1723670 (Refugee)

1723670 (Refugee) [2018] AATA 3380 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1723670
COUNTRY OF REFERENCE:                  Nigeria
MEMBER:C. Packer
DATE:10 July 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 10 July 2018 at 4:41pm

CATCHWORDS

Refugee – Protection Visa – Nigeria – Race – Igbo ethnicity – Religion – Catholic – Membership and activities with Indigenous People of Biafra (IPOB) – Support for Igbo causes – False and fraudulent information provided for Australian temporary visa application – No adverse political profile in Nigeria – Failed asylum seeker – Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424A, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a man aged [age], born in Nigeria and a citizen of Nigeria.
The applicant arrived in Australia on 20 July 2017, as an Unlawful Air Arrival. He had travelled on a Nigerian passport issued [in] 2016 and valid to [2021].
On 22 July 2017 the applicant applied for a Temporary Protection (Class XD) visa.
On 6 September 2017 the applicant attended an interview with the delegate.
On 26 September 2017 the delegate refused the application.
On 6 October 2017 the applicant applied for review of the delegate’s decision.
On 14 December 2017, 28 February and 8 June 2018 the applicant attended Tribunal hearings.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on his Igbo ethnicity and his membership and activities with an organisation in Nigeria, the Indigenous People of Biafra (IPOB) that largely seeks the creation of a Biafran state. After considering his evidence and the material before the Tribunal, I do not accept that his Igbo ethnicity will lead him to face harm in Nigeria, and I do not accept that he had any involvement in IPOB and I reject his narrative concerning the adverse attention of the Nigerian authorities. I do not accept he faces harm in Nigeria for any reason. My assessment follows.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

The applicant’s protection visa application made while he was in detention provided some basic background information and he supplemented this with further details at the hearings. In the written application, the applicant stated he had been born in Enugu in Enugu state in Nigeria, and he gave an address in [Enugu] from 1997 to 2002, and an address in Lagos from January 2002 to the date he departed Nigeria. He showed he is married and his wife and son, together with his mother, lived in Lagos. He comes from the Igbo ethnic group and is a Catholic. He stated his employment from 2009 had been as [an Occupation 1] for [Organisation 1].
At the hearings the applicant has said variously: his mother lives in the home in Lagos, and his wife and son moved to live with the wife’s mother in Onitsha (Hearing 1); or his wife moved to live with the wife’s mother in Lagos, and his mother moved back to the village (Hearing 3). He has another child who lives with that child’s mother in Nigeria.
Country information[1] shows Nigeria is one of the most populous countries in the world with about 187 million. Nigeria is home to around 200 ethnic groups with the largest being the Hausa-Fulani in the north-west, the Kanuri in the north-east, the Igbo in the south-east, and the Yoruba in the south-west. The official language is English and a number of indigenous languages, including Hausa, Yoruba, Igbo (Ibo) and Fulani, are used, with Pidgin English the lingua franca. An estimated 50% of Nigerians are Muslim, 40% Christian and 10% follow indigenous religious beliefs. Christianity is the majority religion in the southern states and Islam is the majority religion in northern states. Christianity and western education were less prevalent in the north, creating significant cultural differences that continue to be a strong feature of Nigerian society today. The largest city is Lagos with a population the Lagos state government claims is 21 million. Nigeria operates three legal systems: common law, Islamic sharia and, to a lesser degree, customary law. Nigeria has a three-tiered federal system of government with a constitutional power-sharing arrangement between federal, 36 state and 774 local government areas. At the federal level, an elected President who is Head of State, Head of Government and Commander-in-Chief of the Armed Forces heads the government. External observers regarded the March 2015 elections as the fairest and best organised since Nigeria’s return to civilian government. An umbrella opposition party, the All Progressives Congress, defeated the PDP, which had governed the country since 1999. Mr Buhari has distanced himself from military rule, promising to respect democracy and govern as a civilian leader. He and Vice President Oluyemi ‘Yemi’ Osinbajo took office on 29 May 2015.
[1] The Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018, [>
Nigeria comprises 36 states and the Federal Capital Territory (FCT) of Abuja, grouped into six geographical zones:
·North East:        Bauchi, Borno, Taraba, Adamawa, Gombe and Yobe
·North West:      Zamfara, Sokoto, Kaduna, Kebbi, Katsina, Kano and Jigawa
·North Central:    Niger, Kogi, Benue, Plateau, Nassarawa, Kwara and FCT
·South East:       Enugu, Imo, Ebonyi, Abia and Anambra
·South West:      Oyo, Ekiti, Osun, Ondo, Lagos and Ogun
·South South:      Bayelsa, Akwa Ibom, Edo, Rivers, Cross River and Delta.
Summary of claims
The applicant claims:
·In 2014 he joined the organisation named Indigenous People of Biafra (IPOB). He became [Position 1] in Lagos of IPOB. He had engaged in peaceful civil disobedience.
·In November 2016 the Nigerian Army commenced Operation Python Dance that was meant to be a one month exercise to curb crime in Igboland. However, the Operation had another agenda to raid homes and offices of agitators including from IPOB and Movement for the Actualization of the Sovereign State of Biafra (MASSOB). This led to difficulties for him.
·On 15 November 2016 his house was ransacked and money stolen, and ‘the IPOB office at [Location 1] was raided.
·On 30 November 2016 soldiers returned to the market and shot into the air to scare people and then looted shops. He had [amount] nairas looted.
·He and others decided to confront soldiers at checkpoints in Onitsha but were dispersed by teargas.
·The soldiers were everywhere looking for IPOB and MASSOB members in [a market]. In January 2017 he avoided being arrested by a soldier when the traders formed a human shield to protect him. He has been told that after the confrontation the soldiers were on the lookout to arrest him.
·His family have been targeted.
In the delegate’s interview on 6 September 2017 the applicant made additional claims:
·In May 2016 he was kidnapped by government soldiers and detained for four days and mistreated.
·Before he departed Nigeria he was in hiding from the authorities and stayed with friends.
·He did not initially come to Australia with the intention of seeking asylum. However, when he got to [Country 1] he received a call from a person who said he was blacklisted and the authorities were searching for him to arrest.
·He is a leader in IPOB and is perceived to be a terrorist and could face the death penalty for sedition.
The applicant made an additional claim to the Tribunal that after speaking [publicly] in support of Igbo causes he had been jailed in [prison] for six months from July 2013 to February 2014 and released [in] February 2014 without charge or conviction. He faces harm in Nigerian because of his Igbo ethnicity and support for Igbo causes.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged on 22 July 2017, which includes reasons for seeking protection in Australia
·passport pages
·the Protection visa decision record (‘delegate’s decision’) dated 26 September 2017, which is the subject of this review
·the application for review, which has attached to it a copy of the delegate’s decision
·letter from [Organisation 2] ([Mr A]) dated [November] 2017
·an article by [Mr A] dated [February] 2014 concerning a Court application about prisoners held in prisons from 6 months to 8 years without charge/trial
·a blog entry [concerning] the Court application and listing the prisoners by name; ostensibly the applicant’s name is on the list
·article dated [September] 2017 in [a specified newspaper] in Nigeria concerning the mother
·submission of 30 November 2017 and country information
·letter dated [December] 2017 from the Indigenous People of Biafra (IPOB)
·a brief outline of the witness [Mr B]’s community involvements
·posts from the applicant’s Facebook account
The applicant was invited to a hearing on 12 December 2017, but requested an adjournment on health grounds as he had just arrived in [City 1 in Australia] from [a detention centre] where he had been in detention since July 2017. The Tribunal granted an adjournment. The applicant then appeared before the Tribunal to give evidence and present arguments, on 14 December 2017 (Hearing 1). A witness, [Mr B], who was the applicant’s cousin gave evidence. The applicant’s representative also attended. The hearing was conducted in English. At the start of the hearing I considered whether the applicant had any health issues that might affect his evidence. I noted the delegate’s decision referred to the applicant submitting that he “faces psychological problems in detention”[2] but without further explanation. Also, when he sought the adjournment that was granted, he had provided a medical certificate dated 8 December 2017 that indicated he was ‘unable to work’ from 8 to 12 December 2017 due to a ‘medical condition’. I asked whether he was well and able to talk about his story, and he stated he was. He did not say that he had any health concerns at the time of the hearing. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations.
[2] At paragraph 61
The Tribunal held a second hearing (Hearing 2) on 28 February 2018 and a third hearing (Hearing 3) on 8 June 2018. The applicant’s representative also attended. The hearings were conducted in English. I asked whether he was well and able to talk about his story, and he stated he was. Again, he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments at the hearings.
I listened to the recording of the airport interview on 20 July 2017 and my summary of key points of the applicant’s evidence are:
·He had applied for the Australian visa with the help of his cousin [Mr B] who is in [City 1 in Australia]. He was supposed to meet [Mr B] before he went to [a second city]. Later, he agreed [Mr B] assisted him to get the visa but added he had provided the information in the visa application and not [Mr B].
·The applicant wanted to stay for two weeks for a two day conference and then tourism. He had brought $US4,000. He had a return ticket.
·He had visited other [countries].
·He had worked as [an Occupation 1] at [Organisation 1] for seven years. He has a [qualification].
·His wife [works in certain industry].
·He lived in Lagos- just him and his wife and a [child]. He had intended to get to know Australia and maybe apply later for an Australian working visa.
·His visa application and claimed travel to [Country 2] and [Country 3] was discussed- as set out later in my assessment of claims. He had never been to [Country 2] or [Country 3].
·He agreed it is true that he came just for a conference and a holiday.
·He was asked if there was anything else he wanted to say, and he replied “I don’t know”.
·In response to the Intention to Cancel the visa procedure, he said: I take responsibility for what I did. This visa means so much to me, means so much to my family that I left. I know how much we were happy when the visa came out as it meant so much to us. I don’t know how I am going to face them when I go back to Nigeria. I am very sorry for what I did.
·He did not take up the offer of contacting the Nigerian Consulate as he did not know anyone there.
On 8 June 2018 the applicant was sent an ‘invitation to comment on or respond to information’ letter pursuant to s424A. The applicant responded on 22 June 2018, and I fully considered the response.
Assessment of claims: credibility
The applicant claims to be a national of Nigeria. He has provided a copy of his Nigeria passport page at the hearing and his passport has been sighted. All the available evidence, including the applicant’s oral evidence and familiarity with Nigeria, supports his claim to be a Nigerian national. Nigeria is therefore the receiving country for the purpose of assessing the applicant’s protection claims, and his claims against the complementary protection grounds. Based on his evidence and Facebook account that shows many posts about Christianity and the Catholic Church, I also accept he is of Igbo ethnicity and is a Catholic, and he has the identity claimed.
His past travel to [certain] countries
The delegate’s decision at paragraph 12 shows that the interviewing officer at the airport in Australia referred to the ‘legitimate stamps in his passport to both [Country 4] and [Country 5]’.
The applicant told the Tribunal that he had one trip to [Country 6] where he visited his Biafran [friend]. He said he entered without a visa and he stayed for eight days, and the trip had been in late 2015/early 2016 (Hearing 1) or mid-2015 (Hearing 2). At Hearing 3 he confirmed his trip to [Country 6] had just been to visit a friend for a week or so. However, as discussed at Hearing 3, a copy of his passport and immigration stamps appears to show he travelled to [Country 6] from [December] 2014 to [March] 2015. He responded that his memory is poor now and he did not remember staying for three months.
The applicant also discussed with the Tribunal his one trip to [Country 4]. At Hearing 2 he said he entered without a visa and he stayed for just five days in early 2016 in order to attend a work conference. At Hearing 3 he stated he stayed for 3-4 days in early 2016 and he returned to Nigeria as soon as the conference ended. However, as discussed at Hearing 3, a copy of his passport and immigration stamps appears to show his trip to [Country 4] was between [June] and [July] 2013. He responded that he has memory problems, although he confirmed he had only gone for a conference and did not remember staying for a month.
At Hearing 2 the applicant stated he had never travelled to [Country 5]. However, at Hearing 3 he stated in fact he had gone there with friends but just for a day without a visa in June 2014.
On 8 June 2018 the applicant was sent an ‘invitation to comment on or respond to information’ letter pursuant to s424A, and this letter set out the particulars of his travel shown in his passport, and why the information was relevant to the review, and how it may be relied upon. The relevant passport pages had been handed to him at Hearing 3. The applicant responded in writing that: he travelled in 2013, 2014 and 2015; and his inability to remember all the details regarding his trips was as a result of loss of memory due to time lapse.
In sum, his inaccurate evidence about his travel to [certain] countries is significant. He consistently told the Tribunal on three occasions that he travelled to [Country 6] for just a week or so, and I find unpersuasive his explanation that he forgot he in fact stayed for three months. He consistently told the Tribunal on two occasions that he travelled to [Country 4] for a short conference and he left [Country 4] at the end of the conference, and I find unpersuasive his explanation that he forgot he in fact stayed for a month after the conference ended. The errors in his evidence about his travels to [certain] countries are significant and his explanation for these is unconvincing, and this leads me to have credibility concerns.
The stated purpose of his travel to Australia
In the applicant’s narrative he applied on 28 April 2017 to come to Australia solely to attend a conference for work purposes. He had then been granted the Australian visa on 11 May 2017. Even though he went into hiding in Lagos from June 2017, he still went to work albeit cautiously, and on 19 July 2017 he departed from Lagos airport with the intention to return to Nigeria. However, when he arrived in [Country 1] he received a friend’s phone call and was advised the Nigerian authorities were searching for him to arrest. As the applicant confirmed at hearing, he does not claim that he applied for and got the Australian visa so that he could flee Nigeria.
False information in his [temporary] visa application
The applicant arrived in Australia on a [temporary] visa with a current Nigerian passport. He had also carried with him an expired Nigerian passport. The delegate’s decision indicated that at the airport an officer noted the applicant’s [temporary] visa application contained information and copies of passport pages that showed the applicant had past travel to [Country 2] and [Country 3], but an examination of the actual expired passport revealed no such visa labels and entry/exit stamps. The delegate’s decision records that at the airport interview:
10. The applicant was asked why he had provided false information in his application and he responded that he did this to help him with the visa application for Australia. When the interviewing officer asked him who did this, he stated that he paid someone to do this in Nigeria. He went on to state that he would not get the visa if he could only show that he had only travelled inside [a certain region].
The delegate’s decision[3] further records that at the delegate’s interview when this issue was discussed the applicant stated that at the airport interview he had been confused and in fact he did not know about the fraud and he had said “I didn’t know about it until I got to the airport”.
[3] As shown in the delegate’s decision at para 29
At the hearings the false and fraudulent information provided in the applicant’s [temporary] visa application was discussed. At Hearing 1 the applicant stated: he had been surprised to find out about the agent’s deception; he had once been refused an Australian [temporary] visa and so for his second try he got an agent to apply for him; when the agent returned his current and expired passports there had been no false entries.

Then at Hearing 2 I put to him that his evidence at the airport interview showed he had been aware of the agent’s deception when applying for the Australian [temporary] visa. He responded that: at the airport he had been questioned for hours and put through psychological trauma; at the airport interview he had spoken of using an agent to get the visa and had merely asked the agent ‘what will it take to get to Australia’. I then put to him that the agent would have told him that is what it takes. He responded that: the agent had never told him what the agent was going to do; it had been the agent’s trade secret and the agent would not divulge how the visa had been got; and so he came to Australia with confidence.
Subsequently, the Tribunal obtained the airport interview recording and in part this showed the following conversation:
Officer: There were questions asked in the visa application about previous countries travelled to. In answer to those questions the answer given was that you had travelled to [Country 2] and I think [Country 3] was the other one. Why would you have provided that information if you’d never been there?
Applicant: The truth of the matter is I thought it would help me. Because if I say I have not travelled outside [certain region] it may not be able to help me with the visa application. That is the reason.
[The officer then showed him the document that had been provided with his [temporary] visa application- a copy of the page of his expired passport that contained [Country 1] and [other] visas/stamps- and the officer pointed out that an actual examination of his expired passport showed those visas/stamps were not in fact in his expired passport. He responded that he cannot explain the visas/stamps; he had been referred to the agent; he told the agent what he wanted to do and the agent said he could help; he paid the agent to help with the application.]
Officer: Did you know this happened, or am I bringing this to your attention now?
Applicant: Yea, I do know. I do know it. He told me about it. He told me about it.
At Hearing 3 I discussed his answers at the delegate’s interview (as shown in the delegate’s decision) and at Hearings 1 and 2, and asked whether he had known about the fraudulent application and false stamps in his passport. He stated that: he had not known; the agent had completed an online application and he had not seen or signed it; he had no knowledge whatsoever of what was claimed in application or of the false stamps. I next read out the airport interview conversation as transcribed above, and I put to the applicant that it shows he had been aware of the fraud and he had admitted this at the airport interview. The applicant responded that: he was scared and at his wit’s end; earlier he had been interrogated by customs officers; maybe he threw it out there just so it would end; the truth is he had not been aware of the agent’s fraud. However, as I then pointed out, I had listened to the recording of the airport interview and observed that: it was a formal interview conducted politely and in English; the officer fully explained the issues affecting the applicant, was not accusatory, and the applicant did not appear to be unduly pressured, rushed or confused; he understood questions, was given time to answer, and gave coherent answers; and there had been an expectation he was telling the truth.
On 8 June 2018 the applicant was sent an ‘invitation to comment on or respond to information’ letter pursuant to s424A, and this letter set out the foregoing summary of the airport interview, and why the information was relevant to the review, and how it may be relied upon. The applicant responded in writing that: he was not aware his passport was tampered with; he had not signed the [temporary] visa application; he was nervous at the airport interview.
However, after considering the evidence before the Tribunal, I find the following:
·The officer who conducted the formal interview was polite and fully explained the issues affecting the applicant, was not accusatory, and he did not appear to be unduly pressured, rushed or confused. While he says he had been nervous as well as tired and stressed, he nonetheless understood questions, had been given time to answer, and gave coherent answers. He did not misunderstand questions or the gravity of the interview, and his answers should not be disregarded with little or no weight given them.
·While the applicant did not sign the [temporary] visa [application] form, he was well aware the agent would provide false travel claims and convincing forgeries in order to support the false travel claims, whether or not the agent showed him the false and forged information.
·His Australian [temporary] visa [application] contained significant false information and fraudulent information provided with his approval.
·In Australia he has given contradictory evidence about his prior knowledge of the false and fraudulent information.
·He has been implicit in providing significant false information to get an Australian [temporary] visa [and] has shown he is able to access agents in Nigeria who are able to provide high quality forgeries and false information, and this leads me to give no weight to documents and information he has provided from Nigeria.
In sum, in light of the foregoing discussion I find that the applicant is not a credible witness.
His evolving narrative
The applicant’s narrative is centred on membership and activities with an organisation in Nigeria that is comprised of ethnic Igbos named the Indigenous People of Biafra (IPOB). But as discussed at the hearings, his narrative has significantly evolved over time. At the hearings I pointed out how his claims had evolved since his arrival in Australia:
·The delegate’s decision[4] records that at his entry interview at [City 1 in Australia] airport on 20 July 2017 he said: he had come for a Conference and two weeks of tourism; he agreed everything he had said was true; he had nothing else to say. He made no claims against Nigeria and did not seek Australia’s protection.
·I listened to the recording of the airport interview, and as discussed at Hearing 3 (and as set out in a letter pursuant to s424A), this shows the applicant was adamant that he merely intended to stay for two weeks for a two day conference and then tourism. He made no mention of fearing harm in Nigeria.
·In the written application made two days later on 22 July 2017 he indicated that he was an IPOB leader and soldiers had been searching everywhere for IPOB members. He stated he had confronted soldiers with particular reference to occurrences in November 2016 and January 2017. He made no claims to have ever been arrested/detained or imprisoned or tortured.
·The delegate’s decision[5] records that at the delegate’s interview on 6 September 2017 he claimed for the first time he was detained at a rally in May 2016 and held for four days and physically mistreated.
·Then in the review he claimed for the first time that he had been jailed in [prison] for six months to February 2014 for airing his views on the marginalization of Igbo, and released [in] February 2014 without charge or conviction.
[4] Delegate’s decision at para 24 to 26
[5] Delegate’s decision at para 20
At the hearings the applicant sought to explain his evolving narrative and responded that:
·His lack of claims at the airport had resulted from his poor psychological state as he had been hungry, tired and confused, had been held for hours, accused of carrying drugs and put through psychological trauma, and did not know who to trust. At Hearing 3 he added that he had not known his legal rights.
·In the written application two days later, he failed to mention being detained in May 2016 and held for four days and physically mistreated, because when his application was prepared he had been tired and rushed and did not go into details which he thought could be given later.
·He failed to mention the six month imprisonment until the review because that imprisonment had occurred before he became an IPOB member, and up until the review he had only made claims that revolved around his IPOB membership and activities.
On 8 June 2018 the applicant was sent an ‘invitation to comment on or respond to information’ letter pursuant to s424A, and this letter set out his answers at the airport interview that he wanted to stay for two weeks for a two day conference and then tourism and he had a return ticket. The letter stated why the information was relevant to the review, and how it may be relied upon. The applicant responded in writing that: he had protection claims but he was scared to say it at the airport in case he was deported; he had not understood how the system works or his legal rights; he had been nervous and psychologically traumatised.
I acknowledge that on arrival in Australia the applicant may have been tired, and being interviewed by officers may have been confronting. However, in light of my foregoing observations of the airport interview- that I discussed at Hearing 3 and in a s424A letter- I am not satisfied that the applicant misunderstood what he was asked or that he gave incoherent answers. I have considered his explanations for why he had been adamant he merely intended to stay for two weeks for a two day conference and then tourism, and why he made no mention of fearing harm in Nigeria at all despite ample opportunity, but I do not accept them. As discussed at hearing, he is a mature, well-educated man with fluent English and past travel to other countries, and was worldly enough to be aware that Australia was a western country where he could tell his story and seek protection. When interviewed by Australian officials there was an expectation that he would tell the truth. His later narrative of having suffered serious harm in Nigeria and his great fear to return are so significant that at the airport interview the complete omission of any of this reinforces my strong concerns with his credibility as a witness.
In his written application I am concerned about the omission of the claim that he had been detained at a rally in May 2016 and held for four days and tortured: the delegate’s decision shows this claim was first made by the applicant some weeks later at the delegate’s interview. When I raised my concerns at the hearings he responded that he had been rushed and not in the best state of mind when he made the application. But as I pointed out, such an occurrence would have been so significant in his life and central to his narrative about the fear he had of returning to Nigeria that it is difficult to accept he forgot or failed to mention it; and indeed, his typed statement in the application was not brief and detailed several claimed incidents and occurrences in November 2016 and January 2017. I have considered but am not persuaded by his explanations and this reinforces my strong concerns with his credibility as a witness.
At the hearings when I put my concerns to the applicant about the late nature of the claim that he had been jailed in [prison] for six months to February 2014, he responded that he failed to mention the imprisonment as it was before he joined IPOB and he had thought it did not relate to his central story. However, the claimed imprisonment for such a lengthy time for expressing a political view about the Igbo people ostensibly is closely related to his claimed later support of IPOB. The claimed imprisonment is so significant that it is difficult to accept he decided not to mention it at all until the review, and this reinforces my strong concerns with his credibility as a witness.
In sum, as discussed with the applicant at hearing and in a s424A letter, I have significant concerns with the truthfulness of his claims because of the way they have evolved since he arrived in Australia and since he sought Australia’s protection. The way in which his narrative has evolved reinforces my finding that he is not a credible witness.
My further particular concerns with his narrative and evidence are discussed below.
His knowledge of his cousin in Australia
The applicant has given changeable evidence about when he knew a cousin was in Australia. At Hearing 2 he stated he only discovered his cousin [Mr B] was in Australia just two days before he departed from Lagos when [Mr B]’s youngest sister told him. At Hearing 3 he confirmed this evidence. However, at Hearing 3 I then discussed with him the airport interview where he said as summarised:
He applied for the Australian [temporary] visa with the help of his cousin [Mr B] who is in [City 1 in Australia]. He was supposed to meet [Mr B] before he went to [a second city]. Later, he agreed [Mr B] assisted him to get the visa but then he added he had provided the information in the visa application and not [Mr B].
I pointed out that this showed he had been well aware that [Mr B] lived in [City 1 in Australia] and had been in contact with [Mr B] well before he came to Australia. This was also discussed in the Tribunal’s s424A letter and the applicant’s response in writing did not particularly address this inconsistency beyond his general response that at the airport he had not been psychologically and physically composed. In sum, I find that the inconsistent evidence he has given about his knowledge of his cousin being in Australia and the interactions he had with the cousin are significant, and this reinforces my concerns that he is not a credible witness.
He is a leader in IPOB
In the applicant’s narrative he had been a member of IPOB and held the position of [Position 1]. He says the position is [voluntary]. He sought to support this claim with the following information:
[Details deleted].
However, I have strong concerns with the material provided. As discussed at the second hearing, I observed that, strangely, both original articles that mentioned the applicant had the same writer and both appeared in [the same newspaper] at the same time, and just a day or so before the delegate’s interview, and the later article had an account about the applicant inserted out of context. I pointed out my concerns that the writer had been paid to write and get published the report/information about the applicant, and I pointed out that country information[6] showed this was possible in Nigeria. The applicant responded that he had been unable to organise false reports as he had been detained in Australia at the time of the reports. But as I pointed out, by September 2017 people as did his cousin here would have known about his circumstances in Australia- it was feasible for people other than the applicant to arrange for such reports to be published. The applicant then stated that he had got his cousin in Australia to phone the applicant’s boss in Lagos: his evidence shows that it had been possible for him to organise the gathering of material from Nigeria despite him being in detention.
[6] Freedom House, Nigeria Freedom of the Press 2016, [ “Bribery and corruption remain problems in the media industry, particularly in the form of small cash gifts that sources give to journalists.”; Allafrica article, Nigeria: Fake News is Big Business, 22 April 2017, [ “But today, thanks to the internet and social media, all what is required to publish news stories is a website or a phone. And to the horror of decency and in disregard for standards, it has become a business to churn out fake news for money or to attack people.”
Also strange is that the applicant’s mother went to a reporter in September 2017 to say that the applicant- her son- had disappeared three months before. She is reported to have said that he disappeared after he left Lagos after [June] with the stated intention of travelling to Enugu state, and she had heard nothing about him since. The applicant’s evidence is that the report is accurate and the only way parents can search for their missing sons is through the media. However, I find it implausible that the applicant’s mother and wife were completely unaware of his whereabouts from [June] as he claims, and my discussion follows.
In the applicant’s narrative he had left Lagos in June 2017, travelled to the east for a meeting but when he was warned it was unsafe to attend, he returned to Lagos. In Lagos he stayed with a friend and was in hiding, although he continued to go to work albeit cautiously, until he departed from Lagos airport over five weeks later [in] July 2017. During that whole period when he had been in Lagos he had never contacted the family. When this was discussed at the hearings the applicant responded that he had been uncontactable because he had switched off his mobile. He responded that he did not speak to his mother and wife, nor did he ask anyone to contact the mother and wife on his behalf, because he had to watch his back and keep himself safe, and he was not thinking rationally, and he wanted to keep them safe. However, as discussed at the hearings:
·His evidence that he still attended work did not support his claim to have been in hiding.
·He explained that he could not contact his family because it was not safe to do so. However, in his narrative in the same period he was able to safely phone his workplace before going to work, and then was able to attend the workplace. His explanations did not convincingly explain why he found phoning work easy and safe to do but not phoning his family. They did not convincingly explain why he was ostensibly able for weeks to safely attend his daytime job but could not safely visit the family at some location. They did not convincingly explain why- if he feared to use his mobile- he was unable to use another phone to speak to his family.
·His evidence is that in this period he stayed with a friend in Lagos, and he went to work. When I asked whether he had other relatives in Lagos he stated that of course he did because Africans have extended families. He stated that of course he had friends in Lagos including in the IPOB party although not all were close friends. His evidence shows he knew many people in Lagos he could ostensibly have asked to contact his family on his behalf, and ostensibly without any danger to anyone.
·His explanation that telling his family he was hiding in Lagos and his travel plans would have placed them in danger is not persuasive. Indeed, telling the family about his circumstances would have enabled them to make informed and better arrangements in his absence.
·His evidence is that a few days before he departed from Lagos airport he met a cousin who gave him things to bring to the cousin in Australia. When I pointed out his story was that he was in hiding and not contacting family, he explained she lived close to the friend’s place where he was staying. When I pointed out she could have told the family that he was about to depart, his explanation that he did not as it was not in his mind, is unpersuasive.
·He was granted the Australian visa in early May 2017 and he agreed the family knew when he got the visa. His explanation that nonetheless the family did not know he was going to Australia is unconvincing.
In sum, as discussed at hearing, there had been any number of ways he could have safely phoned or contacted his family to tell them of his circumstances. There had been any number of people- relatives, friends, work colleagues- that he could have asked to safely contact the mother and wife on his behalf. Also, the applicant’s family knew he had an Australian visa and would reasonably have known of his plans to travel to Australia. I have considered but reject his explanations for why the mother and wife had no idea about his circumstances from June 2017 to his departure from Lagos airport in July 2017.

Further, as discussed at hearing, after the applicant departed Nigeria and arrived in Australia on 20 July 2017, although he had been in detention, he was in contact with an ostensibly supportive cousin in Australia and by 22 July 2017 with the assistance of a migration agent had applied for Australia’s protection. He argued he had been unable to contact anyone in Nigeria from the time he arrived in Australia up to September 2017. However, as I pointed out, he had ample opportunity, particularly through his cousin in Australia, to get word back to the mother and wife about his arrival and circumstances in Australia. I have considered but do not accept his explanation that after his arrival in late July and in the weeks up to September because he was detained he had been unable to get word about his circumstances back to his family in Nigeria.
An additional concern with the information in the report concerning the mother’s lament is that, as I pointed out at hearing, firstly the report stated his home village was [Village 1] whereas he stated it was called [Village 2], and secondly, the report stated his wife was named [Ms C] whereas he stated she was named [Ms D]. These differences were discussed at hearing:
·The applicant’s explanation that [Village 2] is the village name and [Village 1] is the name for the larger area is unconvincing. At Hearing 3 I showed the applicant maps of Enugu state that ostensibly identified [Village 2] as being [within vicinity of] Enugu town. Strangely, the applicant said he was unable to say where [Village 2] was in relation to Enugu town as he was not good at geography, and then said that he cannot remember stating in his application that he had lived in [Enugu] from 1997 to 2002, and then said that there is no Enugu town as it is just the name of the State. I then pointed out that the maps I had just shown him identified Enugu town and [Village 2] but not an area called [Village 1], although there is a town named [Village 1] but that is in Anambra state and not Enugu state. In response to the Tribunal’s s424A letter he stated the name of his town is [Village 2] in Awgu local government area.
·As well, the report states that the mother “was flanked by [the applicant]’s wife, [Ms C]”, however, the applicant has consistently said his wife’s name is [Ms D]. At Hearing 3 I asked whether his wife was known by any other name or nickname, and he said perhaps when she was a child she had a nickname. He responded that he was not responsible for providing the information to the reporter. However, as I pointed out, the report’s errors with personal information ostensibly provided by the mother raise credibility concerns.
Based on the material before the Tribunal including the applicant’s last response that the name of his town is [Village 2] in Awgu local government area, I do not accept there is an identifiable connection between [Village 2] and an area called [Village 1]. As well, I find the name of the wife given in the report is different to her name given by the applicant. As discussed at hearing, these significant differences in personal information not only raise credibility concerns with the information contained in the report but ostensibly also lessen ways he could be identified from the report.
In sum, the information contained in the articles is not consistent with the applicant’s narrative and contains basic information (ie his home area and wife’s name) that ostensibly is not correct. I find it implausible that the applicant did not inform his mother and wife of his circumstances before he departed Nigeria, or of his travel plans, or of his circumstances in Australia, and reject his claim and evidence that his mother and wife in Nigeria had no knowledge at all of his whereabouts from June to September. I find that the information purportedly given by the mother to a reporter in September was contrived and false.
Similarly raising strong concerns is the narrative that the IPOB leadership had no idea about the applicant’s circumstances after June 2017. When I put my concerns to the applicant he stated he had turned his phone off and it was too dangerous to contact other IPOB leaders; IPOB leaders do not use phones; and anyway the safest way to communicate was by “human mail” ie word of mouth. But as I pointed out, in his narrative he was a party leader who had made efforts to go to the party meeting in June 2017, and so he would have been keen to get word to his party about the reason for his failure to attend the party meeting, as well as keen to keep them informed of his circumstances. In light of the foregoing he ostensibly had ample opportunity to use ‘human mail’ to get word to the party about his personal circumstances up to the time he finally flew out of Lagos airport, and then through others after he arrived in Australia. His evidence that he failed to contact the party at all until at least September 2017 does not support his claim to have been a party leader who had been active and committed in his party tasks. I find it implausible that the applicant did not inform IPOB of his travels to Australia and reject his claim and evidence that IPOB executive members had no knowledge at all of his circumstances after June 2017 because he had not told them. I find that the information purportedly given by a party leader in Enugu state to a reporter in September was contrived and false.
At the hearing on 14 December 2017 I observed that he had not provided any supporting documents from IPOB that directly concerned him. Consequently, the applicant promptly provided a letter dated [December] 2017 from someone said to be an IPOB leader in [Town 1] that described the applicant as an executive member in Lagos. But, as discussed at Hearing 2 the letter said to be from a provincial administrator in [Town 1], merely states the applicant held a party position in distant Lagos and without any other details or discussion about his purported disappearance for many months- a circumstance that purportedly had caused concern to the party and would reasonably have been commented on in the letter. The applicant responded that the writer was merely writing a letter of support. However, I have credibility concerns with the low level letter in light of its lack of any detail about the applicant’s past and current tasks and duties and circumstances- and in particular the lack of any reference to the ostensibly significant occurrence of disappearing for a very lengthy period that in his narrative had caused concern to the party. As well, as discussed at hearing, country information[7] shows false and fraudulent information is prevalent and easily obtained in Nigeria. A UK Home Office report states in part:
14.1.1 In a book by John Campbell (former US ambassador in Nigeria), published in 2011, ‘Nigeria: Dancing on the Brink’, he noted that ‘…many Nigerian immigrant and non immigrant visa applicants procure fraudulent documents to strengthen their case. Benin City is a center of the engraving industry, and practically any falsified document can be procured there, from birth certificates to diplomas.’
[7] UK Home Office Country Information and Guidance Nigeria, August 2016, at chapter 14, [>
In sum, in light of the foregoing discussion and my very strong concerns with the articles and information contained in them, and in light of the country information about the prevalence and ease of getting false and fraudulent documents and news in Nigeria, I find that the information concerning the applicant in the articles was false and had been fabricated in September 2017 for the purposes of supporting the applicant’s application in Australia. I find that the production of this fake information and his evidence about the information reinforces my finding that he is not a credible witness. As well, in light of the foregoing discussion and my credibility concerns with the letter dated [December] 2017 said to be from an IPOB leader in [Town 1] - a low level letter that lacked any convincing details about the applicant- and in light of the country information about the prevalence and ease of getting false and fraudulent documents in Nigeria, I find that the letter is not genuine.
Jailed in [prison] for six months
The applicant made an additional claim to the Tribunal that after speaking [publicly] in support of Igbo causes he had been jailed in [prison] for six months to February 2014. In his narrative he had been released on the date [date] February 2014 without charge or conviction after the intervention of [Organisation 2] and [Mr A]. At Hearing 2 he agreed he was in prison from August 2013 to [February] 2014. He provided information to support this claim:
·An article by [Mr A] in [a specified newspaper]. The article indicated in part that [details deleted].
·[Organisation 2’s] action was referenced in a [blog].
·A letter of support written to the Tribunal by [Mr A] dated [November] 2017. The letter discussed how the applicant had used the legal aid services of [Organisation 2] to enforce his human rights. He had been detained at [prison] for six months without trial as “a political activist who was arrested by the government agents for airing his views or opinion on the marginalisation of NDI IGBO”. The matter was fixed for [February] 2014 “for the hearing of the application after which [the applicant’s] case was discharged and acquitted of any wrongdoing”. At the hearing the witness [Mr B] stated he had sourced [Mr A]’s letter of support. I asked whether he had evidence of the receipt of the letter and he showed me on his mobile an email from [Mr A] that had the letter attached.
However, I have strong concerns with the applicant’s narrative and evidence. Firstly, in my foregoing credibility discussion I made findings that this late claim first made in the review caused me to have strong concerns with his credibility as a witness.
Secondly, country information[8] shows that by March 2014 the prisoners had not been released and at hearing when I pointed this out, the applicant gave no particular explanation for the apparent discrepancy concerning the outcome of the legal matter. Rather, the reports on 5 March 2014 show that the entire matter had been delayed because the trial judge had been elevated:
[Details deleted].
[8] [Source information deleted].
On 8 June 2018 the applicant was sent an ‘invitation to comment on or respond to information’ letter pursuant to s424A, and this letter set out the newspaper article, and why the information was relevant to the review, and how it may be relied upon. The applicant made no particular response in writing to this information.
In sum, the detailed report of the continuing detention of the 796 prisoners is not consistent with the applicant’s narrative and evidence that he had been released by the Court on the Court date of [date] February 2014 as discussed in the article by [Mr A]. Nor is the report consistent with the letter of support written to the Tribunal by [Mr A] dated 30 November 2017. I find that the inconsistent evidence is significant and causes strong credibility concerns with his narrative and evidence including the letter from [Mr A].
Thirdly, a search of his current Facebook account (with current posts) showed posts from 16 December 2013 to 4 January 2014, and in his narrative this was a period when he was in prison. His evidence was that in prison he had no access at all to a phone or the internet and very restricted visits by family/visitors. At Hearing 2, I showed the posts to him and put my serious concerns and he at first responded that maybe someone else had posted them. He stated he did not know what the ‘tasknjob’ posts were about. But in his narrative he was imprisoned at the time and as I pointed out the posts would have been seen by his Facebook friends who would have commented to him about the posts, and indeed he ostensibly used the Facebook account in February 2014 after his claimed release and indeed he still uses the Facebook account and he would have seen that his account had been used when he was in prison.
The applicant’s Facebook account and the historical posts were again discussed at Hearing 3. I first queried whether he was a [specified sports] Club supporter and he stated that: he was sometimes; he was not an avid fan; he likes them sometimes. But when I asked whether on Facebook he had posted about the [Sports club 1], he stated he had on a few occasions albeit he is not on Facebook much and he cannot remember what he has said. When I queried whether he had a photo of [Sports club 1], on his Facebook profile, he stated there was a time when he had the [Sports club 1], photo up, and I conclude this was because he put the photo up. I handed him a copy of Facebook posts to keep for his reference and this included posts from [December] 2013 to [January] 2014 downloaded from his current Facebook account. In light of his work for [Organisation 1], I pointed out there were a number of posts in the period that appeared to concern his interests: [December] 2013 concerning [a specified] Program; [December] 2013 concerning an [article]. I discussed how another holiday post [in] December 2013 wishing ‘merry xmas to everybody and God bless us all’ does not appear consistent with a hacker posting. I discussed how other posts had been consistent with his interest in [[Sports club 1], and seemingly not consistent with a hacker using his Facebook account: [January] 2014 concerning [Sports club 1]; and [in] January 2014 his profile picture had been updated with a [Sports club 1] poster, and he had agreed there was a time when he had the [Sports club 1] photo up. I then pointed out, it seems he had long supported [Sports club 1] as he had also posted about the club in 2011 and then in 2014 and he had even updated his profile with a club photo.
The applicant responded that a hacker can post anything and make it appear he had posted. He stated that in the Facebook posts from 2011: he had spoken of how [Sports club 1] and [Club 2] had disappointed him, but in fact he is more a [Club 2] fan; he had spoken of being happy when [Sports club 1] beat [Club 3] but in fact he did not like [Club 3] and he was happy they had lost and not happy because [Sports club 1] had won. However, I find unconvincing his explanations that he was not a fan of [Sports club 1] despite the posts in 2011 that ostensibly showed he was a fan. As well, his explanations were inconsistent with his earlier evidence that he had liked them and there was a time when he had the [Sports club 1] photo up, and indeed as I pointed out at hearing the [Sports club 1] photo remained on his current Facebook profile. I find that the applicant tailored his evidence as my concerns were discussed.
The applicant has given changeable evidence about discovering his Facebook account had been hacked:
·Later in Hearing 2 he stated that at some time in the past three years his sister (at Hearing 3 he said he had meant cousin) had advised pornography was on his Facebook wall. He then realised his account had been hacked and he deleted those posts. I queried how he recovered his Facebook account and he stated there was a process to change the password. I queried why he had not deleted all of the hacker’s posts and he stated he had not gone back as far as December 2013 and he had not cleaned up innocent-seeming posts.
·But at Hearing 3 he stated that when he had the problem with pornographic posts in 2015 or 2016 he had been unable to access his Facebook account and he was forced to open a second account. Then in Australia at [the detention centre] he opened a third account that he had been unable to access when he was released, but discovered that he could access the first account again and so he re-commenced using that account. But as I pointed out at hearing, it seems unlikely that in Australia he could fortuitously open the Facebook account he had lost access to, merely by trying.
·At Hearing 3 I pointed out his evidence seemed to be he had used his Facebook account in 2013-2014 and it was only years later that his account had been hacked. In response he said that he could still have been able to access his account even though it had been hacked, and he had just not noticed the hacking as he was not on Facebook much and the hacker may have posted things they thought he would post, and only the pornographic posts made him think maybe his account had been hacked. But as I then pointed out, that his profile picture had been updated with a [Sports club 1] poster would have alerted him to his account having been hacked.
·In response to a s424A letter[9] the applicant responded in writing that he had closed his Facebook account in 2014 because he could not open it and that is when he suspected his account had been hacked; currently he is using his old account and “it is just a mere coincidence he didn’t know it could re-open again after being hacked”.
[9] On 8 June 2018 the applicant was sent an ‘invitation to comment on or respond to information’ letter pursuant to s424A, and this letter referred to the particular Facebook posts from [December] 2013 to [January] 2014 that had been handed to him at hearing, and why the information was relevant to the review, and how it may be relied upon.
In sum, the applicant’s Facebook account ostensibly shows he placed a number of posts from [December] 2013 to [January] 2014 at a time when he claims he was unable to access Facebook due to being isolated in prison. A number of those appear to be posts that reflect his interests and it is difficult to accept that someone-else used time and resources to research topics he might be interested in and then post them. I have considered but do not accept his explanations that he did not make the posts and he had been unaware the posts had been made. He stated there had been a time when he had the [Sports club 1] photo/poster up, and I find this is because he put it up, and his Facebook history shows this occurred in January 2014. He ostensibly used the Facebook account after his claimed release and indeed he still uses the Facebook account and I am not persuaded by his narrative that he failed to discover or realise his Facebook account was significantly used in December 2013 and January 2014. I reject his explanation that his profile picture must have been updated by someone-else, and indeed, his evidence that in fact he had scant interest in [Sports club 1] despite his earlier evidence that he did have an interest and had even had the [Sports club 1] photo/poster up was unpersuasive and leads me to find he tailored his evidence as I examined it. He has said he subsequently became aware his Facebook account had been hacked because of pornographic posts but his changeable evidence about this raises credibility concerns: he said at first this had occurred in recent years and it led him to go through the process to change his password; then he said that in 2015-2016 this problem meant he had been unable to access his account and forced him to open a second account; and then that this happened in 2014 when he had closed his Facebook account because he could not open it and that is when he suspected his account had been hacked. As well, in light of his evidence that in Nigeria he had lost all access to his Facebook account, I am not persuaded that in Australia he fortuitously found he could now access it. I find that the applicant posted on his Facebook account in December 2013 and January 2014. This is inconsistent with his narrative that at the time he was in prison and he had had no access at all to Facebook because he had no access to a mobile or computer. This leads me to have very strong credibility concerns with his narrative and evidence about being in prison for six months to February 2014, and very strong credibility concerns with the letter from [Mr A].

Fourthly, at Hearing 3 I asked the applicant what he had been doing in the months before he spoke [publicly] in August 2013 that led to his imprisonment. He stated that he was living in Lagos and working at [Organisation 1]. I asked whether he had travelled anywhere in that period and he stated he sometimes travelled to the East although he could not remember whether he had such a trip in the months before he was jailed. However, as I discussed with him, a copy of his passport and immigration stamps appears to show his trip to [Country 4] was between [June] and [July] 2013. He responded that he has memory problems and could not remember. The Tribunal’s letter pursuant to s424A also discussed this travel and stated it was relevant to the review because it shows he was in [Country 4] just a month before he claimed to have been detained, and is inconsistent with his evidence at hearing that he had been in Lagos and Nigeria at the time. In his narrative, his [public speech] and arrest the next day had been significant and memorable occurrences in his life and not long in the past. It is difficult to accept that he forgot that just a few weeks before his arrest he had been in [Country 4] for a month.
In sum, I accept that as reported in a number of sources, 796 people had been detained for a long time without trial in Enugu State. However, in light of the foregoing I do not accept that the applicant was one of those prisoners or that the name on the list of prisoners in fact refers to the applicant. I find that his narrative and evidence about the imprisonment is false and I give no weight to the letter of support by [Mr A] dated [November] 2017.
His experiences in November 2016 and January 2017
In his written application made on 22 July 2017 the applicant indicated: he was an IPOB leader and soldiers had been searching everywhere for IPOB members; his home and shop had been looted by soldiers in November 2016; he had later confronted soldiers in Onitsha; in January 2017 he avoided arrest in the market. However, his evidence about these occurrences raises concerns.
In the application the applicant referred to: the army’s operation being planned for Igboland to combat “trouble in the zone during the Christmas festivities”; planned road blocks at strategic places to check such uprisings; and previous road blocks in “some locations in the southeast zone”. He spoke of the actual army conduct during the operation of army hit squads moving from house to house, offices and shops to raid places- and this ostensibly referred to army activities in the south-east. And as discussed at the hearings country information[10] shows the army’s Operation Python Dance was indeed undertaken in the south-east of Nigeria and centred on Onitsha.
[10] Article in Daily Post, 29 November 2016, Why we launched ‘Operation Python Dance’- Army, [ article in The Sun, Army counts gains of Operation Python Dance in South East, 26 December 2016, [>
As well, in the application the applicant’s claims about the occurrences he was involved in ostensibly concerned the city of Onitsha, particularly as he specifically mentioned Onitsha when he talked about confronting soldiers at the “various checkpoints in Onitsha”. The first concerned his house being ransacked at the same time as ‘the IPOB office at [Location 1]’ was raided ([November] 2016); the second concerned when soldiers returned to the market and shot into the air to scare people and then looted shops including his shop and his goods worth [amount] nairas looted ([November] 2016); the third concerned him and others on two occasions confronting soldiers at the “various checkpoints in Onitsha” when they were chased away by teargas. The fourth occurrence happened when even after the operation’s end the soldiers continued to parade in the market and were everywhere including walking in and out of “the [market]” and were openly accusing traders of shielding terrorists: then in January 2017 he avoided being arrested by a soldier when the traders formed a human shield to protect him.
But as I pointed out at the hearings, these claims concerned him having his home in Onitsha and a shop in the market in Onitsha and undertaking activities in Onitsha but this contradicted his evidence that he lived in Lagos and worked full-time at [Organisation 1] in Lagos. The applicant responded that while he had returned to Onitsha to confront soldiers at the checkpoints, the other occurrences were in Lagos. His evidence was that: the majority of traders in Lagos are Igbos and so targeted by the army; the market he referred to was in fact a [market] in Lagos that they called [name deleted] and was not big. He stated that the IPOB office was in fact a small shop owned by a trader and was not an official office as that would have caused problems with the authorities. When I queried how he lost stock when the market was looted given that in his narrative he had been employed full-time by [Organisation 1], he stated he had conducted another unofficial business in selling [goods] in the market.
However, as I pointed out and discussed at Hearing 2, country information[11] did not show a market in Lagos called by any combination of ‘[names]’. But country information does show a well-known [market][12] [in] Onitsha. His response that they unofficially referred to the Lagos market by that name was not persuasive. As I also pointed out at the hearing, there was no material before the Tribunal that showed that the Nigerian army disrupted Lagos markets or any market during and as a result of Operation Python Dance as he claims.
[11] [Details deleted].
[12] [Details deleted].
In sum, in the context of the army’s operation that was undertaken in the south-east of Nigeria and with a focus on Onitsha and [Location 1], and the nature of the applicant’s claims of the intensity of the soldiers’ actions in the market, I reject his evidence that he was in fact talking about the situation in Lagos and at a Lagos market that he now says was referred to as ‘[name]’. This causes me serious concerns with his application which placed his home and a shop in Onitsha contrary to his narrative that he lived in Lagos.
Conclusion - credibility
Having carefully considered all of the material before the Tribunal including the evidence at the hearings of the applicant and the witness [Mr B], and in light of the foregoing discussion and findings, I find the applicant is not a witness of truth and I find that he has fabricated his narrative for the purposes of his protection visa application. I give no weight to the evidence of the witness and no weight to the documents that include: letter from [Mr A] dated [November] 2017; the Nigerian newspaper articles from September 2017 as discussed which I find contain bogus information; letter dated [December] 2017 ostensibly from a party leader that as discussed I find is not genuine.
Based on the material before the Tribunal including the evidence at the hearings of the applicant and the witness, I accept that:
·The applicant is of Igbo ethnicity.
·The applicant is a Catholic.
Based on the material before the Tribunal including the evidence at the hearings of the applicant and the witness, I do not accept that:
·In 2014 he joined the organisation named Indigenous People of Biafra (IPOB). He became [Position 1] in Lagos of IPOB. He had engaged in peaceful civil disobedience.
·The Nigerian Army’s Operation Python Dance led to difficulties for him.
·[In] November 2016 his house was ransacked and money stolen, and ‘the IPOB office at [Location 1] was raided.
·On 30 November 2016 soldiers returned to the market and shot into the air to scare people and then looted shops. He had [amount] nairas looted.
·He and others decided to confront soldiers at checkpoints in Onitsha but were dispersed by teargas.
·In January 2017 he avoided being arrested by a soldier when the traders formed a human shield to protect him. He has been told that after the confrontation the soldiers were on the lookout to arrest him.
·His family have been targeted.
·In May 2016 he was kidnapped by government soldiers and detained for four days and mistreated.
·Before he departed Nigeria he was in hiding from the authorities and stayed with friends.
·He did not initially come to Australia with the intention of seeking asylum. However, when he got to [Country 1] he received a call from a person who said he was blacklisted and the authorities were searching for him to arrest.
·He is a leader in IPOB and is perceived to be a terrorist and could face the death penalty for sedition.
·He spoke in support of Igbo causes, or that as a result he had been jailed in [prison] for six months from July 2013 to February 2014 and released [in] February 2014 without charge or conviction.
In light of my foregoing credibility discussion and findings and in particular that the applicant is not a witness of truth and he has fabricated his narrative for the purposes of his protection visa application and has provided incorrect, false and non-genuine information, reports and letters, I decided not to phone any person in Nigeria for the purposes of evidence gathering. This includes the reporter [name deleted] because even if the Tribunal was to contact him and he corroborated the information in the reports this would not overcome my very significant credibility concerns, as I discuss at paragraphs 50 to 61. This includes [Mr A] whose letter of support was already before the Tribunal, because even if the Tribunal was to contact him and he corroborated the information in his letter and the applicant’s claims this would not overcome my very significant credibility concerns, as I discuss at paragraphs 62 to 73.
Conclusion
Having considered the claims and evidence I find that the applicant is a Nigerian national. He is a mature, married Catholic man who has Igbo ethnicity. He had lived in Lagos for many years before he departed. In light of my finding that he lacks credibility I am not satisfied as to where his family and mother now live. He is well educated and holds [a] degree, and from 2009 he worked in Lagos as [an Occupation 1] for [Organisation 1]. He arrived in Australia on 20 July 2017 as an Unlawful Air Arrival and has now been here for a year.
In light of my foregoing credibility findings including that the applicant is not a witness of truth, I do not accept that the applicant held the position of [Position 1] in IPOB or indeed had ever been a member of IPOB or similar organisation. I do not accept that he had been politically active or had been an activist as he claims at any time and do not accept that he had ever been detained or imprisoned in Nigeria. I do not accept that he participated in protests, marches and gatherings either in support of IPOB or other political or Igbo group, or in support of independence, or on Biafra Remembrance Day on 30 May 2016. I do not accept that he ever came to the adverse attention of the Nigerian military as he claims.
I do not accept that he had at any time been of adverse interest to the Nigerian military or authorities or any other state or non-state agents in Nigeria or that the military or authorities had ever searched for him or that he had ever been in hiding. I find that the applicant has been able to obtain Nigerian passports and in recent years he has travelled to other [countries] and returned to Nigeria without difficulty, and he departed Nigeria without difficulty when he travelled to Australia. I find that his travel in and out of Nigeria including his last departure reinforces my finding that he has been of no interest to the Nigerian authorities. I do not accept either that the applicant departed Nigeria so as to escape feared harm (such as threats, intimidation, physical or other harm) from the Nigerian authorities there, or that he now fears to return to Nigeria for the reasons he has given or because of a fear of such harm.
While there have been articles online that referred to him being an IPOB leader, the articles appeared in a country that country information shows has a great deal of fake news and fabricated evidence and they are now many months in the past, and indeed, contained information about him that was inaccurate or easily disproved. In sum, I do not accept there is a real chance or a real risk that the applicant has gained a political profile or the adverse attention of the authorities because of the articles now distant in time. I do not accept there is a real chance or a real risk that the applicant will be perceived to be an IPOB leader or member or activist in the reasonably foreseeable future.
As discussed at hearing, the DFAT report Nigeria[13] states in part that: “DFAT assesses that individuals associated with IPOB do not face official violence on a day-to-day basis; however, individuals participating in Biafran protests, particularly on Biafran Remembrance Day, face a high risk of violence by security forces during protest activity.” Country information shows that people associated with IPOB do not face official violence on a day-to-day basis, but regardless, I do not accept the applicant has ever been associated with IPOB or will on his return associate with or be perceived to be associated with IPOB or any other political or independence group.
[13] At 3.26 to 3.28
At hearing I discussed his Igbo ethnicity and the DFAT report Nigeria that spoke about the position of Igbos in Nigeria. I discussed how there are no legal provisions directed towards the Igbo population and they are able to participate in political, social and cultural life in Nigeria without interference and are able to move freely within Nigeria. I indicated Igbos had faced harm in the Northern states but that did concern his circumstances in Lagos. The DFAT report Nigeria states in part:
3.2 The Igbo people constitute 18 per cent of Nigeria’s total population and are one of the most politically influential groups in Nigeria. Some Igbo have campaigned for an independent state since 1999 (see Political Opinion – MASSOB).
3.3 The Igbo originate in south-eastern Nigeria and live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. Many Igbo have migrated to other areas of Nigeria including northern states. The Igbo speak a number of Igbo dialects. They are predominantly Christian. There are no legal provisions directed towards the Igbo population in Nigeria. The Igbo are able to participate in political, social and cultural life in Nigeria without interference. The Igbo, like all Nigerians, are able to move freely within Nigeria. The Igbo have faced attacks from Boko Haram in the middle belt and northern states of Nigeria. In January 2011, forty Igbo people were taken from a bus and killed after the bus had entered a predominantly Muslim area in the city of Jos in Plateau State. In November 2011, Igbo residents in the middle and northern states of Plateau, Kaduna, Nasarawa, Niger and Borno evacuated to the south in response to attacks by Boko Haram. However, there are no recent reports of Igbo specifically targeted due to their ethnicity. Past attacks have been opportunistic, isolated and infrequent. DFAT assesses the Igbo people do not face societal violence on a day-to-day basis in Nigeria.
The applicant responded that Igbos do not openly face violence but IPOB members or those who wanted a better deal for Igbos could be harmed. However, in light of my foregoing credibility findings I do not accept the applicant has been an IPOB member or supporter, or has agitated for a better deal for Igbos. I cannot discount the possibility he casually supported Igbo causes before he departed Nigeria and will do so again when he returns. But I do not accept that: this past support was any more than general low level support for Igbo causes; this past support caused him harm or difficulties before he departed Nigeria; this past support will cause him to face harm when he returns to Nigeria. I do not accept that he will seek to get any more involved in such Igbo causes or politics than he had been before he departed Nigeria, and I do not accept such low level and casual support will cause him to face a real chance or real risk of harm in Nigeria now and in the reasonably foreseeable future.
In sum, while I accept the applicant has Igbo ethnicity, I find this did not cause him harm before he departed Nigeria, and will not lead to him facing harm in Nigeria now and in the reasonably foreseeable future.
As discussed at hearing, he had not claimed, despite ample opportunity, that his Christian religion will cause him to face harm in Nigeria. I discussed how the DFAT report Nigeria showed there is freedom of religion in Nigeria and that he would be able to worship in the way he wished, and did not show that as a Christian there is a real chance he would be harmed. The DFAT report Nigeria states in part that: “The Nigerian Constitution guarantees freedom of religion, as well as the freedom for individuals to change their religion and to propagate their religion or belief through worship, teaching, practice and observance. State and local governments are prohibited from adopting a state religion or from giving preferential treatment to any religious community.” He responded that in his part of the country of-course Christians are not harmed but there is sharia law in the Northern states and Churches had been bombed, and Muslim managers will discriminate against Christians if they can. In sum, I find that the applicant does not face a real chance or real risk of harm in Lagos Nigeria for reason of his Catholic faith, and I find that he will be able to practice his religion openly and in the way he wishes.
As discussed at hearing, the applicant is a Nigerian national with a Nigerian passport and I find that he will be able to travel to and enter Nigeria and return to his home without difficulties or harm. He departed Nigeria legally on his legal passport and I find that the way in which he departed will not cause him any difficulties with the authorities on his return. He responded that if he is returned involuntarily he will be arrested and someone must bail him and he had heard of someone this happened to. However, as discussed at hearing, country information does not show that his return to Nigeria as an involuntary returnee or failed asylum seeker would lead him to face arrest or harm or the adverse attention of the authorities. The DFAT report Nigeria states in part:
5.32 DFAT assesses that people who return to Nigeria are unlikely to face adverse attention on their return. Thousands of Nigerians enter and leave the country every day. In 2016 and 2017, thousands of involuntary returnees or failed asylum seekers were returned from the United Kingdom and Europe. DFAT is not aware of any adverse attention or arrests relating to these returns. The NIS is unlikely to be aware of the return of failed asylum seekers.
I find that in Lagos and Nigeria in the reasonably foreseeable future, there is not a real chance that he will attract the adverse attention of the Nigerian military or authorities and not a real chance that he will face serious harm amounting to persecution for the reasons he has claimed or for any reason. When I consider all of the applicant’s personal circumstances together and all of my findings about his narrative and evidence together, I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in Nigeria for any reason set out in s.5J(1) either when looked at individually or cumulatively.
Refugee criterion
In light of the above assessment, the Tribunal finds that in Nigeria the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims or for any reason. The Tribunal finds that in Nigeria the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.
Complementary protection

I considered whether on the evidence before me, 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 that he will suffer significant harm. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Nigeria, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria.
Overall Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

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

Refugee

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 themself 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.

Complementary protection

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

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

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

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

[2018] AATA 3380

10 July 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction