [The second applicant] confirmed that this incident occurred two weeks before she and the two children came to Australia, via [specified state] in [Country 2] where [the first applicant]’s brother was living.  She indicated they had already planned to come to Australia on holiday to meet [the first applicant]’s sister and her family but after the incident saw it as a good opportunity to ‘catch a breather’.  She said her sister-in-law then suggested she also undertake a three month course of study that her sister-in-law was taking.  She found that she could study things in Australia that she could not study in The Bahamas so decided to apply to study [Subject 1], but her student visa application was refused by the Department, before that decision subsequently was set aside by the Tribunal. 

18. The Tribunal asked [the second applicant] why she thought the intruder was asking where her husband was.  She said she did not know why he was asking that, but added they have had other problems with people.  She commented that her people are very xenophobic, adding that she is married to a foreigner who is a go-getter and they see him as a threat because he is an entrepreneur who started as [an Occupation 6] but saved enough to open several business, and that is resented.  She said her husband has had other incidents that have not been recorded because the police did not take his information.

19. The Tribunal asked [the first applicant] about the other incident he mentioned in his statutory declaration.  He said in summertime during 2013 he saw a fellow going to take some stuff from his parked truck and approached him.  He commented the man had a gun in his hand and commented that he had killed two people ‘like him’ before and had been to jail and had been on death row but had been released.  He added that the man said to him ‘you came here on a plane, I’ll make sure they send you back in a body bag’.  He said he went to the police station to make a complaint but the police did not do anything, which made him fear for his safety.  When asked how he was able to get out of that situation safely, [the first applicant] said the incident occurred in public, people could see what was happening and the man just ran away.  He commented that there was a similar incident reported online in March 2019 where a Chinese man was working in an office when a man pulled a gun on him and shot him dead.

20. Noting the applicants have visited [Country 2] on a number of occasions, either as a family or separately, the Tribunal asked why they didn’t seek protection in [Country 2] (as a family) or why [the first applicant] did not seek protection in [Country 2] rather than remain in The Bahamas, living at the same address, for another two and a half years (until January 2015) after [the second applicant] and the two children came to Australia in June 2012.  [The second applicant] said they did not know they could seek protection in [Country 2] or in Australia when they arrived here.  They said they spoke with lawyers who said they could not do it.  The Tribunal queried why a lawyer or migration agent would say that when clearly they could have made a protection visa application (and subsequently did).  [The second applicant] said they had never heard of anyone doing it.

21. The Tribunal also asked [the first applicant] why, on his arrival in Australia, rather than make a protection visa application, he was included as a dependent on his brother’s [working] visa.  [The first applicant] commented that he was advised by two migration agents he would not qualify for a protection visa.

22. Noting the report from the treating hospital provided post-hearing, the Tribunal accepts that [the first applicant] was the victim of a shooting in mid-2011 when a man robbed the [Business 1] he owned.  The Tribunal accepts that he was lucky not to have been killed and this incident was very traumatic for [the first applicant] and his family.  The Tribunal accepts that the gunman may have made a remark to the effect that foreigners deserve to die before he shot [the first applicant].  The Tribunal does not consider, however, that there is any evidence that [the first applicant] was sought out/targeted by the gunman because he was a foreigner, or that the gunman or anyone associated with him has pursued or targeted [the first applicant] since the incident.

23. The Tribunal finds the evidence in relation to the claimed home invasion in June 2012 to be more problematic.  There are significant inconsistencies between the account given in [the first applicant]’s statutory declaration of 26 November 2016, the letter of 25 November 2016 from the Royal Bahamas Police, and the oral evidence at the hearing by [the second applicant].  In his statutory declaration [the first applicant] indicated there were multiple intruders and that the gunman tried to rape his wife but luckily he abandoned the idea when the others completed the burglary and they had to leave.  He made no mention of the intruder(s) asking where he was or stating that he is a foreigner and foreigners like to earn money.  The police report indicates that a single male entered the residence demanding cash and [the second applicant] handed over $400 to her assailant who then sexually assaulted her before making good his escape.  As noted above, at the hearing [the second applicant] indicated there was only one intruder, who commented that her husband is a foreigner and foreigners like to make money, and when she reiterated there is no money, the intruder threatened to rape her daughter, who was only [age] at the time.  [The second applicant]’s daughter commented that she was touched inappropriately by the intruder.  The Tribunal does not consider the applicants provided a plausible explanation for these significant inconsistencies, particularly between [the second applicant]’s account and [the first applicant]’s statutory declaration.  While the Tribunal accepts that a home invasion occurred where [the second applicant]’s daughter was touched inappropriately, and accepts the intruder may have asked [the second applicant] where her husband was (to ascertain whether a husband might return home at any time), the Tribunal does not accept that he knew a foreigner/[the first applicant] lived at the residence and targeted it specifically because of that reason).  In reaching this conclusion the Tribunal gives significant weight to the fact that [the first applicant] continued to reside at the same residence for another two and a half years after this incident without experiencing any similar incidents or contact from this person or other persons seeking him out because he is was a foreigner, entrepreneur or business owner.

1. In his statutory declaration [the first applicant] described a third incident sometime in 2013 where  he claims he confronted someone breaking into his car.  He wrote that in the heat of a verbal confrontation, the man said to him ‘you came by plane you will leave in a bag’.  As noted above, at the hearing [the first applicant] indicated that not only was there a verbal confrontation, but the man had a gun in his hand and commented that he had killed two people ‘like him’ before and had been to jail and had been on death row but had been released.  The Tribunal finds it difficult to accept that if this was the case [the first applicant] would not have included these important details in his statutory declaration.  While he commented on several occasions that his statement just summarised his claims rather than provided all the details, the Tribunal expects significant and material factors would have been mentioned in a supporting statutory declaration.  It is also difficult to accept that such a person would have been deterred by the presence of onlookers and just run away during a heated verbal confrontation, or that the Royal Bahamas police would not have included the incident, which [the first applicant] indicated he reported to the police immediately, in their letter of 25 November 2016.  For these reasons, the Tribunal does not accept that this incident actually occurred.

2. Considering the available evidence, the Tribunal concludes that the applicant has embellished his claims to support the view that he was targeted as a foreigner and can’t return to The Bahamas because of that.  The Tribunal does not accept that [the first applicant] or his family were ever targeted for harm specifically because [the first applicant] was a foreigner in The Bahamas and/or because he was entrepreneurial and owned businesses.

3. In reaching this conclusion the Tribunal also gives weight to the fact that [the first applicant] continued to reside in the same house in The Bahamas for two and a half years after his wife and children departed for Australia in June 2012.  The Tribunal considers that if [the first applicant] felt he was being targeted for serious harm because of his status as a foreigner in The Bahamas and/or because he was entrepreneurial and owned businesses, he would not have remained there noting, as discussed at the hearing, he could have travelled to [Country 2], which he and his family had visited several times and where he had relatives, and sought protection there.  In relation to the applicants’ comments that they were unaware they could seek protection in [Country 2], the Tribunal considers that if [the first applicant] genuinely feared for his safety in The Bahamas he would have been highly motivated to find out about options available to him, including seeking protection in [Country 2]. 

4. The Tribunal has also considered the representative’s statement that, because of attacks on foreigners in The Bahamas, it was difficult for the applicant to live, move around and interact freely in The Bahamas as he was afraid to talk to people for fear his accent would identify him as a foreigner.  The Tribunal does not accept this was the case, noting that the applicant lived in The Bahamas for approximately 17 years from 1998 to January 2015; worked there and opened businesses; has not reported any incidents prior to the shooting incident in June 2011; the Tribunal’s finding that the incidents it accepts occurred do not support a finding [the first applicant] was specifically targeted as a foreigner; and he remained in the Bahamas for a further two and a half years after his family departed in June 2012, when he could have gone to [Country 2], where he had family, and sought protection there.

5. The Tribunal considers the delay in the applicants’ making protection visa applications in Australia, and [the first applicant] initially seeking to be added to his brother’s [working] visa, further undermines his claim to fear persecution in The Bahamas.  The Tribunal does not accept the claim that multiple registered migration agents would have told the applicants that they could not apply for protection visas, but considers it more likely that the applicants themselves did not consider they had strong claims for protection.  

6. The Tribunal has considered the references/material provided by the representative in support of the claim that foreigners are targeted in The Bahamas but does not find it persuasive.  As discussed further below, country information indicates that there is a relatively high homicide rate in The Bahamas and the Tribunal considers it is to be expected that some foreigners would be among the victims, noting also that The Bahamas is a major tourist destination.  While the Tribunal accepts that there have been some incidents where foreigners have been killed in The Bahamas and some tourists have been targeted for crime, the Tribunal finds that the cited material does not indicate that there is a real chance that the applicant, as a permanent resident of The Bahamas, would be targeted for serious harm because he is a foreign national and a Nigerian, should he return. 

7. In reaching this conclusion the Tribunal gave no weight to the failure of Bahamians to support a referendum proposing that foreign men who marry Bahamian woman be eligible for citizenship, as evidence of hatred of foreigners.  The Tribunal considers this is purely speculative and the reasons may have had to do with others concerns, including that the proposal may have led to an increase in exploitative or fake relationships solely for the purposes of achieving Bahamian citizenship.

8. The Tribunal concludes, therefore, that there is not a real chance [the first applicant] would suffer persecution involving serious harm, due to his nationality and/and race, and/or being an entrepreneur/businessman, or any other of the reasons enumerated in s. 5J(1)(a) of the Act, should he return to The Bahamas, now or in the reasonably foreseeable future.

9. Having found that [the first applicant] does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in The Bahamas, the Tribunal has gone on to consider whether are substantial grounds for believing that, as a necessary and foreseeable consequence of him availing himself of the right in s.36(3), there would be a real risk of him suffering significant harm in The Bahamas.

10. In considering whether there is a real risk that [the first applicant] will suffer significant harm, as a necessary and foreseeable consequence of returning to The Bahamas, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[11]

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

11. The Tribunal notes that ‘significant harm’ for the purposes of complementary protection is exhaustively defined in s.36(2A): s.5(1).  A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out them; or they will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

12. Considering [the first applicant]’s circumstances individually and cumulatively, and having regard to its findings of fact above, the Tribunal also finds that there is not a real risk that [the first applicant] will suffer significant harm from any person, group, authority or organisation, as a necessary and foreseeable consequence of being him returning or being returned from Australia to The Bahamas.

    Fear of harm due to generalised violence in The Bahamas

13. In reaching this conclusion, the Tribunal has considered the risk that [the first applicant] might suffer significant harm due to generalised violence in The Bahamas.  In this regard, the Tribunal notes that s.36(2B) qualifies s.36(2)(aa) by setting out circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country.  Relevantly, when considering the risk of significant harm due to generalised violence, s.36(2B)(c) specifies that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the risk is one faced by the population generally and is not faced by the applicant personally’.

100.   The Tribunal finds relevant country information indicates that there is a high crime rate in The Bahamas, especially in relation to homicide.  World Population Review ranked The Bahamas 20^th highest globally with an overall ‘Crime Index’ of 63.82 (compared to the USA which was ranked 56^th with a crime index of 47.81 and Australia which was ranked 75th with a crime index of 43.03).  The Crime Index is calculated by dividing the total number of reported crimes of any kind by the total population and dividing by 100,000 (because crime is typically reported per 100,000 people).  In relation to homicide, the Bahamas was ranked 11^th highest globally, with a murder rate of 31.96 (compared to 4.96 in the USA and 0.89 in Australia).[12]

[12] Crime Rate by Country 2022, World Population Review, Crime Rate by Country 2022 (worldpopulationreview.com); Murder Rate by Country 2022, World Population Review, Murder Rate by Country 2022 (worldpopulationreview.com)

101.   DFAT’s Smartraveller travel advisory indicates that armed robberies, burglaries, purse snatching, theft, fraud and sexual assaults are the most common crimes committed against travellers to The Bahamas and also notes that The Bahamas has a high murder rate. Travellers are advised to exercise a high degree of caution, including staying alert to their surroundings, being wary of approaches from friendly strangers and not visiting deserted beaches or walking alone, especially after dark.[13]

[13] Smartraveller, The Bahamas, 18 November 2021,

102.   As noted above, the Tribunal does not accept that [the first applicant] has been or will be specifically targeted for violent crime because of his race and/or nationality and/or entrepreneurial nature/status as a business owner and considers therefore that he faces the same risk of being a victim of violent crime in the Bahamas as other citizens and residents of The Bahamas.  The Tribunal accepts that the relevant country information indicates there is a higher risk of significant harm due to generalised violence in The Bahamas, in the form of violent crime and homicide, than in many other countries.  The Tribunal notes, however, that the crime index and murder rate for The Bahamas, although high by global standards, still only amount to a risk of being a victim of any crime of 0.063 per cent each year, and a risk of being the victim of a homicide of 0.032 per cent each year.  The Tribunal considers this is a remote rather than real risk of suffering significant harm.  

103.   In any event, as the Tribunal does not accept that [the first applicant] will be specifically targeted for violent crime because of his race and/or nationality and/or entrepreneurial nature/status as a business owner, the Tribunal considers the risk he faces is ‘one faced by the population generally and is not faced by the applicant personally’.  The Tribunal finds, therefore, in accordance with s.36(2B)(c) of the Act, that there is taken not to be a real risk that [the first applicant] will suffer significant harm in The Bahamas.

Conclusions – [the first applicant]

104.   The Tribunal finds that [the first applicant] has a right to enter and reside in The Bahamas and has not taken all possible steps to avail himself of that right.  Furthermore, the Tribunal finds that [the first applicant] does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in The Bahamas and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him availing himself of the right in s.36(3), there would be a real risk of him suffering significant harm in The Bahamas.  The Tribunal further finds that [the first applicant] does not have a well-founded fear of being returned from that country to a country where he has a well-founded fear of being persecuted.  Nor does he have a well-founded fear of being returned by The Bahamas to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of him availing himself of the right in s.36(3), there would be a real risk of him suffering significant harm. Accordingly, Australia does not have protection obligations in respect of the applicant: s.36 of the Act.

Conclusions – [the second applicant]

105.   Having carefully considered the available evidence, and having regard to the findings of fact set out above in relation to [the first applicant], the Tribunal does not accept that there is a real chance that [the second applicant] will suffer persecution involving serious harm, for one or more of the five reasons mentioned at s.5J(1)(a), including being a member of particular social groups comprising her family and people married to foreign nationals/non Bahamians/entrepreneurs/businessmen, if she was to return to The Bahamas now or in the reasonably foreseeable future.

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

107.   the Tribunal also has considered the alternative criterion in s.36(2)(aa).  the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to The Bahamas, there is a real risk that [the second applicant] will suffer significant harm as set out in s.36(2A) from any authority, agency, group or person.

108.   In reaching this conclusion, the Tribunal also considered the risk that [the second applicant] might suffer significant harm due to generalised violence in The Bahamas. 

109.   Having regard to its findings above concerning [the first applicant] in relation to this matter, the Tribunal also does not accept that [the second applicant] will be specifically targeted for violent crime, including because she is married to [the first applicant], a foreigner with an entrepreneurial nature and a businessman.  The Tribunal similarly concludes that the risk she faces of suffering significant harm due to violent crime in The Bahamas is a remote rather than real risk; and, in any event, is one faced by the population of The Bahamas generally rather than her personally.  The Tribunal finds, therefore, in accordance with s.36(2B)(c) of the Act, there is taken not to be a real risk that [the second applicant]will suffer significant harm in The Bahamas.

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

Member of the same family unit

111.   There is no suggestion that either of the applicants satisfy 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, neither of the applicants satisfy the criterion in s.36(2).

DECISION

112.   The Tribunal affirms the decision not to grant the applicants protection visas.

Paul Windsor
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.

…