1824617 (Refugee)

1824617 (Refugee) [2022] AATA 3593 (12 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824617
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:David McCulloch
DATE:12 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 August 2022 at 10:17am
CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – member of regional/ethnic separatist organisation – meetings and protests raided by authorities and members killed – credibility – inconsistent claims and evidence – implausibility of employee with public job role actively involved in proscribed organisation – limited knowledge of organisation – no activity in Australia despite active group here – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nigeria, applied for the visa on 11 May 2018. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 5 August 2022 at 9.30am to give evidence and present arguments. The applicant communicated in English.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020, 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 arrived in Australia on a [Specified visa] [in] April 2018. The applicant applied for the protection visa on 11 May 2018.
The following information is apparent from the application for protection forms. The applicant was born on [Date] in Enugu, Enugu State, Nigeria. The applicant is a Christian of Nigerian ethnicity who speaks, reads and writes English. The applicant is divorced, with two children born on [dates], both of whom reside in Nigeria. The applicant’s parents are deceased. The applicant has [brothers] and one sister who reside in Nigeria and he is not in contact with them. The applicant lived at one address in Umuahia, Abia from birth until April 2018. The applicant attended [University] from 2003 until 2007, graduating with a ‘[Bachelor degree in Subject 1]’. The applicant worked as [Job title] for [Employer] from January 1993 until April 2018.
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: Protection for Life: Applicant is a member of the separatist Organization, Indigenous people of Biafra (IPOB). This is an Organizational group from the Southern States of Nigeria Main the Igbo Tribe that agitates for breakaway from Nigeria and become independent Nation of Biafra.
this organisation, a non violent group insisted on a referendum. Letter attached from [Organisation].
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: will provide the supporting submission
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: because he is the member of the separatist Organization
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: will provide the supporting submission
Q: Explain what the applicant thinks will happen to them if they return to that country or those countries:
A: Prosecuted and may be killed
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: will provide the supporting submission
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: will provide the supporting submission
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: will provide the supporting submission
The Tribunal notes that the applicant did not provide a further supporting submission to the Department.
The applicant provided the following evidence to the Department and Tribunal:
·A letter from [Mr A] of [Organisation], Nigeria, dated [April] 2018, which stated that the applicant was a staff member of [Employer], and he was a member of the separatist organisation named the Indigenous People of Biafra (IPOB). The letter noted that the IPOB was a non-violent group that insisted on a Referendum. It states:
Between 30th August 2015 and 9th February 2016 were a blood bath and 80 people died. The government of the day put against the separatist organization IPOB on 16th September 2017 of possession and use of weapons on a military patrol and attempt to snatch their riffles. All the members flee for their lives as a result of military invasion of Umuahia and Aba, through military action code named “operation python dance” to eliminate all the members. Leader of IPON, Nnamdi Kanu and all the members flee for their lives as they declared him wanted by Nigerian government.
·An email from the applicant’s migration agent dated 8 June 2018, which includes the following information:
Between 30 August 2015 and 02 February 2016 there was a blood bath of IPOB. An allegation was put against the separatist organisation (IPOB)of having a possession and use of weapons on a military petrol and attempt to snatch the riffles. Nigerian Government declared war on the IPOB in UMUAHAI, ABIA State, all members ran away to save themselves of being slaughtered, hence, Military Python dance was introduced to kill each and every one. The leader Nnamdi Kanu and all the members flee for their lives as they were wanted by the Nigerian Government.
·Two webpage links from Newsweek and Facebook, contained in the above email. The Facebook link, however, cannot be opened by the Tribunal. The Newsweek link is an article by Connor Gaffey dated 23 August 2017. The article quoted Nigeria’s President Muhammadu Bahari as saying ‘Nigeria’s unity is settled and not negotiable. We shall not allow irresponsible elements to start trouble, and when things get bad they run away and saddle others with the responsibility of bringing back order, if necessary with their blood.’ The article suggested that Bahari’s comments seem to have been directed at separatists calling for an independent state of Biafra in Nigeria. It further reported, citing Amnesty International, that Nigeria’s security forces have clashed with pro-Biafra protesters in the past, killing at least 60 pro-Biafra activists at a rally in May 2016, whilst the Nigerian military has rejected allegations of wrongdoing and accused the Biafra groups of stoking violence.
·A letter from [Mr B] dated 31 May 2018 with the subject line ‘LIFE THREATENING ALERT’. The letter informed members of the IPOB of a killing in the South Eastern Region of Nigeria (Biafra Land) during the ‘sit at home’ celebration on 30 May 2018. The letter advised the applicant to ‘stay back where you are to avoid on [sic] unpleasant situation as your brethren and friends where about [sic] are not known.’
·A letter from [Mr A] of [Organisation], undated, which recalled the events of 16 September 2017 when IPOB members were killed and maimed, and their leader Mazi Nnamdi Kanu disappeared. The letter advised that the applicant stayed where he was to avoid being harassed, intimidated or eliminated for standing with the IPOB.
·A news article without title, date, author or publisher. The article outlines a brief biography of IPOB leader, Mr Kanu.
·An email chain between the applicant and [Mr A]. The email from the applicant paid tribute to his late sister, [Ms C]. In reply, [Mr A] advised the applicant to stay wherever he was as the government had been arresting and killing the applicant’s friends and colleagues.
·A Statement of Attainment from [Training provider in Australia], dated 17 December 2018, regarding the completion of two subjects as part of the Certificate III in [Subject 2].
·A Certificate II in [Subject 3], dated 4 December 2020, from [Training provider 3], including an academic transcript dated 25 February 2021.
·A letter dated 17 February 2022 from [Dr D] relating to a [specified person, to whom the applicant is providing specified assistance].
The Tribunal notes the following relevant evidence given by the applicant in the interview with the delegate of the Minister, which occurred on 12 June 2018. The evidence is provided in the order that it was given in the interview.
The applicant was a [job role] in [specified activity]. In Nigeria the applicant was living in Umuahia, Abia State, where he had lived at an address for [Number] years. The applicant has children aged [age range] and is divorced. His children are living with his ex-wife in Imo State. The applicant has [brothers] and a sister in Lagos. His parents are deceased.
The applicant came to Australia to attend [an Event]. He was to be here for [Number] days. The applicant was [doing a job role with specified people].
The applicant is asked why he is afraid to return to Nigeria. The applicant indicates that most of his colleagues have been killed. Nigerian soldiers are everywhere around his house looking for him because they have his identity. They have killed so many people. If the applicant returns to Nigeria he will be killed. The applicant is asked where his colleagues are from and he states [Employer] where he worked. The applicant was a [job role]. His colleagues have been killed because they were involved in the IPOB.
The applicant refers to being at a meeting the previous year, when they were attacked. People tried to snatch their guns and launched an attack and everyone had to flee for their lives.
The applicant indicates that he was chosen to join the IPOB. He went there and told them he wanted to be a member. The applicant first heard about them during the war. The applicant indicates that he joined the group four years previously. The applicant did this because he wanted freedom for his people. When asked if he knew others who had joined, the applicant responds, ‘my leader’. No family or friends have joined.
The applicant did not talk to his family about the organisation. However, when they came to know they told the applicant to be very careful.
The applicant indicates that he talked to some of his friends about the IPOB and that they joined too. Some joined before, and some joined after the applicant joined. The applicant refers to [Mr B] joining before he did.
The applicant is asked when the IPOB started and he says five or six years ago but he cannot be sure. The applicant is asked what the structure of the IPOB is and who the leader is. The applicant indicates that the leader is Nnamdi Kanu. He is the one who mobilises the members. The applicant is asked who is the second in charge, and he indicates that it is the wife of Kanu, sometimes. Her name is Princess. The applicant is asked if anything has happened to Kanu, and the applicant answers that nothing has happened to him; he is in hiding, which commenced in September the previous year. He is in hiding because they declared the IPOB terrorists four years previously.
The applicant is asked whether anything happened to Kanu before he went into hiding. The applicant indicates that nothing had happened except for an attack by the army, which made everyone run away. No one knows where Kanu is; he is believed to be in hiding just like the applicant.
The applicant indicates that no money needed to be paid for membership. Signing up involves going to the leader’s place in Abia state. The applicant is asked what he did when he went to the leader’s place. The applicant responds, ‘not much’ and states that they are all being ‘sensitised of Biafra’ and ‘sensitised to what they are looking for’. They are told not to be harmful to any person, and they have no guns or knives.
The applicant is asked what he did as a member. The applicant responds that he attended meetings from time to time with the leader. When asked to be more specific about how often the meetings were, the applicant responds that ‘probably’ when they hear there is a killing they have a meeting. It is not a secret meeting. Everyone is told to come and not to retaliate. The applicant is asked to provide more detail, and he responds that they would sensitise them to what is happening in Nigeria and every person is told to be calm, and not to retaliate. When asked to explain what the applicant means by ‘sensitise’, the applicant responds that they have been told what has been done and what they say the reason is for doing it. The reason they are doing it is because they saw people with Biafran flags and uniforms. They do not want Biafrans in Nigeria.
When asked what else the applicant does as a member, the applicant says, ‘nothing much’, and that they normally get information in other states and around. The applicant is asked whether he goes to any events and he responds that he does not.
The applicant is asked what has happened to him because he has been a member of IPOB, and he responds that he has been humiliated so many times, and has been called for interrogations. The applicant indicates that he was asked questions like he is being asked in the interview. They told him to stay away from the IPOB or he will be killed. The last time this happened was in February 2017. The applicant is asked to provide detail and he indicates that they called him to come and asked him why he belonged to the IPOB, and that this is the last warning he will be given. If he does not leave the IPOB they will make sure that all of them will be killed.
The applicant is then asked if some of his colleagues in his office are also in the IPOB and he indicates that they are not. The applicant is asked whether he knows others who are also in the IPOB and the applicant indicates that he just met them in meetings and became friends.
The applicant indicates that his job as a [job role] was full-time and he was paid by the government. The applicant is asked if other people know he is a member of the IPOB and he says that he hides his identity but sometimes they hear it and saw him with a Biafran bangle. Work colleagues have asked him if he is a member of the IPOB and he says that is none of their business. This happened about three years ago. Nothing as a result happened.
The applicant is asked whether, if they knew he was a member of the IPOB, he would have lost his job. The applicant responds that he would not know, but would not want them to get an answer from him. The applicant is asked whether he thinks he would have been fired if they knew and he says ‘no’. When asked why not, the applicant indicates that it’s a movement and organisation that anyone can belong to; it is not a secret organisation. The delegate indicates that the government calls the IPOB terrorists, and asks whether they would keep or fire an employee who was a member of the group. The applicant responds that they would fire them, which is why he keeps his identity from many of them.

The applicant is asked how many times he was interrogated. The applicant responds, ‘two years ago’ and that he has been avoiding them by being in hiding. He has been in hiding by not staying around people and by moving from place to place. He has been in hiding for two years. The applicant is asked if this affects his job. The applicant indicates that he comes to his work wherever he is. The applicant is asked why it is not the case that they could not find him at work. The applicant responds that he was very lucky that he got called to [a specified location]. When he left work for the [specified location] he was called to [an Event]. This was in December of last year.
The applicant is asked if anything happened to him because he was a member of the IPOB and he indicates ‘no’. The delegate notes that previously the applicant indicated that lots of his colleagues from the IPOB had been killed and is asked who specifically had been killed. The applicant indicates that he cannot remember their names. The applicant is asked about his friend who joined, [Mr B], and the applicant indicates that he is in hiding.
In relation to people being killed, the delegate asks the applicant when this happened. The applicant responds that there was a casualty in his presence in 2017, and it even occurred in May 2018. The applicant is asked to provide detail of what happened in 2017. The applicant indicates that they were having a meeting, he thinks, in May 2017. They came into contact with military men who wanted to snatch their guns and ammunition. They beat every person and even shot some people. They had to run for their lives. More than 50 people died. This happened in Umuahia, Abia state. The applicant escaped by running.
The applicant is asked what happened in May 2018 and the applicant indicates that he was not there. The applicant was sent mail about this event.
The applicant indicates that if he returned to Nigeria he would probably go to jail or be killed. He would be jailed because he is a member of the IPOB. He would be killed because they are looking for every member. There is no place in Nigeria he would be safe. The applicant indicates that he will be able to provide a letter in support within a week.
The applicant is asked how he got the letter from [Organisation] and asked how they knew he was a member of the IPOB. The applicant responds that he got it through the mail and that perhaps a friend told them. The applicant indicates that he had an IPOB membership card but he did not come with it as he was scared that he might be searched and the card would be found.
The applicant is asked if he knows if any other [people doing a job role] are members of the IPOB and he indicates that they are not. The applicant is asked to indicate whether he is in contact with any members apart from [Mr B]. The applicant indicates that he is not.
Independent information
The 2020 DFAT report on Nigeria provides the following information (underlining added):
RECENT HISTORY
2.1      The boundaries and territory of contemporary Nigeria were established under British colonial rule commencing in the mid-19th century. The British formally consolidated the separate Protectorates of Northern and Southern Nigeria into the single Colony and Protectorate of Nigeria in 1914, bringing together a population comprising more than 250 ethnic groups, a major religious divide and a significant disparity in economic and educational development between north and south. In line with the post-WW2 wave of decolonisation across Africa, Nigeria achieved independence on 1 October 1960 under a constitution that provided for a parliamentary government and a substantial measure of regional self-government.
2.2      Independent Nigeria faced significant challenges from the outset, with ethnic and religious rivalries magnified by economic disparities. The first of a series of coups and counter-coups occurred in 1966, and Nigeria spent much of the remainder of the 20th century under military rule. In May 1967, the southeast region declared itself independent as the Republic of Biafra, sparking a three-year civil war that ended in January 1970 with Biafra’s defeat. Up to 3 million civilians died from the conflict, mostly from starvation. Several organisations continue to advocate for Biafran secession (see Biafra Secessionists).
2.3 Military rulers suppressed political activities, most notably General Sani Abacha who seized power in November 1993. After the widely condemned 1995 execution of a prominent writer and political activist, the European Union imposed sanctions and Nigeria was suspended from the Commonwealth. After Abacha’s 1998 death, parliamentary and presidential elections in 1999 brought former general Olusegun Obasanjo to power, marking the formal end of military rule. Nigeria introduced a new Constitution in 1999, which outlines the federal system of government and the hybrid application of religious, customary and civil laws.
2.4      Civilian-run presidential elections in 2003 resulted in a second term for Obasanjo, and there have been no further military coups since. Subsequent elections have occurred at four-year intervals, have all been civilian-run and have included victories by opposition candidates. While far from perfect and often accompanied by political violence, international observers agree these elections have generally reflected the will of the population. Nigeria’s most recent presidential election occurred in February 2019, resulting in a second term for former general Muhammadu Buhari.
2.5      Despite the return to civilian rule, Nigeria has continued to face significant challenges on a number of fronts. Ongoing ethno-religious tensions have occasionally led to deadly violence across the country, generally sparked by localised factors. Tension over the adoption of sharia (Islamic law) by several northern states in 2000 resulted in hundreds of deaths in clashes between Christians and Muslims and continues to be a point of friction (see Religion). Militant activities in the Niger Delta region targeting the oil industry have impacted upon the economy and national security more generally. An enduring campaign of violence in the northeast by the Boko Haram Islamist group has killed tens of thousands and displaced millions. Nigeria’s oil-focused economy remains highly vulnerable to external factors, and huge numbers of Nigerians live below the poverty line (see Economic Overview). Significant human rights abuses by both state and non-state actors continue to occur, often committed with impunity. The long-term effects of the COVID-19 pandemic remain to be seen.[1]
[1] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 9-10.
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Igbo
3.7      The Igbo people are the third largest ethnic group in Nigeria, constituting 15 per cent of the population. They originate from southeastern Nigeria and live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. The Igbo speak a number of Igbo dialects. They are predominantly Christian.
3.8      There are no legal provisions targeting the Igbo population in Nigeria and the Igbo, like all Nigerians, are able to move freely within Nigeria. Many Igbo have migrated to other areas of Nigeria, including northern states. Like other non-indigenous communities, Igbo residing in these areas have occasionally faced discrimination from locals: in June 2017, for example, activists in the northern city of Kaduna called for the eviction of Igbo residing in the state. DFAT is not aware of any other significant cases in which Igbo have been specifically targeted for violence or exclusion due to their ethnicity.
3.9      As noted in Recent History, in 1967 predominantly Igbo separatists attempted to declare an independent state in eastern Nigeria, known as the Republic of Biafra. This was the catalyst for the Nigerian Civil War (otherwise known as the Biafran War) of 1967-70, which resulted in the separatists’ defeat. Senior Igbo figures have claimed successive Nigerian governments, including the Buhari administration, have subsequently excluded Igbo from senior political, military and civil service positions. A number of political organisations continue to advocate for an independent Biafran state and have occasionally clashed with security authorities (see Biafra Secessionists).
3.10    DFAT assesses Igbo are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria. Like other non-indigenous communities, Igbo residing outside of their traditional homeland may face localised discrimination.[2]
[2] DFAT Country Information Report – Nigeria, 3 December 2020, p. 24.
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.29 Article 39(1) of the Constitution guarantees freedom of expression, including the freedom to hold opinions and receive and impart ideas and information without interference. Article 40 guarantees the right to assemble freely and to associate with other persons, and to form or belong to any political party, trade union or any other association. These constitutional freedoms are supported in law.
3.30    Since transitioning from military rule in 1999, Nigeria has held six regular democratic elections. Despite being marred by political violence (see Security Situation) and electoral irregularities (see Political System), international observers have characterised the last three elections (2011, 2015 and 2019) as broadly credible. The 2015 presidential election marked the first democratic transfer of power from the ruling party to the opposition in Nigeria’s history.
3.31    A May 2018 constitutional amendment lowered the age of eligibility to run for political office from 40 to 35 years, and allowed independent candidates to compete in federal and state elections for the first time. However, the failure to pass an electoral reform law ahead of the February 2019 elections meant all competing candidates were required to have political party sponsorship. Analysts have reported this requirement has resulted in political parties auctioning candidacy nomination forms to the highest bidder, thus limiting the ability to participate politically as a candidate to those with financial means.
3.32    International observers report Nigerians generally have the right to participate in the political process, including through joining political parties and voting in elections. However, citizens’ political choices remain impaired or undermined by vote buying and intimidation, the influence of powerful domestic and international economic interests, and the domination of either the military or illegal armed groups in certain regions of the country. Restrictive societal norms limit the ability of women to participate fully in the political process (see Women).
3.33    While generally respecting the rights of freedom of expression and assembly, federal and state authorities have occasionally banned and targeted gatherings that they have concluded might lead to unrest (due to the gatherings’ political, ethnic, or religious nature). Human rights groups have criticised federal and state governments for prohibiting or dispersing protests that are critical of authorities or associated with controversial groups. Security services have occasionally used excessive force when dispersing protesters, which has resulted in fatalities (see Extrajudicial Killings).
3.34    In August 2019, Omoyele Sowore, a former presidential candidate, political activist, and founder of Sahara Reporters, was arrested after calling for nationwide protests with the tagline #RevolutionNow. Sowore was released on bail on 5 December 2019, nearly a month after he had met the bail requirements, but was re-detained by state security authorities the following day. Sowore was subsequently released from custody on 24 December 2019 after the Attorney General ordered his conditional release.
3.35    While #RevolutionNow protests took place in Lagos, Osun, Ondo and Cross Rivers states in the second half of 2019, international observers report none were attended by more than a few hundred participants, who in many cases were outnumbered by security forces. When protests in Lagos and Osun became violent, police used tear gas to disperse protesters, and also arrested protesters in Lagos, Osun, and Cross River. To DFAT’s knowledge, there have not been any subsequent #RevolutionNow protests.[3]
[3] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 27-28.
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Biafra Secessionists
3.45    As noted in Recent History, Nigeria fought a civil war from 1967 to 1970 against a secessionist movement in the southeast that titled itself the Republic of Biafra. The war came after coups and counter-coups around the central government, followed by a pogrom in which an estimated 30,000 Igbo were killed in the north, causing over a million people to flee into the east. While the exact number is unknown, most estimate the number of civilian deaths caused by the conflict to be 2-3 million, mostly due to famine.
3.46    Targeted re-engineering of the country occurred in the immediate aftermath of the Biafra conflict, aimed at preventing any further attempts at secession and encouraging national unity and peaceful coexistence among Nigeria’s more than 250 ethnic identities. These moves included greater federalisation, including through the creation of additional states, and the introduction of constitutional diversity requirements to prevent both monopolisation of leadership, and economic and political exclusion. Informal ethnic quotas and arrangements continue to seek to maintain ethnic and religious harmony.
3.47    Despite these moves to encourage greater national unity, there has never been a national reckoning or dialogue in relation to the issues that led to the Biafra conflict, which is not officially commemorated. According to observers, many in the southeast report feeling ongoing resentment at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation in national life. Such feelings have reportedly grown stronger in the years since President Buhari came to power, with many of his major political and military appointments tending to favour individuals from the north. As a result, in recent years there has been a noticeable resurgence of calls from the southeast for greater self-determination in the form of an independent Biafran state.
3.48    While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.
3.49    While the two groups (and other Biafran secessionist movements) have called for independence to occur through peaceful means, such as via referendum, central authorities have strongly rejected such calls, stating the country’s unity is ‘not negotiable’. In October 2015, security forces arrested IPOB’s UK-based leader Nnamdi Kanu on his return to Nigeria, charging him with treason and sedition. Kanu’s arrest sparked nationwide protests among his followers, leading to serious clashes with security forces. Amnesty International reported in November 2016 that, on a number of occasions across the southeast, the military had fired live ammunition with little or no warning to disperse crowds, causing multiple fatalities; while security forces also shot at least 60 people dead in the space of two days in connection with events to mark Biafra Remembrance Day in Onitsha, Ananambra state.
3.50    After Kanu’s release from detention in April 2017 failed to end the demonstrations, security forces launched a military operation, Operation Python Dance, to quell the agitation in the southeast. According to international observers, a September 2017 security operation against IPOB supporters at Kanu’s home resulted in up to 150 deaths. Authorities subsequently designated IPOB a terrorist organisation., While the clampdown by security forces appeared to largely curtail IPOB’s public activities, November 2020 saw a new outbreak of open conflict in the southeast of the country. Rivers state Governor Nyesom Wike has reportedly ‘declared war’ on the group following an attack on security forces which killed six soldiers and four police officers. In her September 2019 post-visit report, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution noted she had received a large number of allegations of killings of IPOB members by military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings. The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges; and there had not been any convictions of IPOB members since 2015 due to the discontinuance or dismissal of charges.
3.51    DFAT understands that, although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to conduct public activities. There have also been recent reports of deaths, injuries and mass arrests of MASSOB members in the context of clashes with security forces during pro-Biafra demonstrations. In May 2019, two MASSOB members were reportedly killed and 15 wounded following clashes with police at a MASSOB anniversary event in Onitsha, Anambra state, while in the same period a MASSOB member was reportedly arrested and tortured at a police station in Mgbidi, Imo state. In September 2018, 125 MASSOB members were reportedly arrested, with some sustaining injuries, during a rally in Anambra state.
3.52    DFAT assesses that, as members of a proscribed organisation, IPOB members face a risk of arrest that is likely to be higher for those in leadership positions. Ordinary members of IPOB, MASSOB and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.[4]
…
PREVALENCE OF FRAUD
5.56 Although the Penal Code and the Criminal Code criminalise fraud and the falsification of documents, Nigeria has experienced high rates of document fraud in the past. In addition to birth certificates, death certificates and marriage certificates, immigration officials report other common documents subject to the possibility of falsification include bank statements, health insurance certificates, invitation letters, letters of introduction and letters of employment from multinational companies. Such fraudulent documents are often used to obtain passports: in June 2017, the Police Special Fraud Unit reported the Italian Embassy was sending to them an average of 50 Nigerian passports obtained through the use of fraudulent documents monthly.
5.57      Those seeking illegal passports may include those who have been deported and had their passports seized, those seeking asylum, and those engaging in illegal overseas labour (such as prostitution) through agents. Nigerians may reportedly also seek fraudulent passports from countries such as Ghana, Senegal, Guinea and Mozambique.
5.58      In-country sources report numerous business operations exist in Nigeria from which it is neither difficult nor expensive to obtain a fraudulent driver’s licence or other documents that can be used to obtain a genuine passport (such as marriage certificates, birth certificates, age declarations, and letters of identification from local government). Corruption at local NIS offices may also enable the fraudulent production of genuine passports.
5.59      Nigeria has established institutions and strengthened procedures to combat the risk of fraud. Banking system controls, for example, have facilitated the growth of electronic transactions and widespread use of mobile app funds transfer. Nigeria is gradually strengthening its national identity system and biometrics. The NIS has a forensic laboratory for the examination of travel documents and monetary instruments, and the Nigeria Police Force has established a Special Fraud Unit to combat fraud, which actively investigates and prosecutes suspects. DFAT understands, however, that very few cases have thus far resulted in convictions.
5.60      DFAT assesses that, notwithstanding Nigeria’s efforts to improve controls against fraud, document fraud remains a significant issue in Nigeria, including in the process for re-issuing lost documents.[5]
[4] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 30-31.
[5] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 60-61.
Hearing, credibility, findings, and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
In the hearing, the applicant clarifies his work history with [Employer], which he indicated that he joined in 1993. At the commencement of this employment the applicant was [in a certain role] until 2000. From 2000, the applicant became a [job role]. He was appointed as [Job title] in 2016 and later also became the national [job role].
The Tribunal has numerous and significant credibility issues with the applicant’s claims, which follow.
Firstly, the applicant has not been consistent in terms of colleagues in [Employer] being involved and being killed as a result of involvement in the Biafra separatist movement. This is evidence given by the applicant towards the beginning of the interview with the delegate. However, the applicant contradicts this later in the interview saying that no work colleagues were involved in the separatist movement and the IPOB.
In response to this inconsistency put to the applicant in the hearing, he indicated that it is a result of there being different departments of the organisation in different states. The applicant has also claimed generally that English language difficulties and not understanding questions in the interview have caused the various credibility concerns put to him in the hearing. The Tribunal deals with this claim as a basis for the various inconsistencies further below.
The Tribunal is not otherwise satisfied that the fact of his work organisation having different departments or being in different states explains the internal inconsistency in the interview with the delegate that work colleagues were involved in the separatist movement and were killed as a result of their involvement. The later inconsistent claim that work colleagues were not involved in the IPOB is much more plausible given the unlikelihood of [employees] being involved in a prescribed terrorist organisation, however that does not explain the internal inconsistency in the interview.
Secondly, it is implausible in the extreme that the applicant, as a senior [work sector employee], holding a position of [Job title] of a [work sector] organisation and being the national [job role] would, at the same time, be actively involved in a terrorist organisation of significant adverse interest to the government.
The applicant did not adequately explain the implausibility of this in the hearing, other than to say that he questioned whether the IPOB was banned at the time he was involved with it. It is clear to the Tribunal from independent evidence that involvement in the IPOB in Nigeria at the claimed time of the applicant’s involvement would have attracted severe adverse consequences from the government.
Adverse to the applicant is the inherent implausibility of what he is claiming. The Tribunal accepts that the fact that something is implausible does not mean that it could not occur. The implausibility is not determinative in adverse credibility findings, but it reinforces other direct concerns.
Thirdly, the applicant has been inconsistent as to whether his previous friends had joined the IPOB. In the interview with the delegate, the applicant initially indicated that some friends had joined the IPOB both before and after the applicant joined. However, later in the interview the applicant indicated that no friends had joined before he had and he only met friends there.
In response to this inconsistency, which was put to the applicant at the hearing, he indicated that ‘friends’ in Nigeria has a much broader meaning and can be applied to individuals with whom there is relatively limited contact. This does not explain the inconsistency because it is the applicant himself that has used the term ‘friends’ in the inconsistent evidence outlined. The applicant’s own broader definition of that term does not explain the inconsistency.
Fourthly, the applicant’s lack of knowledge in the interview with the delegate about the arrest in October 2015 of Nnamdi Kanu, the leader of the IPOB, for treason and sedition, is undermining of the applicant being a member of the IPOB at this time and afterwards. DFAT information extracted in this decision indicates the arrest of Kanu at this time caused nationwide protests. In the interview, the applicant was asked if anything had happened to Kanu and the applicant indicates that he went into hiding in September 2017 but nothing had previously happened.
The Tribunal put to the applicant in the hearing the significant unlikelihood that, if the applicant was, as claimed, a member of the IPOB, he would not have known of the arrest of Kanu for treason and sedition, which caused nationwide protests. In response, the applicant indicated that it was because of his English difficulties in the interview that he did not properly understand this question.
In the interview, the applicant specifically says that nothing else happened to Kanu, other than him going into hiding. The Tribunal does not consider that this clear response suggests language confusion. The failure of the applicant to have had knowledge at the time of the interview of the arrest of Kanu is undermining of the credibility of what the applicant is claiming.
Fifthly, the applicant has provided inconsistent evidence of being in hiding before he came to Australia. In the interview with the delegate, the applicant indicated that he was in hiding for two years before he came to Australia to avoid detection by the authorities. In contrast, in the Tribunal hearing the applicant indicated that he was not in hiding during this period.
In response to the Tribunal putting to the applicant that his evidence in the hearing was inconsistent with what he had indicated in the interview, the applicant maintained that he was not in hiding but did not explain why he had told the delegate that he was in hiding for two years before he came to Australia.
This inconsistency is undermining of the applicant’s credibility.
Sixthly, the applicant has been inconsistent as to the extent to which he would wear a Biafra bangle. In the Tribunal hearing, the applicant indicated that he would wear this bangle at IPOB events but not to work. The Tribunal put to the applicant that this was inconsistent with evidence in the interview that he was asked at work if he was involved in the separatist movement because they saw his bangle.
In response, the applicant indicated that ‘maybe’ he wore that bangle at work but he doubts it.
The Tribunal maintains credibility concerns in relation to the inconsistency, albeit acknowledging that it is a relatively peripheral detail. Further, the Tribunal finds it implausible in the extreme that the applicant, in his [work sector] position, would wear a bangle identifying him potentially as a member of an outlawed separatist movement.
Seventhly, and very significantly, the applicant has not been consistent in terms of the nature of his involvement with the IPOB in terms of the activities he participated in, nor regarding details of being present on occasions where harm was caused by the authorities.
The delegate explored with the applicant in the interview reasonably comprehensively the nature of his involvement in the IPOB. The applicant gave evidence of participating in meetings of the IPOB. No evidence was provided by the applicant in the interview of him being involved in public protests. In the interview, the applicant indicated that in an IPOB meeting in May 2017, authorities raided a meeting at which he was present with two guns and 50 people were killed. This is the only account given by the applicant in the interview of harm from authorities at an event at which the applicant was present.
In contrast, in the Tribunal hearing the applicant indicated that over his time in the IPOB he attended perhaps four public protests, and at three of these authorities carried out raids, killing individuals involved.
The Tribunal noted to the applicant in the hearing the quite significant differences in evidence as to his involvement in the IPOB and the harm suffered by authorities as compared to his evidence in the interview. In response to these inconsistencies, the applicant referred to English-language difficulties and not properly understanding questions asked of him.
The Tribunal deals further below with explanations based on language difficulties.
Ninthly, the failure by the applicant to have had any involvement with the IPOB in Australia, which operates here, is inconsistent with the applicant’s claimed involvement in Nigeria.
According to several news articles, individually and collectively, there is an Australian-based IPOB movement. One of its members, Kalu Okechukwu Frank, in 2020, condemned the killings of IPOB members during a prayer meeting in Emene area of Enugu State.[6] The leadership of the IPOB in Australia, Mr Kennedy Ochi, stated that the group would hold a candle night and peaceful demonstration at Federation Square in Melbourne on 29 May (2021) and a rally across Australia on 30 May (2021) in honour of Biafra fallen heroes.[7] After the arrest of Mr Nnamdi Kanu (the leader of IPOB), Mr Ochi, being the IPOB Head of Membership and Mobilisation in Australia, directed IPOB members to boycott Kenyan products and Kenyan Airways due to the allegation made by Mr Kanu’s brother, Kingsley, that Mr Kanu was arrested by security agents in Kenya.[8] The IPOB also has a social media presence in Australia through its private Facebook page called Biafrans in Australia [RBL], which has approximately 2,600 members as of 1 April 2022.[9] It is apparent from the available news articles and the examples of activity stated above, that the IPOB movement has some presence in Australia and is active in pursuing its cause.
[6] Connectley Naija News, 29 August 2020, ‘Stop the killings of IPOB members now— IPOB supporter declares’. Retrieved on 1 April 2022 at The Sun, 24 May 2021, ‘IPOB in Diaspora honours fallen heroes May 30’. Retrieved on 1 April 2022 at Ugochukwu Alaribe for Newsterra, ‘IPOB to hold rally in Australia’. Retrieved on 1 April 2022 at Ripples Nigeria, 4 July 2021, ‘IPOB orders members to shun Kenyan airline, products over alleged govt’s betrayal of Kanu’. Retrieved on 1 April 2022 at >
The applicant in the hearing indicated that he has had no involvement with the IPOB in Australia. The Tribunal questioned the applicant as to why he would not when it has a presence here and given the applicant’s claimed involvement in Nigeria. In response, the applicant said that it is his choice as to whether he is involved or not and he has chosen not to. He maintained that he does not have to be involved.
The Tribunal put to the applicant that it would consider that if the applicant’s claims as to his involvement in a prescribed terrorist organisation in Nigeria were true, he would readily take the opportunity to have involvement with an Australian arm of this organisation where he would have the political freedom to be involved.
The applicant maintained that he has chosen not to be involved and he does not want to be.
Whilst this is not a determinative factor in adverse credibility findings, it reinforces more direct concerns as to the truth of what the applicant is claiming.
The Tribunal has considered the applicant’s claims, when various credibility concerns were raised with him, that he had English-language difficulties and did not understand questions. The applicant’s Australian partner, who was an observer in the hearing, asked to make comment, and indicated in the hearing that the applicant needs information in English carefully broken down because English is his second language. Based on the applicant’s evidence in the hearing, the Tribunal accepts the truth of this. At certain points in the hearing when the Tribunal asked reasonably lengthy questions, it was clear that the applicant had not fully grasped what the Tribunal was saying. As a result the Tribunal repeated questions, breaking them down.
Nevertheless, while it did take such steps, the Tribunal considers that the applicant had a reasonable grasp of English when questions were asked of him slowly and methodically. The Tribunal notes that the applicant had elected to communicate in English both at the interview with the delegate and in the Tribunal hearing when, at both times, the option of using an interpreter would have been and was given.
Considering the various credibility issues considered cumulatively, the Tribunal is not satisfied that they are together explained by poor English and a lack of comprehension by the applicant. Further, significant concerns based on the plausibility of what the applicant is claiming, given that he was a relatively high-ranking [work sector] official, are not explicable by language concerns.
Considering the credibility issues cumulatively, the Tribunal is not satisfied that the applicant is a credible or truthful witness.
The Tribunal has considered the supporting letter from [Organisation], Nigeria and correspondence received by the applicant from individuals claimed to be involved with the IPOB indicating a risk to the applicant. The Tribunal noted DFAT information as to the ready ability in Nigeria to obtain fraudulent documents and notes that these documents could have been constructed. In response, the applicant maintained that they were genuine. The Tribunal is not satisfied of this given the countervailing overall credibility concerns cumulatively identified.
The Tribunal is not satisfied that the applicant at any time was involved with the IPOB and/or the Biafra separatist movement. The Tribunal is not satisfied that the applicant attended any meetings or protests of the movement. The Tribunal is not satisfied that the applicant was present at any separatist event at which authorities raided the event and harmed and killed individuals. The Tribunal is not satisfied that any authorities in Nigeria have any adverse information or attitudes towards him that would create a real chance of him facing the requisite harm on return to Nigeria. The Tribunal is not satisfied that the applicant, on return to Nigeria, would be involved in the IPOB or the Biafra separatist movement.
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 persecution 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 Nigeria to Australia, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

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

[2022] AATA 3593

12 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice