1817077 (Refugee)

1817077 (Refugee) [2022] AATA 3256 (19 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1817077

COUNTRY OF REFERENCE: Nigeria
MEMBER:David McCulloch
DATE:19 July 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2022 at 11:15am
CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Muslim – particular social group – persons in line to be chief priest – refusal to succeed chief priest – physical assault – fear of killing – property damage – state protection – internal relocation – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 17 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nigeria, applied for the visa on 22 April 2018. The applicant attended an interview with a delegate of the Minister on 7 May 2018. The interview was conducted in English. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 15 July 2022 at 9:30am to give evidence and present arguments. The applicant communicated in English.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020 and DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020; a copy of each of these reports was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history to Australia is extracted from the delegate’s decision record. The applicant was granted a [temporary] visa [in] January 2018. The visa was valid until [May] 2018. The applicant arrived in Australia [in] March 2018 in Perth. On 22 April 2018, the applicant applied for a Protection visa (XA-866). A subsequent Bridging visa (WA-010) was granted on 23 April 2018. The applicant previously travelled to and lived in [Country 1].
The following information is apparent from the application for protection forms. The applicant was born on [date] in Kano State, Nigeria and speaks, reads and writes Yoruba. The applicant also reads and writes English. The applicant is a Muslim of Yoruba ethnicity. The applicant was never married. The applicant’s father is deceased. The applicant’s mother and [specified family members] reside in Nigeria and the applicant is in contact with them by phone. The applicant declared living at one address in [Town 1 in] Lagos from birth until March 2018. The applicant attended [a named] Primary School [between specified years] and [a named] Secondary School [between specified years]. The applicant attended [University 1] [between specified years], graduating from a [Subject 1] course. The applicant was self-employed in [farming] from [birth] [sic] until 2 March 2018 in [Town 2 in] Ogun, Nigeria.
The applicant provided the following responses to questions in relation to his claims for protection in the application form (not corrected for spelling or grammar):
Q: Provide reasons why this applicant left that country or those countries:
A: I LEFT NIGERIA FOR [an event] AND ALSO TO SEEK PROTECTION AFTER [that event] BECAUSE MY LIFE IS IN DANGER IN NIGERIA
Q: Did this applicant experience harm in that country or those countries?
A: Yes
Q: Give details including: the type of harm this applicant experienced; the person/people responsible for the harm; why they harmed this applicant.
A: I HAVE BEEN ASSAULTED AND HARMED IN VARIOUS WAYS. I HAVE HAD MY FARM DESTROYED AND THEY HAVE INTIMADATED AND THREATENED MY FAMILY FOR REFUSAL TO SUCCEED THE DECEASED CHIEF PRIEST.
Q: Did this applicant seek help within the country or those countries after the harm?
A: No
Q: Give details of why this applicant did not try to seek help.
A: NO, SEEKING HELP WILL NOT OFFER ME THE NEEDED PROTECTION I NEED. THE COUNTRY HAS RECOGNISED THE DEFACTO LAWS THAT GOVERNS OUR CUSTOMARY RITES AND INSTITUTIONS. IT IS THEEFORE REASONABLE FOR ONE IF THE CHANCE AVAILS IT SELF TO SEEK PROTECTIO IN DIFFERENT COUNTRY RATHER THAN IN NIGERIA.
Q: Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
A: No
Q: Give details for why this applicant did not try to move to another part of the country or those countries.
A: MOVING TO ANYPART OF THE COUNTRY WILL BE MEANINGLESS AND HOPELESS. IT IS THE SAME LAWS THAT GOVERNS THE COUTRY WHICH MEANS THE COUTRY HAS RECOGNISED. IN EFFECT, IT MEANS NOWHERE IN THE COUNTRY IS DEEMED SAFE AS LONG IT IS THE SAME LAWS. IT IS BECAUSE OF THIS THAT I HAVE NOT AND DID NOT TRY TO RELOCATE
Q: Explain what the applicant thinks will happen to them if they return to that country or those countries:
A: AS I HAVE SAID, HAVING BROUGHT UPON THE ENTIRE CUSTOMS AND WAY OF LIFE, THE COMMUNITY WILL HARM AND ASSAULT ME. THEY BURNED MY PROPERTY AND I HAVE BEEN HARMED AND ASSAULTED WHILE IN NIGERIA AND I AM CONFIDENT I WILL BE HARMED AGAIN.
Q: Does this applicant think they will be harmed or mistreated if they return to that country or countries?
A: Yes
Q: Give details including: the type of harm or mistreatment this applicant is likely to experience; the person/people who would be responsible for the harm or mistreatment; why they would harm or mistreat this applicant.
A: THE ELDERS, THE COMMUNITIES, AND THE ENTIRE PEOPLE WHO LIVE IN THE COMMUNITY. THE COMMUNITY DEEMED MY BEHAVIOUR AS HAVING SHOWN SOME SORT OF DISRESPECT TO THE LAWS AND WAYS OF LIFE AND WILL NOT TREAT ME KINDLY. THEY WILL TREAT ME AS A PARIAH WHO NEEDS TO BE PUNISHED AT ALL COST.
Q: Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
A: No
Q: Give details about why this applicant thinks the authorities could not, or would not, protect them.
A: THE AUTHORITIES FOR THAT MATTER THE SECURITY AGENCIES CANNOT PROTECT ME BECAUSE IT IS THE SAME LAWS THAT GOVERNS THE ENTIRE COUNTRY. THE COUNTRY HAS RECOGNISED THE CUSTOMARY LAWS OF THE COUNTRY BECAUSE IT HAS BEEN INFUSED INTO THE MAIN LAWS OF THE COUNTRY. IT IS BECAUSE OF THIS THAT THE AUTHORITIES ARE RELUCTANT IN PROTECTING ANYBODY WHO HAS GOVE AGAINST THESE CUSTOMARY LAWS.
Q: Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
A: No
Q: Give details about why this applicant is unable to relocate.
RELOCATION IS NOT AN OPTION AS CUSTOMARY LAWS PERMEATES EVERYWHERE IN THE COUNTRY. IT IS VERY PERVASIVE SYSTEM AND EVERYWHERE IN THE COUNTRY IT IS RECOGNISED. IN VIEW OF THIS, IT IS WITHOUT DOUBT THAT I CANNOT SAFELY RELOCATE ANYWHERE IN THE COUNTRY.
The applicant provided to the Department a medical report dated 28 April 2018 from [Hospital 1 in], [a named town], signed by [Doctor A], which stated that the applicant was rushed to the hospital after sustaining multiple injuries. According to the report, the applicant claimed that he sustained those injuries from hoodlums on [a day in] April 2017. The applicant sustained a swollen forehead, multiple bruises on the face, trunk and limbs. Severe tenderness in the joints and limbs was also listed in the report. The applicant was discharged one week later.
The Tribunal notes the following evidence of relevance given by the applicant at the interview with the delegate that took place on 7 May 2018. The applicant refers to travelling to [Country 1] where he worked in a [store] from 2015 until 2017. The applicant refers to undertaking his university studies in [Subject 1] [between specified years]. The applicant taught for a period as a private tutor and teacher. The applicant also refers to running a [farm] on land behind his home. [Farming] was the applicant’s main business; teaching was a side job.
The delegate notes that in Nigeria the applicant only provides an address lived at in Lagos. In response, the applicant indicated that he rented an apartment in Lagos in 2013 and would return to the farm by bus on weekends.
The applicant is asked why he cannot return to Nigeria. The applicant refers to coming from a family and property in [Town 2], Ogun State. The applicant was told that he had been dedicated to the gods of the land before his birth. The chief priest from the village died in 2014 and the community people (the Ogboni) told the applicant that he had been chosen to succeed the priest. The applicant heard from gossip that he would be next in line. The applicant said that his religion is against worshipping; he is a Muslim. But the applicant was told he had to take the post. This was late in 2014. They said they would deal with the applicant for refusing.
A few weeks later they sent people to attack the applicant. There were four or five men. The applicant was told that he brought shame to the community and was beaten. The applicant did not know these people. The applicant refers to two more physical attacks taking place. The applicant is asked if he reported these attacks to the police and he says that he did. However, under customary law there was nothing that could be done.
The applicant then refers to being attacked four times. The first time he was slapped two times, he escaped the second time and the third time he was caught. The second attack was a few weeks after the first attack. The applicant is asked if this all happened in 2014 and he indicates that it did. The applicant refers to the fourth attack being very brutal; he was almost blinded and his teeth were broken. He was beaten with timber. He was hospitalised after the fourth attack and a medical report is provided.
The applicant repeats that police would not help as it is customary law. They did not allow the applicant to make a statement. The Constitution recognises customary law.
The fourth attack was in 2017 after the applicant returned from [Country 1]. They were having a deity ceremony celebrating one of the gods. The applicant was attacked on the street a few days later. The attackers had covers on their faces so he could not recognise them. The attack was [in] April 2017.
In terms of how the applicant obtained the hospital medical report, he asked his mother to obtain it from the hospital where he was a patient for about one week. It was after the fourth attack that the applicant made arrangements to come to Australia.
The applicant indicates that the position of priest that he was to inherit was a powerful position in the community. He was asked about necessary training for the role, and indicated that it would take about a month. The applicant is asked who the current chief priest is and he says that he does not know.
The applicant confirms that he is Muslim and indicates that he does not have much knowledge as to the arrangement to be the priest. He indicates that the only person who could provide this information is the applicant’s mother but she does not live in the area anymore. The applicant’s mother moved to Lagos
The applicant is asked why as a Muslim he would be asked to succeed as the priest. The applicant indicates that this is because his father allowed it to happen. He was offered as a baby. The applicant indicates that his father was not really a practising Muslim. When asked as to the qualifications required to be the priest, the applicant indicates that you have to come from the same clan and that is the only requirement as far as he knows.
The applicant is asked why he could not relocate to Lagos to avoid the problems. In response, the applicant indicates that customary law applies everywhere. The applicant indicates that one of the attacks happened in [Town 1], Lagos. The applicant refers to future attacks in [Town 2].
On 12 July 2022, shortly before the Tribunal hearing, the applicant provided a document which he indicated he had lost possession of and had just found in his archive. The document is dated 7 July 2019 on the letterhead of the [Fraternity 1] from [Priest A] in [Town 2], Ogun State. It states that the writer, [Person A] is the representative of [Person B] of the Fraternity and wishes to state their ‘upmost displeasure’ for the total disregard of custom and tradition by the applicant’s family. It states that the revered position of the [named position] left vacant by [variant of the applicant’s name] remains unoccupied. This is indicated to be a total disregard of the culture and custom of the land, and ‘shall not be tolerated’.
Independent information
The 2020 DFAT report on Nigeria provides the following information:
HUMAN RIGHTS FRAMEWORK
2.48     Nigeria is a State Party to most of the major international human rights instruments, including: the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC) and its two Optional Protocols on the involvement of children in armed conflict (OP-CRC-AC) and on the sale of children, child prostitution and child pornography (OP-CRC-SC), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol (OP-CAT), the International Convention for the Protection of All Persons from Enforced Disappearance (CPED), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), and the Convention on the Rights of Persons with Disabilities (CRPD). Nigeria is not a signatory to the Second Optional Protocol to ICCPR aiming at the abolition of the death penalty (ICCPR- OP2).
2.49    Various constitutional articles guarantee basic human rights, including the right to life, freedom of religion, freedom of expression and freedom of movement, and prohibit discrimination on the grounds of race, religion, gender, ethnicity or political affiliation.
2.50    Nigeria underwent its third cycle of the Universal Periodic Review (UPR) at the Human Rights Council in November 2018. Of the 290 recommendations made, the Government supported 240 and noted 50. Its national report noted Nigeria was finalising its second National Action Plan for the Promotion and Protection of Human Rights from 2017 to 2022, and finalising its National Action Plan on Human Rights and Business.[1]
[1] DFAT Country Information Report – Nigeria, 3 December 2020, p. 18.
…
RELIGION
3.11 Article 10 of the Constitution prohibits either the federal or state governments from adopting any religion as a State Religion, while Article 23 includes religious tolerance as a defined national ethic. Articles 15(2) and 42(1) prohibit discrimination on the grounds of religion, while Article 38(1) guarantees freedom of religion, including the freedom to change religion or belief, and the freedom (either alone or in community, and in public or private) to manifest and propagate their religion or belief through worship, teaching, practice and observance. Article 15(3)(c) and (d) stipulate it is the duty of the State to encourage interfaith marriages and promote associations that cut across religious (or other sectional) barriers in order to promote national integration, while Article 222 prohibits political parties who limit their membership based on religion or who have names with religious connotations.
3.12    While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians.[2]
[2] Ibid, p. 24.
…
STATE PROTECTION
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.[3]
[3] Ibid, p. 52.
…
Nigerian Police Force (NPF)
5.8 Chapter 6 Part 3 B of the Constitution (Articles 214-216) sets out the role and functions of the NPF, which is the country’s principal law enforcement agency. Article 214 prohibits constituent parts of the federation from forming their own police forces. The NPF maintains law and order in each state and engages in border security, maritime and counter-terrorism operations. An inspector general of police, appointed by and reporting directly to the president, commands the NPF.
5.9      With around 370,000 officers, the NPF is one of the largest police forces in the world, although to meet the UN recommended ratio of one police officer per 400 residents it would need to train another 155,000 officers. While the exact number of female NPF officers is unclear, it has historically been low. In-country sources report the NPF suffers from low capacity and insufficient training, while its operational efficiency is hampered by its centralised nature, which makes resource allocation and changes in operating procedure slow to implement in all states.
5.10    Police salaries are low, with recruits earning less than USD400 a year. As a result, police officers are susceptible to corrupt practices to supplement their income and many Nigerians view the NPF as an endemically corrupt organisation (see Corruption). In November 2018, President Buhari approved legislation to increase police salaries in an effort to address corruption and lift performance.
5.11    Local and international observers have reported numerous instances in which the NPF has used disproportionate force, including live ammunition, to neutralise unrest or protests (see Extrajudicial Killings). Observers have also reported numerous cases in which NPF officers have arbitrarily arrested and detained individuals, and abused criminal suspects and insurgents in custody (see Arbitrary Arrest and Detention). As noted in Torture, international observers have reported the NPF’s SARS has sometimes used torture to extract confessions later used to try suspects.
5.12    Public discontent over the history of reported violence by SARS without accountability culminated in a series of Nigeria-wide protests in October and November 2020, known as the ‘#EndSARS’ movement. The protests followed the reported killing of a man by SARS officers in Delta state, a video of which went viral. On 11 October, the President dissolved SARS with immediate effect, yet protests continued. Amnesty International claimed the military and police fired on protesters in Lagos on 20 October, killing at least 12. The army denied its personnel were involved, but the Lagos Governor has launched an inquiry into the ‘rules of engagement ordered by the Nigerian Army’. The protests have continued as has a Government crack-down on the protest movement but the need for police reform has been widely acknowledged. President Buhari stated in a nationwide broadcast on 22 October that the voice of the protestors had been heard ‘loud and clear’. The creation of state-based Judicial Panels of Inquiry to investigate reports of abuse by the disbanded SARS police unit appears to be the principal result of the protest movement and these are receiving significant media coverage. The panels have been given six months to report. Alongside this response apparently recognising the need for reform, some protesters claim the government is conducting a targeted campaign against people associated with the movement, by freezing bank accounts and withholding passports.
5.13    Three government agencies oversee the NPF: the Nigeria Police Council, the Police Service Commission (PSC) and the Ministry of Police Affairs. In-country sources report inadequate resources and a lack of independence have hampered the ability of these organisations (and the NHRC) to prevent and investigate instances of police abuses.[4]
[4] Ibid, pp. 53-54.
…
INTERNAL RELOCATION
5.30    Freedom of movement is one of the fundamental rights guaranteed in Nigeria’s Constitution, and Article 41(1) guarantees the right of citizens to move freely throughout Nigeria and to reside in any part of the country. While there are no legal impediments to internal relocation in Nigeria, state and local governments reportedly frequently discriminate against ethnic groups not indigenous to their areas (see Race/Nationality).
5.31    Internal migration is very common in Nigeria. Nigerians often live and work in different parts of the country from their family origins or birthplaces. This distribution reflects a multitude of factors such as: employment opportunities in sectors such as the telecommunications, construction, wholesale and retail trade, and manufacturing across Nigeria; educational opportunities; placement of young Nigerian graduates as part of national service or internship arrangements; herdsmen or farmers seeking new grazing or agricultural opportunities; the existence of relatives or family support structures in other parts of the country; as well as internal displacement due to poverty or conflict in the northeast of the country. Internal migration includes both northerners moving to the south and southerners moving to more northerly locations such as Kaduna or Kano or to the FCT.
5.32    On occasion, non-indigenes can experience challenges moving to a new state if they do not possess familial connections or financial means in their new locations. Non-indigenes may face official discrimination when attempting to access government services, including university places or employment in the civil sector (see Race/Nationality). These restrictions do not, however, apply in the larger urban centres of Lagos and Abuja.
5.33    Nigeria has almost three million IDPs from the Boko Haram insurgency in the northeast and the Middle Belt conflict (see Security Situation). The UNHCR reports IDPs in Nigeria represent all religions and ethnicities. The majority have settled freely in host communities where they have familial connections or in state-run camps established in response to the conflicts. While some IDPs have moved to southern Nigeria in response to the insurgency, differences in language and culture, and lack of family ties, may discourage large-scale migration from the north to the south.
5.34    DFAT assesses Nigerians can and do freely relocate internally. Internal relocation can be more challenging for non-indigenes due to language, religious and cultural differences, particularly between northern and southern states, although this has not prevented such internal migration from occurring.
…
PREVALENCE OF FRAUD
5.56 Although the Penal Code and the Criminal Code criminalise fraud and the falsification of documents, Nigeria has experienced high rates of document fraud in the past. In addition to birth certificates, death certificates and marriage certificates, immigration officials report other common documents subject to the possibility of falsification include bank statements, health insurance certificates, invitation letters, letters of introduction and letters of employment from multinational companies. Such fraudulent documents are often used to obtain passports: in June 2017, the Police Special Fraud Unit reported the Italian Embassy was sending to them an average of 50 Nigerian passports obtained through the use of fraudulent documents monthly.
5.57 Those seeking illegal passports may include those who have been deported and had their passports seized, those seeking asylum, and those engaging in illegal overseas labour (such as prostitution) through agents. Nigerians may reportedly also seek fraudulent passports from countries such as Ghana, Senegal, Guinea and Mozambique.
5.58 In-country sources report numerous business operations exist in Nigeria from which it is neither difficult nor expensive to obtain a fraudulent driver’s licence or other documents that can be used to obtain a genuine passport (such as marriage certificates, birth certificates, age declarations, and letters of identification from local government). Corruption at local NIS offices may also enable the fraudulent production of genuine passports.
5.59 Nigeria has established institutions and strengthened procedures to combat the risk of fraud. Banking system controls, for example, have facilitated the growth of electronic transactions and widespread use of mobile app funds transfer. Nigeria is gradually strengthening its national identity system and biometrics. The NIS has a forensic laboratory for the examination of travel documents and monetary instruments, and the Nigeria Police Force has established a Special Fraud Unit to combat fraud, which actively investigates and prosecutes suspects. DFAT understands, however, that very few cases have thus far resulted in convictions.
5.60 DFAT assesses that, notwithstanding Nigeria’s efforts to improve controls against fraud, document fraud remains a significant issue in Nigeria, including in the process for re-issuing lost documents.[5]
[5] Ibid, pp. 60-61.

The Immigration and Refugee Board of Canada, Research Directorate, provides the following information dated 20 June 2019 (underlining added):
Subject: Nigeria: Ogboni society, including structure, rituals, ceremonies, and current status; membership and the consequences of refusing to join or trying to leave; relationship with police and judicial authorities (2017-April 2019) [NGA106269.E]
1. Challenges in Gathering Information
In correspondence with the Research Directorate, an official at the Canadian High Commission in Abuja stated that there is "very little concrete information or evidence available about the Ogboni society" or information that is not speculative (Canada 27 Mar. 2019a). For the purpose of this Response, the official gathered information from other officials in Nigeria who provided comments and references to "speculations … based on local knowledge and research/consultations with local sources in Abuja and Lagos" (Canada 27 Mar. 2019b). The Canadian official also noted that locally-held beliefs about the cult were strong and local sources were fearful of speaking openly about the Ogboni society, leading to extrapolation and inference based on available information (Canada 27 Mar. 2019b). In correspondence with the Research Directorate, a professor of Yoruba language and culture at the University of Indiana stated that information on the structure of the Ogboni Society and its rituals is accessible only to its members or individuals who are very close to a member (Professor 27 Mar. 2019).
2. Overview
For information on the Ogboni society's history, rituals and ceremonies, see Response to Information Request NGA104213 of November 2012. More recent information on these topics could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
According to a representative of Nigeria's National Human Rights Commission (NHRC), as stated in correspondence with the Research Directorate, the word "Ogboni" is a generic term that can refer to "several Ogboni societies," such as the Osugbo, Aborigine Ogboni Society, Awo Opa, or the Reformed Ogboni Fraternity (ROF), for example (Nigeria 21 Apr. 2019). However, some sources stated that the "traditional" Ogboni society is distinct from the ROF (Sociologist 27 Mar. 2019; Centennial Professor 18 Mar. 2019), which is described as a "Nigerianised version of the Freemasons with some 'traditional' elements" (Centennial Professor 18 Mar. 2019) and was founded by educated elite Yoruba Christians in 1915 with voluntary membership for the purpose of networking (Centennial Professor 14 Mar. 2019).
Sources state that the traditional Ogboni society was an organization created among the Yoruba ethnic group in Nigeria as a society of elders (Sociologist 27 Mar. 2019; Canada 27 Mar. 2019a; Centennial Professor 20 Mar. 2019), with ranking (Sociologist 27 Mar. 2019), leadership (Canada 27 Mar. 2019a) or prestige in the group based on old age (Centennial Professor 14 Mar. 2019).
The NHRC representative described the Ogboni society as a Yorubaland social-cultural institution that "functioned as a town council, civic cult, and electoral college for selecting a new king and dethroning a bad or unpopular one" (Nigeria 21 Apr. 2019). The Ogboni society is referred to as a "cult" (Canada 27 Mar. 2019a), a "secret society" (Centennial Professor 14 Mar. 2019), or a [translation] "traditional secret society" (France 27 Feb. 2015, 3). In correspondence with the Research Directorate, a centennial professor of anthropology at the London School of Economics (LSE), whose research focuses on Yoruba-speaking areas of Nigeria, stated that the Ogboni has "historically" been "feared" as a society of Yoruba elders due to the fact that its members were "very old" and seen as carrying authority due to their closer proximity to their ancestors (Centennial Professor 20 Mar. 2019). The rituals and practices of the Ogboni society are not known to outsiders or the uninitiated (Professor 27 Mar. 2019; Canada 27 Mar. 2019a; France 27 Feb. 2015, 2).
The Professor of Yoruba studies also commented that the cultural belief in the supernatural cuts across all spheres of life in Yorubaland, even among nominal Christians and Muslims, and "especially" among "traditional religious practitioners" (Professor 27 Mar. 2019). Without providing further details, the Canadian official noted that there is a belief among non-members that the Ogboni society engages in "supernatural" rituals and practices that can be "brutal and violent" (Canada 27 Mar. 2019a). Sources indicate that Ogboni society is alleged to engage in activities such as ritual human sacrifices [or sacrifices involving body parts (Canada 27 Mar. 2019a)] (Sociologist 29 Mar. 2019; Professor 27 Mar. 2019) or blood rituals, or rituals aiming to become wealthy (Professor 27 Mar. 2019). Further information on rituals and activities of the Ogboni society could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. For further information on ritual practices in Yorubaland, see Response to Information Request NGA104602 of November 2013.
3. Current Status
According to a 2018 article in the Guardian Nigerian newspaper, the Ogboni society plays a role in the "socio-political and religious affairs of the Yoruba people" and, in pre-colonial times, the judiciary of Yoruba kingdoms was under the "tutelage of the Ogboni," though "this [has] changed and translated into dubious tendencies, attaching a derogatory tag to the group" (The Guardian 16 Sept. 2018). The Professor of Yoruba studies said that, "traditionally," the Yoruba had their own political system of government in which the Ogboni society played a role like a "secret service" for the town, enforcing the law and bringing criminals to the Yoruba kings for judgment; however, since colonization and Nigerian independence, Yoruba kings only have ceremonial positions, rather than the role and power they once had (Professor 27 Mar. 2019). Sources indicate that the influence of the Ogboni society has declined in past decades (Centennial Professor 14 Mar. 2019; France Dec. 2016, 49-50) or is "waning" (Sociologist 29 Mar. 2019). One source said this decline started in the 1950s (Centennial Professor 14 Mar. 2019) while France's Office français de protection des réfugiés et apatrides (OFPRA) states that this decline has been taking place since the 1990s (France Dec. 2016, 50). The Centennial Professor expressed the view that the Ogboni society's "[p]resent-day membership, presence, and activities are insignificant" (14 Mar. 2019) and that the traditional Ogboni is "now almost defunct" (18 Mar. 2019). According to the same source, the traditional Ogboni society today "has no power or influence" and it is stigmatized as a "pagan remnant" of the past (Centennial Professor 14 Mar. 2019). Similarly, a 2016 OFPRA fact-finding mission interviewed a Nigerian researcher who stated the following: [translation] "'In those days, [the 1990s], if you were not O[gb]oni, you could not be part of the government, have a job with a position of authority. Nowadays, Christianity has taken over, it is seen as shameful to belong'" to the Ogboni society (France Dec. 2016, 49, brackets in original). The same source gave examples that, in the past, in order to become the director of her university, or to get positions in other institutions, with the police, etc., a person had to be Ogboni, remarking that [translation] "this is no longer the case today" (France Dec. 2016, 49). A representative of International Crisis Group, interviewed for the OFPRA fact-finding mission, also stated that the group's influence has not completely disappeared, but is much less important than in the past, noting that what matters in politics today is money, and that the political influence of [translation] "'godfathers [politicians]'" is greater than that of traditional societies such as the Ogboni society (France Dec. 2016, 50, brackets in original). In correspondence with the Research Directorate, a sociologist at the National Open University of Nigeria (NOUN), who has researched cults in Nigeria, indicated that the Ogboni society is "not widespread compared to other religious movements" and that "traditional belief systems, such as Ogboni" are giving way to other religions like Christianity and Islam (Sociologist 29 Mar. 2019).
4. Membership, Structure, Recruitment
4.1 Location of Members
Information on whether Ogboni society members are present within major cities of Nigeria, including non-Yoruba areas, was scarce among the sources consulted by the Research Directorate within the time constraints of this Response. The Nigerian Guardian states that the Ogboni society "functions in a few remote kingdoms and is popular in Nigerian Yoruba and Igbo-speaking communities" (The Guardian 16 Sept. 2018). Sources report that Ogboni society membership is regionally located in Yorubaland (Professor 27 Mar. 2019) or in "mostly Yoruba-speaking areas of Nigeria" such as the south-west states of Ogun, Oyo, Lagos, Osun, Ondo and Ekiti, as well as parts of Edo state in the south-south of Nigeria (Sociologist 27 Mar. 2019). The Sociologist added that cities such as Abeokuta, Warri, Benin, Ibadan, and Osogbo, as well as "several of the rural areas," have "strong presence of Ogboni practice" (Sociologist 29 Mar. 2019). The rural areas of Yorubaland have more traditional beliefs than big cities, though such beliefs also exist in the cities, according to the Yoruba studies professor (Professor 27 Mar. 2019).
4.2 Recruitment and Motivation for Joining
Sources indicate that membership to the Ogboni society is voluntary (Canada 27 Mar. 2019a; Sociologist 29 Mar. 2019; Professor 27 Mar. 2019) or by invitation through contacts (Professor 27 Mar. 2019). The Professor remarked that a person has to agree to join, and generally cannot be forced to do so, while noting, however, that "supernatural powers" may be used to try to "compel" a person to join (27 Mar. 2019). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
According to the Sociologist, people join voluntarily because they believe that the Ogboni belief system confers extraordinary abilities and powers from deities, especially when human sacrifices are alleged in the performance of rituals. However, those who are expected to retain membership as a family heritage may be coerced or forced when they reject it. (Sociologist 29 Mar. 2019)
The Sociologist stated that people who join the Ogboni society are those who "seek spiritual protection from evil forces, or who want to use the powers of Ogboni lodges to gain advantage in political or religious circles" (Sociologist 29 Mar. 2019). The Professor similarly explained that people join groups like the Ogboni society due to promises of protection, favours, patronage and connections (Professor 27 Mar. 2019).
4.3 Structure and Membership
The Sociologist explained that the Ogboni society is organized into age-grades and ranked in terms of seniority, noting that in its traditional organization, membership of the various ranks is exclusive and even the names of the topmost leaders are not known to those below (27 Mar. 2019). The Professor of Yoruba studies stated that often a person's membership only becomes known when they die and the Ogboni members appear at the funeral to perform funeral rites (Professor 27 Mar. 2019). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
According to information provided by the Canadian official, membership is reportedly based on being a wealthy member of the community and "signifies a high level of power and prestige, which some members do not hide," and may display indicators that they belong to the group, such as banners, markings or clothing (Canada 27 Mar. 2019a). Membership is predominantly male and "generally considered" to be based on lineage with nobility connected to the Yoruba Kingdoms (Canada 27 Mar. 2019a). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
In order to join the group, a person has to take a vow not to reveal the secrets of the group and to protect one another (Professor 27 Mar. 2019). Similarly, the Canadian official stated that the "organizational structure is a secret available only to members of the Ogboni" (Canada 27 Mar. 2019a).
Sources report that non-Yoruba members can join (Canada 27 Mar. 2019a; Sociologist 29 Mar. 2019) if certain "requirements" are met; however these are not publicly known (Canada 27 Mar. 2019a).
4.4 Inheritance of Positions in the Ogboni Society and Recruitment
Information concerning the inheritance of positions in the Ogboni society was scarce among the sources consulted by the Research Directorate within the time constraints of this Response. The Professor of Yoruba studies said that she had not heard of cases in which a person was forced to take up an inherited position in the Ogboni society after the parent died, though parents who are members may try to convince their children to join (Professor 27 Mar. 2019). Without providing further details, the Sociologist stated that "male children ought to inherit their late fathers' rights in the organization" (27 Mar. 2019). Underage children do not join the Ogboni society, according to the Professor (27 Mar. 2019). The Canadian official stated that it is reportedly common for a first-born son to "inherit" the position of their Ogboni father, but that taking the position is not mandatory, unless the Ogboni member "commit[ed] their unborn child or teenager to the group," in which case the child reportedly "will be compelled to join when he is of age," which is 21 for males and 40 for females (Canada 27 Mar. 2019a). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The Nigeria researcher interviewed by OFPRA during its 2016 fact-finding mission made the following observation about hereditary recruitment:
[translation]
"When the parent dies, the oldest child has to remain in the house and he will be initiated – this is normal. An Ogboni man or a woman always initiates their eldest child in the Ogboni to perpetuate the lineage. If my father was Ogboni, given that I am the eldest child, I would refuse to desecrate my father's remains, but if I take part, I would understand that it is my destiny and I would volunteer to join. This is normal; many eldest children take part." (France Dec. 2016, 50)
Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
5. Consequences for Refusing to Join or for Leaving, and Documented Instances of Harm and Violence by the Ogboni Society
According to the Canadian official, "it is assumed" by the sources that the mission consulted that the child of a member who refuses to join the Ogboni could encounter harassment by the society, "even to the point of death," and that those who want to leave the group may face "tough consequences" or may be killed for revealing the group's secrets to non-members, noting, however, that "[n]o recent information is available to support or refute such claims" (Canada 27 Mar. 2019a). According to the Professor of Yoruba studies, "[i]f you already joined it is very hard to leave because it is breaking a vow. You already know the secrets of the cult"; "[i]t is very difficult to come out of the group because people are afraid of" supernaturally-inflicted severe consequences for leaving the group stemming from the "magical" or "spiritual" power of the group (Professor 27 Mar. 2019).
Nigerian news media have reported the following examples of alleged harm by Ogboni groups (without clearly referring specifically to the traditional Ogboni Society):
A 2016 Vanguard news article reported that a woman sought a divorce from an Ikole court, Ekiti State, due to allegations that her husband threatened to "deal with her by reporting her to the Ogboni cult," whom she claimed had previously "summoned her to appear" before them in 2012 (Vanguard 15 June 2016). The woman claimed that her husband threatened to use her "'hair and pants for rituals to [drive her] mad'" if she attempted to leave him (Vanguard 15 June 2016);
Without providing further details, a 2018 article in the Daily Trust reports the case of a Lagos woman who petitioned a court for a divorce because she alleged that her husband was a member of the "'Ogboni Confraternity'"; she said that he was "'devilish and demonic'" and accused him of "attacking her and [their] children spiritually" with his "'devilish powers'" in order to prevent the children from marrying (30 July 2018);
In 2018, the Nation wrote a story in which a man claimed that, a few years earlier, the Ogboni Society's "'oracle'" had "'chosen'" him and that members had tried to initiate him by force because the man had "'royal blood'"; he alleged that "'the cultists'" attacked him in 2006 in Ijebu Ode [Ogun state] and tried to "'abduct'" and "'forcibl[y]'" initiate him, and, in two separate incidents in 2013, they set fire to his barn in Lagos and tried to kidnap him on his wedding day, forcing him into hiding (The Nation 5 Oct. 2018). The article quotes a member of the family who stated that "'[a]ll these attacks on him were reported to the police but nothing came out of it'" (The Nation 5 Oct. 2018);
A January 2019 news article by the Nation indicated that a man from Ogun state claimed that "suspected members of [the] Ogboni fraternity" had been "intimidat[ing] and harass[ing]" his nephew since 2014 because he refused to join the group and take over the former leadership role his father had held (The Nation 5 Jan. 2019). The man claimed that his nephew was "brutally attacked" in 2016 and that the police handled the matter "with levity" and did not ensure his nephew's safety (The Nation 5 Jan. 2019). The same article claimed that the nephew's Lagos residence was "stormed" by "old men" who threatened to punish him for "turning down his nomination as new head of the cult group" (The Nation 5 Jan. 2019).
Corroborating information for these incidents could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The Canadian official from the High Commission in Abuja stated that the mission had no knowledge of reports that it deemed credible of ongoing or recent cases of targeting or killing of Nigerians by the Ogboni, or those fleeing from the Ogboni society, including in major centres of Western Nigeria and the capital, among mission contacts, local contacts and media sources it consulted (Canada 27 Mar. 2019a). The Sociologist indicated that during his research on cult groups in Nigeria, he had not come across direct mention of the traditional Ogboni society being involved in violent attacks, for instance, against individuals who refused to join or who left the group (Sociologist 2 Apr. 2019). The NHRC representative stated that they had not received any reports of cases of people being targeted by the Ogboni society using violence because a person refused to join or left the group (Nigeria 21 Apr. 2019).
6. Relationship with the Police and Judicial Authorities
Information on the relationship between the Ogboni society and the authorities, including police and judicial authorities, was scarce among the sources consulted by the Research Directorate within the time constraints of this Response. The NHRC representative stated that there is "no evidence" that the Ogboni society has influence on the police in main cities in Nigeria, such as Abuja and Lagos (Nigeria 21 Apr. 2019). The Canadian official stated that in Abuja, the group is not recognized and not known to have influence within the Nigerian authorities (27 Mar. 2019a). The Canadian official noted that the Ogboni society "does not have legitimate or legal influence in any federal institutions," however, there is "a great belief" that securing a prominent government or law enforcement position requires being a member (Canada 27 Mar. 2019a).[6]
[6] Research Directorate, Immigration and Refugee Board of Canada, Nigeria: Ogboni society, including structure, rituals, ceremonies, and current status; membership and the consequences of refusing to join or trying to leave; relationship with police and judicial authorities (2017-April 2019), 20 June 2019.
Hearing, credibility, findings, and assessment

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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
The Tribunal has a number of credibility concerns with the claims as follows.
Firstly, the applicant has not been consistent in terms of how many times he has been approached for attack or attacked. In the delegate interview, the applicant refers to being approached on four occasions. The first time he was slapped two times, on the second occasion he escaped and on the third occasion he was caught. The applicant refers to a further attack on return from [Country 1] in 2017 when he was hospitalised.
In contrast, in the Tribunal hearing the applicant indicated that there would have been approximately 10 occasions between the end of 2014 and when he went to [Country 1] in the middle of 2015 when he was attacked and physically assaulted on each occasion. The applicant then indicated that it would have been approximately five times that he was again approached and assaulted after he returned from [Country 1] in 2017.
The Tribunal put to the applicant in the hearing that this was not consistent with him being attacked on only four occasions, as indicated in the interview with the delegate. In response, the applicant variously said it is difficult to recall because these events happened some time ago and that it may have been in only four cases that he was physically harmed.
The Tribunal noted to the applicant that his indication in evidence to the Tribunal was that there were approximately 12 occasions when he was approached and that he was physically harmed. In response, the applicant indicated that in a number of attacks he may not have been seriously harmed and thus had not characterised them as physical assaults.
The Tribunal is not satisfied that this explanation adequately addresses the significant inconsistencies in evidence by the applicant as to the number of approaches and attacks from the individuals that were seeking to harm him. The applicant’s initial evidence in the hearing was that in all of these approximately 12 attacks he suffered physical harm.
These inconsistencies are significantly undermining of the applicant’s credibility.
Secondly, the applicant has not been consistent as to when he was hospitalised and the hospital report does not correlate, in terms of timing, with the applicant’s initial evidence in the hearing.
In the hearing, the applicant indicated that he was hospitalised following an attack in 2014. The Tribunal asked follow-up questions seeking to confirm this, and the applicant confirmed that this was the case.
The Tribunal put to the applicant that the medical report that he has provided refers to an assault in 2017. In response, the applicant referred to memory difficulties.
The applicant’s initial evidence in the hearing confirmed on multiple occasions that the attack that led to hospitalisation in terms of the evidence he has provided was in 2014, before he left for [Country 1], rather than after his return in 2017.
The Tribunal does not consiser that the applicant would be readily confused as to the timeframe of this claimed significantly impactful event by such a margin of time. The inconsistency in this matter is undermining of the applicant’s credibility and causes the Tribunal to give little weight to the medical report provided.
Thirdly, there is inconsistent evidence in terms of the length of time that the applicant was in hospital. The hospital report refers to the applicant being discharged after one week. In contrast, in the hearing the applicant indicated that he was only in the hospital for one night, but subsequently attended as an outpatient.
The applicant sought to explain the inconsistency by reason of him continuing to be an outpatient. The Tribunal considers that the hospital report provided indicates that the applicant was an inpatient for one week. The inconsistency in the hearing that the applicant only stayed overnight is undermining of his credibility and reinforces the second credibility issue. In addition, it is undermining of the probity of the hospital report.
Fourthly, it is implausible that Nigerian police would decline to investigate multiple assaults perpetrated against the applicant for the reasons put forward by the applicant. The applicant has indicated and confirmed in the hearing that police refused to investigate when he made approximately three approaches to them because they said they could not investigate action taken in respect of customary law.
The Tribunal has difficulty accepting that police would decline to investigate multiple assaults on these grounds, at least without further investigation. The applicant’s evidence in this respect does not have a ring of truth.
Fifthly, independent evidence in terms of the applicant’s claims to have been slated as a priest in a religious group in Nigeria, including in the Ogboni Fraternity, is not corroborated by independent evidence.
The Tribunal noted to the applicant that independent evidence cited in the delegate’s decision (footnote 17) quotes a professor who indicates that he has never heard of the priesthood being forced on anyone in Nigeria. It is indicated that the shrine would want the successor to have an interest and aptitude for the role.
The Tribunal also noted to the applicant independent information extracted in this decision from the Refugee Board of Canada indicating that the Ogboni has declined in influence in past decades and that its activities are now not significant. Sources indicate that membership is voluntary. One professor indicates that he has never heard of cases in which a person was forced to take up an inherited position. There are some reports of individuals being harassed for not joining the group, but these are limited and anecdotal. The Canadian High Commission in Nigeria had no knowledge deemed credible of ongoing or recent cases of targeting or killing of Nigerians by the Ogboni.
The Tribunal put to the applicant that all of this independent information was undermining of his claims. In response, the applicant indicates that the independent information is not accurate.
The Tribunal takes a contrary position and considers the independent information referred to as probative. It is undermining of the applicant’s claims as to him being slated to be a priest against his will without his consent or prior involvement. The independent evidence reinforces the other more direct credibility concerns identified.
Before considering these credibility concerns, the Tribunal notes the following.
The Departmental file contains a Certificate and Notification issued under s 438 of the Act restricting the disclosure of certain information on the file on the basis that the documents disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
The Tribunal put to the applicant adverse information contained in the relevant documents pursuant to the procedural requirements of s 424AA of the Act. The Tribunal put to the applicant that the information refers to a report to the Department by an individual who claims to be a friend of the applicant indicating that he had made a fake asylum claim in order to obtain a bridging visa and then cohabit and marry an Australian for visa purposes. It indicates that the applicant has now entered into a paid marriage with an individual. The Tribunal noted that this information is relevant because it is potentially undermining as to his credibility in relation to his claims for protection. The consequence of relying on this information is that it could be a factor involved in determining that the applicant does not face serious significant harm on return to Nigeria for the reasons claimed.
The Tribunal noted to the applicant that he had the ability to challenge the validity of the non-disclosure certificate. The applicant did not do this.
In terms of a substantive response, it was indicated to the applicant that he had the option of responding in the hearing or could respond later in writing. The applicant responded orally and denied that he had made a false asylum claim or had entered into a paid fake marriage. He indicated that he does have an Australian citizen partner but it is a genuine relationship and they have a child together.
The Tribunal indicated to the applicant that it had no ability to question the person who made this allegation and therefore would not give the adverse information any significant weight. The Tribunal does not give this adverse information any significant weight.
However, the Tribunal considers that the cumulative impact of the five credibility concerns identified are seriously undermining of the applicant’s credibility. When the Tribunal put to the applicant the negative cumulative impact of the credibility concerns, the applicant referred to memory difficulties due to the passage of time. The Tribunal is not satisfied that memory difficulties explain a number of the credibility issues identified. The Tribunal does not think that the applicant would not remember or be confused in relation to the first three credibility issues identified.
The Tribunal has taken into account the recent supporting document provided dated 7 July 2019 on letterhead of [Fraternity 1]. The Tribunal discussed this document in the hearing. The applicant indicated that it was sent to his mother but has only recently been sent to him. The Tribunal indicated to the applicant that this is inconsistent with his indication when providing the document that he had lost possession of it and found it in his archive. The applicant maintained that it was with his mother and only sent recently.
The Tribunal indicated to the applicant that it had difficulty accepting the genuineness of this document. It referred to the implausibility of an individual or organisation that had intended to inflict serious and significant harm on him providing a written document identifying itself and threatening him. This would readily enable the culprits of attacks to be identified by authorities. The applicant maintained the genuineness of the document.
The Tribunal also has plausibility concerns about whether this document would be sent to the applicant’s mother 16 months after the applicant had left the country.
The Tribunal is not satisfied in the circumstances, and taking into account other credibility concerns identified, that the document is genuine.
The Tribunal, considering as a whole the credibility concerns, does not consider that the applicant has been a truthful or credible witness.
The Tribunal is not satisfied that the applicant was slated to be a priest, which he declined, resulting in the harm claimed. The Tribunal is not satisfied that the applicant was threatened, assaulted or had property damaged on any occasion as a result of not agreeing to take up the position of priest. The Tribunal is not satisfied that there are groups or individuals in Nigeria who have an ongoing adverse interest in the applicant for the reasons claimed.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5(J) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk of him suffering significant harm.
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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

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

[2022] AATA 3256

19 July 2022

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