1722184 (Refugee)

1722184 (Refugee) [2022] AATA 4575 (31 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Daniels Obiokolie (MARN: 1465945)
CASE NUMBER:  1722184
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Tania Flood
DATE:31 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2022 at 12:00pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – father’s alleged witchcraft – fear of harm from village youths – deceased mother and son – seizure of land – credibility concerns – significant inconsistencies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nigeria, applied for the visa on 4 September 2015. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Nigeria due accusations of his father having practised witchcraft.
The applicant appeared before the Tribunal on 25 October 2022 to give evidence and present arguments. The hearing was conducted in English.
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Material under a public interest non-disclosure certificate
The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal considers that the certificate is not a valid certificate as it is not duly dated and it refers only to internal working documents and business affairs. No reason has been provided about why the disclosure of the documents would be contrary to the public interest. In any event, the said information relates to identity checks undertaken by the Department and as the applicant’s identity for the purpose of this review is not in dispute the Tribunal considers the information is not relevant to the decision and has not relied upon it in making this decision.
CONSIDERATION OF Claims and evidence
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Nigeria for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and a foreseeable consequence of him being removed from Australia to Nigeria there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a protection visa, the applicant is a [age]-year-old citizen of Nigeria. He was born in Enugu in Nigeria and belongs to the Igbo ethnic group. He is a Christian.
Before coming to Australia, he resided at [Address 1] from [year] to 1992, at [Address 2] between 2004 and 2010, at [Address 3], and at [Address 4] from 2010. The applicant completed primary school in 1991 at [School 1] situated in [location] Nigeria. His brother [Mr A], brother [Mr B], his sister [Ms C], his wife [Ms D] and son [Child E] all reside in Nigeria. The applicant was unemployed between [year] and 1992, employed in [specified work] at [Company 1] in [location], Nigeria from 1992 to 2002 and in [specified work] at [Company 2] from 2002 in [location], Nigeria. No later employment has been disclosed on the protection visa application form.
Prior to coming to Australia the applicant visited [Country 1], [Country 2], [Country 3] and [Country 4] for business purposes.
The applicant last arrived in Australia [in] June 2015 as the holder of a visitor visa. The applicant lodged an application for a protection visa on 4 September 2015. On 11 September 2017, a delegate of the Minister refused his protection visa application.
The applicant made the following claims in his application for the Protection visa:
He says that he left Nigeria as youths attacked him and his family, setting their house on fire and killing his mother and son. Returning to Nigeria would result in death, according to the applicant.
[In] May 2015 while on a business trip to [Country 5] he learnt that his father had passed away. He returned to Lagos [date] May 2015 and on [date] May 2015 he travelled to his home village for the burial of his father which ended on 8 June 2015.
His father was a witch doctor in the village and it is alleged he committed a lot of atrocities including killing many people through witchcraft. It is alleged he had the power to spiritually fly at night to kill and main people. People also say that he flew by the highway causing a lot of accidents. These allegations didn’t make sense to him as he always considered his father a good man. As the first son he was to take up the position of his father.
On 11 June 2015 he returned to Lagos to pick up his wife and two sons, property and cash and returned to his village to stay there for the next two years as required by custom. He intended to return to Lagos after two years.
On 17 June 2015 he took up the position of his father.
On 21 June 2015 at around 1.30pm after returning from the farm he inherited from his grandfather a group of about 40-50 youths from the village approached him with deadly weapons. He ran away with his wife and first son. Unfortunately it was too late for his mother and his [age] baby son who were burnt inside the house. His car and all the money he had on hand were also destroyed in the fire. The men claimed that he wanted to repeat what his father was doing.
As he escaped that evening out of the village with his wife they heard that hired killers would be sent to fish him out and kill him in Lagos. He therefore left his wife and remaining child with his wife’s sister in Asaba, Delta state. He then came to Australia for safety.
The applicant states that police are not present in his village and that he sought the help of friends to facilitate his departure.
When noting whether he moved to another part of his country, he stated that an Australian visa was the one available, so he decided to seek protection there.
He claims that if he returned to Nigeria he would be harmed and possibly killed, as ‘the youths’ are all over the country, including in Lagos where the applicant resided with his family.
The applicant says that the police cannot protect him day and night and that they lack the resources and the will to do so.
Relocation would be impossible, he notes, as the youths are itinerant, roam around the country and may even prefer to execute him away from his home.
Protection visa interview
The applicant attended an interview with the Department on 10 January 2017.The interview was conducted in the English language. During that interview the applicant advised the following:
His wife is living with her sister at present. His two brothers and one sister are all living in Lagos.
His parents belonged to the Catholic religion.
He left his home village in 1984.
He did not know his father practiced “wizardry”.
After the attack in which his mother and son were killed his brother spoke to the police about the matter.
Documents submitted to the Department
The applicant provided the following country information to the Department in support of his protection visa application:
-Death certificate (illegible)
-Death certificate (illegible)
-Birth certificate, [Child E] (issued [date])
-Extract from crime diary (22 June 2015)
oAn account of the arson attack on the applicant’s father’s compound, in which the mother and son of the applicant died. The extract carries a Nigeria Police letterhead.
-Affidavit – [Mr B], dated 9 December 2016
-Passport copy - [Number 1], issued [in] 2002
-Passport copy [Number 2] – issued [in] 2008, Ikoyi Lagos
-Passport biodata copy [Number 2] – issued [in] 2008, Ikoyi Lagos
-Passport copy [Number 3] – issued [in] 2013, Ikoyi Lagos
Documents submitted to the Tribunal
The following document was provided to the Tribunal during the review:
-Passport copy (colour) [Number 3] – issued [in] 2013, Ikoyi Lagos
Tribunal hearing
When the applicant appeared before the Tribunal he gave testimony in respect of his background in Nigeria, the reasons why he departed Nigeria in June 2015 and the reasons why he fears returning to Nigeria in the future. His testimony is summarised as follows:
He was born in [Village 1] in Enugu State. He spent his early childhood in the village and later moved to Lagos to pursue work. He described [Village 1] as being a big village although rural in nature. It is situated approximately [number] hours drive from Lagos.
He married in Australia in December 2017 after his Nigerian wife divorced him following his departure from Nigeria. He has one son remaining to his ex-wife in Nigeria who is currently aged [age] years and lives with his maternal grandmother. He is unaware of the whereabouts of his ex-wife.
He has two younger brothers. One has been residing in Lagos for approximately 15 years and the other moved to [Country 6] about three years ago. He claimed that brother ran away from Nigeria for the same reasons as he however he later confirmed his brother came to no harm prior to his departure. His sister is married and lives in the east of the country. He said that none of his siblings have returned to the village since his departure from Nigeria.
He is a Catholic as are his family. He expressed some doubts about his father’s religion in light of the allegations made about him in respect of his involvement in witchcraft.
He left his village when he was about [age] years old to work with a relative selling [goods]. He lived the majority of his life ([number] years) in Lagos, returning infrequently to his village. He estimates he returned home every 2 to 3 years. The last time he returned to his village was in 2015 to bury his father. In none of his visit’s home did he hear rumours about his father being involved with witchcraft. It was only after his death that he became of these allegations.
He has no remaining assets in his home village. The land his family owned has effectively been abandoned as he has been afraid to return. He said he has no reason to return to his home village. He later added that even if the land was restored to him he would not want it.
He learned that his father had passed away while on a business trip in [Country 5]. He returned to Nigeria and travelled to the village on [date] May 2015 in his own car with his ex-wife and two sons. While in the village he stayed in his family compound. His father was buried on 8 June 2015.
The applicant was asked to describe in detail the events which took place after his father’s burial. He said that a group of people from the community came to his family compound, wielding weapons and declaring they would kill him in order that he did not follow his father’s tradition of witchcraft. He said that he and his ex-wife and one son fled the compound but that his mother and other son, who were sleeping in the house, died when the group set fire to the property. He said that after escaping he took a motorcycle transport to the next town and from there he made his way back to Lagos. He said he does not know where his ex-wife and remaining son ran to but they made their own way back to Lagos. After he departed Lagos for Australia his ex-wife and son remained there for not more than 6 months. Thereafter his ex-wife took their son to stay with her mother.
He said that the attack on his family home occurred in the afternoon of the day after his father’s funeral. He said someone called the police and they attended the scene that same day however he was not there. His brother told him this and that he also went to the police station to make a report. The applicant was asked what action was taken by the police and he replied they cannot do anything.
His mother and son were buried in the village but he could not attend their funerals.
After fleeing back to Lagos he remained there for not more than a month. He had previously secured a visa to Australia which is why he could depart so quickly. Whilst in Lagos he received some threatening phone calls and he remained at home as he was afraid of being found by the people who attacked his family home. He did not report those threats to the police.
He has not received ongoing threats from the attackers. They know he is no longer in the country. Since his departure from Nigeria they have not chased his brothers either. He is the first-born son and they are only interested in him.
The Tribunal noted that the claimed events occurred 7 years ago and that based on his testimony the attackers were motivated to harm him because they feared he would follow his father in the practice of witchcraft. The Tribunal put it to the applicant that their fears have not been realised as no-one from his family is claimed to be practicing witchcraft now and therefore they would have no need to continue pursuing him for this reason. The applicant responded that everything remains pending and he doesn’t want to risk going back. He then surmised that the people who attacked his family home might have used the allegation of witchcraft as an excuse to go after their land. The Tribunal put it to the applicant that if seizing their land was the real intention then they have achieved that as he has effectively abandoned any claim to it.
The applicant maintained that he knew nothing of his father’s involvement with witchcraft until the day when the attackers confronted him after the funeral. When asked why those attackers did not previously kill his father he said he doesn’t know if it is true that his father was involved with witchcraft or if they were simply after their land. He maintained he doesn’t think his father was involved with witchcraft.
The Tribunal cited the original copies of the death certificates tendered as evidence of his claims. It noted that the deaths are recorded as occurring on 22 June 2015 and not 9 June 2015 as is now claimed and queried why the certificates were issued on 9 December 2016 more than year after their deaths. The applicant responded that they could put down any date. He said he wasn’t there and that his brother arranged everything.
The Tribunal put it to the applicant that his previous testimony is that he returned to Lagos on 11 June 2015 after his father’s burial on 8 June 2015 to collect his possessions with a view to returning to live in the village for 2 years whereupon the attack on his family property occurred on 21 June 2015 rather than 9 June 2015 as is now claimed. The Tribunal also noted that his earlier testimony is that the police were not present in the village and he had to seek help from friends to escape. The Tribunal also pointed out that he previously maintained that he ran away from the family compound with his ex-wife and remaining son and then took them to stay with his ex-wife’s sister in Asaba before travelling on to Lagos himself. The Tribunal put it to the applicant that these inconsistencies in his testimony could lead it to believe his claims are not truthful. The applicant responded that the events occurred a long time ago and he has forgotten most of what happened.
The Tribunal also put it to the applicant that the police report tendered as evidence of his claims indicates that the fire at his home occurred at 0200 hours and not 1.30pm as previously claimed or in the afternoon as advised during the hearing. He replied that he was not there when the police report was made and suggested that the police wrote down whatever they wanted to.
The Tribunal discussed with the applicants DFAT’s advice in respect of the police in Nigeria noting specifically that they are low paid and susceptible to corrupt practices. The applicant maintained that the police report is not fraudulent. Similarly, the Tribunal noted DFAT’s advice in respect of document fraud in general and suggested to the applicant that it would have to consider the veracity of the death certificates tendered as evidence of his claims in the circumstances. The applicant did not respond.

The Tribunal suggested to the applicant that it might be possible for him to relocate within Nigeria to avoid the problems he fears will occur with persons from his home village, noting that the country has a large land mass and very large population which ought to make it more difficult for any would be attackers to locate him. He insisted that he could not relocate because he could not remain at home forever and that people would eventually notice his presence in the country.
The applicant was asked if he fears returning to Nigeria for any other reason and he replied no. Before the hearing concluded the applicant’s representative submitted that there is a group called the Indigenous People of Biafra (IPOB) which every Ibo man belongs to. He submitted that lately the government has been pursuing members of the group and there is a chance the applicant will be persecuted in Nigeria for this reason. That said he maintained that he was not introducing a new claim. The Tribunal asked the applicant himself if he fears harm in Nigeria for this reason and he said he does not and he does not intend mixing with the IPOB. He said this problem occurs mostly in the east of Nigeria.
After a break in the proceedings the applicant stated that the events in question happened a long time ago and he has forgotten many of the dates. He said he has not been thinking about those events and was a bit confused. He said he has used up four passports travelling the world for business and just because of this stupid incident he has lost everything and cannot return to his country.
The applicant’s representative reiterated the lapse of time since the events occurred and stated that it would have been traumatising for a somebody who has lived his life outside of the village environment to be confronted by a crowd of angry youth. He submitted that the applicant could have researched what he told the Department and regurgitated that evidence but instead he came to the Tribunal to tell his story. He added that it can be difficult for a person to express his or herself after a traumatising event.
The applicant’s representative submitted that the applicant was a successful businessman who travelled widely and had no reason to willingly abandon his business success and his son in order to remain in Australia unnecessarily. He maintained the applicant had prior opportunity to remain in any number of countries prior to coming to Australia but did not and that this should be factored into the Tribunal’s reasoning.
Regarding the documentation tendered as evidence the representative submitted that post-mortems are not carried out in Nigeria and it is possible the death certificates were based purely on information supplied to the relevant authority by the applicant’s brother.
The applicant’s representative submitted that in matters of accused witchcraft it does not matter which part of the country a victim flees to, as one way or another they will be tracked down, possibly even with the help of corrupt police officers.
FINDINGS AND REASONS
Country of reference
The applicant produced a copy of his Nigerian passport which verifies his claimed identity and nationality. Based on this documentation and in the absence of any information to the contrary the Tribunal accepts the applicant is a national of Nigeria.
Fear of harm from village youths
Having reviewed and considered the evidence in its entirety the Tribunal is not satisfied that the applicant has been truthful about the reason for his departure from Nigeria or his claimed fear of returning there. In forming this view the Tribunal has had regard to several, significant inconsistencies which arose in respect of key aspects of his claims.
Firstly, the applicant claims that his father died and that his burial took place in the village on 8 June 2015. He claims that after the burial a group of angry youths marched on his family compound, declaring they were seeking revenge for this father’s alleged witchcraft, and set fire to his family home. He claims his mother and young son were sleeping in the house at the time and lost their lives in the fire.
In his written claims the applicant maintains the abovementioned incident occurred on 21 June 2015 at around 1.30pm. During the Tribunal hearing he stated that the incident occurred the day after his father’s burial on 9 June 2015, sometime in the afternoon.
The Tribunal acknowledges the applicant has produced a report titled “Extract from Crime Diary” which provides some support for the claimed attack on his father’s house however this report indicates his brother reported the fire at his father’s compound occurred at about 0200hrs rather than 1.30pm or thereabouts as is claimed by the applicant.
Secondly, in his written claims the applicant states that the police are not present in his village and that he had to rely on the help of friends to escape after the incident occurred. During the hearing the applicant stated that the police were called to the scene when the incident occurred. While the Tribunal acknowledges the police might indeed not have a physical presence in the village it nevertheless considers the aforementioned written claim provides no indication that the police were called or attended the scene as is now claimed. On the contrary, the Tribunal considers the written claims strongly suggest no police intervention occurred until such time as the applicant’s brother went to report the matter at a police station.
Thirdly, in his written claims the applicant states that after the conclusion of the funeral he returned to Lagos on 11 June 2015 to pick up his wife and two sons, property and cash and returned to his village to stay there for the next two years as required by custom. He states that on17 June 2015 he took up the position of his father, which based on his testimony the Tribunal concludes meant resuming responsibility for his father’s property rather than any alleged witchcraft activity. He goes on to state that the attack on his home occurred on 21 June 2015 as noted above. During the hearing the applicant made no mention at all of the return trip to Lagos on 11 June 2015 or any intention to relocate his family to live in the village for a period of two years despite the Tribunal affording him several opportunities to revisit in detail his account of the events.
Fourthly, in his written claims the applicant states that he, his ex-wife and remaining son fled the compound when the attackers arrived and he left his wife and remaining child with his wife’s sister in Asaba, Delta state before returning to Lagos and departing to Australia. During the hearing the applicant stated that when they fled the village he was unaware where his wife and remaining son ran to but he returned straight to Lagos. He stated that his wife and son joined him in Lagos after making their own way back and remained there for some 6 months after his departure to Australia.
When discussing these inconsistencies with the applicant during the hearing he stated that the events occurred a long time ago and he has forgotten many of the dates. He said he has not been thinking about the events which occurred and was a bit confused. Regarding the report to the police he said his brother was the person who made the report. His representative added that the trauma of such an event could conceivably contribute to his inability to accurately recall the details.
The Tribunal has considered the applicant’s responses and the submission made on his behalf and accepts that the passage of time and emotional upheaval could contribute to some confusion in respect of dates and times and claimed events. However, in this case, the applicant claims his mother and young son perished in a house fire and the Tribunal is not satisfied that inconsistencies related to such a significant event can be explained away by confusion or by the passage of time. The Tribunal considers such an horrific event would likely remain fresh in the mind of the applicant. While the Tribunal could perhaps accept a minor difference in the date it does not accept a difference of almost two weeks in the timing. The Tribunal notes the submissions in respect of trauma but there is no medical evidence before the Tribunal to support that the applicant’s memory is impaired as a result of this. Further, while minor inconsistencies in dates and times can be explained the Tribunal is less convinced that the entire omission of a claimed event, such as the intervening trip to Lagos, can so easily be explained. As to the confusion over the time of day on which the incident occurred the Tribunal can see no logical reason why the applicant’s brother would have erroneously reported the timing of the fire to the police or why the police officers in charge would deliberately or mistakenly misrepresent the facts in respect of such an important detail.
The Tribunal acknowledges the death certificates provided as evidence of the death of his mother and son however as discussed with the applicant during the hearing this documentation does not assist the Tribunal in determining the circumstances of their death. The Tribunal is prepared to accept the applicant’s mother and son are deceased but in light of the credibility concerns expressed above it is not satisfied that their deaths are related to the claimed events.
Again, the Tribunal acknowledges the police report tendered as evidence provides some support for the claimed attack on his father’s house however as noted above certain of the information contained in that report is inconsistent with the applicant’s testimony. This, together with the fact that country information[1] indicates the police in Nigeria are low paid and susceptible to corrupt practices causes the Tribunal to doubt the veracity of that report. The Tribunal has afforded the evidence no weight.
[1] DFAT Country Information Report, Nigeria, 3 December 2020
In addition to the above concerns, the Tribunal finds it difficult to accept that the persons who are claimed to have attacked his family home seeking either revenge for his father’s witchcraft or to eradicate the likelihood of the applicant performing witchcraft and/or to usurp his family’s property would continue to be motivated to harm him now. In forming this view the Tribunal notes that there is no suggestion that the applicant or any of his siblings are engaged in the practice of witchcraft. According to the applicant neither he nor any of his siblings have returned to the village since the death of their parents and the applicant has declared he has no interest in reclaiming the long-abandoned land. When discussing this with the applicant he stated that the issues remain pending and if he returns to Nigeria he will be pursued and harmed however, he stated that his siblings have not been chased in his absence and neither has he received further threats. The Tribunal considers the claimed attackers fears of ongoing witchcraft perpetrated by the applicant or members of his family would long have been alleviated by the absence of any such activity. Similarly, if such persons were interested in, or in fact have claimed the family’s land, neither the applicant nor any of his siblings have given them cause to think that any action is pending in respect of this. The applicant declared to the Tribunal that he, as the eldest sibling, is the one who is now responsible for his father’s assets and that he has no ongoing interest in the land and will not attempt to reclaim it should he return to Nigeria. Given these circumstances, the Tribunal considers the chance of the applicant being pursued for the reasons claimed is remote.
The applicant’s representative submitted that the applicant was a successful businessman in Nigeria and undertook extensive international travel in the course of his work. He submitted that the applicant had ample opportunity to seek to remain in any number of countries if he wanted to move away for Nigeria but he did not. It was submitted that the applicant’s behaviour in this respect weighs in favour of his claims and should be taken into consideration in deciding the matter. The Tribunal agrees that these circumstances weigh in the applicant’s favour but the Tribunal does not accept that this alone overcomes the concerns expressed herein.
Before the hearing concluded the applicant’s representative appeared to submit an additional claim. Namely that there is a group in Nigeria called the Indigenous People of Biafra (IPOB) which every Ibo man belongs to. He submitted that lately the government has been pursuing members of the group and there is a chance the applicant will be persecuted in Nigeria for this reason. The Tribunal asked the applicant himself if he fears harm in Nigeria for this reason and he said he does not and he does not intend mixing with the IPOB. He said problems with this group occur mostly in the east of Nigeria. The Tribunal is satisfied the applicant does not fear harm in Nigeria for reason of the operations of IPOB and has not considered the submission further.
Despite any verifiable evidence the Tribunal is prepared to accept the applicant’s father died in 2015 of natural causes. The Tribunal is also prepared to accept, on the strength of the death certificates before it, that his mother and son also met their deaths in 2015, albeit for reasons unrelated to the applicants claims. However, for all the above reasons the Tribunal is not persuaded that any other of the applicant’s claims can be believed. The Tribunal does not accept that the applicant was set upon by a crowd of angry youths in his village in June 2015 and/or that his family home was set on fire, occasioning the deaths of his mother and son, either out of revenge for his father’s witchcraft or for the purpose of ensuring he does not perform witchcraft activities or in a bid to seize the applicant’s land. The Tribunal does not accept that the applicant fled Nigeria for the reasons claimed. It follows that the Tribunal does not accept the applicant will suffer harm on return to Nigeria for the reasons claimed.
The applicant did not claim to fear returning to Nigeria for any other reason.
For all the above reasons, the Tribunal finds there is not a real chance the applicant will suffer serious harm if he returns to Nigeria now or in the reasonably foreseeable future for the reasons claimed or for any other reason. According, the Tribunal finds the applicant does not have a well-founded fear of persecution in Nigeria and does not satisfy the criterion at s.36(2)(a) of the Act.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria there is a real risk he will suffer significant harm for the reasons claimed or for any other reason. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

[2022] AATA 4575

31 October 2022

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