1809793 (Refugee)

1809793 (Refugee) [2023] AATA 3322 (10 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1809793

COUNTRY OF REFERENCE: Nigeria
MEMBER:Damian Creedon
DATE:10 July 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

CATCHWORDS
REFUGEE – protection visa – Nigeria – complementary protection – reporting criminal gangs – online scam – identity stolen online – fear of killing – money mules – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background:
The applicant, [an age]-year-old citizen of Nigeria, applied for the visa on 15 September 2017.
The applicant first arrived in Australia [in] August 2016 as the holder of a [Student] visa granted on 17 July 2016. The applicant presently holds a Bridging visa pending the outcome of his application for review.
Protection visa application:
The applicant’s written claims for protection are set out in his protection visa application. They are brief and it is convenient to set them out in full, noting the proforma questions being answered for context (uncorrected):
[Why did you leave your country?]
I left my country to study English course and [Course 1] at [University 1] here in Perth, Western Australia; but I could not start my [Course 1] after I finished my English course due to financial challenges am experiencing at the moment.
[What do you think will happen if you return to your country?]
I will be killed by criminals/Terrorists I accidentally engaged with through internet network here in Australia.
[Do you think you will be harmed if you return to your country?]
Because those criminals threatened me before started to pay huge money into my bank account and they also boasted that the can trace and get me in any part of this world. They will kill me.
[Why could the authorities of your country not protect you?]
Because of weak security system and society full of criminals and terrorist activities.
The applicant provided the Department with a signed, undated “personal statement”. The personal statement may be summarised as follows:
a.The applicant came to Australia to study English and a [Course 1] at [University 1].
b.The applicant has been caught up in an online scam after attempting to apply for work online.
c.He received a job offer where he was sent funds with an intention that he would transfer the funds to [Country 1]. He was promised to have funds sent to him for him to forward to [Country 1].
d.The applicant asked for police assistance, and they referred him to the Australian Cybercrime Online Reporting Network (ACORN). The ACORN report number is [number].
e.Funds were transferred to the applicant’s [Bank 1] account [BSB], account [number] in the name of [the applicant].
f.[Bank 1] then blocked the account and opened a new account, number: [new number] with the same BSB and name.
g.The applicant’s computer was also infected with a virus which [Bank 1] complained about. They advised him not to use the computer for bank transactions again.
h.The applicant’s computer was ransacked by criminals and all his vital documents and identity were stolen which led his system to stop operating properly.
i.The applicant was forced to seek help and allow [Business 1] to help. They demanded he pay $[amount]USD ([amount]AUD) which he paid before his computer was operational again.
j.He was issued with the transaction ID [number] and 12 months of technical support and security.
k.[Business 1] advised the applicant that he had been traced or followed for a long time. This confirmed what the terrorists had previously told him which was a threat to his life if he failed to transfer the funds to [Country 1] for them.
l.Because of this the applicant cannot go back to his country as they boasted they can get him anywhere and kill him.
The applicant participated in an interview with the delegate of the Minister on 13 March 2018; the interview may be summarised as follows:
a.The applicant adopted the written claims made in his protection visa application and did not wish to change them.
b.The applicant has not been known by any names other than his given names. The applicant is a Christian.
c.The applicant studied [course 2] in Nigeria but has not continued his studies in Australia. The applicant completed an English course but did not start his [Course 1] course. The applicant did not start his [Course 1] for “so many issues”.
d.During his work in Nigeria the applicant was advised to study “[an advanced course]”. The applicant started out to study in Australia, but matters did not work out as he anticipated.
e.The applicant is single but is in a relationship with [Partner A], an Australian citizen, but not a serious relationship.
f.The applicant’s parents are resident in Nigeria; he has [specified family members]. One [sibling] is resident in [Country 2] studying a [specified course]. The applicant maintains contact with his family.
g.The applicant is a citizen of Nigeria, and no other country. He has lived only in Nigeria and Australia.
h.In relation to the essence of his claims, the applicant stated that he got into contact with “them” when he was searching for work. He believed that “they” knew him by the way they talked about him. He provided personal details to “them” because he believed they were legitimate.
i.When the applicant came to Australia, he was looking for work on the internet. The applicant made contact with “several people, several companies” and “somebody” emailed him. The applicant did not know who they were. The email stated that “they” had a job available, and they made him an offer.
j.The job was an assistant manager; they said they had branches “all around the world” “in Nigeria, in America, in Australia”. They stated they wanted to establish a branch in Perth and that the applicant would start as an assistant manager and then become a manager after some time, after they had seen how he worked.
k.When pressed by the delegate the applicant stated that it was a [service 1] company with clients all around Australia and he would be dealing with them. The applicant stated the name of the company was “[Business 1]”, and “the second one was ‘[Business 2]’”. The applicant believed the two companies worked together. The two companies contacted the applicant separately, but at the same time.
l.The applicant stated that he responded to the emails to the effect that he was not interested in the job. The companies persisted, however, calling his phone from the [Australia and specified countries], often from private numbers.
m.The applicant stated that his work history in Nigeria was as a project manager, and he is not somebody who is “moved by money”. He stated that he “sent them all his details”, although he believed that they already had them. The applicant was told during a telephone call that they would send money to his accounts, and he responded to the effect that you cannot send company money into private accounts.
n.He stated that they first sent one thousand dollars to his account, and that when he protested this he was threatened. He stated that they told him the money was for their clients and that he would be told what to do with the money.
o.The applicant stated that he protested, reiterating that company money cannot be transferred to private accounts. The applicant stated that the reason they contacted him was that they were “tracking” him before he came to Australia.
p.The applicant stated that he went to [Suburb 1] Police Station where he was referred to ACORN. He stated that he was told that he should not deal with them.
q.Of the people he spoke to, he believed that only one person was from Australia (Sydney) with the rest being “Lebanese” or “Middle-Eastern”. He described the Australian as a “receptionist”.
r.The applicant stated that a further amount was transferred to his account, “almost two hundred thousand dollars, like one hundred and seventy something”. The applicant stated that he contacted his bank, [Bank 1], and advised that he did not want the money.
s.The applicant stated that “they” started asking for his mother’s mobile number, which he refused to give. The applicant stated he “noticed” that “they are terrorists” because the majority are “middle-easterners”.
t.The applicant stated that, when he came onshore, he intended to return to Nigeria as soon as possible and he had specifically chosen a one-year course for that reason, perhaps doing a [further course] in [Country 2].
u.When pressed by the delegate the applicant stated that he did not know who these people are.
v.When pressed by the delegate on his claim that “they knew all about him”, the applicant confirmed that he had provided his work history and personal details to them but stated that “they” told him that they already knew him, prior to coming to Australia. When asked whether “they” had provided any evidence that they knew him, the applicant avoided the question. The applicant stated that his computer was hacked with a “very serious virus” and the “system broke down”. He stated that he received a telephone call informing him that they should be allowed to work on his system. He stated that the company, [Business 1 variant], were from [Country 3] and claimed to work for Microsoft. He stated that [Business 1 variant] told him that he had been followed for a long time. He believed these people to be sophisticated IT operators.
w.The applicant stated that he also received a phone call from [Country 4], offering to work on his computer. The applicant stated that several groups were “fighting for his system”, including a [Country 5 person] calling from [Country 2].
x.The applicant stated his belief that these calls were connected with the work offers. He did not inform police of these contacts as they did remove the virus from his computer.
y.When asked by the delegate what happened to the money that had been transferred into his account, the applicant stated that he did not know as he did not follow up with the bank after informing them that the money was not his. He stated that the bank froze the account.
z.When asked by the delegate when was the last time he heard from the company about the money, the applicant stated that “it has been a long time”. When pressed, the applicant stated around May 2017.
aa.The applicant stated that he had never heard from the “computer people” again, but that he felt that he could call them if he has further problems; he does not know if they are legitimate or illegitimate operators, but that they removed the virus and he paid them for their service. The applicant sent all of his documents to ACORN.
bb.When asked by the delegate why he believes that these people will know if he returns to Nigeria, the applicant stated:
I don’t know who they are… to me, personally, they act like terrorists that through maybe some criminal activities they fund terrorism.
cc.The applicant stated that he was told by these people that they could “get him” even in Australia. The applicant stated he did not know who they are or where they are or what they do.
dd.The applicant stated his belief that, because he “snitched” or reported them, his life was at risk. He stated that he was told they would kill him.
ee.When pressed as to how they would know that he had landed in Nigeria, the applicant stated to the effect that the world is “full of technology” and “you don’t know who is tracking you”.
ff.When asked whether it was reasonable to believe that the companies might simply move on to another victim, the applicant stated he believed group to be more sophisticated than mere “scammers” and to be terrorists. The applicant stated he would not be concerned about mere “scammers”. When pressed as to why even terrorists would not simply move on, the applicant stated because he tried to expose them.
gg.When pressed as to whether he had any evidence that he would be pursued in Nigeria, the applicant stated that “maybe” ACORN could find more information about them.
hh.When asked what these people claimed they would do to him, the applicant stated his belief that they are organised criminals and “if you leave [the group] you die”.
The delegate refused to grant the visa on 6 April 2018 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision on 9 April 2018.
Application for review:
Material before the Tribunal
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms;
(b)the applicant’s identity documents, being his Nigerian passport;
(c)the protection visa decision dated 6 April 2018 (delegate’s decision);
(d)the application’s application to the Tribunal for review, lodged with the Tribunal on 9 April 2018, which included a copy of the delegate’s decision; and
(e)department file [number] concerning the applicant’s protection visa application, which includes all documents submitted to the Department in support of his protection visa application;
The Tribunal has also read and had regard to the following documents provided by the applicant:
a.an email from “[Business 1]” dated [in] March 2018, attaching a “Job Description” and “Application Form”;
b.an email chain between “[Business 2 variant]” and the applicant with dates between [January] 2017 and [February] 2017;
c.a copy of the applicant’s [Bank 1] [Account Statement] showing four deposits on [a day in] January 2017 totalling AU$[amount], and the debit of that amount [later in] January 2017; and
d.correspondence between the applicant and the ACORN consistent with his written statement and interview.
Relevant documents will be referred to in detail as required.
The Tribunal has read and had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Nigeria, 3 December 2020 (DFAT Report).
The Tribunal has also read and had regard to several other sources of country information which are set out in the course of the Tribunal’s analysis below.
The applicant appeared before the Tribunal on 12 January 2023 to give evidence and present arguments. The Tribunal also heard evidence from [Partner A].
Where relevant, the oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law:
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of reference:
The applicant claims to be citizens of Nigeria. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Assessment of evidence:
Overview
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Oral evidence received by the Tribunal
The applicant
The following is a summary of the applicant’s evidence to the Tribunal:
a.The applicant confirmed his personal details, and that he first came to Australia on a Student visa in July 2016. The applicant had completed a [Course 2] in Nigeria and was planning to complete a [Course 1] at [University 1] in Western Australia.
b.The applicant did not commence his studies in Australia as the circumstances leading to his protection visa application diverted him.
c.The applicant confirmed, in general, the circumstances as outlined in his Statement.
d.The applicant stated that when he first came onshore, he stayed with a personal friend for a week before finding his own accommodation in a share house. The applicant commenced a course of English language studies about a week or so after he arrived onshore.
e.When asked what his financial plan was to support his studies onshore, the applicant stated that he had savings from his work in Nigeria which he planned to use, after which he would find work in Australia. When pressed the applicant stated that he would do “any work that was not illegal”, such as cleaning or security.
f.The applicant brought his laptop and phone with him from Nigeria. He intended to use both here in Australia for personal and study purposes. In terms of his social media the applicant stated that several accounts, including [social media accounts], and “a dating app”. When asked whether his personal information was online, the applicant stated “everything was online”; he stated:
I was naïve, I put my things everywhere.
g.When asked how it was that he became aware of the opportunity of employment with offshore businesses, the applicant stated:
I was contacted.
h.When pressed, the applicant confirmed that he was contacted “by email” and via his phone, initially on his Nigerian number and then on his Australian number. The applicant stated that he was telephone and told that if he wanted work there was an opportunity for him.
i.The applicant stated that he was not suspicious at this stage, that he was a hardworking person and that he would consider the opportunity. He was told that “they” would get back to him
j.The applicant was next contacted by email. The applicant stated that they explained that he would be their agent, that they engaged in financial services and that he would “do a lot or roles for them”. These details were given to the applicant primarily by telephone.
k.The applicant confirmed that eventually he was told that the company would be transferring money to him. The applicant stated that that caused him concern. The applicant confirmed that before he was sent money, he had no reason to be suspicious of the offer of employment because they sounded like a legitimate business.
l.When the issue of money transfer into his personal bank account was raised, the applicant stated that he protested that this was not orthodox.
m.The applicant stated that “as soon as” the first transfer occurred he became concerned and raised it with them. He stated that the “started to change”. He then called his bank.
n.When pressed as to how they “changed” the applicant stated that he was told to on-transfer the money. The applicant stated that at this point they became more “aggressive” and “direct”, “giving orders”. The conversations were in English, the applicant believed that it was a different person he spoke to each time once the conversations became more aggressive.
o.The applicant believed the accents of the callers to be Nigerian, although “they might be [based] anywhere”.
p.The applicant confirmed that he received three or four deposits into his account totalling AU$[amount]. At this point the applicant went to the Western Australian Police in [Suburb 1]. He was then referred to ACORN online, which he did. He also contacted his bank regarding the transactions.
q.The applicant stated that he contacted the police immediately and called his bank to “stop the money coming in”. The applicant stated that the bank froze his account.
r.The applicant stated that, when the money was not transferred, he was contacted by the callers and threatened; he stated:
Now they started me asking me and threatening me and telling me we will kill you; we know you, you don’t know us.
s.When pressed as to the words used by the callers, the applicant stated that he was told that he would be killed, and that his family would be located and “attacked”. The applicant confirmed that by this stage he had told the callers that he had reported them to the police, and they became angry. When further pressed, the applicant confirmed that the callers made threats to kill him, and threats to kill his family.
t.When asked for how long afterwards he received the calls the applicant stated that he could not now recall, “maybe 2017 or 2018”. When asked whether he had heard from the callers recently, the applicant stated “no”. When pressed as to whether he had heard from them in the last year or two years, the applicant stated that he had not.
u.The applicant confirmed that, subsequently to these events, in 2017 his laptop computer was infected with a virus and that he was contacted by telephone by a company called [Business 1] based in [Country 3] who offered to fix the computer for a fee of US$[amount].
v.The applicant stated that he paid the money; but the computer remains in his possession but it unusable; it has not worked since 2017.
w.When asked whether there have been any other events since 2017 that he links to these experiences, the applicant stated that he has been “scammed”. When pressed, the applicant stated that “people that I think know me from these people”; he stated:
One day somebody messaged me on Instagram or something, then I replied, and [it was] crypto or something, then they say I should give crypto so that they can give me the account…
x.When further pressed, the applicant stated that the crypto scam happened in 2021; he stated that he had a new computer by this stage, and a new phone with an Australian number; he was accessing his social media accounts that he opened in Nigeria.
y.When asked how the scam worked, the applicant stated:
They asked me to send them crypto, and I started sending without even thinking, and by the time I knew it… I had sent [amount] [Australian dollars] worth of crypto.
z.The applicant confirmed that the crypto he sent was his own, purchased in Australia from savings earned in Australia. The crypto in question was [Currency 1].
aa.The applicant stated that upon realising that he had been scammed he contacted WA police and was told that there was nothing that could be done.
bb.When asked how he was enticed to send $[amount] worth of [Currency 1], the applicant stated that he could not recall; he stated that they “might” be people who knew him well because it happened “fast”.
cc.When pressed as to what he was told that made him transfer the [Currency 1], the applicant stated:
Just investments; if I want to invest with them.
dd.When asked what they had in return for the investment, the applicant stated that he was told that “they had artificial intelligence”. The applicant stated that at time he was depressed, which effected his decision-making.
ee.When pressed, the applicant stated that he did not know whether they related to his previous experiences.
ff.The applicant stated that he was concerned that he was being targeted by “Yahoo Boys” in Nigeria, whom he described as a violent “cult” and a “fraud group”. He stated that some of his university friends had entered the group, and this made him “scared” for his safety. The applicant stated that, because of his experiences growing up in Nigeria, he does not take the threats made against him and his family “lightly”.
gg.The applicant confirmed that his mother is resident in Nigeria, and his father is deceased; he has one [sibling] who is [an occupation 1] in [Country 2], and [another sibling] who has completed [studies] and is starting a career as [an occupation 1] in Nigeria. The applicant confirmed that no threats have been received by any of his family members.
hh.When asked why he thought he would be targeted if he returned to Nigeria, the applicant stated he was different to his [family], his [family] were academically inclined, whereas he [the applicant] had a wide group of friends and was uncertain what they were all doing, although some of them had entered the “Yahoo Boys”. He stated that he was concerned that he would be forced by his friends into criminality or illegality, and that he would be attacked or killed for reporting the deposit of the moneys into his bank account to the police.
ii.The applicant stated that he is presently studying and that he is living with his partner “as a couple”; he stated that the couple bought a house and have a mortgage together, each contributing to the repayment. The couple have been together for five years and living as a couple for three. The applicant stated that when they met, his mental health was “bad” and that together they supported each other in this respect.
[Partner A]
The following is a summary of [Partner A’s] evidence to the Tribunal:
a.[Partner A] confirmed that she is in a committed long-term relationship with the applicant and that the couple live together in a home that they purchased together.
b.[Partner A] stated to the effect that the couple rely upon each other for financial security and emotional support.
c.[Partner A] stated that to the effect that she did not know what she would do if the applicant were to return to Nigeria as, because of her medical conditions, she was unable travel there.
Country information
In a 2007 “High Tech Crime Brief”, the Australian Institute of Criminology describes the phenomenon of “money mules” and their recruitment by organised criminals in the following terms:[1]
[1] See: < Mules
The use of people to transfer drugs and/or money, a long standing practice of the criminal fraternity, is being replicated in the high tech crime environment. ‘Money mules’ (people unrelated to the criminal activity that creates the illicit funds) transfer relatively small amounts of money lodged in their bank accounts to criminals overseas. Money mules are a consequence of the need for criminals to transfer, and disguise the origins of, illicit proceeds of crime.
The recruitment of money mules
Money mules seem to be recruited largely from the US, UK and Australia and transfer illegal funds to criminals located, primarily, in the former Soviet Union (iDefense 2006). The basic process of muling is relatively simple:
·job advertisement offers work as ‘financial agent’ or similar
·job seeker signs up and opens, or allows access to, domestic bank account
·fraudsters transfer money from scam victims to job seeker’s account
·job seeker transfers money to fraudster overseas
·job seeker receives ‘commission’
·job seeker is open to prosecution by domestic authorities for money laundering.
Mules are recruited primarily through the use of cyber fronts (fictitious online companies which appear legitimate) or spam advertisements (offering bogus employment opportunities via email). Titles for muling positions vary but have included ‘Private Financial Receiver’, ‘Money Transfer Agent’, ‘Shipping Manager’ and ‘Sales Representative’ (iDefense 2006).
Emails containing such advertisements are similar to phishing scams in that they aim to facilitate control over a bank account (Beardsley 2005). Unlike phishing scams, where the aim is to ensure that the account holder is unaware that their account has been compromised, the aim of muling is to obtain the full consent and cooperation of the account holder.
In September 2005, Clearswift noted that ‘work-athome scams’ had accounted for 0.5 percent of spam emails and in October 2005 that had risen to 1.2 percent (Leyden 2005). In 2004, MessageLabs (2004) reported that more than 20,000 copies of a scam phishing mule email were sent purportedly from ICG Commerce (a legitimate company whose name was being used to add credibility to the scam).
Further credibility was provided by the fact that a formal application process (including interviews) had to be undertaken, and by a statement provided on the website linked to the email which stipulated that ‘…we are NOT going to ask you [to] do ANY initial investments or send ANY kind of initial payments’.
The United States Federal Bureau of Investigation describes the phenomenon in its online “Scam and Safety” information bulletin in the following terms:[2]
[2] See: < Is a Money Mule?
A money mule is someone who transfers or moves illegally acquired money on behalf of someone else.
Criminals recruit money mules to help launder proceeds derived from online scams and frauds or crimes like human trafficking and drug trafficking. Money mules add layers of distance between crime victims and criminals, which makes it harder for law enforcement to accurately trace money trails.
Money mules can move funds in various ways, including through bank accounts, cashier’s checks, virtual currency, prepaid debit cards, or money service businesses.
Some money mules know they are supporting criminal enterprises; others are unaware that they are helping criminals profit.
Money mules often receive a commission for their service, or they might provide assistance because they believe they have a trusting or romantic relationship with the individual who is asking for help.
If you are moving money at the direction of another person, you may be serving as a money mule.
…
Who Is at Risk?
Criminals often target students, those looking for work, or those on dating websites, but anyone can be approached to be a money mule.
What Are the Signs?
Work-from-Home Job Opportunities
·You received an unsolicited email or social media message that promises easy money for little or no effort.
·The “employer” you communicate with uses web-based email services (such as Gmail, Yahoo, Hotmail, Outlook, etc.).
·You are asked to open a bank account in your own name or in the name of a company you form to receive and transfer money.
·As an employee, you are asked to receive funds in your bank account and then “process” or “transfer” funds via: wire transfer, ACH, mail, or money service business (such as Western Union or MoneyGram).
·You are allowed to keep a portion of the money you transfer.
·Your duties have no specific job description.
In a 2021 article published in the Vanderbilt Journal of Transnational Law,[3] the author sets out the standard profile of the “criminal behind the mule” (citations omitted):[4]
Having reconstructed the making of the money mule, one now turns to the criminals behind the mule. Who are they? How are they organized? Where are they from? What is their background? In the following paragraphs, this Article will show that typically they are cybercriminals who have stolen money through Internet fraud, especially phishing. They belong to well-organized criminal networks, from either Eastern Europe or Western Africa. Yet, their education seems to be rather basic, given the poor language in their recruitment emails.
The money mule typically launders money that results from cybercrime. In a 2016 Europol operation against money mules, for example, 90 percent of the money mule transactions discovered were linked to cybercrime. The cybercrime practice most often mentioned in relation to money mules is phishing, where criminals manage to hack the bank account of their victims and then transfer money from that account to the mule's bank account.
The analyzed reports emphasize that contrary to what one would expect: it is not petty criminals but complex criminal organizations that are behind the money mule. As the president of Eurojust puts it: "It is important to understand that money laundering may on the surface seem to be a small crime, but is orchestrated by organised crime groups." Europol, for example, describes the structure of one criminal network, where an "aggregator" collects the money of several mules, then transfers the money to a "mastermind," who pays the cybercriminal. Moneyval talks about money mules being "orchestrated by large organised crime networks," which are managed by a "central data manager."
The reports also discuss the origin of the criminals behind the money mule and find two main regions where the criminals are based: Eastern Europe and West Africa. Eastern Europe is said to be the home of many cybercriminals, and therefore money mules are frequently linked to this region. The Swiss FIU, for example, discovered that a Swiss mule has transferred money to "Eastern Europe," and so has Moneyval. Particular countries are also being named, most often Russia and Ukraine, but Czechia, Tajikistan, and Moldova are also on the list. Europol even finds a hierarchy with the above-cited "aggregator" of the money laundered by mules sitting in Ukraine, whereas the "mastermind" resides in Russia and the "cybercriminal" working for him is based in China. However, China is otherwise rarely mentioned when it comes to the phenomenon of money mules. Instead, the Chinese seem to be leading figures in physical cash transport.
Africa, especially Western Africa, is the other world region described as the home of the criminal organizations behind the money mules. The Annual Reports of the Swiss FIU, for example, reference not only Africa and "African fraudsters," but also "West Africa." However, it is almost one country only that is being mentioned in this respect, namely Nigeria. For example, the US National Risk Assessment argues that "Nigerian criminal enterprises are among the most aggressive and expansionist of the international criminal groups . . . infamous for their financial frauds."
[Tribunal’s emphasis.]
[3] Rainer Hulsse, The Money Mule: Its Discursive Construction and the Implications, 50 Vanderbilt Law
[4] Ibid, p.1015
The Tribunal notes the applicant’s reference in his oral evidence to the “yahoo yahoo” or the “yahoo boys”. The “yahoo boys” were examined in a 2016 article entitled “Meet the ‘Yahoo boys’ – Nigeria’s undergraduate conmen” by Oludayo Tade, a Lecturer of Criminology, Deviance and Social Problems, University of Ibadan;[5] the article stated:
[5] See: < undergraduates in Nigerian universities dabble in internet fraud. Nicknamed “yahoo-yahoo” after the international web portal and search engine, this perfidy has become a way of life for the young con-artists. Many of these fraudsters – dubbed “yahoo-boys” – have become filthy rich.
Some have been caught by the law. In April 2012, Olasaidi Dare, an undergraduate of the Olabisi Onabanjo University in Ago-Iwoye, was sentenced to five years’ imprisonment for an attempt to obtain money under false pretences in a cyber-café.
On June 5 2012, a Federal High Court in Kaduna State sentenced Imonina Kingsley, of the University of Ilorin, to 20 years’ imprisonment. He defrauded an Australian of US$1,000 by presenting himself as a gay person from the Republic of Benin. He was charged for impersonation, possession of fraudulent documents and attempting to obtain money by false pretences.
These cases attest to the pervasive nature of internet fraud in Nigerian universities. My own research was conducted at Nigeria’s premier University of Ibadan. My aim was to determine how this subculture is organised among students in tertiary institutions. For this I spoke to a number of these “yahoo-boys”.
Areas of specialisation
Internet fraud is organised along areas of specialisation to make a success of the deviant behaviour. Fraudsters study the security network of online transactions to decide where to pitch their tents. Quick monetary reward is what “yahoo-boys” have in mind. They use different schemes.
Sending fraudulent messages to online dating websites and social network sites were reported to be low-risk – but high-profit – areas of specialisation.
A third-year student said to me:
I started online fraud in my second semester of 100 level [a session comprised of two academic semesters in Nigerian universities] as an impostor via online dating. Then I looked for the profile of people that live in developed countries. But if it is in Nigeria, I look for people who live in places like Port Harcourt, Abuja [luxury suburbs].
I always posed to them as a big man who needed a wife. Sometimes I posed to them on how my wife disappointed me and took away my property and children. All this is polished in a pitiable way with some pictures to convince them when I’m chatting with them. However, what I do mainly now is to transmit misleading information online for people to send their bank accounts [details].
Another scam that is popular with the “yahoo boys” is phishing, a technique used to acquire sensitive information such as usernames, passwords and credit card details.
Third, the “yahoo boys” are also big on ATM fraud. They may stand at ATM galleries to feign assistance to vulnerable users – illiterates, the old and the physically challenged – and later swap cards to defraud them.
The fraudsters carry out their attacks mostly on weekends and mostly outside the state where the account is domiciled. Banks are mostly non-functional on weekends. This means victims will be unable to ask their banks to stop illegal transactions on their accounts until Monday morning, when the banks open for business, even though they receive debit alerts over the weekend.
Informal networks and the insider factor
Informal networks are vital to the young scamsters’ success. These networks revolve around banks, security agencies, co-fraudsters and, sometimes, families.
The common means of collecting fraud money in Nigeria is through the banks, mostly through the Western Union money transfer. Through compromised banking staff, fraudsters use fake identity to access funds. This is because the fraudster would have used a foreign name and would not have a recognised identity card in that name. For successful execution of fraud, an insider within the bank is important: the banker facilitates payment without attracting the attention of security agencies. They also get their share of the loot.
The instability in the Nigerian banking sector may have created an uncommitted workforce. Working in an insecure establishment makes workers vulnerable. More than 2,000 bankers have lost their jobs due to economic recession in the country. A large numbers of casual workers are deployed to man key positions in the banks. This makes way for criminal opportunities.
Therefore the “yahoo-boys” find easy allies in banking staff, who are mostly youths too, because of their socioeconomic nightmare. The fear of unemployment has been identified as a push factor for undergraduates’ involvement in internet fraud.
A fifth-year student stated that the fear of the unknown may have attracted a number of students to “yahoo-yahoo” rather than waiting for after-school unemployment. They see internet fraud as a creative outlet in a country like Nigeria.
The influence of corruption
Hitherto, internet fraud was carried out at public cafés. However, with regular raids on these internet cafés and the arrest of suspected fraudsters by the police, the “yahoo boys” have simply moved their bases.
Plus, the proliferation of internet service providers in Nigeria has made it even easier for scamsters to commit internet fraud. It is now as simple as buying modems and surfing the internet within the confines of their privately rented apartments on campus. The “yahoo boys” stay in physical communes of like-minded individuals and use this network to launch internet attacks.
They share information on a particular target and find new ways of making prospective targets yield to their deceit. They are able to get help, share internet costs and jointly pay for fuel for generators, which are used to power their computers. They come to school during the day, and go to social clubs in the evenings and to celebrate their successes.
It is no surprise that there is a proliferation of “yahoo boys”. The celebration of wealth, particularly among politicians, serves to motivate the involvement of the youths in cyber-crime. Nigerian society celebrates wealth without questioning the source of the money.
So what do these young, undergraduate Nigerians do under these circumstances? They see a leadership that doesn’t care about their future. And they use their education to follow the example set by their elders that shows crime pays.

In a 2022 article entitled “Yahoo boys, money rituals, and the magic of desperation; Rising to the humanist challenge of West African death cults”,[6] the author notes the increasing incidence of violent rituals of the “Yahoo Boys”:
[6] Clark, M L., Yahoo boys, money rituals, and the magic of desperation Rising to the humanist challenge of West African death cults, Only Sky, 7 February 2022, Available at < see also Akure, O A., Amotekun blacklists Yahoo Yahoo boys, ritualists in Ondo, The Guardian, 15 February 2022, Available at < boys, babalawos, money rituals. If these terms don’t already mean anything to you, brace yourself—we’re venturing into hard territory.
Nigeria is a West African country with two-thirds of the US population packed into less than a tenth of the territory. And there, in recent months, a perennial cycle of violent rituals thought to bring wealth in exchange for human sacrifice has re-emerged.
One example last month involved a babalawo (prophetic herbalist) advising a “yahoo boy” (computer scammer) that his business would prosper only if he would “sacrifice one life which must be a sibling to him.” With his mother’s approval, he killed and chopped up his brother for body parts in a superstitious “money ritual.” Elsewhere, four other yahoo boys in their late teens slaughtered a girlfriend to burn her skull in a similar ceremony.
Like I said, hard territory
These are just two examples of a widespread phenomenon that Nigeria has had to reckon with before. In 1996, the killing and dismemberment of an eleven-year-old street vendor even launched the Otokoto Riots. That was when Nigerians rose up in outrage at a web of rumors—some accurate, some outlandish—about rich cartels revealed to be driving a significant portion of the kidnapping, murdering, and ritual use of poorer people’s body parts.
In the mid-2010s, it was often hard for Nigerians to know whether a rise in the murder rate was a resurgence of these bizarre ritual crimes, or just men murdering women and girls with more mundane excuses. Back then, another common term for ritualists was “badoos” (“bad guys”, but in the sense of being dangerously street smart). But average youths certainly weren’t the only ones committing such heinous acts. Under the watch of a police force known for violence and corruption— ironically titled the Special Anti-Robbery Squad (SARS)—it has not been easy to organize all the region’s kidnapping, rape, murder, dismemberment, and organ-selling into neat categories.
The dehumanizing blame-game
Among citizens struggling to make sense of the slaughter, few quibble over terminology. Local op-eds often depict youths involved in the worst practices as depraved “devils”. There, they become lazy, greedy sociopaths whose deeds clearly attest to bad parenting and a lack of good religion. Locals blame Nollywood and social media influencers for spreading yahoo rhetoric, and Western encroachment for general materialist toxicity. And outside Nigeria and similarly afflicted coastal states like Benin and Ghana? A simplistic claim of “primitive” beliefs covers all.
And yet, what’s happening today in Nigeria is multifaceted and globally resonant. Far from isolated behavior, the trauma young men are inflicting on others and themselves through money rituals is but one brutal consequence of a series of global problems.
A January 2023 article entitled “ANAMBRA: ‘Yahoo Boy’ Stabs Man To Death, Triggers Violent Reactions From Youths” notes:[7]
NNEWI – Property worth millions of naira have been destroyed as irate youths protesting the killing of a man at Nnobi, have reportedly set two houses ablaze to drive home their anger over incessant killings in the town.
The man identified as Lotanna, a father of two children and a disc jockey popularly known as DJ Lota Boy was reportedly stabbed to death in his home town Awuda Nnobi, Wednesday night by an alleged yahoo boy identified as Jukwa Ese.
It was gathered that Jukwa Ese and two of his unidentified brothers beat the victim to a pulp while Jukwa Ese later brandished a dagger and stabbed DJ Lota Boy severely on the ribs, private parts, chest and shoulder, and in the process killed him instantly.
Sensing danger after killing the DJ Lota Boy, the three assailants ran away from the scene of the incident to avoid arrest, a sad incident that provoked the youths to anger.
Sources said the youths went in search of Jukwa Ese but when they could not find him and the other assailants, set his house on fire.
The youths also set on fire the house of an alleged unidentified accomplice who aided the fleeing murderers with his motorcycle when he saw them escaping from the scene of the incident.
When contacted by the police Public Relations Officer (PPRO ) for Anambra State Police Command, Ikenga Tochukwu described the incident as a case of murder.
“The case is under investigation, no suspect is in custody yet but efforts are in place to arrest the fleeing suspects. It is a case of murder. Good afternoon “, PPRO Ikenga Tochukwu said.
[7] Onyejekwe, P. ANAMBRA: ‘Yahoo Boy’ Stabs Man To Death, Triggers Violent Reactions From Youths, Independent, 19 January 2023, Available at >
In respect of the general security situation in Nigeria, the Department of Foreign Affairs and Trade (DFAT) concludes that:[8]
2.54 While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.
2.55 Nigeria’s crime rate is high for both violent and petty crime. Crime increases at night and includes assault, armed robbery, home invasions and carjacking. Assaults and robberies are common on public transport and in taxis, while petty crimes such as pickpocketing are common in crowds. Nigeria has a well-established reputation as a centre for internet-based scams, often run by organised criminal gangs.
[Tribunal’s emphasis,]
[8] DFAT Report
The United States Department of State’s 2021 Country Reports on Human Rights Practices: Nigeria also notes:[9]
Significant human rights abuses included credible reports of: unlawful and arbitrary killings by both government and nonstate actors; forced disappearances by the government, terrorists, and criminal groups; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government and terrorist groups; harsh and life-threatening prison conditions; arbitrary arrest or detention; political prisoners; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; serious abuses in a conflict, including killings, abductions, and torture of civilians; serious restrictions on free expression and media, including violence or threats against journalists and the existence of criminal libel laws; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association; serious government corruption; lack of investigation and accountability for gender-based violence, including but not limited to domestic and intimate partner violence, sexual violence, child, early and forced marriage, female genital mutilation/cutting, and other harmful practices; crimes of violence targeting members of national/racial/ethnic minority groups; the existence or use of laws criminalizing consensual same-sex sexual conduct between adults; and the existence of the worst forms of child labor.
[9] See: <>
As regards the effectiveness of state security forces, DFAT notes that:[10]
5.1        Security and law enforcement in Nigeria is managed at the federal level through the Nigerian Armed Forces (NAF), the Department of State Services (DSS) and the Nigerian Police Force (NPF). The government also utilises groups created for specific purposes, such as the CJTF (which supports security operations against Boko Haram).
5.2        Capacity constraints have limited the NPF’s ability to control societal violence, particularly in areas under a state of emergency and in Middle Belt conflict zones between mostly Fulani herders, and Muslim and Christian farmers (See Security Situation). As a result, the government routinely relies on the military to provide community policing in areas that experience high levels of violence. In 2019, the Nigerian military reportedly conducted active security operations in almost all 36 states, effectively replacing policing operations in many areas.
5.3        As noted elsewhere, there have been numerous reports of human rights violations or other abuses of power committed by the security forces and other government officials or agents. While the government has taken some steps to investigate alleged abuses, there have been few public reports of prosecutions of officials who have committed violations and impunity remains widespread at all levels of government. DFAT assesses a complaint lodged by an ordinary citizen of a violation committed by a state official is unlikely to result in either prosecution or restitution.
[10] Ibid.
The Tribunal also notes the current Australian Government Travel Advice on Nigeria, issued 1 June 2023,[11] which advises:
Reconsider your need to travel to Nigeria overall due to high threats of terrorist attack and kidnapping, the volatile security situation, possible violent civil unrest and high levels of violent crime.
Analysis
[11] See: <>
The Tribunal has had regard to the President's Directions and in particular the direction that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.
In assessing the applicant’s circumstances the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[12]
[12] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[13]
[13] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
Overall, and save as set out specifically below, the Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence. The Tribunal found the applicant’s oral evidence notable for its consistency over time, and in giving his evidence he did not convey an impression of concoction or recent invention.
Based upon the applicant’s written statement, his interview with the delegate, his oral evidence to the Tribunal, and the corroborating evidence that he provided, the Tribunal is persuaded (materially) that:
a.The applicant arrived onshore in August 2016 planning to complete a [Course 1] at [University 1] in Western Australia, having completed a [Course 2] in Nigeria.
b.Shortly after his arrival he received he received unsolicited email and telephone calls to his Nigerian mobile phone, inviting him to work for a “financial services” business.
c.The applicant’s suspicions were raised when, after engaging with the callers, and providing personal information to them, approximately $[amount] was deposited into his personal bank account with instructions to forward it to named third party accounts.
d.Immediately upon receipt of the money, the applicant reported the unauthorised deposit to State and Commonwealth authorities, and to his bank which froze his personal account.
e.Upon the money not being forwarded as instructed the applicant received telephone calls from the cybercriminals threatening to kill him and stating, “we know you”.
f.The last such call the applicant received was in “2017 or 2018”.
The Tribunal is persuaded by the applicant’s description of his experience, and by the country information reviewed above regarding the phenomenon of “money mules”, that he unwittingly became involved as a target for a “money mule” operation by cybercriminals.
The location of the cybercriminals targeting the applicant is, however, unknown. An area of inconsistency in the applicant’s evidence is as to the national identity of the callers based upon their accents. The applicant stated in oral evidence to the Tribunal that he believed the accents of the callers with whom he interacted were Nigerian, although in his earlier interview with the department he stated that they were “middle eastern”. The Tribunal therefore accepts that there may be doubt about the veracity of this aspect of the applicant’s claims.
The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:
62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
[Emphasis in original]
While the Tribunal has some doubts about the veracity of the applicant’s claims regarding the national origin of the cybercriminal callers, the surrounding country evidence of Nigeria being a known centre for such activity, including the origin of “money mule” operations is of concern to the Tribunal.
Threats to physically harm or kill someone are easily made and not always acted upon. In assessing these threats, the Tribunal has had regard to the country information cited and notes that there is little evidence that “money mule” victims in developed countries are harmed or killed for reporting criminals.
That said, there are three factors which distinguish the applicant’s case from what may be regarded as the ordinary scenario:
a.firstly, most if not all the cases of “money mule” operations reviewed by the Tribunal involve nationals of foreign, generally developed, countries as participants in, or victims of, “money mule” operations (that is, persons outside of the direct “reach” of the instigators of the operations);
b.secondly, the applicant proactively and immediately reported the cybercriminals to the Australian authorities upon receiving the unauthorised deposits into his bank account, and informed the cybercriminals that he had done so; and
c.thirdly, and as a corollary of the first factor, none of the cases reviewed in the country information involved a national of a country known as a centre of cybercriminal and “money mule” operations, such as Nigeria, being targeted while resident in a developed country, informing on the cybercriminals, and then returning to that country (that is, potentially within the direct “reach” of the instigators of the operations).
The country cited above suggests that organised crime in Nigeria, including cybercriminal activities, is accompanied by extreme, and at times ritualistic and sadistic, violence.[14]
[14] See also: BBC World Service, “The ultra-violent cult that became a global mafia”, “A two-year BBC investigation into Black Axe - a Nigerian student fraternity which evolved into a dreaded mafia-group - has unearthed new evidence of infiltration of politics, and a scamming and killing operation spanning the globe.” Africa Eye, 13 December 2021, Available at <>
Based upon this country information, and the unique factors of the applicant’s claims, the Tribunal accepts the possibility that threats to harm or kill the applicant may be acted upon by organised crime groups if he were to return to Nigeria. Considering the country information, the Tribunal cannot dismiss such threats to harm the applicant as remote or speculative.
Overall, in light of the cumulative effect of these matters, the Tribunal considers that if he is returned to Nigeria now or in the reasonably foreseeable future, there is a real risk that the applicant will experience acts of violence or intimidation at the hands of organised criminals. Nor, according to the country information reviewed, would the applicant likely be able to obtain police protection against the threats and/or any actual attempt to seriously harm or kill him. The Tribunal notes in this regard the “capacity constraints” effecting the National Police Force as identified by DFAT and set out above. The Tribunal also notes the Australian Government’s travel advice to “[reconsider the] need to travel to Nigeria overall due to high threats of terrorist attack and kidnapping, the volatile security situation, possible violent civil unrest and high levels of violent crime”.

While the Tribunal does not consider that there is a real chance that the applicant will suffer persecution for the reasons he claims,[15] for the reasons set out above the Tribunal does accept that there are substantial grounds for believing that, should he be removed from Australia to Nigeria, there is a real risk that he will suffer significant harm.
[15] The applicant made no claim that the threats of violence from organised crime groups would result from one or more than one of the five reasons enumerated in s.5J(1)(a) of the Act namely race, religion, nationality, political opinion, or membership of a particular social group. Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria that there is a real risk that he will suffer significant harm.
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 has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act
Damian Creedon
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Review 1007 (2021), Available at:

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Citations

1809793 (Refugee) [2023] AATA 3322

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2023] AATA 3322

10 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Remedies