1815681 (Refugee)

1815681 (Refugee) [2021] AATA 4302 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815681
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Paul Windsor
DATE:30 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 September 2021 at 3:55 pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – opposition to corruption – fear of current and former union leaders – particular social group – witnesses to murder – credibility concerns – inconsistent timeline – vague and unsubstantiated evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 22
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nigeria, applied for the visa on 10 April 2018.
In his protection visa application, the applicant indicated he was born in [Suburb 1], Lagos state Nigeria on [date], is of Urobo ethnicity, a Christian, married [in] December 2005 and has a son aged [age] years and a daughter aged [age] years. His wife and children are residing in Nigeria. He indicated he departed Nigeria legally [in] March 2018 and arrived in Australia [in] March 2018.[1]
[1] See the Departmental file.
In his application he indicated he left Nigeria because he feared he would be killed because his boss in [a named union for specified industry workers] ([Union 1]) was not complying with a corruption deal proposed by the [Union 1] boss. He stated he was beside his close friend and in-law when he was shot and killed [in] January 2018 when they were coming from a meeting with their boss.[2]
[2] See the Departmental file.
The delegate refused to grant the visas as she did not accept that the applicant worked for the [Union 1]; was threatened because he refused to engage in corrupt activities; had a close relationship with the local [Union 1] boss or the murder victim; had been included in threats along with them; or was with them on the night of the shooting.
The applicant sought review of this decision by the Tribunal on 29 May 2018. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal on 4 August 2021 to give evidence and present arguments. The applicant was represented by his Australian legal practitioner.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s claims for protection, as set out in his protection visa application, are summarised as follows:
·He left Nigeria because of the killing of his very close friend and in-law, [Mr A], aka [Alias A], [in] January 2018.
·His friend was shot and killed beside him by the [Union 1] boss [Mr B], when they were coming from a meeting with their boss, [Mr C].
·The killing was because his boss was not complying with the corruption deal that was proposed by [Mr B].
·They had received a lot of threats before the incident. They reported these but the police did nothing. The [Union 1] boss is very influential in politics and police respect him so it is very dangerous to seek help from the police and government.
·His name is on their black-list and he saw them kill his friend and saw the person responsible. They came to his house two weeks later looking for him to kill him but his security man was killed. This man has killed over 100 people so his life and his family’s lives are in great danger. People in his area told him they have seen the ‘serial killer’ going around his house.
·He cannot relocate as the [Union 1] boss has connections all over the country and in politics. He has a lot of members working for him all over the country and can pay people to kill for him. His friends advised him to leave the country.
The applicant expanded on his claims in a statutory declaration of 18 April 2018 prepared with the assistance of [a representative].[4] Relevant additional matters raised in this statutory declaration are summarised as follows:
[4] See the Departmental file.
·He worked for the [Union 1] from 2010 until 2018. The union is in charge of collecting payments that [workers] must make on a daily basis. His role included telling [workers] where to park as well as collecting money from them and providing this to his boss, [Alias C], aka [Mr C], who is the local [Union 1] chairman (of the [specified] area of Lagos). [Mr C] would then pass the money to the government.
·He worked closely with [Mr C] due to his role and also because [Mr C]’s personal assistant, [Mr A] was a close friend and the applicant is married to [Mr A] ’s sister.
·[Mr B] was the chairman of the Lagos state branch of the [Union 1] up until about [year]. He was installed by the Lagos state Governor. He obtained a lot of power, connections and money.
·[Mr B] was responsible for a lot of corrupt activity in this role. After he ceased in the role, he told [Mr C] he wanted a payment in recognition of having installed [Mr C] in his role.
·[Mr B] became very angry when [Mr C] declined to make any payment and said he would report [Mr B]. In December 2017 death threats were received by letters to their [Union 1] office. Death threats were also written on the office walls. These named [Mr C], [Mr A] and the applicant and said they should run for their lives and that there is no hideout for them in Nigeria. They reported the threats to the police. The police said they would look into it but never did and they never heard back from them. He believes the threats came from [Mr B] and the police did nothing because [Mr B] was involved.
·[Mr C] was the target of the shooting [in] January 2018, which was ordered by [Mr B]. He, [Mr C], [Mr A] and a driver were in a car leaving a [Union 1] meeting when it came under gunfire but it was [Mr A] who was shot dead.
·[Mr B] was arrested and charged with [Mr A]’s murder in mid-February. He was released shortly after, however, showing the influence he has over state authorities. [Mr D], aka [Alias D], a well-known hit man, was also arrested and confessed that he carried out the murder on [Mr B]’s orders.
·His life is now at risk from [Mr B] because he associates the applicant with [Mr C]’s political stance in refusing to go along with corruption. He is also at risk because he was an eye-witness to the murder of [Mr A].
·He was very scared and was trying to gather enough money for him and his family to leave.
·Around two weeks after the murder, people broke into his apartment while he and his family were out and ransacked it. He became very scared and knew he had to move. He moved to another apartment.
·Around three weeks later, the security guard at this apartment complex was shot dead when he ‘resisted’ people trying to break into this apartment while he was out.
·After this they desperately sought help from the pastor of his wife’s church. The pastor advised they should leave Lagos and suggested they hide at a [specified] site near the town of [Town 1] in Kwara state, [number] hours away.
·He gave his passport to the paster before they left. The pastor told him that he would make arrangements for him to be able to flee Nigeria. The pastor came to [Town 1] in early March 2018 and gave him an Australian visa. He is not sure how this was obtained. He did not see the application form and did not provide information for the form.
·He left for Lagos [in] March 2018. When he arrived he bought a plane ticket to Australia and departed the same day.
·His family remain in hiding near [Town 1].
The applicant attended an interview with the delegate on 20 April 2018. At the interview he provided copies of three Nigerian news articles regarding the murder of [Mr A] (alias [Alias A]) [in] January 2018, the arrest in February 2018 and subsequent release of [Mr B], and the arrest of [Mr D] (described as a self-confessed serial killer) who it is stated confessed to carrying out the murder, said [Mr C] was the target, stated he was paid by [Mr B] to carry out the assassination and stated he had killed other people for [Mr B].[5]
[5] See the Departmental file.
The applicant’s then representative provided a post-interview submission.[6] Relevant additional matters raised in this submission are summarised as follows:
[6] See the Departmental file.
·In 2017, [Union 1] members sent by [Mr B] also approached the applicant three times to lure him into corrupt activity. Each time he refused. (The delegate noted in her decision record that this was not raised prior to or during the interview with her).
·The applicant made eye contact with the killer and would be recognised by him.
·The applicant fears being targeted by [Mr B] for serious or significant harm on account of:
His actual and imputed political opinion against high-ranking current and former [Union 1] leaders on account of opposition to corruption;
His membership of the particular social group comprising ‘witnesses to the killing of [Mr A]’; and
His membership of the particular social group comprising ‘[Union 1] members who are opposed to corruption and share a close relationship with [Mr C]’
·Country information is cited in support of the contention that effective state protection is not available because there are links between politics, the [Union 1] and the Nigerian Police Force (NPF).
·It is asserted that relocation within Nigeria is not an option due to the reach of the [Union 1]; and third country protection is not available from the Economic Community of West African States (ECOWAS) both because, in practice, the ‘ECOWAS Protocols have been scarcely implemented’ and because he would still be at risk from [Union 1] and the NPF in any of the ECOWAS member states.
The current representative provided a pre-hearing submission dated 28 July 2021.[7] This included the following supporting documents: a further statutory declaration by the applicant, sworn on 27 July 2021; a copy of the applicant’s [Union 1] membership card; photos of his [Union 1] uniform; a letter of support from the applicant’s pastor at [Church 1] in [named suburb] Victoria; and copies of photographs of the applicant’s baptism and attendance at the church.
[7] See the Tribunal file.
Relevant additional matters raised in the applicant’s statutory declaration of 27 July 2021 are summarised as follows:
·His wife and children are still living in Nigeria. They have been moving from one place to another and have lived in different villages in [Town 1] (which is in Kwara state), Ugu (sic) state (there is an Enugu state), Delta state and Lagos. When he left Nigeria, his family was told that there were people from the union asking where his family was.
·It was [Mr A] who offered him a job with the union. He considered the risks as he knew it is a dangerous job as there is a lot of corruption – a lot of people were killed or faced threats because you collect a lot of cash from people - but thought it would be okay if he wasn’t corrupt, and he needed the job and the money.
·He ran errands for [Mr C], such as cleaning his house or doing something for his wife, and earned his trust.
·He was also asked to go to meetings on [Mr C]’s behalf when he was not available. He thought this was because he was a bit more educated than other workers. Sometimes they would discuss and seek to resolve disputes between members. He would take the matters to [Mr C] to decide.
·Any media reports that do not mention that he was sitting in the back of car with [Mr C], while [Mr A] and was in the front are untrue, as he was physically with [Mr C] and [Mr A] at the time.
·He and [Mr C] ran off when the shooting happened so they were not there when the police came. He believes that is why the news article said that [Mr C] was not in the car at the time of the shooting. He did not see [Mr C] again and does not know what has happened to him since.
·His wife gave a copy of his passport to the pastor as he said he could help the applicant get a visa to come to Australia. When he received the visa he organised his trip to Australia as he was too scared and wanted to leave as soon as possible.
Identity
On the basis of the copy of his passport submitted to the Department,[8] the Tribunal accepts that the applicant is a citizen of Nigeria and that his identity is as claimed. The Tribunal accepts that Nigeria is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[8] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Nigeria, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
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, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below, the Tribunal found the applicant was not a credible witness. The Tribunal considers he has concocted his claims to have worked for the [Union 1], received threats, to have been with [Mr C] and [Mr A] when [Mr A] was killed, and to be on a death list/black-list because he saw who killed [Mr A] and opposed corrupt dealings.
Assessment of claims
Summary of relevant evidence from the hearing

At the hearing on 4 August 2021 the applicant advised that his family are presently hiding-out in an isolated village in Lagos state. He indicated that previously they had been moving around and had been in [Town 1] (in Kwara state), Delta state and ‘all kinds of states’, trying to hide-out to save their lives. He indicated he is in contact with them and had last spoken with his wife two days ago. He said he sends money to his wife from his employment as a [Occupation 1] in Australia.
The applicant indicated that after he left secondary school he did casual jobs including as a [Occupation 2], but commented that his main job was with the [Union 1]. The Tribunal queried the applicant that he indicated in his application that after he left high school he did a two year [Discipline 1] course and then worked as a [Occupation 3] for a [specified] company. He indicated that he did a course in [subject matter] and then worked for maybe two or three years as a casual for [the] company. When asked, he indicated that, while he liked [subject matter], he did not pursue the field because of his financial situation and lack of work in that area.
The Tribunal asked the applicant if he knew what had happened to [Mr C], [Mr B] and [Alias D] since the murder incident in January 2018. He indicated he did not. He said he did not want to associate himself anymore with anything to do with the [Union 1] because of the risks. The Tribunal found this surprising and commented that it is easy to find references to [Mr C] on the internet and a Google search revealed he is still active in the [Union 1] as the Chairman of the [specified] branch in Lagos state.[9]
[9] [Sources redacted].
The Tribunal asked the applicant how he came to work in the [Union 1]. He said he grew up with [Mr A] and they were friends. He indicated that [Mr A] left their village and went to Lagos island where he got a job with [Mr C]’s branch. He could not say how [Mr A] got the job other than to comment that its ‘not too hard’ to get a job with the union. He commented that when [Mr A] came back to village he was ‘looking good’ and had money. He said he asked [Mr A] if he could help him because he wanted to earn more money to be able to care for his mother and siblings, and [Mr A] said he would give him a job.
The Tribunal asked the applicant how [Mr A] got to become [Mr C]’s personal assistant and do so well. He commented that he did not know how their relationship started but when he started there he could see they were close. He added that [Mr C] must have observed him, checked him out and come to trust him. When asked, he commented that [Mr A] had commenced working with the union 2-3 years before he joined in 2010. He added that [Mr A] was away from the village for a long time before they knew he was working for the union.
The Tribunal asked the applicant what he did for the union. He said that he started by collecting tickets but after a while [Mr C] started sending him on personal errands. He commented that he did not know what [Mr C] saw in him but it may have been because he was close to [Mr A]. He indicated that he collected money from [workers] and gave them a ticket, produced by the local chairman, for the right to work in that jurisdiction. The Tribunal asked if they were collecting the money for the government or if the union had a contract with the government to collect money in return for payment by the government or a proportion of the takings. The applicant said the money was meant to be for the government but his experience was that not all of it was given to the government. The applicant added that, to be a local chairman, the person must be close to the government, and is meant to give the money to the state chairman, which was [Mr B].
The Tribunal asked the applicant what other things he did apart from take money and give tickets. He said if [Mr C] wanted some personal matters attended to for his family or to do with his house, for example painting his house, he helped. He said he would buy the food and wash the car. The Tribunal queried whether it would be the role of [Mr C]’s driver to wash the car. The applicant agreed that [Mr C]’s driver was meant to do that but said he, as a ‘junior member’ had to serve the boss by washing the car and doing errands.
The applicant also commented that if [Mr C] was not available for local meetings he would send the applicant and [Mr A]. The Tribunal observed that this was not something that he had mentioned before his most recent statutory declaration (of 27 July 2021) and commented that it finds it strange that [Mr C] would send him, a junior member, to deputise for him at meetings, a pretty important role. The Tribunal added that while a man of [Mr C]’s status might have sent [Mr A], his personal assistant, it seems unlikely he would send a junior colleague to rep him at meetings. The applicant responded that these were local meetings that [Mr C] was not even meant to be at, among members of the applicant’s own ranking. By way of example, he commented that if some conductors were having issues, or if there was fighting in the park, [Mr C] would send his junior colleague to check and settle things about tickets and money.
The Tribunal asked the applicant who replaced [Mr B] as the Lagos state Chairman in [year]. He could only remember [deleted] (an honorific) and commented that he could not remember who is in the role now. When asked who was in the role when he was there in 2018 (the time of the murder) he again struggled to recall the name. He finally indicated he thought it was [Mr E].
The Tribunal asked the applicant when he first started to receive threats while working for [Union 1]. He said it was in 2016-17 but added that they did not take it seriously. He said the threats were that ‘you and your boss are collecting money and not giving money’. He again stated that it was not so serious. The Tribunal asked what sort of threats were received. The applicant said the most serious threat was the one they wrote on the wall which said if they did not deliver money they are going to die. He said it mentioned his, [Mr C]’s and [Mr A]’s names. The applicant said that was the threat they first started to take seriously when they saw it. He added that, before then, there were many verbal threats but these were just people talking: ‘you guys, you are in big trouble, not doing the right thing like the chairman wants’. When asked, the applicant again said this threat was written on the wall in 2016-17. The Tribunal asked the applicant to be more precise. He said the written one they took more seriously was in 2017. Noting he had stated in his first statutory declaration that this occurred in December 2017, the Tribunal asked when in 2017. The applicant replied that it started from early 2017, from February onwards. When again asked when the one incident where a threat was written on the wall occurred, the applicant again replied, ‘in 2017’. He indicated he could not remember when in 20917 it occurred. The Tribunal observed that in his first statutory declaration he had been pretty specific, stating that in December 2017 there were death threats sent by letters to the local union office; that there were also death threats written in graffiti on the walls of the office; and that the threats named him, [Mr C] and [Mr A] and stated they should run for their lives. The Tribunal asked if December 2017 was the correct date. The applicant said it was.
The Tribunal asked the applicant what he did after those specific threats were received. He indicated that they started looking for how they were going to escape, as it ‘had become so real’. He indicated that they informed the police but received no response, so did not go back to the police again. He said they kept discussing it and discussed that they need to leave the job because this threat was getting too much. He said they started making some moves to protect their lives and their family members. The Tribunal asked who he was referring to. The applicant said that when they saw graffiti, [Mr C]’s branch made the police report. The Tribunal queried why the police would not have taken this seriously, commenting that, from what the Tribunal had read, [Mr C] sounds like he is a very wealthy, well-known ‘personality’, who is very well-connected. The applicant indicated this is the case and commented that [Mr C] sometimes had a police guard, but they knew the threats were coming from a higher level than him and the police couldn’t do anything.
The Tribunal queried who he was saying was starting to look for how to escape, the applicant said [Mr A] and he and his family. The Tribunal asked what they did. The applicant replied that there was nothing he could do, so he was just trying to look out, watch over his family, and think of how to escape. The Tribunal asked the applicant if he thought about leaving the [Union 1] job and doing something else. He said he did not, because of the money it brought in, commenting that if he left he would not be able to get the same kind of job, where he had someone who trusted him and which he could make money from.
The Tribunal asked if there were there further threats after the writing on the wall. The applicant said there were. He said there was a threat written on a card placed in the back office area which stated, ‘you still not agreeing to our terms so we are going to kill you’. The Tribunal asked when this was. The applicant replied, ‘November or December 2017’. The Tribunal queried that if it was after the writing on the wall in December 2017 it must have been later in December. The applicant agreed. The Tribunal asked what he did in response to the further threat. He said he did not do anything and was just trying to run away and be watchful of his life and his family’s life.
The Tribunal asked what was the next thing that happened. The applicant said the threats became reality when [Mr A] was shot when they went for a meeting at [location]. He confirmed that he was referring to the meeting [in] January 2018. He said they went to a meeting, and after the meeting as they were coming home, [Mr A] was in the front of the car and all of a sudden they heard gun shots. He said he couldn’t remember where they came from but later they realised [Mr A] had been hit by the gunfire.
The Tribunal asked the applicant about the meeting, including what time of day they went and what the meeting was about. He said it was about 10 in the night. The Tribunal asked what time it got dark. He said about 6 pm, adding that by 6-7 pm it is dark. He said the meeting was about the activities of the union, the next election, how the union would support the government, how the money was going to be spent. He added that there were some arguments and fights regarding union members to be settled and other issues such as who is going to be promoted. The Tribunal observed that the press reporting he provided to the Department states the meeting was to discuss the annual [Festival 1], commenting that he did not mention that. The applicant replied that was the name of the meeting, but said it was a union meeting and they discussed the issues he had indicated. The Tribunal observed that a Google search indicated that [Festival 1] is a major festival, commenting it imagines they would have discussed arrangements to make sure it was successful, and therefore is surprised he did not mention it. The applicant replied that there are lot of activities but he had mentioned the union issues.
The Tribunal asked why he, as a junior member, would have been invited to attend that meeting. He commented that the top ranking men go around with their junior members, to let them have an idea of what going on in the meeting.
The Tribunal asked how long the meeting went for, He said maybe 3-4 hours, but indicated he could not remember precisely. The Tribunal observed that if they were there at 10 pm they would have left at 2 am, or after midnight. The applicant was uncertain about this but eventually agreed. The Tribunal commented that it did not get that sense from the delegate’s decision record because it indicates that when she asked him at interview what the time was when they were shot at, he said he was not sure but commented that it was getting dark. He also indicated that, while he was not sure, he thought the meeting lasted one and a half to two hours. The Tribunal observed that what he said to the delegate suggests it was around 7 pm. The applicant replied that he couldn’t remember due to psychological tension. He added that when he came in he was not feeling himself and he did not want to give the wrong timing but was just trying.
The Tribunal asked the applicant what happened when they left the meeting. He said that when they were about to leave, they changed the seating arrangements, because of the threats. He was somewhat confused about this initially, but eventually said [Mr C] decided to sit in the back, where the applicant was also sitting, and [Mr A] was in the front. When asked where [Mr C] usually sat, he said he thought he usually sat in the front, but that day he thought [Mr C] decided to switch and sit in the back, adding, ‘if I’m correct’. The Tribunal asked if that was usual, observing that in a lot of cultures, ‘the big man’ doesn’t like to sit in front with the driver but sits in the back. The applicant replied, ‘yes, exactly’ and said he usually sits in the back, as the boss. The Tribunal asked the applicant if [Mr C] had police security with him that night. He said he did, in the area, because of what was going on, plus he had his personal guard. He added that, when they were leaving, [Mr C] decided not to use the police and they left ahead of the police, not even informing them they were leaving. When queried why they would do that if there had been threats against them, the applicant said in Nigeria police sometimes kill the person they have been assigned to protect or give information to the killers, so [Mr C] didn’t tell them he was leaving. The Tribunal asked why [Mr C] sat in the back with him rather than with [Mr A], and did not expect him to sit with driver. The applicant said [Mr C] sat anywhere he wanted to sit, commenting that sometimes he told the driver he wanted to drive. He added that [Mr C] allowed him to sit beside him because they are a bit close.
The Tribunal asked the applicant when the shooting started and whether the car was moving or stationary. He said it started immediately the car started to move. When asked where the shooters were, the applicant said he did not see where they were, commenting that what they saw was the gunshots. He added that immediately they heard the gunshots, he thought wow, this is what the threats are all about, so he leant down. He said everybody was trying to ‘hide-out’ and run from the car. He indicated the car was parked/jammed and they dropped and tried to run to safety. The Tribunal asked if he and [Mr C] got out and ran. He indicated they did, commenting they ran immediately the gunshots happened. He added they couldn’t really see the shooters. He said it was a big car, he thought a jeep, that the gunshots were coming from. He said he did not see how many were in the car and that he and [Mr C] were just trying to run away for their lives. He said it was later that he came to know the information about the gunmen – that there were 4 of them.
The Tribunal asked the applicant how he was able to escape and run away if there were 4 gunmen, their car was stopped, and the gunmen were right there. The applicant replied that the first shot was from a distance and the shooters were not close to them. He added that the car the shot came from was far away from them, their car was stopped in a place that was not open but had ‘many corners’ around, and they went down from the car and ran into ‘those hideouts’. When asked he indicated he and [Mr C] did not run together but separated. He said he did not know where he ran to he just went somewhere he could hide out. He said they came back to check what happened to the car and found that a lot of people were there, so he decided to run from the scene finally. The Tribunal sought to clarify who came back. The applicant said he came back, 2-3 minutes later. When asked if [Mr C] came back, the applicant said he did not see him. He then said they did not go back to the scene but he saw [Mr C] when he came out of hideout and [Mr C] said everyone should run for their life, that this is deadly, and that was when they departed. The Tribunal queried the applicant why he initially said he came back to the scene if [Mr C] said he should run. The applicant said they did not go back to the scene, he was just looking at it from a distance and then he ran away.
The Tribunal asked the applicant if he actually saw the gunmen. Initially he said no, but then corrected himself and said he saw them and they saw him. The Tribunal observed that seems inconsistent with what he had indicated before when he said he did not see where they were, saw the gunshots but couldn’t really see the shooters, commenting that it doesn’t sound like he ever saw the gunmen. The applicant replied that what he meant was he saw where they were coming from. The Tribunal observed that he had stated that they want to kill him because he was an eye-witness, but it seems he did not see the gunmen and they wouldn’t have seen him, given he dropped down, it was dark, he managed to run away, and did not actually see the gunmen. The applicant replied that there was a bit of light around that area, he saw the jeep and people were inside. He said he knows they would have seen who was in their car and so definitely would have seen him.
The Tribunal asked the applicant if he made a police report after the incident. He said he did not because he felt it would have endangered his life. He said he did not know if [Mr C] made a report. The Tribunal observed that it would expect that after incident like that, police would speak to all involved and would want statements from him, the driver and [Mr C]. The applicant indicated that is how it should be but due to the system in Nigeria the police did not call them. The Tribunal observed that the press reports he provided to the Department indicated that police arrested 4 gunmen and [Alias D], as well as [Mr B] for a time. The applicant acknowledged this was the case.
The Tribunal observed that there is nothing that actually indicates the applicant was at this incident, commenting that the press reports he provided make no mention of him but refer to the duo, [Mr A] and [Mr C], and also state that [Mr C] luckily was not in car at the time the shooters came and that is why [Mr A] was killed. The applicant said he was not mentioned because he is a nobody rather than a high ranking member and the press only mention the well-known people. He added that many people die like that and their names are not mentioned. He added that the press were wrong that [Mr C] was not in the car, commenting that the press were not there and write what they heard happened, after he and [Mr C] were long gone.
The Tribunal asked the applicant when he found out [Mr A] had been killed and what he did after the incident. He said he noticed [Mr A] had been shot but only found out later he was dead. He said he ran away from Lagos state to [Town 1] (in Kwara state). The Tribunal queried the applicant that in his submissions he indicated that he stayed at home. The Tribunal read to the applicant paragraph 10 of his statutory declaration of 18 April 2018, where he indicated he was trying to get enough money for he and his family to leave, and around two weeks after the murder, people broke into his apartment while he and his family were out and ransacked it. The Tribunal clarified with the applicant that this reference to his ‘apartment’ was actually referring to the house at [Address 1] ([Suburb 2], Lagos), where he had been living. He indicated it was. The Tribunal asked the applicant why he returned to live there. He said it is not easy in Nigeria to get a new house, he had to make arrangements and he did not have enough money, so he was there planning to escape with his family.

The Tribunal queried the applicant that in the same statutory declaration he then stated that, after his house was ransacked, around two weeks after the murder, they moved to another apartment. The Tribunal asked where that was. The applicant said he did not know the name of the street. He added that it was like a hideout. He indicated his family moved with him. The Tribunal observed that he stated around three weeks after they moved there, people tried to break in while he was out, and the security guard was killed. The Tribunal asked the applicant how people could have found out about this hideout if even he did not know the name of the street. The applicant replied that Lagos state is very crowded with over 22 million people in a very small state, so it is hard for someone to hideout. He added that he was not sure how they found out, but speculated that someone may have seen him or his family.
The Tribunal asked the applicant what he did after the security guard was killed. He said he ran away from Lagos state, to [Town 1]. He said it was very far from home, about [number] hours journey by interstate bus and then by motorbike to a [specified site]. He indicated they knew about this place through his wife’s connection to the church. When asked, he said his wife and the pastor advised him to go there.
The Tribunal asked the applicant if he returned to work at all after the shooting. He indicated he did not. When asked what he was doing, he said he was just hiding, running everywhere and trying to look for a hideout where he could be safe. The Tribunal commented that it is a bit confused as his statements indicate that after the murder he was still at [Address 1] for two weeks, then was at another apartment for 3 weeks. The Tribunal asked why he spent the five weeks after the murder still in Lagos. The applicant said he did not have much money to be able to escape with family and Lagos was the only place where he knew people, could get money, feed my family and run for his life.
The Tribunal read to the applicant paragraph 12 of his statutory declaration of 18 April 2018, where he stated that ‘after this’ (the shooting of the security guard), they sought help from pastor who advised they should leave Lagos and suggested they hide at a [specified] site near the town of [Town 1] in Kwara state. The Tribunal asked if that was correct. The applicant replied, ‘yes, very correct’. The Tribunal sought to confirm that they sought help from the pastor after the security guard was shot dead. The applicant indicated that was correct.
The Tribunal asked the applicant why he thought this pastor could help them. He said because of the death threats. The Tribunal asked the applicant what the pastor said he could do. The applicant replied that initially the pastor said he should just go to [Town 1] to hideout as Lagos was too dangerous for him, his wife and their kids. The Tribunal observed that at paragraph 13 of his statutory declaration of 18 April 2018 he stated that, before leaving, he gave his passport to the pastor. The Tribunal asked the applicant how the pastor made arrangements for the applicant to leave Nigeria. The applicant said when they got to [Town 1], according to his wife and the pastor, one of the new members had the assets/opportunity for them to leave Nigeria. He said the pastor asked his wife to give a copy of his passport to the pastor so he could help him. The Tribunal asked the applicant when he gave his passport to the pastor. He said he thought his wife did it but is not sure when. He said his wife had a copy and the original passport was with a friend who he got land from.
The Tribunal observed that, in her decision record (on page 4), the delegate wrote that he indicated at interview that he gave his passport to the pastor ‘before [Town 1]’ (but added ‘December’). He also said previously he had left everything at home when people attacked the house and forced the family to flee and did not go back home because it was too dangerous. The delegate asked him how he had his passport with him if he fled the house so quickly and he indicated it was already with a friend who wanted to buy land and was processing his documents, and he had left it there with his friend as he was not thinking of travelling. The delegate indicated she found that hard to believe. The Tribunal commented that it is having trouble understanding how he got his passport to people who could organise a visa for him, and when that happened. The applicant commented that immediately after ‘the issue’, his passport was with his friend because if he wanted to get an asset like land, he had to give them his passport to give them assurance. He said he left a copy with his wife, who is very close to the pastor, and she gave the pastor the copy of his passport. The Tribunal asked when she did that. The applicant said he couldn’t remember precisely.
The Tribunal observed the applicant also stated that in early March the pastor returned with his visa, and asked how he got his passport. The applicant said his wife went down and got the original passport from his friend. When asked, he said he thought she did that in February, but was not sure.
The Tribunal discussed with the applicant the timeline it had constructed based on his statements: that the shooting incident was [in] January 2018, then two weeks later his house was ransacked; and then three weeks later the security guard at the apartment he said he moved to was killed. The Tribunal indicated that comes to around 26 February 2018. He then indicated that, ‘after this’, he desperately sought help from the pastor, and before leaving, gave the pastor his passport. The Tribunal asked if he is saying the pastor got the passport around 26 February 2018. The applicant replied, ‘yes, I guess as much’, but added that his wife gave the pastor his passport.
The Tribunal asked the applicant how he was able to get the visa without being involved in at all in the visa application process. The applicant indicated he never had any contact with anyone about getting his visa. The Tribunal commented that it understands that when seeking a visa in Nigeria applicants have to attend the premises of a service delivery partner personally in either Lagos or Abuja and provide biometrics. The applicant indicated he did not provide biometrics.
The Tribunal observed that the delegate’s decision record indicates the applicant was granted a [temporary] visa, which was issued in relation to [a specified event] in [location]. The Tribunal commented that it seems someone, a people smuggler, had been able to provide documentation sufficient to convince Australian authorities that he had a valid reason to come to Australia to attend the [specified event]. The Tribunal asked the applicant if he can explain how he was able to get that visa. The applicant said the process is exactly as the Tribunal said, but the pastor told him a copy of his passport alone would be okay to get the visa. He said he does not know how the pastor did it and commented that he was not called for any interview at all. He said when the pastor came to [Town 1] in early March 2018 he gave him an A4 sheet of paper which he said was the visa. When asked, he indicated that the pastor did not tell him when the visa had been issued.
The Tribunal put to the applicant for comment or response, in accordance with the requirements of s.424AA of the Act, that the Department’s Movement Details system indicates the visa was granted on 18 January 2018. The Tribunal commented that this information is relevant to the review because it is before the date of the murder incident [later in] Jan 2018 and the subsequent incidents: the ransacking of his house and shooting of the security guard, which he has indicated led to him seeking to leave Nigeria. The Tribunal indicated that, depending on his comments or response, this may lead the Tribunal to conclude that his account is not credible, and would be the reason or part of the reason for affirming the decision under review. The applicant indicated that he understood why the information was relevant to the review. He indicated he wished to comment immediately and did not need additional time to consider his response. The applicant said the reason why he was ‘lost’ in this ‘aspect’ is the copy of the passport. He said before then there had been a lot of threats and his wife has been doing something ‘behind him’ that he did not have any idea about. He said his wife must have discussed it with the pastor even before he was aware of ‘travelling out’. He indicated he thought she must have given the pastor a copy of his passport in 2016-17 when the threats were coming in. He commented that she would have done that because she knew if she told him he would not agree because he did not want to travel. He added that because of the money he was making from that place he did not want to move. The applicant said that is why the dates and the timing were not close together because his wife knew if she told him he would not agree as he did not want to travel.
The Tribunal observed that the applicant indicated at paragraph 14 of his statutory declaration of 18 April 2018 that he left [Town 1] for Lagos [in] March 2018, bought a plane ticket and departed Nigeria the same day. The Tribunal queried why the pastor would have waited until early March 2018 to tell him that his visa had been granted on 18 January 2018 and he was able to travel to Australia from that time. The Tribunal observed that this suggested he was not desperate to get out of Nigeria and raises doubts about his claim to be at risk of harm in Nigeria. The applicant commented that the airline ticket cost almost 1 million naira so he was running around to get a ticket. He said he bought the ticket at the airport and left the same day. The Tribunal commented that it seems like the pastor engaged people smugglers to get him the visa, which would have cost money and it seems like the pastor and his wife arranged for that. The Tribunal queried why the arrangements would not have extended to ensuring he had a plane ticket to get to Australia. The applicant said the pastor didn’t ask him or his wife for any money. He said he did not know how the pastor got the visa and was surprised that he got it. He insisted his circumstances were urgent but said he had no money, even to feed his wife and kids, because he was not working anymore. He said it took over a month to get the money to travel and that is why it looks as if it was not urgent. He said while he was waiting he was looking for money for the ticket. He said he bought his ticket with cash and begged people at the airport for some of the money for the ticket. When asked why people at the airport would give him money for the ticket, the applicant said he explained to people he had a visa but not the money for a ticket and some people helped him. When asked why the pastor would have arranged the visa for him but not assist with money for the ticket, the applicant said the pastor is not rich so he had to sort the ticket out himself.
The Tribunal asked the applicant about the documents included with the submission of 28 July 2021. The Tribunal observed that the delegate did not accept that he worked for [Union 1] and asked the applicant to tell the Tribunal about the photos of a shirt and trousers that had been provided. He said that is the [Union 1] uniform. When asked why it indicates he worked for the union, the applicant said it has his name on it. The representative interjected to say the applicant had brought the clothes plus his union membership card to the hearing. The applicant said the green and white colours of the uniform are the logo for the union. When asked, the applicant indicated that the pastor had retrieved the uniform and membership card from where he lived before and his wife sent them to him in Australia. He confirmed he was referring to [Address 1]. When asked, the applicant indicated that the membership card, which was of rudimentary production standard, did not have a date of issue on it.
The applicant indicated there were no other issues he wished to raise.
The representative indicated that he did not intend to make oral submission addressing some of the issues raised at the hearing without taking instructions from the applicant. He requested that he be allowed two weeks to confer with the applicant and provide a post-hearing submission if necessary. The Tribunal agreed to this request.
The representative commented that the submission of 28 July 2021 sets out publicly available information regarding [Union 1], particularly the prevalence of violence, use of violence between different factions, level of corruption, and overlap with political parties that utilise members for their own political purposes at times. He commented that it paints a clear picture of there being a level of violence and risk associated with being involved with the union. The representative commented that the applicant indicated he had concerns regarding joining the union due this, but decided to join due to financial reasons. He noted the applicant was taking a lot of cash money from drivers and his general evidence regarding disputes and threats seems plausible within the context of the available country information. The representative asserted that the provision of the applicant’s ‘ID card’ today addresses the delegate’s concerns regarding his involvement with the union. The representative also commented that he has listened to the interview with the delegate and considered that the delegate’s credibility concerns were harsh and the applicant did provide a level of detail in his answers regarding his work which he believes was enough to support a finding that the applicant was involved with the union and was a member. The representative asserted that the applicant has consistently claimed he had a relationship with [Mr C] and it is possible that [Mr C] used members for his own personal needs. He posited that it is also plausible that, if the applicant was attending the meeting and in the car at the time of the incident, he may have been someone the media did not report on, noting that the press reports do not mention the driver and [Mr C] and the person murdered were the only ones referred to.
Post-hearing submission
On 18 August 2021 the representative advised that no further written submissions would be provided.[10]
Assessment
[10] See the Tribunal file.
Having carefully considered the available evidence, the Tribunal concludes that the applicant has concocted his claims. The Tribunal does not accept that the applicant worked for the [Union 1]; was a friend of, or the brother-in-law of [Mr A]; received threats related to his work at the union and due to him having a relationship with [Mr C]; was with [Mr C] and [Mr A] when [Mr A] was shot and killed; is on a death list/blacklist because he saw who killed [Mr A]; had his house broken into and ransacked; had people come to the apartment where he subsequently was staying who killed the security guard; or that he and his family had to flee their home for their safety. This is for the following reasons, considered cumulatively.
Firstly, in the statement of claims in his application made on 10 April 2018, and in his statutory declaration of 18 April 2018, the applicant indicated that he left Nigeria because of the killing of [Mr A] [in] January 2018. In his application he stated that the first harm he experienced was the psychological harm when his friend was shot beside him. In his initial statutory declaration he indicated that, while threats were received in December 2017, he did not consider his life was at risk until the murder [in] January 2018. He indicated that, as well as being associated with [Mr C]’s stance of not engaging in corruption (by paying kickbacks to [Mr B]), his life was at risk because he was an eye-witness to a murder. However, an Australian visa application had already been made for him well before the murder incident, and the visa had actually been granted on 18 January 2018, [number] days before the murder incident. The Tribunal considers it is clear that the visa was arranged by a people smuggler who targeted the visa arrangements for the [specified event] in 2018. The Tribunal does not accept the applicant’s evidence that this was arranged by his wife and her pastor behind his back, without the applicant’s knowledge, and that he was not aware of the visa grant until early March 2021. The Tribunal considers it implausible that the pastor and the applicant’s wife would delay telling him about the visa application and subsequent visa grant if the applicant and his family were at risk of harm as claimed (including if his house was ransacked two weeks after the murder and then people looking for him shot and killed a security guard at his new premises a further three weeks later as claimed).
Second, the Tribunal found much of the applicant’s evidence was vague and unsubstantiated. In relation to his claim to have worked for the [Union 1], the delegate’s decision record indicates that, when queried about not having provided any evidence of his employment with the union, the applicant said he had no evidence, as there were no receipts, employment letter or anything else, other than a safety jacket with the person’s name on it. He did not indicate that he had a [Union 1] membership card. However, in July 2021 he provided the Tribunal with a copy of a membership card and photos of his claimed uniform. He brought the card and the uniform to the hearing. The Tribunal examined the claimed original of the card and, given its basic design and production quality considers that it could readily have been fraudulently produced. The Tribunal gave it no weight as evidence that the applicant was ever employed by the [Union 1]. Similarly, the Tribunal considers that the uniform with the applicant’s name on it could have been readily produced fraudulently and gives that no weight. The Tribunal does give weight to the applicant’s evidence that the pastor was involved in retrieving these items from the applicant’s home at [Address 1]. This is the same pastor he indicated knew people who could obtain a visa for him on false pretences and therefore surely could engage people to manufacture a fake uniform and [Union 1] membership card.
Third, the applicant did not provide any supporting statements from his wife or the pastor, or any documentary evidence of his wife being the sister of [Mr A]. In his application he indicated he would provide a copy of his marriage certificate, but did not do so.
Fourth, at the hearing the applicant had no knowledge and little apparent interest in what had happened to the key players in the claimed incidents: [Mr C], [Mr B] and the hired killer, [Alias D]. He indicated that he did not have any contact with [Mr C] after the incident yet claimed to have been close to [Mr C]. If the applicant was close to [Mr C] as claimed, was in Lagos for five weeks, in fear for his safety and trying to get money together to escape as claimed, [Mr C] would seem to have been someone he could have gone to for financial assistance. The Tribunal also considers that the applicant, once in Australia, could have approached [Mr C] for a statement in support of his claims.
Fifth, the Tribunal found the applicant’s evidence regarding how [Mr A] came to be employed with the [Union 1] and then to be [Mr C]’s personal assistant vague and unconvincing. While indicating they were very close and he is married to [Mr A]’s sister, the applicant also indicated [Mr A] had been away a long time before they even knew he was working with the union, but one day just turned up ‘looking good’ and clearly with plenty of money.
Sixth, the applicant’s evidence regarding what he claimed he did while working for the union evolved progressively at different stages of the assessment process. The delegate noted in her decision record that when initially asked about his role in the union, the applicant did not indicate he ran errands for [Mr C], but only raised this when queried by the delegate regarding why he would have been included in threats relating to [Mr C] refusing to pay [Mr B] money. Similarly, it was not until his second statutory declaration of 27 July 2021 that the applicant first mentioned he was asked to go to meetings on [Mr C]’s behalf when [Mr C] was not able to attend. When queried about this at the hearing, he altered his evidence, suggesting these were only low level meetings that [Mr C] would not normally have attended.

Seventh, the applicant’s evidence regarding the claimed threats received before the murder incident was vague and inconsistent. In his first statutory declaration he indicated these occurred in December 2017. In a submission received after the interview with the delegate, however, the applicant’s then representative stated that [Union 1] members, sent by [Mr B], approached the applicant three times in 2017 to lure him into corrupt activity and he received threats when he refused to engage in corrupt activities. The delegate indicated in her decision record that the applicant did not raise this claim at interview with her. At the hearing, the applicant claimed he started to get threats in 2016-17 but, when asked, struggled to be more precise, and could not state the nature of these threats. He referred immediately to the claimed threat written on the office wall, which he had indicated in his first statutory declaration occurred in December 2017. When pressed on the nature of the other threats, the applicant commented they were just verbal threats and he did not take them seriously, undermining his later claim that his wife must have acted on the visa without his knowledge because of the seriousness of the threats he had been receiving.
Eighth, the applicant’s evidence regarding what he did after the claimed graffiti threat was also unconvincing. While he indicated ‘they’ started looking for how to escape, he dismissed the obvious option (which he indicated they considered) of leaving the [Union 1] and finding other employment. As noted above, the Tribunal considers it implausible that, rather than confide in the applicant because he would not have agreed to travel, the applicant’s wife and the pastor secretly hatched a plan to get him a visa to travel to Australia, and he was not told about this plan, even after [Mr A] was killed, his house was ransacked and a security guard at his new premises was killed over the ensuing five weeks.
Nineth, the applicant referred to [Mr B] as if he was still the state chairman of the [Union 1] even though he had indicated that [Mr B] left that position in 2015. When asked who replaced [Mr B] as state chairman (the person [Mr C] would have reported to and someone the applicant might be expected to be familiar with if he was close to [Mr C] as claimed), the applicant struggled to provide the correct name.
Tenth, the applicant’s evidence regarding the shooting incident was vague, unconvincing and inconsistent with what he told the delegate at interview and the press reports he provided to the Tribunal. At the hearing, he said they went to the meeting around 10 pm at night and the meeting went for 3-4 hours while he told the delegate the shooting occurred as it was getting dark (that is, around 6-7 pm) and that the meeting went for one and a half to two hours. His evidence was inconsistent with the press reporting indicating that the meeting was to discuss the annual [Festival 1], and that [Mr C] was not in the car at the time of the shooting. His evidence regarding the shooting was inconsistent with the statement in the submission provided after the interview with the delegate that he made eye contact with the killer and consequently would be recognised by the person who shot [Mr A]. His evidence regarding what he did after the shooting was also vague and confused regarding whether he had further contact with [Mr C] after he claimed they fled the car and whether he returned to the scene of the shooting. The Tribunal also found it highly improbable that the police would not have taken statements from all involved noting, as observed at the hearing, that arrests were made by police in the weeks following the incident.
Eleventh, when asked at hearing what he did after the shooting incident, the applicant said he fled to [Town 1] in Kwara state, contrary to his statements indicating that he remained in Lagos a further five weeks. He could not explain what he did over this time, given he indicated he did not return to work or have contact with [Mr C]. He indicated he was trying to hide and get money, but it is not clear how he was hiding by staying at his long term home at [Address 1] for two weeks. It is also not clear why he did not approach [Mr C] for money if he was close to [Mr C] as claimed.
Twelfth, the applicant’s evidence regarding his passport/ copy of his passport also was confused and unconvincing. If the passport was with a friend as claimed, it is not clear why the applicant, or his wife, or the pastor did not retrieve it when the visa application was made (sometime prior the grant of the visa on 18 January 2018, three weeks before the applicant claims their home at [Address 1] was ransacked).
Thirteenth, the Tribunal also found the applicant’s evidence regarding having to beg for money at the airport on the day of his departure from Nigeria to purchase an airline ticket unconvincing given the involvement in his departure of a person/people who could arrange an Australian visa for the applicant on the basis that he was to attend the [specified event]. The Tribunal considers it highly likely that the same people smuggler who arranged the visa would have arranged a ticket for the applicant if necessary, on the basis that the relevant costs be refunded once the applicant was in employment in Australia.
It should be noted that, following the hearing, the Tribunal could not locate any evidence indicating that the applicant had to produce his actual passport or personally attend the premises of a service delivery partner to provide biometric date (such as fingerprints and a facial photograph) as part of the application process for the visa he obtained to travel to Australia. Accordingly, in reaching the above the conclusions the Tribunal gave no weight to its concerns discussed with the applicant at hearing regarding what it understood to be the usual process for Nigerian nationals seeking an Australian visa.
Does the applicant have a well-founded fear of persecution if he returned to Nigeria?
Having carefully considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from [Mr B] and/or his agents, associates and supporters, or other people involved with the [Union 1], because of an actual or imputed political opinion against high-ranking current and former leaders of the [Union 1] on account of his opposition to corruption; and his membership of particular social groups comprising witnesses to the killing of [Mr A]; [Union 1] members who are opposed to corruption within the organisation and its leadership; [Union 1] members who share a close relationship with [Mr C]; or for any other of the reasons mentioned at s.5J(1)(a), if he were to return to Nigeria now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Nigeria, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[11]
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nigeria, there is a real risk that the applicant will suffer significant harm as set out in s.36(2A) from [Mr B] and/or his agents, associates and supporters, or other people involved with the [Union 1], or any other authority, agency, group or person.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor
Member

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

[2021] AATA 4302

30 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice