1824050 (Refugee)

1824050 (Refugee) [2022] AATA 1737 (20 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824050
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:David McCulloch
DATE:20 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 April 2022 at 3:25pm
CATCHWORDS
REFUGEE – Protection visa – Nigeria – religion – Catholic – occupation – photographer – target of attack due to covering church events – bombing of church – inability to subsist due to destruction of market stall and no compensation from government – general lawlessness – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a Nigerian citizen, applied for the visa on 14 May 2018. The delegate refused to grant the visa.
The applicant attended an interview with a delegate of the Department of Home Affairs on 8 June 2018.
The applicant appeared before the Tribunal on 8 April 2022 at 9.30am to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant communicated in English.
It was not apparent at the hearing that the applicant’s registered migration agent was attending as the agent did not appear on the video with the applicant from his own device. The Tribunal noted after the hearing that it had been recorded by a Tribunal Officer that the migration agent was attending the hearing and the agent was potentially in the same room as the applicant but not visible to the Tribunal. The migration agent did not intervene in the hearing or make a request to make an oral submission.
In the circumstances, the Tribunal wrote to the migration agent after the hearing giving the opportunity for a written submission to be provided. A written submission was provided details of which are indicated below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020 a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant entered Australia on a [temporary visa] [in] April 2018. The applicant lodged an application for a Protection visa Subclass XA-866 on 14 May 2018. The applicant visited [Country 1] [for] an event [for] one day [in] August 2017.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [Anambra] State, Nigeria. The applicant is a Christian of Igbo ethnicity who speaks, reads and writes Igbo and [another language]. The applicant lists no relatives. The applicant resided at one address in Lagos, Anambra from birth until April 2018. The applicant attended [School] from [year], graduating from [Secondary] School in [year]. The applicant was self-employed as a photographer from February 2005 until April 2018 working from an address in Lagos.
The applicant provided the following responses in the application for protection forms, setting out his claims for protection (not corrected for spelling or grammar):
Q: Provide reasons why this applicant left that country or those countries:
A: I LEFT NIGERIA FOR [AN EVENT] BUT AT THE SAME TIME I CAME TO SEEK PROTECTION BECAUSE MY LIFE IS NOT SAFE. THE MUSLIMS ARE KILLING CHRISTAINS EVERYDAY IN THE COUNTRY AND AS A CHRISTAIN MY LIFE IS NOT SAFE.
Q: Did this applicant experience harm in that country or those countries?
A: Yes
Q: Give details including: the type of harm this applicant experienced; the person/people responsible for the harm; why they harmed this applicant.
A: MY CHURCH HAS BEEN BOMBED
I HAVE BEEN TORTURED
I HAVE BEEN INJURED IN THE COURSE OF BOMBING
THE MUSLIMS WERE RESPONSIBLE. EVERY CHRISTAINS ARE A VICTIM AND THE PEOPLE WHO CARRIED OUT THESE ATROCIOUS ACT ARE THE MUSLIMS. THE PRESIDENT IS A MUSLIM TRYING TO CONVERT ALL CHRISTAINS TO BE A MUSLIMS. THEY ARE HELL
Q: Did this applicant seek help within the country or those countries after the harm?
A: No
Q: Give details of why this applicant did not try to seek help.
A: NO, SEEKING HELP IS MENINGLESS AND WILL NOT BE EFFECTIVE. MAJORITY OF THE PEOPLE IN THE COUNTRY ARE MUSLIMS SO SEEKING HELP WILL NOT BE EFFECTIVE. EVEN THE PRESIDENT REMOTELY TRYING TO CONVERT ALL CHRISTAINS TO BE MUSLIM. IT IS A SECRET AGENDA.
Q: Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
A: No
Q: Give details for why this applicant did not try to move to another part of the country or those countries.
A: RELOCATION IS VIRTUALLY IMPOSSIBLE BECAUSE IT IS WHOLLY INEFFECTIVE. THE MAJORITY OF THE PEOPLE ARE MUSLIMS SO TRYING TO RELOCATE WITHIN THE VERY PEOPLE HELL BENT TO HARM YOU IS UNFATHOMABLE. I COULD ENVISAGE MYSELF BEING OFFERED ANY FORM OF ASSISTANCE BY A MUSLIM.
Q: Explain what the applicant thinks will happen to them if they return to that country or those countries:
A: I WILL BE KILLD AND BOMBED
MY CHURCH WAS BOMBED AND THE TARGET WAS THEY WANT TO ELIMINATE ME BECAUSE I PARTICIPATED IN CHURCH ACTIVITIES. I WAS AT THE FOREFRONT OF ALL CHURCH DUTIES SO I BECAME A TARGET. THEY WANT TO THREATEN ME AS A MEANS TO SILENCE ME AND THE REST OF OTHER CHRISTAINS.
Q: Does this applicant think they will be harmed or mistreated if they return to that country or countries?
A: Yes
Q: Give details including: the type of harm or mistreatment this applicant is likely to experience; the person/people who would be responsible for the harm or mistreatment; why they would harm or mistreat this applicant.
A: INCESSANT SECURITY THREATS
CONSTANT BOMBING
ARSON AND DESTRUCTION OF PROERTY
TORTURE
THE SUNDAYS ATTACKES ARE VERY RAMPANT AND DESTRUCTIVE IN ANAMBRA STATE. THE MUSLIMS ARE RESPONSIBLE FOR ALL THESE ATTACKES. THEIR NUMBER ONE MOTIVE IS TO DESTROY ALL FORMS OF CHRISTAIN WORSHIP IN THE STATE
Q: Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
A: No
Q: Give details about why this applicant thinks the authorities could not, or would not, protect them.
A: NO, SEEKING HELP IS MENINGLESS AND WILL NOT BE EFFECTIVE. MAJORITY OF THE PEOPLE IN THE COUNTRY ARE MUSLIMS SO SEEKING HELP WILL NOT BE EFFECTIVE. EVEN THE PRESIDENT REMOTELY TRYING TO CONVERT ALL CHRISTAINS TO BE MUSLIM. IT IS A SECRET AGENDA.
Q: Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
A: No
Q: Give details about why this applicant is unable to relocate.
A: RELOCATION IS VIRTUALLY IMPOSSIBLE BECAUSE IT IS WHOLLY INEFFECTIVE. THE MAJORITY OF THE PEOPLE ARE MUSLIMS SO TRYING TO RELOCATE WITHIN THE VERY PEOPLE HELL BENT TO HARM YOU IS UNFATHOMABLE. I COULD ENVISAGE MYSELF BEING OFFERED ANY FORM OF ASSISTANCE BY A MUSLIM.
The Tribunal notes the following evidence of relevance given by the applicant in the interview with the delegate which took place on 8 June 2018. The applicant indicates that his parents are deceased. He was married and is divorced and has a child. The applicant’s former wife has mental health problems. A relative cares for the child. When they came to Australia he was living in [Lagos]. He had been at that address for around three years.
The applicant indicates that he is ‘pure’ Catholic. He says that he cannot return to Nigeria because of Muslim attacks on churches. The applicant’s parents had injuries from attacks on Catholic churches. The applicant indicated that he attended [a] Catholic Church[in] Lagos. This is the only church that the applicant goes to and he would attend on Sundays. He has been attending for the last eight or 10 years. The church has a lot of security and searches to check for arms.
The applicant was asked what has happened to him because of his religion and he says that he witnessed bombs in a church in Abuja, the capital of Nigeria. This happened three years previously. He was in the church because of an event he was covering. Nothing happened to him. The applicant refers to others being injured. He refers to almost 100 people being killed. The applicant had his camera with him but did not take photographs.
The applicant refers to being stabbed in 2007 in a market where a riot happened and people were being killed. People ran and this is when the applicant was stabbed. He got a wound on his leg. He went to hospital and treated himself and recovered.
The applicant refers to having a [business] and losing the shop in 2012 after a fire in the market. The market was rebuilt by the government and they sold it for a higher price and did not compensate. This is how the applicant lost the business.
The applicant was asked what else happened to him for being a Catholic. He refers to a lack of support by the government. The applicant refers to difficulties in a generalised manner but does not indicate other specific adverse issues suffered by him.
Independent information
The 2020 DFAT report on Nigeria provides the following information:
RELIGION
3.11 Article 10 of the Constitution prohibits either the federal or state governments from adopting any religion as a State Religion, while Article 23 includes religious tolerance as a defined national ethic. Articles 15(2) and 42(1) prohibit discrimination on the grounds of religion, while Article 38(1) guarantees freedom of religion, including the freedom to change religion or belief, and the freedom (either alone or in community, and in public or private) to manifest and propagate their religion or belief through worship, teaching, practice and observance. Article 15(3)(c) and (d) stipulate it is the duty of the State to encourage interfaith marriages and promote associations that cut across religious (or other sectional) barriers in order to promote national integration, while Article 222 prohibits political parties who limit their membership based on religion or who have names with religious connotations.
3.12    While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians.
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.[1]
[1] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 24-26.
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
The written claims of the applicant suggest that he is claiming to face a real chance of serious or significant harm in Nigeria as a result of his generally being a Christian as a product of widespread attacks on Christians and Christian churches in Nigeria.
This claim was discussed with the applicant at the hearing. The Tribunal put to the applicant that the DFAT information extracted in this decision would not suggest such widespread attacks on Christians in Nigeria and that the applicant would face requisite harm merely on the basis of Christian practice. The Tribunal notes that the DFAT information does indicate attacks on Christians by Boko Haram in the north-east and attacks by others in the Middlebelt but not widespread attack on a national basis, including in Lagos.
In the discussion of this with the applicant in the hearing he indicated that he agreed that he did not face harm merely on the basis of being a practising Christian. It was clear from the applicant’s evidence in the hearing that he is claiming that he has been specifically targeted as a result of his work for the church in covering events and being a photographer.
In contrast, the submission by the applicant migration agent after the hearing makes reference to the information in the DFAT report arguably indicating that it does indicate widespread violence and harm perpetrated against Christians across Nigeria. This is potentially contrary to the applicant’s claim in the hearing that he does not face requisite harm solely on the basis of being a practising Christian. Whilst the independent information does indicate not insignificant difficulties faced by Christians in Nigeria, it does not, in the Tribunal’s view substantiate that every practising Christian in Nigeria faces a real chance of serious or significant harm solely on being an ordinary Christian practitioner.
Including given that the applicant himself has indicated that is not making claims on this basis, the Tribunal is not satisfied that the applicant meets protection criteria solely as a result of him continuing to be a practising Christian in Lagos.
The applicant discussed in the hearing a letter he had that had not been previously provided to the Tribunal, which was provided after the hearing. The applicant read this letter during the hearing. It is a letter dated [March] 2022 signed by Rev. [A] of [his] Catholic Church, Lagos, Nigeria. The letter stated that the applicant was a parishioner at the church until four years before the date of the letter. He was said to be an active member. The author stated that the applicant became a target to the enemies of the church such as terrorists, herdsmen and kidnappers. He also stated that in 2017 the applicant knew his life was in danger and travelled to [Australia] in 2018 and refused to come back.
The Tribunal has the following credibility issues with the applicant’s claims.
Firstly, the applicant has not been consistent in claims that his church was bombed. In the applicant’s interview with the delegate he refers to his home church [in] Lagos which he had attended for the previous eight or 10 years. However, the applicant provided no evidence in the interview of bombings of this church or other attacks on this church. In both the interview and in the Tribunal hearing the applicant refers to being present when a bombing occurred in a church he was visiting in Abuja, but the Tribunal noted that this was not the applicant’s own church which is referred to in the application form as the one bombed.
This inconsistent evidence was put to the applicant in the hearing. In response, the applicant indicated that his home church could have been bombed when he was not there, but he is not sure.
The Tribunal put to the applicant its credibility concern that the applicant would not have known if his home church of many years had been bombed, even if he was not there. The applicant maintained that he could not have known.
The Tribunal does not consider that this is credible or plausible. The specific claim in the application form that his own church was bombed when the later evidence of the applicant is that he had no specific knowledge of such a bombing is undermining of his credibility.
Secondly, the applicant has not been consistent as to a key detail of the claimed bombing of the church that he visited in Abuja in terms of the number of people killed in the bombing. In the Tribunal hearing the applicant said that 17 people were killed, which he had heard from others. The applicant had given evidence in the hearing that press coverage of such attacks is restricted.
The Tribunal put to the applicant in the hearing that in the interview with the delegate he indicated that almost 100 people were killed in the bombing. In response, the applicant initially indicated that he did not say in the interview that 100 people had died. The recording of the interview clearly indicates that he did. The applicant then in the hearing indicated that he could have been referring to another church bombing in which 100 people died.
The Tribunal does not consider that this latter claim is reflective of what the applicant indicated in the interview where he clearly stated that almost 100 people died in the bombing that he experienced.
The Tribunal does not consider that the applicant would be mistaken or confused in terms of 17 or almost 100 people being killed in the claimed church bombing. This is a discrepancy of a significant magnitude. The Tribunal would consider that the very impactful experience of being present at the bombing would sear into the applicant’s memory the number of people killed.
Thirdly, the applicant did not provide an account of the church bombing in Abuja and its aftermath that persuaded the Tribunal that the applicant was recounting a true experience. This traumatic experience would be very impactful and remembered in the Tribunal’s view.
Instead, despite the Tribunal on multiple occasions requesting that the applicant describe the events as from his own experiences on the day in terms of specific details of the sequence of events, he provided generalities and third-party accounts rather than specific details of what happened to him. The evidence was vague and confused. The Tribunal was not persuaded that this confusion was an understandable impact of the trauma of being involved in the event. The applicant did not provide a narrative in terms of what had happened to him and his experience that persuaded the Tribunal that the applicant was recounting an event that actually occurred to him.
Fourthly, the applicant did not in the hearing nor in other evidence provide details of any specific event to cause him to consider that he was being specifically targeted for an attack as a result of his church activity and his covering of events and photography. The Tribunal asked multiple questions to the applicant of this in the hearing. In response to questions, the applicant was either non-responsive or spoke in generalities, without providing any event experienced by him that resulted in him considering that he was being specifically threatened or targeted.
When, towards the end of the hearing, the Tribunal put this concern to the applicant, he then responded that it is the supporting letter from the church referred to above which makes clear that the applicant is specifically targeted and threatened. When the Tribunal asked further questions on this issue, the applicant indicated that he knew that he was being targeted because this was the experience of other individuals who covered church events in the same manner that he was doing.
The Tribunal has significant credibility concerns as a result of the applicant not providing any evidence at all of approaches from individuals, threats or other specific events that would lead him to conclude that he was being specifically targeted as a result of his church and Christian activity. This is undermining of the applicant’s claims to this effect.
The Tribunal does not consider that the applicant would consider himself a target merely based on others being targeted or based significantly on the letter from his priest provided to the Tribunal. The failure of the applicant to provide any evidence of any encounters he faced or threats given that would have led him to think that he was being targeted, is undermining of claims that he was so targeted. The failure by the applicant to provide such evidence causes the Tribunal to consider the written claims that his priest provided to the Tribunal that he had enemies were not truthful.
Before considering these four credibility concerns, the Tribunal notes the following. Towards the end of the hearing the Tribunal asked the applicant if he was claiming to face harm on any basis other than his church and Christian activity. The applicant in response said that the only other basis that he was claiming harm is in terms of general lawlessness and violence in eastern Nigeria which prevented him from returning to his home area.
The Tribunal notes that in the written submission provided after the Tribunal hearing it was claimed by the agent that the applicant faces harm due to not being able to earn a living and not having a capacity to subsist. The claim is made that the applicant’s stall in his market was burned with a motivation to extract maximum casualties against Christians. The applicant himself in the hearing did not make claims that he faces harm due to not being able to work or subsist. Additionally, the written claims for protection make no claim on this basis, and indeed do not refer to him suffering an attack in a market or on his stall. Considering all the evidence, the Tribunal is not satisfied that the applicant on return to Nigeria would not be able to find a job or would be unable to subsist. The Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm on this basis, including taking account of the credibility issues identified above.
Cumulatively considered, the four credibility concerns identified are significantly adverse in the Tribunal’s assessment of the applicant’s credibility. The Tribunal is not satisfied that the applicant is a truthful or credible witness. The Tribunal is not satisfied of key substantive claims by the applicant.
The Tribunal is not satisfied that the applicant’s involvement with the church, including the covering and photographing of church events, has resulted in him being targeted or threatened by groups or individuals. The Tribunal is not satisfied that the applicant has suffered any harm or threats at all as a result of being a target for attack. The Tribunal is not satisfied that the applicant was present at a bombing at a church in Abuja where individuals were killed. The Tribunal is not satisfied that the applicant is or would be a target of individuals or groups in Nigeria that would harm him as a result of his practice of Christianity or through his work for the church in covering church events and photographing them.
The Tribunal does accept that the letter from Rev. [A] states that there has become an enemy of terrorists, herdsmen and kidnappers. However, as indicated in credibility issue four, the applicant has not provided any evidence that would support this proposition or that he has been specifically targeted for attack. The Tribunal does not consider that the applicant’s claim in the hearing that the contents of the letter itself support that he has specific enemies or is targeted does in fact substantiate this, given the applicant provided no details or specific adverse events that he encountered specifically targeting him.
The statement by the church that the applicant has enemies does not overcome the cumulative impact of the credibility concerns identified.
The Tribunal does accept that the applicant is and has been a practising Christian in Catholic churches in Nigeria. On the basis of the independent information before the Tribunal, and as acknowledged by the applicant himself in the hearing, the Tribunal is not satisfied that the continuing practice of Christianity by the applicant in his home area of Lagos would result in him facing a real chance of serious or significant harm based on this practice.
The applicant has given evidence in both the interview and in the hearing of problems a number of years before the applicant left Nigeria in a market where the applicant was selling goods. While there are inconsistencies in the details provided in between the interview and the hearing, the applicant claims to have been injured in this attack. In the interview, the applicant refers to an injury on his leg and in the hearing in contrast the applicant referred to an injury on his chest.
The applicant has not maintained prior to the submission provided after the hearing that this incident was other than a one-off incident or such that it demonstrates an ongoing risk to the applicant on return. The Tribunal notes that the incident is not referred to in the applicant’s written claims for protection. In contrast, the submission made after the hearing by the applicant migration agent indicates that this attack was due to the Christianity of the victims and indicates that it is a basis on which the applicant claims ongoing serious of significant harm.
For the purpose of this decision, the Tribunal is prepared to accept that there was an earlier incident in a market where the applicant suffered an injury of some sort, but it is not satisfied that the applicant was specifically targeted for attack, other than being a bystander, that it was directed at Christians, or that it demonstrates any ongoing risk to the applicant on return to Nigeria.
The applicant has claimed that he also faces harm as a result of general lawlessness in Nigeria, particularly in his original home area in the East. The Tribunal is not satisfied that harm on this basis satisfies protection criteria as the harm would not be discriminatory conduct as required by s 5J(4)(c). The harm is just based on the applicant being a member of the Nigerian population. As the harm is just based on the risk to the population generally such harm would also not met the complementary protection criteria as a result of the operation of s 36(2B)(c).
Given 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.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for the reasons 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 significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

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

[2022] AATA 1737

20 April 2022

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