1818739 (Refugee)
[2023] AATA 1352
•26 March 2023
1818739 (Refugee) [2023] AATA 1352 (26 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Prisca Eboh (MARN: 1687932)
CASE NUMBER: 1818739
COUNTRY OF REFERENCE: Nigeria
MEMBER:Damian Creedon
DATE:26 March 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 26 March 2023 at 3:47pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – member of nationalist separatist group – fear of harm from police and military – campaign and protest activities – one protest met with tear gas and live gunfire, and group members killed – house raided – no harm to family members – consistent but uncorroborated claims and evidence, with some doubts about veracity – continuing membership of Australian branch – country information – group proscribed as terrorist organisation – repression of human rights and armed operations – state protection or relocation not available – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam [1999] FCA 719
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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 27 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a [Age]-year-old citizen of Nigeria, applied for the visa on 23 November 2017.
The applicant first arrived in Australia [in] July 2013 as the holder of a Student (TU572) visa granted on 27 June 2013 and ceased on 9 July 2015. The applicant was granted a further Student (TU572) visa on 9 July 2015 which remained valid until 20 May 2017. He is presently onshore holding a bridging visa pending the outcome of his application for a Protection visa.
Protection visa application.
The applicant’s written claims for protection are set out in his Protection visa application. They may be summarised as follows:
a.The applicant claims that he is a member of Indigenous People of Biafra (IPOB). The Nigerian Military and police are after all IPOB members.
b.His house was raided by men believed to be secret agents of the government.
c.In September 2017 a lot of IPOB members were killed.
d.There was an attempt on his life when he returned from Australia in March 2017.
e.His wife’s life is in danger in Nigeria because she threatened to expose a Migration Agent in Nigeria who created bogus documents for her migration application.
f.He fears arrest, torture, extra-judicial killing, and death through other means if he returns to Nigeria
The applicant participated in an interview with the delegate of the Minister on 20 March 2018; the material aspects of the interview may be summarised as follows:
a.The applicant confirmed his name and date of birth; he stated that he was born in Umuahia, Abia State, Nigeria; he stated that he is a Christian; and that his ethnic group is Igbo.
b.The applicant confirmed that he is [an Occupation], although he was not working at that time in view of his (then) visa conditions.
c.The applicant confirmed that he is married and that his wife’s name is [Ms A]; the couple have [children]. The applicant’s wife and children are resident in Nigeria.
d.The applicant is not a citizen of any other country.
e.The applicant provided several documents to the officer conducting the interview and spoke to them.
f.The applicant stated that he is a member of IPOB.[1] He described IPOB as a “non-violent pressure group”.
[1] The “Indigenous People of Biafra”.
g.The applicant stated that he became a member of IPOB in 2012 but was not issued with an identity card until 2015 when he returned to Nigeria.
h.The applicant stated that his wife is not a member of IPOB but is in support of their aims.
i.Of the applicant’s extended family, a cousin and an uncle are IPOB members. He stated that his stepbrother is also a member of IPOB, although not an active one – he supports the group’s aim. That applicant has a stepmother. The applicant’s biological mother and his father are both deceased. He has two other stepbrothers and one stepsister.
j.The applicant agreed with the proposition that he was an “active member” of IPOB prior to his coming onshore.
k.When asked what activities he undertook as an “active member” of IPOB, the applicant stated:
Sensitisation and mobilisation of other people to join the group in championing our cause to be free…
l.When pressed as to his specific actions, the applicant stated that “we” carry placards, and go out into the community to “sensitise” people to the need to have a republic. He stated that he engaged in these activities “sometimes” once a week, “sometimes” once a fortnight, “sometimes” twice a fortnight.
m.The applicant stated that these activities were not restricted to his community, but that at “we got busses and moved around”.
n.When asked what the reaction of the authorities was to these activities, the applicant stated:
[They] tried to stop us with tear gas and shooting live with bullets.
o.The applicant stated that when in close quarters the authorities would use “pepper spray” but would shoot at the group when at a distance.
p.When pressed the applicant stated that this was carried out by “the police, the army and the secret agents”.
q.When pressed as to a specific event, the applicant stated that [in] March 2017 he went out IPOB group from Umuahia, Abia State, for a rally in neighbouring states. He stated that the police and “secret agents” tried to stop them, but that they used “alternative routes” to engaged in “sensitisation”. He stated that nonetheless “they” came and “started shooting”, killing and maiming “a lot or people”. He stated that he was among a group that ran and escaped. When pressed the applicant stated that “about seven people died”.
r.The applicant stated that IPOB members do not carry arms, that they are not armed at all; he stated that they are “just a pressure group”. They carry no weapons.
s.The applicant confirmed that his house in Nigeria was “raided” [in] November 2016. The applicant stated that he was onshore at this time. When pressed as to what happened during this incident, the applicant stated:
They came in, they were searching for me, but I wasn’t there; so they opened the ceiling to come in and that came in, asking after me, they couldn’t see me so they left in annoyance.
t.The applicant stated that his wife and two of his children were the house when this happened. The applicant confirmed that his wife was not harmed, but her phone was taken, as well as “some other valuable things”. The applicant stated that his wife was asked where he (the applicant) was, but that nothing else was said. She stated that he was not there, but that they are free to search. They also asked for money; they took a small amount and “some jewellery”. The men did not identify themselves.
u.The applicant’s wife is now living with her father as this incident caused her to fear for her safety. [A number] of his sons are at boarding school, but the remaining [children] are living with her. His wife checks the house regularly.
v.When pressed, the applicant stated that “secret agents” working with “insurgents” and the police tried to harm him while he was in Nigeria as a consequence of the rally he attended in March 2016; he stated:
They chased me around to harm me, but I ran.
w.The applicant stated that after the rally was disbursed, he was “hiding in the bush” with some members. The applicant did not go home after the rally but received an email from his brother warning him to leave Nigeria. He accessed the email from his phone. His brother had tried to call him, but his phone was off at the time of the call.
x.When pressed as to why the agents did not arrest people at the rally, the applicant stated his view that their aim at that time was to disburse the rally, minimising negative media reaction, and then to arrest “members” afterwards.
y.When asked how the authorities can identify members, the applicant stated that “someone” must have provided the details to the “secret agents”. The applicant stated his belief that the authorities would attend his house to try to arrest him on account of his membership of IPOB.
z.When pressed as to why the authorities were looking for him in particular, the applicant stated:
They were looking for me to arrest me, and then to torture me, because that it what they do.
aa.The applicant stated the government agents would do this based solely upon his membership of IPOB.
bb.When asked how, if he was regarded as worthy of arrest by the government or its agents, he obtained a new passport, the applicant stated that there was no such “database” in Nigeria, and the authorities were not aware of his intentions to leave Nigeria. But, he stated, if there had been such a database, he would not have been able to obtain a passport.
cc.The applicant stated that he is fearful of returning to Nigeria as being a known member of IPOB; he stated that he fears being arrested and tortured.
dd.When asked why he was not afraid of arrest on account of membership of IPOB between 2012 and 2017, the applicant stated over time the government authorities changed their attitude to IPOB and that they started to “clamp down”. There was no issue in 2012, but things escalated from 2015 when the group began to raise its profile, particularly in western countries.
ee.The applicant stated that the Federal High Court prescribed IPOB as a “terrorist organisation” and that extra-judicial killings took place as a consequence.
ff.The applicant stated that his wife lives in fear, but that his siblings have no problems. His brother who is an “inactive member” does not live in fear.
gg.When asked whether, if he returned to Nigeria, he would be an active or inactive member of IPOB, the applicant stated.
If I have to return now, I wouldn’t be alive to be a member.
hh.When pressed as to his personal intentions, the applicant stated that if he returned, he would be an “active” member of IPOB.
ii.When asked who it was that he feared in Nigeria, the applicant stated that “secret agents”, because they cannot be identified, as well as the police and the army.
jj.When asked what he believed would happen to him if he returned to Nigeria, the applicant stated that he would be subjected to harm and torture which may lead to death.
kk.The applicant stated his belief that “civilians” would inform the authorities that he had returned to Nigeria. The applicant stated that it was not possible for him to live in other areas of Nigeria, as he would be tracked down.
The delegate refused to grant the visa on 13 June 2018 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision on 27 June 2018.
Application for review
The applicant appeared before the Tribunal on 21 March 2023 to give evidence and present arguments. The applicant was represented in relation to the review.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicant claims to fear violence in Nigeria on account of his Igbo ethnicity and his actual and perceived political opinions as an active member of the IPOB. It is convenient to outline the relevant country information available to the Tribunal before considering the applicant’s evidence.
Country information
The Biafran War and the establishment of separatist groups in Nigeria
In understanding the current situation in Nigeria, it is necessary to explain the background to the relationship between Igbo and other tribes, which has, as its modern centre-point, the Biafran war. An authoritative summary of the history of this relationship from the mid-20th Century to the present is to be found in a report under the hand of five United Nations Special Rapporteurs presented United Nations Human Rights Commission on 1 October 2020 (pp.2-6, references omitted):[2]
[2] Mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; and the Special Rapporteur on minority issues, 1 October 2020, < to the information received:
Historical Background
On 6 July 1967, seven years after Nigeria gained its independence, the Nigeria-Biafra War, also known as the Nigerian civil war, began shortly after the Eastern Region of Nigeria had declared its independence from Nigeria on 30 May 1967. The Federal Government responded to the attempted secession with a partial military operation. This marked the beginning of a conflict that would claim the lives of between one and three million individuals, most of whom died of famine and disease. The war ended in January 1970 with the surrender of the armed forces of the short-lived “Biafran” government.
In recent decades, there has been a growing revival of support for independence in the majority-Christian south-east of Nigeria. This phenomenon appears largely driven by a younger generation made up of people who were born long after the conflict ended, but who nevertheless articulate disillusionment related to a perceived sense of economic disenfranchisement and political marginalisation.
In 1999, shortly after end of Nigeria's period of military rule, the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) was formed. MASSOB is a secessionist organization which supports the reestablishment of the Biafran state through peaceful means. MASSOB was reportedly banned in 2001 and its leader was imprisoned in 2005 on charges of treason.
Around 2012, IPOB emerged as a splinter group from MASSOB. By 2015, IPOB had risen to regional prominence as the leading force of Igbo minority-led agitation for a sovereign state in the south-east. Although it focused on carrying out peaceful actions to this end, with a particular emphasis on media messaging and political protests, its rhetoric is reportedly more militant than its predecessor. In particular, it appears that IPOB has pushed and promoted the demand for independence through the use of radio stations, most notably Radio Biafra, which broadcasts daily anti-Abuja and “pro-Biafra” programmes in English and the Igbo language, and by staging numerous protests and other public gatherings. IPOB grew rapidly to become the largest Biafran independence organization by membership.
We understand that IPOB rallies were initially authorized to take place, but from September 2015 onwards this was no longer the case as Nigerian authorities began alluding to IPOB and its activities as a threat to the security of Nigeria.
On 14 October 2015, the leader of IPOB was arrested in Lagos on charges of criminal conspiracy and treason. He was accused of inciting hatred, threatening state security, and mobilizing for secession. Following his arrest, it appears that regional tensions heightened significantly and there was a marked increase in the number of protests and demonstrations in the south-east of Nigeria. Despite the fact that most IPOB protests and gatherings that we have received reports of were largely non-violent, Nigerian Security Forces (NSF) reportedly violently broke up scores of IPOB or “pro-Biafra” rallies and meetings, killing and arresting dozens of their participants. Between 2015 and 2016, it is alleged that law enforcement officials killed at least 100 IPOB members in different public events in Aba (Abia State), and Awka and Onitsha (Anambra State). On 29 and 30 May 2016, during a demonstration, the Nigerian military opened fire on IPOB members and bystanders in Onitsha. It is alleged that at least 60 persons were killed and over 70 injured, many of whom were reportedly shot in the back.
On 28 April 2017, following a long series of demonstrations across major cities in the south-east, IPOB’s leader was released. Nevertheless, IPOB continued to stage many rallies and public protests, and allegedly established a self-defence arm.
Designation of IPOB as a terrorist group
On 15 September 2017, the Director of Defence Information of the Nigerian military stated that “the Armed Forces of Nigeria (...) confirm to the general public that IPOB from all intents, plans and purposes, as analysed, is a militant terrorist organization” and warned “unsuspecting” Nigerians to desist from joining the group.
On 18 September 2017, the Nigerian President issued a presidential proclamation calling for IPOB to be proscribed as a terrorist organisation, in accordance with the procedure established by the Terrorism (Prevention) Act 2011 as amended by the Terrorism (Prevention) (Amendment) Act, 2013.
On 20 September 2017, the Attorney General and Minister of Justice made an ex parte application in the Nigerian Federal High Court of Abuja calling for the proscription of IPOB as a terrorist organization. Specifically, the application called for the following orders to be granted: (1) declaring the activities of IPOB in Nigeria, and especially in the south-east, as tantamount to terrorism and illegal; (2) proscribing the continued existence of the IPOB, in group or as individuals; and (3) proscribing participation of any individual in any activities in furtherance of the IPOB’s collective intent. The Court granted the injunctions.
On the same day, IPOB lawyers filed an application challenging the initiative.
On 21 September 2017 a Federal High Court in Abuja made the ex parte order judicially designating IPOB a an illegal and terrorist organisation and ordering its proscription as such.
Based on the order of the Federal High Court, the Federal Ministry of Justice then published the Terrorism (Prevention) (Proscription Order) Notice, 2017 in Volume 104 of the Official Gazette of the Federal Republic of Nigeria, which gave effect to the order of the Federal High Court and officially proscribed IPOB as a terrorist organization. The Proscription Order Notice stated that: “the General Public is hereby warned that any person or group of persons participating in any manner whatsoever in any form of activities involving or concerning the prosecution of the collective intentions or otherwise of the said groups will be violating the provisions of the Terrorism (Prevention) Act 2011, as amended in 2013.
On 14 December 2017, IPOB lawyers filed a complaint to the African Court of Human and People’s Rights (ACHPR) in respect of the designation and called on the body to make a request for provisional measures to be implemented by Nigeria.
On 18 January 2018, the domestic application filed by IPOB challenging the 20 September 2017 ex-parte order declaring it a terrorist organization was dismissed by the judge, reportedly on the basis that the affidavit evidence filed by the Attorney-General proved that the existence of IPOB constituted a threat to national security.
On 8 March 2018, the ACHPR sent a letter to the President of Nigeria. It noted in particular its Resolution on the Protection of Human Rights and the Rule of Law in the Fight Against Terrorism, which called on States to “ensure that the measures taken to combat terrorism fully comply with their obligations under the African Charter... and other international human rights treaties”. The ACHPR also stated that, if confirmed, the designation would “constitute a gross violation of articles 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 14, 19, 20” of the African Charter. In its decision on seizure it further noted that the complaint reveals ‘prima facie’ violation of the African Charter.
Consequently, the ACHPR called on the Nigerian President to intervene and ensure that the Government of Nigeria adopts Provisional Measures and not take any further action. The Nigerian Government was also asked to report back on the implementation of the provisional measures within 15 days of the receipt of the decision on seizure.15 We have received no indications that the Government has responded to the Commission or complied with its requests.
On the contrary, there have been increasing reports that IPOB’s proscription has led to a rise in alleged violations of the rights of IPOB supporters and members of the Igbo minority These have allegedly included arbitrary arrests and detention, torture and ill-treatment, enforced disappearances and threats to life, as well as extrajudicial killings. As all IPOB activities were declared illegal, and can lead to arrest and prosecution, several members of IPOB have been charged with treason, which is punishable by the death penalty.
Consequences of the proscription on freedoms of peaceful assembly and of expression
Since the proscription, pre-existing restrictions in relation to expressions of support for regional independence reportedly harshened and, in some cases, became legally rooted on the proscription order of IPOB as a terrorist group. In particular, we have received numerous reports of instances where the possession or displaying of IPOB or “Biafran” flags and insignia during public protests or gatherings resulted in arrests and criminal charges for terrorist offences.
On 6 April 2018, three individuals were reportedly charged at the Federal High Court of Nigeria for “possessing and having displayed flags bearing IPOB (a proscribed organization), thereby committing an offence under s.33(1)(a) of the Terrorism (Prevention) Act Laws of the Federation 2011; and for belonging or professing to belong to a proscribed organisation (s.2(3)(i) of the same Act)”.
On 23 May 2018, during a MASSOB rally, at least 50 individuals were allegedly arrested for having displayed insignia of a terrorist organisation and wearing army fatigues. On May 2019, 140 members of IPOB were reportedly arrested in Nsukka, Enugu State for displaying banned insignia during an unlawful procession.
We have also received reports of attacks on funerals and religious events attended by IPOB members. For instance, on 7 April 2018, after an IPOB member’s funeral, the NSF reportedly violently dispersed the crowd and 40 IPOB members allegedly went missing. On 12 December 2018, the NSF arbitrarily arrested 51 IPOB demonstrators in Aba during a peaceful religious protest. On 14 September 2019, the NSF allegedly surrounded more than 45 IPOB members and supporters on their way to a funeral before physically attacking them. The last attack was captured on film, which allegedly contains footage of the victims being labelled as ‘runaway IPOB terrorists’, and being told to denounce their “Biafran” identity by the security agents.
Without prejudging the accuracy of these allegations, we are deeply concerned by what appear to be disproportionate violations of fundamental rights and freedoms against supporters of “Biafran” independence and some members of the Igbo minority. In particular, we express our most serious alarm about allegations of severe violations to the right to life by Nigerian security forces in the context of the numerous demonstrations and public events organised or attended by “pro-Biafran” organisations or supporters since 2015, as well as instances of arrests and detentions of several individuals who allegedly organised, attended, or reported on these public gatherings.
…
In this regard, we are particularly concerned by the designation of IPOB as a terrorist organization and allegations that its leaders, supporters, sympathisers, and even some individuals who had merely displayed its symbols have been arrested and appear to have been charged as “terrorists” on occasion. While recognizing the rise of regional tensions, as well as a range of challenging political claims advanced by IPOB, we nonetheless warn against the categorization of uncomfortable or challenging political speech as terrorism. We respectfully advance our views that the human rights implications of this proscription are considerable and not in compliance with international human rights law binding on Nigeria, or with best practice in relation to counter-terrorism strategies.
[Bold text in original; Tribunal’s underlining]
The historical observations of the Special Rapporteurs have also been noted by other commentators. For example, A C LeVan comments, in Contemporary Nigerian Politics: Competition in a Time of Transition and Terror (Cambridge University Press, 2019), at p189:
… in the initial years of the Fourth Republic, news accounts and political rhetoric editorialized about the broader consequences of such economic and social marginalization. In 2000, the House of Representatives passed a vote of no confidence on the Minister of Works and Housing for the failure to repair a critical expressway linking Enugu to the Niger Delta. Over the four-year period of a Petroleum Trust Funds Road rehabilitation project, it repaired only 5.3 per cent of the roads in the south-east. Perhaps most sensitively, none of the military service chiefs were Igbo at the time. ‘The marginalisation of the Igbo has been complete,’ said a prominent chief. The next year, Senator Chuba Okadigbo pointed out that the south-east held the smallest share in the 2001 budget out of the six geopolitical zones.
By implementing a core element of the 1999’s pact, the transition – arguably unintentionally – validated a postwar Igbo narrative of economic and political marginalisation. As one news account put it in 2006, Igbos seemed content as ‘appendages to power – whether as vice president, Senate President, Speaker of the House of Representatives, Director General of this and Advisor that. They are ever so near; yet always so far away’. The PDP’s corrupt party convention in 1999 in Plateau State generated continuity with these lingering Igbo resentments, fanning new flames of secession with [two secessionist movements, the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra movement (IPOB)].
The period of military rule in Nigeria saw dissent very much muted but, since the return to civilian rule in 1999, that has changed. I Johnson and A Olaniyan note, in “The Politics of Renewed Quest for a Biafra Republic in Nigeria (2017) 33(4) Defence and Security Analysis:
During the long years of military rule, the agitation was muted, buried in the mind and expressed through intellectual engagements. Since the return of democracy, however, it has assumed a violent dimension. Since 2015, it has assumed dangerous proportions.
…
It is important to emphasise that during the Jonathan Presidency, the South-East was not only well represented in the composition of both executive and legislative positions, compared with the South West, it was also given what is generally regarded as critical portfolios, such as Minister of Finance/Coordinating Minister for the Economy was given to the South-East, Health, Labor, Aviation, Petroleum and Chief of Army Staff. Thus, it can be argued that the Igbo were in the inner recess of power at the central level from 2011 to 2015. However, following the defeat of Jonathan in the 2015 elections and the assumption of office by Muhammadu Buhari, secession threats and violence have increased, resulting in the loss of lives and destruction of properties.
LeVan argues that the government’s harsh response to secessionist bodies is breeding a greater interest in Igbo rights and independence among Igbo who had, previously, been moderate supporters of such ideals. After discussing MASSOB’s “large non-violent protests being met with state repression” and the military having “unilaterally declared IPOB a terrorist organization” in late 2017 (forcing the government to deny that the military had any such power) he explains, at p192:
…in late 2017, harsh military tactics escalated with “Operation Python 2”, unleashing a new wave of harassment and violence across the east (shortly after field research for this book was conducted). IPOB technically remains a legal association, but the police proceeded as if the Senate President’s clarification on IPOB never occurred.
…
[The Igbo organisation] Ohanaeze’s President General underscores the counter-productivity of President Buhari’s over-militarized response to peaceful protest. ‘He has really created a mountain out of a mole hill. He has given cannon fodder to MASSOB and IPOB…. He has alienated the vast majority of the people who think restructuring is the way’.
The repression of secessionists, such as MASSOB and IPOB, is also noted by other commentators. By 2017, Amnesty International had documented the murder of more than 150 peaceful demonstrators by the military in 2016–2017 and was compelled to urge restraint by the government. In Nigeria: Security Forces Must Avoid Repression of Biafra Day Protests (30 May 2017), it reported:
The Nigerian security forces must exercise restraint when policing demonstrations marking the 50th Anniversary of the end of the Biafra War on 30 May, and avoid a repetition of the bloodbath caused by their heavy-handed response last year when more than 60 people were gunned down, said Amnesty International today.
‘Last year’s heavy-handed response against pro-Biafra activists further stirred up tensions in the south east of Nigeria. The reckless approach to crowd control favoured by the security forces when policing peaceful pro-Biafra protests has left more than 150 dead since August 2015, not to mention cases of enforced disappearance and unlawful detention,’ said Osai Ojigho, Director of Amnesty International Nigeria.
The Nigerian government’s “heavy” response to Igbo demands has, it has been argued, simply fed into the Igbo narrative of discrimination and resentment. As M Friedman and P Kenney observe, in Partisan Histories: the Past in Contemporary Global Politics (Palgrave Macmillan, 2005) at p157:
Igbo historical narratives are driven by the civil war and its aftermath. The prewar years are treated as ones of persecution, and the postwar years as those of marginalization. The ‘theory’ behind the data is clear and simple: the Igbo are great achievers, envied by other groups who do not want them to make additional progress. There is ‘messianism’ in the storyline: if other Nigerian groups cooperate with them, they have the skills and talents to develop the entire country, in all aspects, from the economic to the technological. The storyline itself is that after the civil war, the Igbo have been abandoned by the federal government – the reconciliation and reconstruction that they were promised have not been fulfilled. A catalogue of woes is presented: deliberate ‘acts of vendetta’, a high rate of joblessness, financial losses, the failure to recover ‘abandoned houses’ in some parts of the country, inadequate representation in federal positions, and many others.
[Tribunal’s emphasis]
The Buhari regime and human rights
The historical backdrop of simmering, and recently resurgent, Igbo grievances and the harsh repression of anything resembling secessionist calls, must also be seen in the context of the election of a Muslim president from the north in 2015.
As noted by the Special Rapporteurs, respect for human rights does not appear to be a feature of the Buhari regime. Notable, for the purposes of this application, is the rising repression of a free and liberal media and freedom of speech, against a backdrop of wider human rights violations. As D Searcey notes, in “Muhammadu Buhari Wins Second Term as Nigeria’s President” New York Times (26 February 2019):
Mr. Buhari also had promised to crack down on human rights abuses, but reports of impunity are a regular feature of Nigerian life. Security forces have opened fire on unarmed protesters on several occasions, with high body counts. Rapes by security forces of women and teenagers in camps for people fleeing war have gone uninvestigated.
Mr. Buhari’s armed forces also stormed the main office of a major newspaper in January, seizing laptops and cellphones. His campaign adviser indicated in an interview on Tuesday that Africa’s largest democracy may face further clampdowns.
‘The right to free speech must be subordinated and subjugated to the right to national security,’ said Babatunde Fashola, who is also the minister of power, works and housing.
[Tribunal’s emphasis.]
Amnesty International is also aware of a tightening of control over the media under Buhari. In its annual report, Amnesty International Report 2017/18 – The State of the World's Human Rights – Nigeria (22 February 2018), it advises
FREEDOM OF EXPRESSION
Journalists were harassed, intimidated and arrested. On 19 January [2017], police raided the offices of Premium Times and arrested publisher Dapo Olorunyomi and correspondent Evelyn Okakwu for several hours, after the Chief of Army Staff accused the newspaper of offensive publications. On 19 April [2017], Kaduna state police arrested and detained Midat Joseph, a journalist with Leadership newspaper, for a WhatsApp comment. He was taken to court the next day on charges of criminal conspiracy, inciting disturbance and injurious falsehood. On 31 July [2017], the court dismissed the case on grounds of lack of diligent prosecution. On 19 September [2017], the Katsina state police arrested three bloggers, Jamil Mabai, Bashir Dauda and Umar Faruq, for criticizing the Governor. Bashir Dauda and Umar Faruq were released after one week and Jamil Mabai was detained for 22 days. On 27 October [2017], Audu Maikori, who was arrested for publishing false information online, was awarded 40 million naira (USD112,700) in compensation for unlawful arrest and detention.
Similarly, Freedom House noted, in its Freedom in the World 2018 – Nigeria (published January 2018, in respect of the 2017 year):
D1. Are there free and independent media? 2/4
Freedoms of speech, expression, and the press are constitutionally guaranteed. However, these rights are limited by laws on sedition, criminal defamation, and publication of false news…. Government officials also restrict press freedom by publicly criticizing, harassing, and arresting journalists, especially when they cover corruption scandals, human rights violations, or separatist and communal violence. In September 2017, soldiers participating in a military exercise dubbed Operation Python Dance in Umuahia, Abia State, allegedly entered the offices of the Nigerian Union of Journalists, assaulted journalists, and destroyed their equipment; the soldiers accused the journalists of taking pictures of the exercise without authorization.
…
D4. Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution? 3/4
Nigerians are generally free to engage in discussions on politics and other topics, though expression of critical views on political leaders or sensitive subjects like the military, religion, and ethnicity occasionally leads to arrests or violent reprisals. In August 2017, the military said it had begun monitoring social media for content that amounted to hate speech or undermined the government, the military, or national security.
The Igbo population
The Department of Foreign Affairs and Trade (DFAT), in its report, Country information report: Nigeria (updated 3 December 2020) (DFAT Report) (section 3.8-3.10) stated:
Despite … moves to encourage greater national unity, there has never been a national reckoning or dialogue in relation to the issues that led to the Biafra conflict, which is not officially commemorated. According to observers, many in the southeast report feeling ongoing resentment at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation in national life. Such feelings have reportedly grown stronger in the years since President Buhari came to power, with many of his major political and military appointments tending to favour individuals from the north. As a result, in recent years there has been a noticeable resurgence of calls from the southeast for greater self-determination in the form of an independent Biafran state.
The DFAT Report (section 3.8-3.10) also stated:
There are no legal provisions targeting the Igbo population in Nigeria and the Igbo, like all Nigerians, are able to move freely within Nigeria. Many Igbo have migrated to other areas of Nigeria, including northern states. Like other non-indigenous communities, Igbo residing in these areas have occasionally faced discrimination from locals… DFAT is not aware of any other significant cases in which Igbo have been specifically targeted for violence or exclusion due to their ethnicity.
…Senior Igbo figures have claimed successive Nigerian governments, including the Buhari administration, have subsequently excluded Igbo from senior political, military and civil service positions. A number of political organisations continue to advocate for an independent Biafran state and have occasionally clashed with security authorities.
[Tribunal’s emphasis]
DFAT concluded (section 3.10):
… Igbo are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria. Like other non-indigenous communities, Igbo residing outside of their traditional homeland may face localised discrimination.
[Tribunal’s emphasis]
The IPOB and other separatist groups
The DFAT Report notes (section 3.48):
While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.
The United Kingdom Home Office (UKHO) in its report, Country Policy and Information Note Nigeria: Separatist groups in the South-East (March 2022), advises (section 5.1.5, 8.2.1-8.2.4, references omitted):
Country information included in the EASO Country Guidance for Nigeria of October 2021, based on material in EASO’s COI reports, stated: ‘…Since August 2020 violence between IPOB and the Nigerian security forces has escalated. IPOB’s paramilitary wing, the Eastern Security Network (ESN) has engaged in armed clashes with Nigerian state forces… Both organisations claim to be non-violent and aim to reach secession through referendum. They mostly engage in awareness-raising activities, marches, and other gatherings. However, the leader of IPOB has reportedly endorsed violence as means for resuscitating Biafra.
…
Country information included in the EASO Country Guidance stated: ‘In 2017, the Nigerian authorities declared IPOB a terrorist organisation.’
AfricaNews in January 2018 stated that, ‘A court in Nigeria’s capital, Abuja, has upheld an earlier ruling that pro-secessionist group, Indigenous People of Biafra (IPOB), is a terrorist group. The court presided over by Justice Abdul Kafarati ruled that the Attorney General of the Federation had used proper legal processes to apply for IPOB’s proscription in September 2017.’
The EASO Targeting of individuals report of November 2018 citing several media news sources stated:
‘After the crackdown [August 2015 and August 2016] in which the army killed and arrested an unknown number of IPOB members, the military, endorsed by the federal government, banned IPOB and declared it a terrorist organisation. This declaration was not supported by many Nigerians and international observers such as the EU and the US, as the Chatham House article noted. It was stated that “IPOB supporters are not known to be violent and that the protests have been largely peaceful”.’
Human Rights Watch in their World Report 2019, Nigeria: Events of 2018 stated: ‘In a letter to President Buhari in March, the African Commission on Human and Peoples’ Rights (ACHPR) declared the government’s proscription of IPOB as a terrorist group and attacks against its members as prima facie violation of the African Charter on Human and People’s Rights. In April, Nigeria’s sixth periodic report on the implementation of the charter was considered at the ACHPR’s 62nd Ordinary Session in Mauritania.’
The UKHO further notes (section 8.5.2-8.5.5, references omitted):
Today.ng reported in December 2019 that: ‘The Police command in Anambra have confirmed the death of two police officers, allegedly attacked and shot by suspected members of the proscribed Indigenous People of Biafra (IPOB) at Oraifite in Ekwusigo council area of the state.’
Pulse, a Nigerian news website, in October 2020 stated: ‘A total of seven members of the group [IPOB] have now been killed since the #Endsars protest started in the state.
‘Some IPOB members were reported to have engaged in a shoot-out with a joint security team comprising soldiers and police deployed to quell their activities at some flashpoints in the state.’
Premium Times news website in October 2020 reported:
‘The police in Rivers State have accused members of the pro-Biafra group, Indigenous People of Biafra, (IPOB), of hiding under the #EndSARS protests to kill three police officers in the state…
‘Mr Mukan said IPOB invaded Oyigbo local government area on October 21, launched “senseless and mindless attacks on the area command, Oyigbo and Afam police stations, and burnt down the three stations.”
‘He said, “They also went to the adjoining Eberi-Omuma local government area, where they attacked the Umuebulu police station.
‘“In all the attacks, several vehicles were burnt and three policemen were hacked to death and burnt to ashes.”
‘Mr Mukan said the IPOB members also attempted to burn down Mile One police station the same day, but were repelled by the police.
‘Four of the IPOB members were killed, while eight of them were arrested during the attack, Mr Mukan said.
‘The police chief, who paraded the suspects before journalists, said 21 people have been arrested so far in the state.
‘He began his address to reporters by saying that his heart was heavy because of the attacks on public and private property in the state. He, however, said there was “relative peace” in Oyigbo, which is still under curfew imposed by the Rivers State government.
‘The Rivers State governor, Nyesom Wike, on Friday declared one Stanley Mgbere, said to be a leader of IPOB in the state, wanted over the violence in Oyigbo.
‘The governor announced a N50 million reward to anyone with information that could lead to the arrest and prosecution of Mr Mgbere.
‘IPOB, which wants an independent Biafra country, has been proscribed by the Nigerian government which labels it a terrorist organisation. The group, however, says it wants to achieve its goal in a peaceful manner and through a referendum.’
Janes noted that on‘20 October 2020 – ‘In Oyigbo, Rivers state, six soldiers were killed by Indigenous People of Biafra (IPOB) militants in an unspecified attack. The report added that 50 unspecified weapons were stolen by the militants during the attack.’ Janes added that on‘2 November 2020 - In Rivers State … [IPOB] militants had allegedly been involved in an attack during which 10 security force personnel were killed in the town of Oyigbo in the same state in separate attacks on 20 October and on an unspecified earlier date.
BBC News in a November 2020 article reported:
‘Nigerian security forces are carrying out extrajudicial killings in Oyigbo, say residents of the town in southern Rivers state.
‘They accuse the army of carrying out revenge killings after authorities said three policemen and six soldiers were killed by members of a proscribed separatist group.
‘Amnesty International also said it had received reports that "soldiers are allegedly invading homes" and that "some residents reported seeing dead bodies on the street, allegedly shot by soldiers" [see Amnesty International Nigeria Facebook post of November 2020].
‘Monday Bakor, 36, told BBC Igbo that police officers shot dead his fiancée Queen Nwazuo on 22 October [2020] while they were both locking up their barbing salon…
‘Police spokesman Nnamdi Omoni told the BBC that no report had been made of the incident.
‘Mr Bakor said he could not do this because of a 24-hour curfew in the area and pointed out the closest police stations had been burnt down…
‘Authorities say members of the Indigenous People of Biafra - Ipob, proscribed as a terrorist organisation in 2017 by Nigeria's federal government - targeted security operatives in Oyigbo as tensions spilled over following the #EndSars protests against police brutality in the country…
‘Two police stations and a hospital in the area were burned on 21 October as widespread mayhem erupted after protesters against police brutality were shot at the Lekki toll gate in Lagos.
‘Encouraged by their leader Nnamdi Kanu, Ipob members are accused of attacking security operatives in eastern Nigeria.
‘Clashes with the army in Abia state spilled over into the neighbouring Oyigbo town in Rivers state.
‘Ipob activists are accused of burning down three police stations in the area and killing three policemen, after one of them was killed during a protest at a police station in Oyigbo.
‘Rivers state Governor Nyesom Wike imposed a 24-hour curfew on 23 October in Oyigbo as the violence threatened to spiral out of control but said on Monday that soldiers had not been killing people in the area.
‘"It is not correct that soldiers are going from house to house to kill. When the Ipob killed the Army officers, they took their guns. It is normal for them [army] to recover those guns. In any case, there are consequences when soldiers are killed," Mr Wike said on Monday.
‘The governor last month banned demonstrations in the state on the eve of a peaceful #EndSars protest but protesters defied him, marching to government house in the state capital, Port Harcourt, and forcing him out to address them.
‘Demonstrations by Ipob were banned in the state. Mr Wike recently placed a bounty of 50 million naira ($130,000; £100,000) on the head of the group's leader.
‘"This is clearly a terrorist group which existence, creed, mission and activities are strongly denounced even by the government and peoples of South-Eastern States of the country," he said.
‘Army spokesman, Major Charles Ekeocha, also denied that soldiers were going door-to-door and killing people, telling a local radio station that there was an ongoing operation in Oyigbo but that soldiers were not targeting people.
‘"People have been spreading information based on their interests but when you investigate you find out it's not true," he told government-owned Radio Nigeria.’
[Tribunal’s emphasis]
The UKHO further notes (section 8.5.13, references omitted):
Nigeria Watch, according to its ‘About us’ page is a research project which has monitored lethal violence, conflicts, and human security in Nigeria since 2006 and is hosted by the French Institute for Research in Africa. Its website using a range of sources, mainly Nigerian media organisations, contains a database of violent events based on local media reporting. Search results using the word ‘IPOB’ and taking data from the description section, showed 87 incidents in 2021 resulting in 302 deaths of suspected IPOB/ESN members the police and civilians. The highest recorded months are shown below:
• May 2021 - 81 of those deaths occurred over 20 incidents during May 2021, of those 81 deaths 34 were state forces and 41 were suspected IPOB / ESN members, civilians accounted for 6 of the deaths.
• June 2021 - 39 deaths were recorded of which 27 were suspected IPOB / ESN members, 11 were state forces and 1 was a civilian. The 10 most recent incidents are shown in more detail below.66.
• August 2021 – 48 deaths recorded, 24 suspected IPOB / ESN, 8 were state forces and 12 were reported to be civilians.
• October 2021 – 24 suspected IPOB / ESN, 6 state forces and 3 civilian.
Treatment of IPOB
The UKHO notes (sections 9.1.1 – 9.1.10, references omitted):
An expert comment by Sola Tayo, a BBC journalist, and Fidelis Mbah, a journalist, published on the Chatham House website in November 2017 stated:
‘In September [2017] Nigeria’s military launched Operation Python Dance II, its second military exercise in South East Nigeria this year. It was carried out with the intention of quashing any calls for secession in a region with a long history of antagonism with the central Nigerian state…
‘… Python Dance II escalated into a violent confrontation in which supporters of secessionist group the Indigenous People of Biafra (IPOB) claim some of their members were killed, and the home of the group’s leader, Nnamdi Kanu, was raided. Kanu has not been seen in public since the raid on his house.’
The report continued that:
‘Indeed, in the southeast, Operation Python Dance II seems to have emboldened rather than silenced IPOB supporters, through adding to the feeling of discrimination felt in the region and by making a martyr out of Kanu. And in any case, IPOB may be the most prominent, but it is not the only group advocating secession. MASSOB is also accused of violence by Nigeria's government, and, like Kanu, Uwazuruike has previously been imprisoned, accused of treason and released. There are several other pro-Biafra groups in the southeast but internal disputes have so far prevented them from presenting a unified front.
‘The umbrella body of Igbo people, Ohaneze Ndigbo, has openly voiced its concerns and is calling for the government to address the grievances of the region. They may not all support IPOB's rhetoric but are vehemently against labelling the group a terrorist organization, and condemn attacks against its members.
‘Kanu’s continued absence and violent confrontations risk igniting an insurrection that could destabilize Nigeria’s southeast. The federal government’s response and tactics employed by Nigeria’s military should be called into question as forces are stretched on many fronts. In addition to the Boko Haram crisis in the northeast, the military has also been deployed to combat a rise in kidnapping of civilians and violence in the oil producing Niger Delta region. The proscribing of IPOB could in fact lead to a fully armed insurrection, plunging the country into deeper insecurity and sewing further division in this fragmented nation.’
The EASO report also included sources which commented on Operation Python Dance noting that ‘In March 2018, an article in the World Politics Review reports that, “since the launch of Operation Python Dance II, the southeast has effectively become a police state. Igbos who live elsewhere in the country and who returned for Christmas celebrations last year reported being detained and harassed for hours by Nigerian soldiers conducting stop-and-search operations.”’
The USSD Human Rights report 2020 stated: ‘The government continued to turn to the armed forces to address internal security concerns, due to insufficient capacity and staffing of domestic law enforcement agencies. The constitution authorizes the use of the military to “[s]uppress insurrection and act in aid of civil authorities to restore order.” Armed forces were part of continuing joint security operations throughout the country.’
A report by ECP - Escola de Cultura de Pau, Universitat Autònoma de Barcelona and published by ReliefWeb from July 2020 noted: ‘…with regard to the situation in Biafra… Various local and international human rights organisations noted that during 2019, violent persecution of social actors and civilians suspected of being sympathizers of the independence movement [IPOB] (considered a terrorist movement by the Nigerian state) continued.’
Whilst not an area in the South East zone, Pulse, a Nigerian news website, published in October 2020 an article concerning Rivers State, an area where Igbo live:
‘Governor Nyesom Wike of Rivers has signed an executive order to reinforce the ban on the Indigenous Peoples of Biafra (IPOB) and its activities in the State.
‘He made this known in a statement by Mr Kelvin Ebiri, Special Assistant (Media) to the Governor.….
‘According to the statement… “the State government is opposed to the presence and activities of the legally-proscribed and anarchic IPOB and whatever it stands for in Rivers State… we have everything against the presence and activities of the legally-proscribed IPOB and whatever that group stands for in Rivers State,” the governor warned.
‘“This is clearly a terrorist group which existence, creed, mission and activities are strongly denounced even by the Government and peoples of South-Eastern States of the country.
‘“I have, therefore, signed the executive order to reinforce the total ban on IPOB and its activities in Rivers State or any part thereof and nothing will stop us from enforcing this ban in its entirety,’’ he said.
‘The statement also added that Wike also “directed security agencies and the Chairmen of Local Government Areas to fish out and resolutely deal with any member of IPOB found in any community following the executive order and other legal instruments’’.’
Africa Confidential, a current affairs journal, of April 2021 observed
‘Since January [2021], Nigeria's armed forces have been raiding cities in the South East region, on a search for training camps of the Eastern Security Network (ESN), the armed wing of the Indigenous People of Biafra (IPOB) secessionist group. When hundreds of soldiers stormed Orlu, 40 kilometres north of Imo state capital Owerri, on 21 January in Hilux trucks, their arrival triggered pandemonium.
‘Local media reported four civilian casualties and that the soldiers were in town to retaliate after a couple of military personnel had been harassed in the area. In February, military helicopters were also seen patrolling the air above parts of Orlu.
‘When the militia launched in December [2020], with the promise of addressing security issues in the region, it was accompanied by a strong caveat. A statement signed by IPOB spokesman Emma Powerful stressed that the ESN was not a security outfit gunning for secession in disguise. Its sole aim, the group said, is “to halt every criminal activity and terrorist attack on Biafraland”, comparing itself to Amotekun, the regional vigilante group to protect farmers in the south-west, and Miyetti Allah, the umbrella organisation of herders…
‘The ESN is capitalising on herder-farmer clashes, presenting itself as the defender of the farmers, and by extension, the “indigenes”, a fissile concept in a federation which is meant to guarantee free movement to all citizens.
‘IPOB leader Nnamdi Kanu says ESN was launched in response to soldiers killing dozens of unarmed civilians in Oyigbo, Rivers State, last November [2020]. The government said it was a reprisal after three policemen and six soldiers had been killed by secessionist agitators. Governor Nyesom Wike placed a 50 million naira (£95,000) bounty on the head of the state's IPOB leader, Stanley Mgbere, in October [2020]. The ESN has been spreading propaganda including videos of armed men in red masks and berets on Facebook and other social media networks…
‘Many in the south-east are sympathetic to the Biafran cause but will not back a group using violence to achieve it. However, they are unlikely to give information to security agencies that will lead to the arrest of supporters of the group.’
The Council on Foreign Relations (CFR) featured on their website a blog post by John Campbell, a former Ambassador who is described on CFR’s expert biography page as ‘a senior fellow for Africa policy studies at the Council on Foreign Relations in Washington, DC’. The post from 18 May 2021 stated
‘Following President Muhammadu Buhari's May 11 [2021] meeting with the military service chiefs and the inspector general of police, Nigerian military sources confirmed that some troops were being moved from Borno State, where they have been engaged with Boko Haram and other jihadis, to the South East, to counter "bandits" and the regional separatist organization, the Indigenous People of Biafra (IPOB), along with its security force, the Eastern Security Network (ESN). The army and police have sustained increased casualties in the South East, so aircraft—including combat helicopters—will be "deployed to conduct massive raids" on the hideouts of "criminals" from the IPOB and ESN. Another source suggested traditional rulers, community heads, and chiefs could be arrested to warn them against "conniving with the agitators." The police announced yesterday the launch of Operation Restore Peace to confront the IPOB and ESN.’
Punch, A Nigerian newspaper, in a May 2021 online article reported:
‘The acting Inspector General of Police [IGP], Usman Baba, on Tuesday declared war on Biafra agitators and gunmen attacking and destroying police infrastructure in the South-East and South-South regions and ordered their extermination.
…
‘In an address earlier, before declaring open the operation codenamed, Operation RT – Restore Peace, which was witnessed by governors of the South-East states and heads of other security agencies, Usman stated that the operation was for the stabilisation of the security order in the geopolitical zone.’
The CFR in a further post from May 2021 and commenting on Usman Baba’s address stated:
‘The Nigerian government has launched Operation Restore Peace, designed to destroy the Indigenous People of Biafra (IPOB), a separatist group in support of independence for the former breakaway Republic of Biafra, and its security wing, the Eastern Security Network (ESN). According to Acting Inspector General of Police (IGP) Usman Baba, the security services are not to be constrained by human rights considerations…
‘So, the IGP is not only giving the green light to human rights violations, but also promising his protection for those who commit them. In addition, he is threatening those who might hang back with the loss of pension benefits! Usman is implying that he has the full support of President Muhammadu Buhari.
‘Other reporting79 alleges that security services are conducting house-to-house searches in Ebonyi, Imo, and Rivers states, all with large Igbo populations. Local people are saying that the security services are rounding up young men and their family members and taking them away for questioning. IPOB leader Nnamdi Kanu has dubbed the police initiative "Operation Massacre Biafrans."
‘Usman Baba is a northern Muslim from Yobe State—long a Boko Haram stronghold. He is a career police officer. There is nothing in his background that would suggest an understanding of southern and eastern grievances and fears of the "establishment of a Fulani Caliphate."
‘Operation Restore Peace and Baba's rhetoric would seem tailor-made to feed the revived Biafra secessionist movement and general southern and Christian fears of a Fulani-Muslim onslaught against Christians. It should be anticipated that local people will fight back viciously and the security services—as directed by Usman Baba—will respond in kind. It is to be hoped that President Buhari will repudiate Baba's rhetoric and methods, not least for the sake of the unity of Nigeria.’
[Tribunal’s emphasis]
The UKHO continues (sections 9.2.1 – 9.1.2, references omitted):
The EASO ‘Targeting of individuals’ report of November 2018 citing several media news sources stated: ‘As MASSOB and IPOB have the same aim, are often taken together in media reports, and the authorities tend to react in the same way on rallies, demonstrations and members/supporters of both groups…’
The International Centre for not-for-profit Law stated in a report updated in November 2020: ‘In 2015, in Rivers State in the south of the country, pro-Biafra marches were banned by the state governor. In the run-up to gubernatorial elections in Bayelsa State, also in the south, protests were similarly banned by the Nigeria Police. In January 2017, the police also broke up a protest in favor of US President Donald Trump by the Independent Peoples of Biafra (IPOB), which led to the death of a protestor.’
Under the heading “Killings, discrimination, violence and harassment” the UKHO notes (sections 9.3.1 – 9.3.4, references omitted):
The EASO Targeting of individuals report of November 2018 citing several media news sources stated:
‘The military Special Board, set up to investigate the events of 30 May 2016 [Remembrance day when at least 60 people were killed], did not find any wrongdoing by the army, reporting only on the arrest of 14 persons during the demonstrations on those days. In August 2017, after numerous protests and calls for investigation from both national and international organisations, the Governor of Anambra State apologised to IPOB members for the events of 30 May 2016.
‘Another major clash between the armed forces and the pro-Biafra activists occurred in October 2015 when the IPOB-leader Kanu was arrested on charges of treason and ethnic incitement. A wave of street protests and arrests followed. Kanu was released on 25 April 2017. However, on 22 September 2017, soldiers attacked the house where Kanu was staying and killed 28 people in the surroundings. The government denied the claim.’
The EASO ‘Targeting of individuals’ report of November 2018 stated:
‘The Nigerian federal authorities consider IPOB’s activism as a threat to the national security, “even if the support for an independent Biafra does not appear to be strong, even not among the Igbo”, as Lifos [the COI unit of the Swedish Migration Agency - Migrationsverket] notes. The ban on IPOB in September 2017 implies that all activities were declared illegal; even possession of IPOB material can lead to arrest and prosecution. Several members have been charged with treason which is punishable with the death penalty in Nigeria.’
Agnes Callamard, United Nations Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions [SR] stated in a statement of September 2019 following a visit to Nigeria that:
‘… nation-wide and broader regional pressures applied against Nigeria’s diverse eco-political-economic systems are producing localised systems and country-wide patterns of violence, many of which are seemingly spinning out of control. They are claiming the lives of thousands and include, for instance, arbitrary killings in the context of: The repression of the Indigenous People of Biafra (IPOB)…
In yet other eco-political systems of violence, the security response is dangerously quasi-prospective, with individuals, communities and associations actively targeted for what they may have done decades ago, or for what they may do or may become, rather than for what they are doing or have done (e.g. members of the IMN, IPOB).’
Agnes Callamard also reported in September 2019 on killings and arrests:
‘Since 2015, members of IPOB have faced arbitrary arrests, torture and extrajudicial executions, predominantly in the context of demonstrations. Between 2015 and 2016, it is alleged that law enforcement officials killed at least 100 IPOB members in different events in Aba (Abia State), and Awka and Onitsha (Anambra State). On 29 and 30 May 2016, during a demonstration, the Nigerian military opened fire on IPOB members and bystanders in Onitsha. At least 60 persons were killed and over 70 injured, mainly shot in the back. The exact number of deaths remains unknown.
‘Between 12 and 14 September 2017, IPOB followers gathered at the family home of their leader, Nnamdi Kanu, in Afara-Ukwu (Abia State) to take part in a peaceful vigil. The military operation (as part of Python Dance II) carried out in the afternoon of 14 September 2017 is alleged to have resulted in the killing of 150 persons. The IPOB leader went in exile and some of its followers remain disappeared since then. No Nigerian soldiers were killed in the operation. Following this event, the Federal High Court in Abuja proscribed IPOB and designated it as a terrorist group.
‘During my [Agnes Callamard, United Nations Special Rapporteur] visit, I met with several survivors of various security attacks and witness to killings. I have received a large number of allegations of killings by the Military Forces in 2017, 2018 and 2019…
‘On March 8, 2018, the African Commission [for Human Rights, ACHR] issued Provisional Measures, asking the Federal Government of Nigeria to rescind its decision branding IPOB and its members as terrorists as well as the proscription and “Not to take any further action so as to avoid irreparable damage to the Victim, IPOB and its members, pending the decision of the Commission on this Communication.”
‘I am not aware of any steps taken to implement the ACHR interim decision at the time of writing these preliminary observations.’
[Tribunal’s emphasis]
Under the heading “Arrest and detention” the UKHO makes the following observations (sections 9.4.1 – 9.4.2, references omitted):
Amnesty International in their 2016 report stated:
‘The authorities initially allowed IPOB rallies to take place, but from September 2015 onwards the authorities have claimed that IPOB is a threat to the security of Nigeria, despite the fact that the IPOB protests and gatherings documented by Amnesty International were largely non-violent. Since the IPOB leader and Radio Biafra director Nnamdi Kanu was arrested on 14 October 2015, the meetings and demonstrations calling for his release have increased and so have the violations committed by the military.’
‘The security forces have arrested hundreds pro-Biafra activists. In addition, DSS [Department of State Security,] has arrested eight IPOB coordinators; some at IPOB events and others at their homes. While some have been released, many others were charged with treason, which carries the death penalty under Nigeria law. Amnesty International was not able to confirm the exact number of people who have been arbitrarily arrested and detained in connection with the Biafra independence campaign in various parts of southeast Nigeria.
‘Many of the people arrested after IPOB events have told Amnesty International that they were beaten or subjected to other forms of ill-treatment. Some were tortured in detention. In addition, there is a consistent pattern of the security forces denying injured victims medical treatment.’
The EASO Targeting of individuals report of November 2018 citing media news sources stated: ‘On 18-19 May 2017, a group of women supporters of the IPOB reported being harassed, stripped and arrested by the Nigerian Army, during a rally in Abiriba, Abia State.’
[Tribunal’s emphasis]
The DFAT Report notes (sections 3.48 – 3.51):
3.48 While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.
3.49 While the two groups (and other Biafran secessionist movements) have called for independence to occur through peaceful means, such as via referendum, central authorities have strongly rejected such calls, stating the country’s unity is ‘not negotiable’. In October 2015, security forces arrested IPOB’s UK-based leader Nnamdi Kanu on his return to Nigeria, charging him with treason and sedition. Kanu’s arrest sparked nationwide protests among his followers, leading to serious clashes with security forces. Amnesty International reported in November 2016 that, on a number of occasions across the southeast, the military had fired live ammunition with little or no warning to disperse crowds, causing multiple fatalities; while security forces also shot at least 60 people dead in the space of two days in connection with events to mark Biafra Remembrance Day in Onitsha, Ananambra state.
3.50 After Kanu’s release from detention in April 2017 failed to end the demonstrations, security forces launched a military operation, Operation Python Dance, to quell the agitation in the southeast. According to international observers, a September 2017 security operation against IPOB supporters at Kanu’s home resulted in up to 150 deaths. Authorities subsequently designated IPOB a terrorist organisation., While the clampdown by security forces appeared to largely curtail IPOB’s public activities, November 2020 saw a new outbreak of open conflict in the southeast of the country. Rivers state Governor Nyesom Wike has reportedly ‘declared war’ on the group following an attack on security forces which killed six soldiers and four police officers. In her September 2019 post-visit report, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution noted she had received a large number of allegations of killings of IPOB members by military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings. The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges; and there had not been any convictions of IPOB members since 2015 due to the discontinuance or dismissal of charges.
3.51 DFAT understands that, although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to conduct public activities. There have also been recent reports of deaths, injuries and mass arrests of MASSOB members in the context of clashes with security forces during pro-Biafra demonstrations. In May 2019, two MASSOB members were reportedly killed and 15 wounded following clashes with police at a MASSOB anniversary event in Onitsha, Anambra state, while in the same period a MASSOB member was reportedly arrested and tortured at a police station in Mgbidi, Imo state. In September 2018, 125 MASSOB members were reportedly arrested, with some sustaining injuries, during a rally in Anambra state.
While the Tribunal has some doubts about the veracity of the applicant’s claims concerning his involvement in the protest in Umuahia and its aftermath, the surrounding evidence of his support for Biafran independence, membership of the IPOB and travel to Umuahia is generally supportive of the applicant engaging in the type of activities on those dates that he claims. Further, his claims are broadly consistent with country information which indicates that violence and intimidation have increasingly become a part of the Nigerian government’s response to public expressions of support for Biafran independence and to IPOB protests. In this regard the Tribunal places weight upon the conclusions of Agnes Callamard, United Nations Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions set out above where, in a statement of September 2019 following a visit to Nigeria, the Special Rapporteur stated that:
‘… nation-wide and broader regional pressures applied against Nigeria’s diverse eco-political-economic systems are producing localised systems and country-wide patterns of violence, many of which are seemingly spinning out of control. They are claiming the lives of thousands and include, for instance, arbitrary killings in the context of: The repression of the Indigenous People of Biafra (IPOB)…
In yet other eco-political systems of violence, the security response is dangerously quasi-prospective, with individuals, communities and associations actively targeted for what they may have done decades ago, or for what they may do or may become, rather than for what they are doing or have done (e.g. members of the IMN, IPOB).’
The Special Rapporteur also reported in September 2019 on killings and arrests:
‘Since 2015, members of IPOB have faced arbitrary arrests, torture and extrajudicial executions, predominantly in the context of demonstrations. Between 2015 and 2016, it is alleged that law enforcement officials killed at least 100 IPOB members in different events in Aba (Abia State), and Awka and Onitsha (Anambra State). On 29 and 30 May 2016, during a demonstration, the Nigerian military opened fire on IPOB members and bystanders in Onitsha. At least 60 persons were killed and over 70 injured, mainly shot in the back. The exact number of deaths remains unknown.
‘Between 12 and 14 September 2017, IPOB followers gathered at the family home of their leader, Nnamdi Kanu, in Afara-Ukwu (Abia State) to take part in a peaceful vigil. The military operation (as part of Python Dance II) carried out in the afternoon of 14 September 2017 is alleged to have resulted in the killing of 150 persons. The IPOB leader went in exile and some of its followers remain disappeared since then. No Nigerian soldiers were killed in the operation. Following this event, the Federal High Court in Abuja proscribed IPOB and designated it as a terrorist group.
‘During my [Agnes Callamard, United Nations Special Rapporteur] visit, I met with several survivors of various security attacks and witness to killings. I have received a large number of allegations of killings by the Military Forces in 2017, 2018 and 2019…
‘On March 8, 2018, the African Commission [for Human Rights, ACHR] issued Provisional Measures, asking the Federal Government of Nigeria to rescind its decision branding IPOB and its members as terrorists as well as the proscription and “Not to take any further action so as to avoid irreparable damage to the Victim, IPOB and its members, pending the decision of the Commission on this Communication.”
‘I am not aware of any steps taken to implement the ACHR interim decision at the time of writing these preliminary observations.’
The Tribunal also places weight upon on the observations of the five United Nations Special Rapporteurs presented to the United Nations Human Rights Commission on 1 October 2020, in particular the following comments:
…we are deeply concerned by what appear to be disproportionate violations of fundamental rights and freedoms against supporters of “Biafran” independence and some members of the Igbo minority. In particular, we express our most serious alarm about allegations of severe violations to the right to life by Nigerian security forces in the context of the numerous demonstrations and public events organised or attended by “pro-Biafran” organisations or supporters since 2015, as well as instances of arrests and detentions of several individuals who allegedly organised, attended, or reported on these public gatherings.[6]
[6] See also: DFAT Report, section 3.52.
Accordingly, the Tribunal accepts the possibility that the attacks as claimed by the applicant occurred in the manner he has described and for the purpose that he claims, namely, to suppress the IPOB and its members in their aim of Biafran secession. It also accepts the possibility that the authorities became aware of his identity through IPOB membership records in Nigeria and that those authorities searched for him at his home in Lagos in late 2017, contemporaneously with the prescription of the IPOB as a terrorist organisation. Finally, the Tribunal accepts the possibility that, given his history of activism with the IPOB and his actual or perceived political opinions, should he return to Nigeria now or in the reasonably foreseeable future, he may be perceived as intending to reengage with the IPOB in Nigeria in circumstances where the Nigerian authorities “consider IPOB’s activism as a threat to the national security”.[7]
[7] See: UKHO report, sections 9.3.1 – 9.3.4.
Overall, in light of the cumulative effect of these possibilities, the Tribunal considers that if the applicant is returned to Nigeria now or in the reasonably foreseeable future, there is a real chance that he will experience similar acts of violence or intimidation to those he has described and, given the political motive of those acts, he is unlikely to receive protection from the authorities there.
The Tribunal is, therefore, satisfied that there is a real chance that the applicant will face serious harm, and therefore persecution, in Nigeria. The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his (actual or perceived) political opinions as an active member of the IPOB. On the basis of the evidence before it, including the country information cited above, the Tribunal is not satisfied that state protection is available to the applicant in Nigeria. The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Nigeria. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Nigeria for the reasons stated.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Damian Creedon
MemberAttachment - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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