1823009 (Refugee)

[2022] AATA 4219

1823009 (Refugee) [2022] AATA 4219 (6 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nathan Stephen Willis (MARN: 1467692)

CASE NUMBER:  1823009

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:David McCulloch

DATE:6 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 September 2022 at 8:45am

CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – persons targeted for extortion by Boko Haram – imputed opponents of Boko Haram and/or other pro-Islamic extremist groups – men being forcibly recruited by Boko Haram – religion – Christian – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Nigeria, applied for the visa on 14 May 2018. The applicant attended an interview with a delegate of the Department of Home Affairs on 14 June 2018.

3. The delegate refused to grant the visa.

4. The applicant appeared before the Tribunal on 27 July 2022 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Yoruba and English languages.

5. The applicant was represented in relation to the review.  The representative attended the hearing.

   Criteria for a protection visa

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020 and DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020, each copy of which was provided to the applicant in advance of the hearing.

    CONSIDERATION OF Claims and evidence

12. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. The applicant arrived in Australia on [a temporary visa] on [date] March 2018. The applicant lodged an invalid Protection visa application Subclass XA-866 on 11 April 2018. The applicant lodged another Protection visa application Subclass XA-866. A Bridging visa WA-010 was subsequently granted on the same day.

14. The following information is apparent from the application for protection forms. The applicant was born on [date] in [Town 1], Kaduna State, Nigeria. The applicant is a Christian (Pentecostal) of Yoruba ethnicity who speaks and reads English, Yoruba and Hausa. The applicant also writes English. The applicant is widowed. He did not declare any family members. He did not declare his previous addresses, education history or employment history.

15. The applicant provided a statement, dated 14 May 2018, setting out his claims for protection as follows (not corrected for spelling or grammar):

    Statement of [applicant name]

    I, [applicant name] of [address] in the state of New South Wales, make the following statement in support of my claims for protection:

    1.     The following may not be a complete account of the reasons why I may suffer harm in my country of origin, and does not contain all of the relevant details of those reasons. If you have doubts about my eligibility for the visa I have applied for, please draw my attention to the reasons for this and ask me any relevant questions. I am available to provide any information beyond what is set out in this statement.

    2.     I fear that if I was forced to return to Nigeria, I would be seriously harmed because of my actions opposing or not co-operating with Boko Haram, and my association with my friend's customs business as described below.

    3.     I fear this harm from violent criminals associated with Boko Haram and from the Boko Haram organisation. As explained in my statement, they have killed my [wife], my [son], and my friend, [Mr A].

    My background and history

    4.     I was born in [Town 1], Kaduna State, Nigeria on [date].

    5.     I am an Yoruba and my religion is Christian (Pentecostal).

    6.     I am a widower and I do not have any living children. My [wife] and [child] were murdered in Nigeria.

    7.     Most recently I worked as a [businessman].

    Problems in country of origin

    8.     I fear being killed by associates of Boko Haram and the Boko Harm organisation. They have killed my wife, my son, and my old school friend, [Mr A].

    9.     They threatened to find me anywhere in Nigeria because I would not help them to pass ammunition through customs in Lagos. I do not believe the Nigerian police can protect me from this threat.

    10.  The full facts are set out below:

    11.  In December 2016, I attended a gathering of my old high school classmates. I met my old school friend, [Mr A], at this event. We exchanged contact details as we had been close friends but we had not seen each other for some time.

    12.  I was living in Akure with my wife and son and [Mr A] lived in Lagos. We discussed his business. He was in the clearing and forwarding business in Lagos. He had a licence to clear goods through customs.

    13.  In Akure, I had a business. [Information deleted].

    14.  [Mr A] told me that I could also get involved in his business in Lagos. He mentioned that he would be going to [Country 1] for three weeks holiday. His younger brother had previously run his business while he was on holidays but this younger brother had travelled to [Country 2] to study for his masters and so [Mr A] needed someone to help him with his business while on holiday.

    15.  He wanted me to manage the business for three weeks to a month. Within the three weeks, his customer [Mr B] was going to bring goods in to Lagos through the port.

    16.  [Mr A] gave me [Mr B]'s number. [Mr B] called me. He asked me to come to Abuja in the North of Nigeria. He said he would contact me when it was time to go there.

    17.  At this time [Mr A] was not yet in [Country 1]; he was in Enugu visiting his family before going to [Country 1].

    18.  [Mr B] called me in the middle of the day one day. Straight after the call, I took a bus to Abuja and arrived in the evening in, I think, approximately February 2017. He told me a white jeep would collect me from the bus stop. They collected me and took me to a house in [location]. We went into a room.

    19.  [Mr A] had explained that he normally negotiated how much his clients should pay for customs clearance. He said it would normally be around 700,000 Naira. I understood that I would negotiate this with [Mr B].

    20.  When negotiating with [Mr B], I started high and I made an offer of 2 million Naira. They agreed to pay this amount immediately and this made me suspicious as I had expected them to negotiate further. Because I was suspicious, I asked for detail about what was in the container.

    21.  They told me that the single container would have [specified goods]. I tried to call [Mr A] to check if this was normal but I couldn't get through.

    22.  They eventually told me there was an additional box in the container that had ammunitions in it. I said I couldn't help them to get ammunitions through customs. I said I would come back tomorrow. He said "no, you must sign now." He had two other men with him. One of them took out a pistol and pointed it at me and forced me to sign.

    23.  They threatened me and told me that they had connections with Boko Haram. [Mr B] said they could reach me anywhere, that I could not hide from them in Nigeria. I signed the document because I was threatened. He asked me to sit down. One of them left and then brought back a photocopy of the signed document. He gave me the photocopy and gave [Mr B] the original.

    24.  They let me leave. The goods were to arrive two weeks later in Lagos by boat. I would have to attend in person to clear the goods on behalf of [Mr A].

    25.  I felt I needed to contact [Mr A]. I was not able to reach him at first. Then when I reached him, I explained the story. [Mr A] told me he had never cleared ammunitions for [Mr B]. [Mr A] said he would come to Lagos and meet me. I returned to Akure and I was scared.

    26.  I wanted to go to the police but [Mr A] told me I should not go to the police - he said he knew how these things worked and he would come to meet me and we could go to the police together.

    27.  I got a new phone number to avoid [Mr B]. He messaged me on it. I asked [Mr A] why [Mr B] messaged me on that new phone number and he said he did not know. [Mr A] did not answer my calls after this. I suspected maybe [Mr A] and [Mr B] were working together.

    28.  Then, [Mr A]'s brother who lived in [Country 2] called me and told me [Mr A] had been shot in his car. His brother confirmed that [Mr A] had been shot two days previously. This explained why I had not been able to reach him.

    29.  I went to Kaduna alone to see if I could find somewhere to hide. I had grown up in that province but I did not know the area anymore. I spent three days there but I wanted to return to my wife and son.

    30.  I returned to Akure. I returned home one day late at night, in approximately June 2017. I found my wife and son dead in the house. There was a note left on my wife's body. It said something like "thank God we didn't meet you at home but at least this a warning for you. There is nowhere you can hide." I left straight away and I ran away.

    31.  I went to Shagamu in Ogun State. I don't know how I got there. My memories of this period are hazy as I was in shock from the death of my wife and child. I went to a church, where a pastor took care of me for a few months. I didn't speak or eat for the first while there. I eventually started to speak and told the pastor the story.

    32.  While at the church, I received text messages from [Mr B] threatening me if I did not come to clear the goods at customs. In December 2017, he messaged me to say that he could find me anywhere in Nigeria and that the people who wanted the weapons would kill me. I understood those people to be Boko Haram.

    33.  The pastor suggested that I tell the police. He went to the police for me, bringing with him the note from my wife's body. He said that they told him I had to bring more evidence. I did not have any more evidence, especially because at that time I had not yet received any threatening text messages from [Mr B]. I do not believe that they would be willing or able to help me because they are simply ineffective and not able to stand up to organised crime like [Mr B] and his group. They heard the story of murder from the pastor but all they did was to ask me to prove it to them.

    34.  Around this time, a man at the church offered to help me. I don't know his name.

    35.  He came one day to take my picture but I refused because I was afraid he was working for [Mr B]. The people at the church convinced me to trust him. He took the photo for some travel papers. In January 2018, the pastor told me that the man had returned with some papers for me. The pastor showed me the papers. These were my visa papers for travel to Australia. He kept the papers and told me when I needed them, he would let me know.

    36.  Around March 2018, some men came and told me it was time to use the visa papers. They told me they would take me to Lagos. I was afraid to go to Lagos but they said they would help me to leave Nigeria. They drove me to the airport and told me to put the papers with my passport. They gave me some money to buy food. I think I stopped in [country] on the way here.

    37.  When I arrived in Australia, I came by plane from Gold Coast to Sydney, where I am making my claim for protection.

    My fears if I am returned to country of origin

    38.  If I am returned to Nigeria, I am afraid that I will be subjected to serious harm including being murdered.

    39.  I am afraid of this harm from violent associates of Boko Haram and the Boko Haram organisation. Because of the interactions I have had with [Mr B] and his men, I fear that I am known to them and will be targeted by them and the rest of the organisation associated with them.

    40.  I have already experienced death threats from this group and they killed my wife and son and my school friend, as explained above.

    41.  I could not relocate to any other part of Nigeria because they can find me anywhere there. Boko Haram has a presence throughout Nigeria, even though they are mostly based in the north of Nigeria. This is shown by the murder of [Mr A] near Enugu and my wife and son in Akure - while their primary place of operations is in the north, they have arms of the organisation everywhere such as [Mr B] in order to conduct criminal activities and support Boko Haram's activities such as by importing weapons and ammunition.

    42.  I am afraid that I would not be protected by anyone, including the authorities, because the police are unwilling and unable to help me. Nigerian police are ineffective and will only help people they think are important, and where they do not believe that there is any danger to them.

    Passport and Identity Documents

    43.  I can provide the following original identity documents to immigration: Passport with the passport number [specified].  I also have an international certificate of vaccination.

    This statement was prepared over the course of three hours by [organisation]. There may be errors or omissions in this statement based on the limited time available devoted to its preparation and inability to access accredited interpreters.

    It has been read back to me in English and I agree with its contents.

16. A further submission was provided to the Tribunal dated 21 July 2022. It indicates that the applicant fears persecution on the following grounds:

    ·his Christian (Pentecostal) religion;

    ·his membership of the particular social group of persons targeted for extortion by Boko Haram;

    ·his membership of the particular social group of imputed opponents of Boko Haram and/or other pro-Islamic extremist groups;

    ·his membership of the particular social group of men at risk of being forcibly recruited by Boko Haram;

    ·his actual and/or imputed political opinion against pro-Islamic extremist groups such as Boko Haram.

17. It is submitted that relocation is not an option because Boko Haram has a strong presence throughout Nigeria and a high degree of power over the government. Boko Haram would be able to locate the applicant anywhere in Nigeria. State authorities have inadequate protection schemes for those being persecuted by Boko Haram.

18. Independent evidence is referred to as indicating the targeting of Christians by Boko Haram. Submissions are made with respect to the applicant being a target for extortion by Boko Haram as outlined in claims in terms of the applicant’s interaction with them. Reference is made to DFAT information indicating the spread of Boko Haram insurgency across northern and central Nigeria into neighbouring countries. A US Department of State report from 2021 is referred to as indicating the insurgency by Boko Haram in the north-east of Nigeria.

19. Submissions are made in terms of the applicant facing harm on the basis of being an imputed opponent of Boko Haram and/or other pro-Islamic extremist groups as evidenced by specific threats to him his failure to assist them and the killing of his family and school friend. Independent evidence is referred to. Prior Tribunal decisions are referred to.

20. It is submitted that the attempted extortion of the applicant was in fact an attempt to recruit the applicant into Boko Haram thus indicating harm is faced by the applicant is a member of a particular social group of men being forcibly recruited by Boko Haram.

21. Submissions are made that the applicant also meets the complementary protection criteria.

22. Submissions are made that the applicant has been consistent in his claims over time but that there are understandable difficulties in providing specific details due to severe trauma he has experienced. Tribunal guidelines on vulnerable persons are referred to.

23. Submissions are made in terms of the applicant not being able to relocate to another country in terms of possible rights under the ECOWAS treaty. In terms of internal relocation, it is submitted that it is not reasonable to expect the applicant to relocate. He would be found anywhere in Nigeria by Boko Haram. A prior Tribunal decision is referred to. Submissions are made that state authorities will be unable to protect the applicant. DFAT information is referred to in terms of the inability of authorities to curb the Boko Haram insurgency. High levels of government corruption is referred to supported by independent information.

1. Provided to the Tribunal are the following reports:

   ·2021 Annual Report of the U.S. Commission on International Religious Freedom;

   ·Nigeria 2021 Human Rights Report of the U.S. Department of State;

   ·Amnesty International Report 2021/22: The State of the World’s Human Rights;

   ·Past Tribunal decision record of 1216937 [2013] RRTA 95 (23 January 2013);

   ·Report of the United Nations High Commissioner for Human Rights titled ‘Violations and abuses committed by Boko Haram and the impact on human rights in the countries affected’.

2. Later provided to the Tribunal is a letter dated 25 July 2022 from [named], Presiding Senior Pastor, [named church] indicating that the applicant has been known to the writer for over two years and that he is a dedicated Christian. He has been a member of the church and attends services regularly. The writer attests to the applicant being an honest person of high integrity, reliable and trustworthy. He is recommended for any request or work that he might be applying for.

   Independent information

3. The 2020 DFAT Country Information Report on Nigeria provides the following information (underlining added):

   SECURITY SITUATION

   2.54    While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.

   Crime and Politically-Motivated Violence

   2.55    Nigeria’s crime rate is high for both violent and petty crime. Crime increases at night and includes assault, armed robbery, home invasions and carjacking. Assaults and robberies are common on public transport and in taxis, while petty crimes such as pickpocketing are common in crowds. Nigeria has a well-established reputation as a centre for internet-based scams, often run by organised criminal gangs.

   2.56    Militant groups have regularly conducted terrorist attacks against a range of targets, including government and security institutions, oil facilities and infrastructure, the headquarters of international organisations and financial institutions, and transportation facilities such as bus bays. While these have occurred nationwide, they have been most common recently in the northeastern states in relation to the Boko Haram insurgency. In June 2019, for example, Boko Haram militants detonated explosives at a market in Konduga, southeast of Maiduguri, in Borno State, reportedly killing 30 people and injuring 40.

   2.57    Kidnappings and abductions have become an acute concern across the country, with 685 kidnappings recorded in the first quarter of 2019 alone. While kidnapping has been a tactic of Boko Haram during its insurgency (see following section), it has increasingly been used by factions in intercommunal conflicts elsewhere in the country and by criminals demanding ransom. Maritime kidnappings in the Niger Delta and the southeast are common, as militants have turned to piracy and related crimes to support themselves. In July 2019, for example, pirates boarded a cargo vessel off the coast of Bayelsa, taking 10 Turkish sailors away by speedboat and holding them for ransom. Prominent and wealthy figures (or their family members) are often targeted for abduction: in May 2019, armed assailants kidnapped the nephew of President Buhari, holding him for more than two months before police conducted a successful rescue operation.

   2.58    Long-standing tribal, religious, political and community disputes often lead to serious violence and unrest. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic or social grievances in 2019. The majority of these (2,758) occurred in northeastern Borno state, followed by Zamfara state (1,274) and Kaduna state (487), also in the north. Over half of these deaths were related to the Boko Haram insurgency, although deaths have occurred in all parts of the country. According to human rights observers, security forces have often responded to civil unrest with disproportionate force, causing fatalities (see Extrajudicial Killings).

   Boko Haram Insurgency

   2.59    Boko Haram, which translates roughly to ‘western education is sinful’ in the Hausa language, is a radical Islamist movement that has fought since 2009 to overthrow the government and create an Islamic state in northern Nigeria. The organisation split into two factions in 2016, one pledging allegiance to the so-called Islamic State organisation (Da’esh) and calling itself the Islamic State West Africa Province (ISWAP); the other known as Jama’atu Ahlis Sunna Lidda’await Wal-Jihad (JAS). Most Nigerians still refer to both groups collectively as Boko Haram. This report does likewise.

   2.60    Boko Haram promotes a strict version of Islam that forbids Muslims from taking part in any political or social activity associated with Western society, including voting in elections, wearing shirts or trousers, drinking alcohol or receiving a secular education. While initially headquartered in the northeastern city of Maiduguri and still largely centred in Borno state, the Boko Haram insurgency has spread across northern and central Nigeria and into neighbouring countries. The group has also carried out attacks against the police and UN headquarters in Abuja. The Boko Haram insurgency has resulted in thousands of deaths and injuries, widespread destruction, the internal displacement of approximately 2.7 million persons and the external displacement of almost 250,000 Nigerians to neighbouring countries.The Boko Haram insurgency has targeted a range of groups, including those associated with the government (including police, military and politicians); individuals seen as supporting ‘western’ concepts such as secular education or elections; foreign aid workers; and clerics from other Muslim traditions and Christian preachers. Christians are opportunistically targeted by Boko Haram. However, Muslims are also victims of attacks, in greater numbers than Christians, principally because they constitute a greater proportion of the population in the affected northern states.

   2.61    Its insurgent activities have included conventional warfare against state security forces; targeted killings of perceived opponents; bombings of churches, bus ranks, bars and military barracks; and mass attacks on villages and towns, resulting in looting, killing and mass abductions, including of children. In 2014, Boko Haram abducted 276 mostly Christian schoolgirls from Chibok, Borno state, reportedly forcing them to convert to Islam and become ‘wives’ for Boko Haram fighters. Around 100 of the Chibok girls remain unaccounted for. In February 2018, insurgents abducted a further 110 schoolgirls from Dapchi, Yobe state, releasing 104 of the girls two weeks later after negotiations with the government. Five of the remaining girls reportedly died in captivity and one girl continues to be held hostage, allegedly for refusing to deny her Christian faith.

   2.62    Boko Haram has also paid, forcibly conscripted, or otherwise coerced young boys and girls to serve in its ranks and perpetrate attacks and raids, plant improvised explosive devices (IEDs), serve as spies, and carry out person-borne IED bombings, often under the influence of drugs. For example, in the June 2019 attack in Konduga, Borno state, Boko Haram insurgents remotely detonated explosives strapped to two girls and a boy, killing 30 people.

   2.63    Attempts by security authorities to curtail the Boko Haram insurgency in an enduring fashion have not proved fully successful to date. The government initially declared a state of emergency in May 2013 in the three northeastern states in which Boko Haram was strongest – Borno, Yobe and Adamawa – while in the same year, the Office of the Prosecutor in the International Criminal Court declared the fighting in northeastern Nigeria to be a non-international armed conflict. By March 2015, a regional coalition made up of troops from Nigeria, Cameroon, Chad and Niger had succeeded in winning back all of the towns under Boko Haram’s control, leading President Buhari to declare in 2015 that Boko Haram had been ‘technically defeated’. The insurgency has successfully regrouped in recent years, however, and continues to represent a significant security threat in the northeastern states. International observers report there was a resurgence of Boko Haram activity in 2019, with Boko Haram responsible for 1,136 deaths in Nigeria in 2019, compared to 872 in 2018.

   2.64    Examples of recent Boko Haram insurgent activities include (but are not limited to):

   -in January 2019, Boko Haram fighters killed at least 60 people in the town of Rann, Borno State;

   -in July 2019, suspected Boko Haram fighters killed at least 65 people attending a funeral in Borno state; while in the same month a Da’esh-aligned faction of Boko Haram kidnapped six aid workers near Damasak in Borno state, subsequently executing five of them.

   -On 28 September 2020, militants from ISWAP overran a Nigerian military base in the northeastern town of Gubio, killing soldiers and seizing materiel.

   2.65    On 28 November 2020, in an attack centred on the village of Koshobe in Borno state, at least 43 farmers were killed in what the UN described as ‘the most violent direct attack against innocent civilians this year’. Some reports claim up to 110 people were killed, including around 30 beheaded. A number of people, including around ten women, remain missing, presumably abducted. The attack occurred relatively close to the state capital of Maiduguri, and is strongly believed to have been carried out by ISWAP.

   2.66    Boko Haram’s resurgence comes despite the deployment of thousands of troops to the northeastern states, and the reported government allocation of almost USD80 million (AUD110.8 million) per quarter to combat the insurgency. International observers have expressed concern over a lack of discipline in military operations, noting that reports of low morale among soldiers caused by insufficient military equipment and medical care (and fuelled by high rates of corruption within the military) may be degrading the effectiveness of efforts to defeat the insurgency. Human rights groups have also raised repeated concerns government security forces have committed significant human rights abuses in the context of counter-insurgency efforts against Boko Haram, including extrajudicial killings, torture, arbitrary arrests and other abuses (see relevant sections).

   2.67    DFAT assesses Boko Haram poses a serious ongoing threat to security in the northeast of Nigeria, with limited prospects of being neutralised in the short term.[1]

   [1] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 19-21.

   …

   RELIGION

   27.3.11 Article 10 of the Constitution prohibits either the federal or state governments from adopting any religion as a State Religion, while Article 23 includes religious tolerance as a defined national ethic. Articles 15(2) and 42(1) prohibit discrimination on the grounds of religion, while Article 38(1) guarantees freedom of religion, including the freedom to change religion or belief, and the freedom (either alone or in community, and in public or private) to manifest and propagate their religion or belief through worship, teaching, practice and observance. Article 15(3)(c) and (d) stipulate it is the duty of the State to encourage interfaith marriages and promote associations that cut across religious (or other sectional) barriers in order to promote national integration, while Article 222 prohibits political parties who limit their membership based on religion or who have names with religious connotations.

   3.12 While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians.

   3.13 The vast majority of Nigerian Muslims are Sunni, with estimates of the percentage of the Shi’a population ranging from less than 5 per cent to as high as 17 per cent. The Shi’a presence is heavily concentrated in the northwestern states of Kaduna, Katsina, Sokoto, Zamfara, and Kano. Ahmadi Muslims maintain a small presence in several cities, including Lagos and Abuja. Approximately three-quarters of Nigerian Christians are Protestant, with Anglican, Baptist and Presbyterian churches reportedly maintaining the largest populations. A range of other denominations are also highly active, including evangelicals, Pentecostals, Anabaptists, Methodists, Seventh-Day Adventists, New Apostolics, Mormons and Jehovah’s Witnesses. Around a quarter of Nigerian Christians are Roman Catholics. Evangelical Christian denominations are growing rapidly in the North Central and South East, South, and South West regions.

   3.14 Both federal and state governments have the authority to regulate mandatory religious instruction in public schools. Article 38(2) of the Constitution prohibits schools from requiring students to receive religious instruction or to participate in or attend any religious ceremony or observance pertaining to any religion other than their own. State officials and many religious leaders have stated students have the right to request a teacher of their own religious beliefs to provide an alternative to any instruction offered in a religion other than their own. Article 38(3) of the Constitution says no religious community will be prevented from providing religious instruction to students of that community in any place that community wholly maintains.

   3.15 The states of Bauchi, Borno, Katsina, and Yobe maintain state-level Christian and Muslim religious affairs ministries or bureaus with varying mandates and authorities, while many other state governors appoint interfaith special advisers on religious affairs. Kano and Zamfara states have state-sanctioned Hisbah Boards that regulate Islamic religious affairs and preaching, license imams and attempt to resolve religious disputes between Muslims in those states. Several states also have laws requiring licenses for preachers, places of worship, and religious schools for registered religious groups. Katsina state, for example, has a board with the authority to regulate Islamic schools, preachers, and mosques, including issuing permits, suspending operations, and imprisoning or fining violators. The Katsina law stipulates a punishment of one to five years in prison and/or a fine of up to 500,000 naira (AUD1830) for operating without a license.

   3.16 An attempt by the Kaduna state legislature to pass a law to regulate religious preaching was stymied in June 2019 by the state’s highest court, which nullified the law on the grounds it was inconsistent with constitutional guarantees for freedom of expression, association and religion. The law would have required all preachers to be licensed by a state-level body composed of religious leaders, government officials and security agencies. Muslim and Christian religious leaders had criticised the proposed law for infringing on freedom of speech. 3.17 As noted in Recent History, from 1999, sharia Penal Codes and Criminal Procedure Codes were reintroduced in 12 northern states with predominantly Muslim populations (having been abolished under British colonial rule). These are Zamfara, Kano, Sokoto, Katsina, Bauchi, Borno, Jigawa, Kebbi, Yobe, Kaduna, Niger and Gombe states. In some cases, the reintroduction of sharia had the effect of amplifying existing tensions between Muslim and Christian communities (and between Sunni and Shi’a). In some cases, this led to localised protests that resulted in fatalities. DFAT is not aware of any recent examples of major protests or communal violence in northern Nigeria in relation to the existence or practices of sharia courts.

   3.18 The government has occasionally cracked down on the activities of religious groups that have questioned its authority. The most notable recent example is the government’s clash with the Shi’ite Islamic Movement in Nigeria (IMN), which escalated in August 2019 after authorities proscribed the group as a terrorist organisation. Although other religious leaders (including the then-Catholic Archbishop of Abuja) criticised the ban as a threat to religious freedom for all believers, the government emphasised its proscription of the IMN was not intended to prevent peaceful and law-abiding Shi’ites from practicing their religion. DFAT is not aware of any incidents in which authorities have prevented Shi’a unaffiliated with the IMN from undergoing religious practices, or otherwise discriminated against them. DFAT assesses the ban on the IMN was related to the group’s political activities rather than their religious identity.

   3.19 International observers report some state and local governments have ‘endorsed’ de facto official religions in their territories, thereby placing limits on the religious activities of other groups. Members of both Christian and Muslim groups have reported cases in which some state and local government laws have discriminated against them, including by limiting their rights to freedom of expression and assembly and in obtaining government employment. Christian activists have claimed children from religious minority communities face discrimination in several sharia states, including being denied access to specific educational courses, the non-release of final results, being compelled to study a religion different from their own and being denied school/university admission or scholarships. DFAT assesses such reports are credible, but in most cases are likely to be the result of state and local governments operating policies of ‘positive discrimination’ in favour of the ‘indigene’ and/or majority population rather than active discrimination on religious-based grounds.

   3.20 Despite claiming an Islamist motivation, Boko Haram has regularly committed attacks against both Christian and Muslim religious communities and institutions during its insurgency in the northeast. Person-borne IED attacks have targeted both churches and mosques: according to the Council on Foreign Relations, Boko Haram has destroyed 59 churches and 22 mosques since 2010. In July 2019, the group ambushed and killed 65 persons returning from a funeral in a predominantly Muslim community, while in December 2019 an ISWAP-affiliated faction released a video of them executing 10 Christians and one Muslim to avenge the death of Da’esh leader al-Baghdadi. 3.21 As noted in Security Situation, ongoing conflict between herdsmen (predominantly Muslim Fulani) and farmers (Muslim and Christian) in the Middle Belt has resulted in numerous deaths, injuries and displacements. Multiple Christian NGOs have stated religious identity is a primary driver of the conflict, arguing violence has predominantly targeted Christian communities, religious leaders and churches. In 2019, there were numerous reports by media and religious groups of cases in which attackers of allegedly Fulani ethnicity attacked, killed or kidnapped for ransom priests and other Christian clergy and their families. In August 2019, 200 Catholic priests marched through the streets of Enugu, Enugu state, to protest insecurity and what they characterised as Fulani attacks on Christians. Authorities have stated the cases were criminal acts and not religiously motivated. There have also been cases of attacks or kidnappings involving Muslim religious figures, and cases in which Muslims have been killed or displaced, albeit in lower numbers than Christians.

   3.22 While not discounting religious identity as a contributing factor, a number of international and domestic analysts have argued the conflict is multi-dimensional. In addition to religion, analysts cite ethnicity, politics, lack of accountability and access to justice, increasing competition over dwindling land resources, population growth, soil degradation and internal displacement from crime and other forms of violence as drivers contributing to the violence. Several experts have noted armed conflicts in the Sahel and Lake Chad Basin (particularly the Boko Haram insurgency) have altered grazing routes and brought herder groups in contact with new communities, sometimes leading to conflict because they are unaware of pre-existing agreements between the local herding and farming groups. The UN has also noted demographic and ecological pressures have resulted in internal transhumance (movement of livestock) in the Middle Belt in recent years.

   3.23 In December 2019, the US Department of State added Nigeria to a Special Watch List for governments that have engaged in or tolerated severe violations of religious freedom. DFAT understands this action was taken due to the perceived failure of state authorities to protect religious communities from insurgency-related violence.[2]

   [2] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 24-26

   …

   STATE PROTECTION

   5.1      Security and law enforcement in Nigeria is managed at the federal level through the Nigerian Armed Forces (NAF), the Department of State Services (DSS) and the Nigerian Police Force (NPF). The government also utilises groups created for specific purposes, such as the CJTF (which supports security operations against Boko Haram).

   5.2      Capacity constraints have limited the NPF’s ability to control societal violence, particularly in areas under a state of emergency and in Middle Belt conflict zones between mostly Fulani herders, and Muslim and Christian farmers (See Security Situation). As a result, the government routinely relies on the military to provide community policing in areas that experience high levels of violence. In 2019, the Nigerian military reportedly conducted active security operations in almost all 36 states, effectively replacing policing operations in many areas.

   5.3      As noted elsewhere, there have been numerous reports of human rights violations or other abuses of power committed by the security forces and other government officials or agents. While the government has taken some steps to investigate alleged abuses, there have been few public reports of prosecutions of officials who have committed violations and impunity remains widespread at all levels of government. DFAT assesses a complaint lodged by an ordinary citizen of a violation committed by a state official is unlikely to result in either prosecution or restitution.

   Nigerian Armed Forces (NAF)

   5.4 Chapter 6 Part 3 C of the Constitution (Articles 217-220) sets out the roles and responsibilities of the Nigerian Armed Forces (NAF), which report to the Ministry of Defence. The NAF consists of an Army, Navy and Air Force, and has around 181,000 personnel. Article 217(3) of the Constitution requires that the composition of the officer corps and other ranks reflect the federal character of Nigeria. Nigeria’s military spending in 2019 was the equivalent of 0.5 per cent of GDP. Nigeria’s voluntary military service age is 18; there is no conscription. As noted in Recent History, the military ruled Nigeria for much of the period following independence in 1960 until the return to civilian rule in 1999. While it has not involved itself in politics since that time, many senior political figures (including the current President) are former generals and the NAF continues to occupy a prominent role in national life.

   5.5      In addition to being responsible for Nigeria’s external security, Article 217(2)(c) authorises the President (with support of the National Assembly) to use the NAF to suppress insurrection and act in aid of civil authorities to restore order. In 2019, the NAF was part of continuing joint operations against insurgencies in the Northeast, Southeast, Niger Delta, Middle Belt and Northwest. The NAF has also made a significant contribution to regional peacekeeping efforts, most notably in Liberia and Sierra Leone in the 1990s. In recent years, the NAF has been particularly focused on combating the Boko Haram insurgency in the northeast and worsening communal conflict in the Middle Belt region (see Security Situation).

   5.6      The duration of the Boko Haram conflict and the NAF’s failure to eliminate Boko Haram as a security threat has led to criticism, with some commentators contending the NAF is overstretched, understaffed, underequipped and underperforming. Corruption within the NAF has contributed to low morale at troop level: frontline soldiers have publicly complained about inadequate equipment and not receiving wages. As noted elsewhere, human rights observers have raised concerns on a number of occasions that the NAF has committed significant human rights abuses against civilians and suspected insurgents in the context of conducting operations against Boko Haram.

   5.7      The Armed Forces Act (2004) dictates that disciplinary action in the NAF is determined by a soldier’s commanding officer, with the decision subject to review by the chain of command. The NAF has a human rights desk to investigate complaints of human rights violations brought by civilians, and a standing general court martial in Maiduguri. The court martial in Maiduguri has convicted soldiers for rape, murder and abduction of civilians. The human rights desk in Maiduguri coordinates with the NHRC and Nigerian Bar Association to receive and investigate complaints, although their capacity and ability to investigate complaints outside major population centres remains limited. According to international observers, many credible accusations of abuses remain uninvestigated.

   Nigerian Police Force (NPF)

   5.8 Chapter 6 Part 3 B of the Constitution (Articles 214-216) sets out the role and functions of the NPF, which is the country’s principal law enforcement agency. Article 214 prohibits constituent parts of the federation from forming their own police forces. The NPF maintains law and order in each state and engages in border security, maritime and counter-terrorism operations. An inspector general of police, appointed by and reporting directly to the president, commands the NPF.

   5.9      With around 370,000 officers, the NPF is one of the largest police forces in the world, although to meet the UN recommended ratio of one police officer per 400 residents it would need to train another 155,000 officers. While the exact number of female NPF officers is unclear, it has historically been low. In-country sources report the NPF suffers from low capacity and insufficient training, while its operational efficiency is hampered by its centralised nature, which makes resource allocation and changes in operating procedure slow to implement in all states.

   5.10    Police salaries are low, with recruits earning less than USD400 a year. As a result, police officers are susceptible to corrupt practices to supplement their income and many Nigerians view the NPF as an endemically corrupt organisation (see Corruption). In November 2018, President Buhari approved legislation to increase police salaries in an effort to address corruption and lift performance.

   5.11    Local and international observers have reported numerous instances in which the NPF has used disproportionate force, including live ammunition, to neutralise unrest or protests (see Extrajudicial Killings). Observers have also reported numerous cases in which NPF officers have arbitrarily arrested and detained individuals, and abused criminal suspects and insurgents in custody (see Arbitrary Arrest and Detention). As noted in Torture, international observers have reported the NPF’s SARS has sometimes used torture to extract confessions later used to try suspects.

   5.12    Public discontent over the history of reported violence by SARS without accountability culminated in a series of Nigeria-wide protests in October and November 2020, known as the ‘#EndSARS’ movement. The protests followed the reported killing of a man by SARS officers in Delta state, a video of which went viral. On 11 October, the President dissolved SARS with immediate effect, yet protests continued. Amnesty International claimed the military and police fired on protesters in Lagos on 20 October, killing at least 12. The army denied its personnel were involved, but the Lagos Governor has launched an inquiry into the ‘rules of engagement ordered by the Nigerian Army’. The protests have continued as has a Government crack-down on the protest movement but the need for police reform has been widely acknowledged. President Buhari stated in a nationwide broadcast on 22 October that the voice of the protestors had been heard ‘loud and clear’. The creation of state-based Judicial Panels of Inquiry to investigate reports of abuse by the disbanded SARS police unit appears to be the principal result of the protest movement and these are receiving significant media coverage. The panels have been given six months to report. Alongside this response apparently recognising the need for reform, some protesters claim the government is conducting a targeted campaign against people associated with the movement, by freezing bank accounts and withholding passports.

   5.13    Three government agencies oversee the NPF: the Nigeria Police Council, the Police Service Commission (PSC) and the Ministry of Police Affairs. In-country sources report inadequate resources and a lack of independence have hampered the ability of these organisations (and the NHRC) to prevent and investigate instances of police abuses.[3]

   [3] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 52-54.

   Hearing, credibility, information post hearing, findings, and assessment

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

2. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

3. The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.

4. At the commencement of the hearing, the Tribunal asked the applicant if there were any impediments to him answering the Tribunal’s questions and talking about his experiences in Nigeria. In response, the applicant referred to the trauma of the deaths of his wife and child and that this could affect his evidence. The Tribunal explored with the applicant medical treatment he was receiving for mental health issues. The applicant indicated that his doctor had referred him to someone else whose details were not specified who had prescribed Mirtazapine, an antidepressant. The applicant indicated that he was not undertaking any ongoing counselling.

5. As indicated below, various credibility concerns were put to the applicant during the course of the hearing. At the end of the hearing, the applicant’s migration agent indicated that it may be necessary to obtain a mental health assessment of the applicant to explain defects in his evidence. The Tribunal provided three weeks for this to be provided together with other submissions that the migration agent indicated that he would make.

6. Medical evidence subsequently provided is discussed further below in the context of considering the credibility concerns identified. Submissions on other matters are referred to at various points in the discussion and analysis that follows.

7. The Tribunal has numerous, including significant credibility concerns with the applicant’s claims which follow.

8. Firstly, the applicant has provided inconsistent evidence of text message contact from [Mr B] after their meeting and changing his SIM card as a result, but receiving further communications on the new mobile number.

9. The latter is evidence provided by the applicant in his written claims elaborated in the interview with the delegate in which he indicated that two days after the meeting in February 2017, he received a threatening text message from [Mr B] and as a result changed his SIM card but received shortly thereafter another text message on the new mobile number.

10. In contrast, in the Tribunal hearing the applicant indicated that the first text message correspondence he received from [Mr B] was shortly before he found his wife and child dead in the family home in June 2017.

11. In response to this inconsistency put to the applicant in the hearing, he indicated that it is true that he received the text message from [Mr B] shortly after the meeting and changed his SIM card and received another message on the new number, but he had not remembered this information when he provided evidence earlier in the hearing.

12. The Tribunal has difficulty accepting, including in the context of all of the credibility issues considered cumulatively, that forgetfulness is the cause of not providing this information in the hearing. The Tribunal considers that the inconsistency undermines the credibility of the applicant.

13. Secondly, the applicant has been inconsistent as to what he was doing immediately before he found his wife and child dead in their home in June 2017.

14. In the interview with the delegate, the applicant indicated that he had been in a church program and he returned home at about 11pm to find his wife and child dead. In contrast, in the Tribunal hearing the applicant indicated that he was returning to the family home from Kaduna using various modes of transport, with the last sector to Akure by bus. He indicated that he got off the bus and returned home and that this is where he found his wife and child dad.

15. The Tribunal noted to the applicant that this was inconsistent with the evidence in the interview that he had, prior to finding his wife and child dead, been at church. The applicant indicated in response that he had not been at church. It was a church that he had subsequently fled to after the discovery of the bodies.

16. This does not explain the inconsistency in the applicant’s clear evidence in the interview that he had been at church prior to finding his wife and child dad. Although this is a peripheral matter, it is an important contextual detail on which the Tribunal does not think the applicant would be readily confused. The inconsistency undermines the applicant’s credibility.

17. Thirdly, the applicant has been inconsistent as to whether he or anyone on his behalf approached the police in relation to the murders. In the Tribunal hearing, the applicant indicated that the police were not contacted by him as there was the potential for them to be in concert with the perpetrators. The Tribunal asked the applicant if anyone on his behalf went to the police, and he indicated that they did not.

18. The Tribunal noted to the applicant that this information is inconsistent with his evidence in the interview with the delegate that he himself went to the police when he was in the church he sought sanctuary in after the murders. The Tribunal noted to the applicant that his written claims indicate that it was the pastor who went on the applicant’s behalf to the church.

19. In response to these inconsistencies, the applicant indicated that he thought that what was being asked was whether he went to the police at the time of the murders. The question to the applicant was not qualified in this way. It was expressed in terms of any approaches to the police.

20. The applicant further indicated in the hearing that it was in fact the case that the pastor went to the church on his behalf in relation to the murders, but it was clear that they were not going to take any action.

21. This therefore is inconsistent with the applicant’s initial evidence in the hearing when specifically asked that no one on his behalf went to the police. The Tribunal struggles to accept that the applicant would be readily confused about this, or that the question that was asked by the Tribunal was only directed at police contact undertaken immediately after the discovery of the bodies.

22. The inconsistencies on this matter, including the differing evidence as between written claims in the interview as to whether it was the applicant himself or the pastor who went to the police are undermining of the applicant’s credibility.

23. Fourthly, it is implausible in extreme to the Tribunal that police would not have been informed and have investigated the claimed murders of the applicant’s wife and child, if not reported by the applicant then by those that subsequently found the bodies.

24. In the interview with the delegate, the applicant indicated that it was his wife’s parents that arranged for funeral. In the hearing, the applicant referred to his brother’s involvement.

25. At its heart, the applicant’s evidence did not have a ring of truth in terms of the lack of police involvement of the claimed murders. The applicant indicated that police were potentially in collusion with those that had perpetrated murders and it was for that reason they were not involved.

26. The Tribunal struggles to accept the plausibility of police or other authorities not having any involvement in the murders claimed even if it were to be accepted that there are deficiencies in police operations in Nigeria.

27. Fifthly, the applicant has not been consistent in terms of where he slept during his many months taking sanctuary in the church. In the interview with the delegate, the applicant indicated that he either slept at the altar or on a mattress in a side room in the church. In contrast, in the Tribunal hearing the applicant initially indicated that he slept in a separate building that was used for prayer in the church compound.

28. This inconsistency was put to the applicant.  He responded, that sometimes because of prayer meetings in the building where he slept he would sleep in the church. The Tribunal indicated that found it implausible that prayer meetings would be held so late at night when the applicant would ordinarily be sleeping. In response, the applicant indicated that after the prayer meeting had ended, individuals would remain resulting in him needing to sleep in the church.

29. The Tribunal has some credibility issues in relation to the inconsistency in evidence as to where the applicant slept when he was under the sanctuary of the church. The Tribunal has concerns that the applicant has tailored his evidence untruthfully when the inconsistency in evidence was pointed out. The Tribunal maintains its plausibility concerns that prayer meetings would be held at the time which would result in the applicant not being able to sleep in his regular building. This is a peripheral and contextual matter and is not a major credibility concern, but is considered cumulatively together with other more significant concerns.

30. Sixthly, the Tribunal has concerns with the fact that the applicant, although he claims to have been so out of his mind when he discovered the bodies of his wife and child, that he cannot remember how he travelled to the different state where he sought church sanctuary, yet had the presence of mind to bring his passport with him, which he used to travel to Australia.

31. In response in the hearing, the applicant indicated that in Nigeria the passport needs to be used regularly for identification purposes and was in the bag that he regularly carried.

32. The Tribunal has some concerns at the need in Nigeria for ordinary citizens to have to regularly carried a passport with them on a day-to-day basis for identification purposes. However, the Tribunal accepts that although this may seem implausible, it might still happen.

33. This is not a credibility concern that is given significant adverse weight.

34. Seventhly, no probative independent documentary evidence has been provided up to the time of the Tribunal hearing to corroborate his claims. This includes death certificates or other evidence of the death or investigation of the applicant’s wife and child, and [Mr A]. It includes documentary evidence that would indicate the customs arrangement both between the applicant and [Mr A], and the applicant and [Mr B]. 

35. In response in the hearing as to the lack of corroborative documentary evidence, the applicant indicated that he was in such a state he just ran away and left the country without obtaining such information.

36. The Tribunal struggles to accept that if the applicant was fleeing to Australia for his safety for the reasons claimed, with the option to obtain a permanent visa on the basis of the harm claimed, that he would not have identified the possibility of a protection visa before leaving Nigeria and made the effort to obtain corroborative documentary evidence which would have been obtainable.

37. In the response provided after the hearing, a birth certificate of the applicant’s child is provided, which the Tribunal is prepared to accept is genuine. It is claimed that difficulties in obtaining documentation in Nigeria explain the inability to provide a birth certificate of the wife or relevant marriage certificate or death certificates of the wife and child. A report dated 2 November 2020 of the Immigration and Refugee Board of Canada is provided as seeking to support claims of documentation in difficult to obtain in Nigeria.

38. After the hearing the applicant provided a copy of a page of a newspaper, [named] dated [date] 2017 with an [article]. The article refers to the murders of the applicant’s wife and child [in] June 2017. The article indicates that an eyewitness who requested anonymity indicated that the applicant returned home one night and found his wife and child dead. The report indicates that the killers entered at around 9pm looking for the applicant and when they did not find him angrily chose to eliminate his family. It is reported that efforts to speak to the applicant (by the reporter) proved abortive as he was unreachable.

39. The Tribunal has concerns as to  the late provision and genuineness of this document particularly or that it is reporting genuine events given its contrived, unlikely and self-serving content. The applicant in his own evidence made no mention that there was an individual who he encountered when he found bodies of his wife and child who could have been the eyewitness mentioned in the media article. Additionally, the Tribunal sees no rational basis on which the article could reasonably have reported the intentions of the killers in terms of their desire to find the applicant and in not doing so deciding to inflict harm on the wife and child. Further, if the murders had been reported contemporaneously in the local newspaper that reinforces very significant doubts that police would not have investigated the murders as claimed by the applicant.

40. The Tribunal in all circumstances does not consider that the article overcomes the cumulative impact of the credibility issues identified and has significant concerns as to its genuineness.

41. The Tribunal accepts as plausible difficulties in Nigeria in obtaining certain official documentation. However, the Tribunal has great difficulty accepting that if the applicant’s wife and child had been murdered in the circumstances claimed that the issues would not have been investigated by the police. The Tribunal considers that the applicant as the husband would have had access to police documentation relating to the investigation that would corroborate claims that he has been making in terms of the circumstances of their deaths.

42. The absence official documents relating to the deaths of the wife and child and lack of information concerning police investigations is undermining of the factual information put forward by the applicant as to the circumstances of their deaths.

43. Before considering these credibility issues, the Tribunal deals with the general explanation are mental health issues caused to the applicant by the trauma of finding his dead wife and child have resulted in the deficiencies in his evidence.

44. The Tribunal notes that the initial written claims made by the applicant for protection are very detailed in terms of the specific events that occurred. Similarly, in the interview with the delegate the applicant goes into very significant detail in recounting what happened including at various points speaking without interruption by the delegate for long periods explaining his claims. Further, in the Tribunal hearing the applicant in terms of inconsistent evidence provided in the hearing did not prevaricate and he said he did not remember relevant issues but instead simply provided inconsistent accounts.

45. The applicant’s overall evidence in the hearing and his responses to questions and seeming to understanding them did not persuade the Tribunal that the applicant was suffering any mental health difficulty seriously impeding his ability to give evidence in the hearing.

46. Additionally, up until the time of the Tribunal hearing whilst the applicant has been in Australia since March 2018 there is no evidence of him undertaking any significant mental health treatment and ongoing counselling. On the applicant’s evidence and hearing, he was referred by his doctor to someone who prescribed him on antidepressant. The applicant indicated in the hearing he has not received ongoing counselling.

47. As indicated, subsequent to the hearing evidence was provided in terms of the applicant’s mental health issues.

48. Provided was a GP referral dated 28 July 2022 (the day after the Tribunal hearing) to a psychiatrist indicating that the applicant was presenting with symptoms suggestive of PTSD, including insomnia, depression and anxiety. The referral makes reference to the applicant suffering the tragic loss of his family members in Nigeria in 2017. A mental health plan is provided created on the same date. A letter is provided dated 29 July 2022 from [Counselling Service 1] indicating that [the service has] accepted the referral and that the applicant has been posted on a waiting list.

49. On 5 September 2022 the Tribunal received a brief undated report from [a named doctor], of [Counselling Service 2] relating to the applicant. The report indicates that the applicant attended his third appointment for psychotherapy and counselling on 2 September 2022. It indicates that he demonstrated symptoms of anxiety and depression as a result his wife and son’s death, his visa application and lack of support. It is diagnosed that the applicant has exhibited symptoms which are consistent with PTSD and insomnia. It recommends he require ongoing psychotherapy, antidepressant medication and counselling.

50. The written submission provided by the applicant’s representative after the hearing indicates that any inconsistencies in the applicant’s evidence can be explained by the impact of the trauma that he has experienced. Tribunal guidelines in terms of vulnerable persons are referred to.

51. The Tribunal accepts that there has recently been diagnosed with PSTD and insomnia based on the applicant’s own reporting. However, if the applicant had been suffering from the severe mental health issues as claimed has a result of issues in Nigeria prior his arrival in Australia as seeking to explain the various credibility concern is identified the Tribunal does not consider that the applicant would have waited from his arrival in Australia in April 2018 until the day after the Tribunal hearing in August 2022 to seek substantial ongoing medical support for those issues. This is undermining as to the period from which the applicant has suffered mental health issues and/or the severity mental health issues suffered by the applicant.

52. Further, including given the relatively detailed and non-prevaricating way in which the applicant has provided evidence over time both in writing and in oral proceedings the Tribunal is not satisfied that the cumulative impact of the credibility concerns identified are as a result of claimed mental health issues, albeit acknowledging the recent diagnosis of PSTD and insomnia. Some of the credibility concerns particularly involving plausibility are not dependent on the applicant’s mental state.

53. The Tribunal considers these seven credibility issues. Cumulatively considered they are very significantly damaging to the applicant’s overall credibility. There are multiple inconsistencies, including on key matters as to whether police were approached. As put to the applicant in the hearing, scenarios put forward by the applicant seem highly implausible. Implausibility issues are not explained by deficiencies in the mental health of the applicant. The Tribunal is not satisfied that the applicant has been a truthful or credible witness in terms of claims made as his involvement with [Mr B] and the deaths of his wife, child and [Mr A] or claims of [Mr B] and/or Boko Harm to whom he belonged having had or continuing to have an adverse interest in the applicant and a desire to cause him serious or significant harm.

1. The Tribunal is not satisfied that the applicant acted as a customs agent for his friend [Mr A] and engaged [Mr B] as a client, connected to Boko Haram, who wished to import ammunitions which resulted in concerns for the applicant. The Tribunal is not satisfied that [Mr B] subsequently contacted and/or threatened the applicant on any occasion. The Tribunal is not satisfied that [Mr A] was killed in the circumstances described. The Tribunal is not satisfied that the applicant’s wife and child were killed in the circumstances described, that is, at the instigation of or by [Mr B] or Boko Haram. The Tribunal is not satisfied that the applicant fled the scene of the murders without contacting authorities and sought sanctuary for many months in a church in a different state. The Tribunal is not satisfied that there was an approach to the police in relation to the murders by the applicant or anyone on his behalf with the police declining to investigate. The Tribunal is not satisfied that the applicant left Nigeria for Australia fearing for his safety. The Tribunal is not satisfied that [Mr B] and/or elements of Boko Haram have any adverse intentions towards the applicant if he were to return to Nigeria.

2. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of his interactions with [Mr B] and/or from Boko Harm as a result of this contact.

3. The applicant has made claims that he faces harm apart from these specific issues from Boko Haram including as a result of him being a practising Christian. The Tribunal accepts instances of problems faced by both Christians and Muslims including from Boko Haram.  The Tribunal accepts that the applicant may oppose Boko Haram. The Tribunal put to the applicant in the hearing that the independent evidence as to the activities and locations of Boko Haram do not suggest that Nigerian residents generally or practising Christians generally face a real chance of serious or significant harm from Boko Haram. Their adverse actions have mostly been in the north-east of the country with some spread to the central part of Nigeria according to the DFAT information. The applicant’s evidence in the hearing that Akure where his family home was is in the south-west of the country.

4. The applicant indicated in response that Boko Haram’s adverse activities spread across Nigeria. The Tribunal is not satisfied of this from the independent information before it and does not consider that the applicant either as a general resident of Nigeria or as a practising Christian faces a real chance of serious or significant harm from Boko Haram in the part of Nigeria where the applicant would reasonably return.

5. It has been claimed in recent submissions that the involvement with the applicant with [Mr B] and Boko Haram was in fact an attempt to forcibly recruit the applicant. This is not what the applicant’s evidence elsewhere suggests. In any event, the Tribunal does not believe the applicant claims of adverse encounters with [Mr B] or Boko Haram. The Tribunal is not otherwise satisfied that there is independent evidence before it to establish that Nigerian residents in general face a real chance of forced recruitment by Boko Haram.  The Tribunal is not satisfied that the applicant faces requisite harm as a result of being forcibly recruited by Boko Haram.

6. It has also been claimed on behalf of the applicant that he faces harm from other extremist groups. In the hearing, he indicated that this is in fact because other extremist groups are connected with Boko Haram. In the absence of the Tribunal finding that the applicant faces requisite harm from Boko Haram it is not satisfied that he faces harm from other extremist groups.

7. The applicant has claimed harm in Nigeria generally on the basis of being a practising Christian. The Tribunal accepts that the applicant is a practising Christian. The Tribunal noted to the applicant that DFAT information indicates that approximately 50% of the population Christian and 50% Muslim. The Tribunal indicated that that information indicates that whilst there can be problems for Christians it is not so severe that it would suggest a real chance of serious or significant harm for practising Christians generally in Nigeria.

8. The Tribunal explored with the applicant harm that he had faced as result of being a practising Christian from childhood. In response, the applicant indicated that when he was a child of about 10 or 11 in Kaduna the church he was attending was raided and burnt down. The Tribunal asked the applicant why this incident was not included in his relatively detailed written claims. In response the applicant indicated that he was only responding to questions asked by the person assisting him with his application.

9. Given the relatively detailed nature of the applicant’s claims, the Tribunal has credibility concerns as a result of this claim not having been previously been made. The claim has also considered in the context of all of the credibility issues identified. The Tribunal has considerable credibility concerns that this incident occurred.

10. The Tribunal indicated to the applicant in the hearing that even if this incident had occurred many years ago as claimed it would not result in the Tribunal considering based on independent evidence before it that this one-off occurrence demonstrates today that there is a real chance of serious or significant harm in Nigeria for every practising Christian.

11. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of what the Tribunal accepts would be his continuing practise as a Christian in Nigeria.

12. For avoidance of doubt, the Tribunal is not satisfied that the applicant faces requisite harm due to his membership of the particular social group of imputed opponents of Boko Haram and/or other pro-Islamic extremist groups. The Tribunal is not satisfied that the applicant faces requisite harm due to his membership of the particular social group of men at risk of being forcibly recruited by Boko Haram. The Tribunal is not satisfied that the applicant faces requisite harm due to his actual and/or imputed opinion against pro-Islamic extremist groups such as Boko Haram.

13. Given all of these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

14. In summary, the Tribunal is not satisfied that there is a well-founded fear of persecution for the applicant for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk of him facing serious harm.

15. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

16. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

17. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    decision

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

    David McCulloch
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …