1907335 (Refugee)

1907335 (Refugee) [2022] AATA 4059 (19 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth)
APPLICANT’S REPRESENTATIVE:Mr Ernie Hu, lawyer
CASE NUMBER: 1907335

COUNTRY OF REFERENCE: Nigeria
MEMBER:Kate Chapple
DATE:19 September 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 September 2022 at 4:27pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Christian – refusal to join Blood Axe cult – harm from Boko Haram insurgents – physical assault – fear of killing – Australian citizen child – return visits to Nigeria – delay in applying for protection – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
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.
OVERVIEW

The applicant, a man aged [age], was born in Enugu State, Nigeria and lived and worked there until [age]. He is of Igbo ethnicity and Christian faith. One brother and a nephew, both Australian citizens, live in Australia, while his father and other [family members] remain in Enugu. His mother died last year.
After completing secondary school, the applicant spent some years acquiring farming and farm management skills in Enugu on his parents’ [farm], and a year away in [Country 1] studying [subject 1], sponsored by his parents.
The applicant came to Australia at the end of 2013, and throughout 2014 and 2015, he completed a range of [industry1 and 2] qualifications while also working in various [specified] and [industry 1] jobs.
Soon after coming to Australia, the applicant had a relationship with a woman that ended in mid-2015. Six months later, and almost three years after coming to Australia, the applicant applied for a protection visa in January 2016.
The applicant claimed in his protection visa application to have been targeted by the Black Axe cult in Enugu and violently attacked on three occasions because of his refusal to join the cult on the grounds of his Christian beliefs. He claimed one of his brothers was also attacked for refusing to give information about him, and his family in Enugu continue to live in fear. He claimed that, if he returns to Nigeria, he fears he will be killed by the Black Axe cult and also at risk of harm by Boko Haram insurgents who have killed thousands of people in Nigeria. The applicant claimed in his application that there is nowhere safe for him to live in Nigeria, and no protection available to him from the authorities.
The applicant met his current partner, an Australian citizen, in 2017 while working in [industry 1] together. They have lived together since early 2018 and had a child later that year. The child, their daughter, is an Australian citizen, now aged [age].
The applicant’s representative wrote to the Tribunal a week before the hearing advising that, while the applicant has a genuine fear of returning to Nigeria due to the violence he experienced, he is unable to provide the evidence. Instead, the applicant is seeking a recommendation from the Tribunal for ministerial intervention, and has provided through his representative a submission and related documents seeking to address the ‘unique or exceptional circumstances’ requirement of the Minister’s guidelines on ministerial powers (s351, s417 and s501J).
Under s 417 of the Migration Act 1958 (Cth), the Minister can substitute for a decision of the Tribunal a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so. This ministerial power is personal and non-compellable, and can only be exercised where there is an existing decision by the Tribunal’s Migration and Refugee Division.
The Tribunal is not required to refer a case for ministerial intervention, only to consider a request for referral. The Tribunal may refer a case to the Department if the member believes the issues involved fall within the ‘unique or exceptional circumstances’ described in the Minister’s guidelines on ministerial powers. The Department must assess the circumstances of the case and may refer the case to the Minister where it meets the guidelines for referral.
The Tribunal must decide whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law. In determining the issue, the Tribunal must consider and make findings on these questions:
Was the applicant targeted and attacked by Black Axe members in Enugu, Nigeria?
If the applicant is returned to Nigeria, what is the chance he would be persecuted by the Black Axe cult?
If the applicant is returned to Nigeria, what is the chance he would be persecuted by Boko Haram insurgents?
Where the Tribunal decision affirms the delegate’s decision to refuse the applicant’s protection visa application, at the request of the applicant, the Tribunal must consider the applicant’s submission and whether the circumstances of his case fall within any of the unique or exceptional circumstances set out in the Minister’s guidelines on ministerial powers (s351, s417 and s501J).
EVIDENCE BEFORE THE TRIBUNAL
Timeline
Departmental and Tribunal records disclose these key dates:
7.1.Applicant’s first and last arrival in Australia: [December] 2013.
7.2.Protection visa application: 6 January 2016.
7.3.Department interview: 21 January 2016.
7.4.Delegate’s decision to refuse protection visa application: 8 March 2019.
7.5.Application for review: 27 March 2019.
Protection visa application and related documents
Applicant’s protection claims:
8.1.(Why applicant left Nigeria) I left Nigeria because my life was in danger, Black Axes secret society are after my life if I don’t commit to them. I refused to join them because of my Christian belief.
8.2.(What applicant thinks will happen to him if he returns to Nigeria) These secret societies are deadly and murdered secretly. They are going to force me into the society which my Christian religion forbids crime against humanity or kill me if I fail to join their society. Currently my brother was attacked for refusing to give information about me.
8.3.(Harm experienced by applicant in Nigeria) Black Axes attacked me with some many inter-state members. I was attacked two times in year 2013 before I left Nigeria for Australia. I suffered with head, back, shoulder, knee, haematuria and internal bleeding. I was peeing blood, I thought I was going to die, was full of pain, unconscious in coma for 3 days where I was admitted into intensive care unit.
8.4.(Help sought by applicant in Nigeria) I reported to Nigeria police, Enugu. They said they are investigating the attacks of Black Axes secret cult and the police are helpless because the society kills secretly and they work with top government officials and politicians all over the country as their thugs and enforcers.
8.5.(Reasons applicant did not try to move to another part of Nigeria) Because of Boko Haram insurgents which has killed thousands of people and Black Axes have members all over Nigeria. That was why my parents sponsored me overseas ([Country 1]) to study, but when I came back to Nigeria for holiday they attacked me again. My life is in danger, please I don’t want to die.
8.6.(Harm or mistreatment applicant believes he is likely to experience if he returns to Nigeria) Currently my family has been receiving some many threatening letters from this society and they vow to deliver my skull if I don’t commit to them. My family are living in fear in the city of Enugu where many people have been murdered. I don’t want to die, I feel safe here in Australia. My brother is currently receiving treatments in the hospital after he was attacked.
8.7.(Reasons applicant believes the authorities could or would not protect him) Black Axes Society are well established in the practice of nepotism, their members have infiltrated the media, police and government. Whenever things go wrong they can count on fellow members to destroy the evidence, simply find them not guilty.
8.8.(Reasons applicant believes he is unable to relocate to another part of Nigeria) Black Axes have members all over the states, nowhere is safe for me in Nigeria. People are being murdered on a daily basis. I am scared for my life. This secret society vows to deliver my skull if I don’t commit and because of Boko Haram insurgents in Nigeria which has killed thousands of people.
Documents submitted in support of applicant’s protection claims:
9.1.Applicant’s signed statement dated 29 December 2015 (‘the applicant’s statement’).
The applicant’s statement describes the Black Axe movement and their history of violence in Nigeria. He claims that he was attacked by Black Axe members at a [public event] in Enugu in December 2011 for refusing to commit to their society because of his religious beliefs. He also claims that his parents sponsored him to study in [Country 1] from April 2012 to January 2013, and when he returned to Enugu for a holiday he claims he was attacked again by Black Axe members in March 2013 and June 2013, the last attack resulting in significant injuries and admission to the intensive care unit at [a named] hospital. The applicant also claims that Black Axe members tortured and killed his friend in January 2015 for failing to join their society, threatened his brothers many times, and harmed one of his brothers in November 2015 when he refused to give information about the applicant, resulting in a dislocated jaw and admission to hospital. The applicant also claims his parents and brothers are living in fear in Enugu.
9.2.Statement by the applicant’s brother in Australia dated 30 December 2015 and unsigned (‘the brother’s statement’).
The brother’s statement claims that Black Axe had been threatening the applicant’s life and forcing to initiate him into the secret society for the past four years and he refused to join because of his Christian upbringing. He claims the applicant was attacked and harmed and taken to hospital. He also claims their family in Nigeria were threatened and another brother was attacked. The brother’s statement also refers to the violent actions of Boko Haram insurgents in Nigeria and claims his [Relative A] was killed by them.
9.3.Handwritten verse including references to Black Axe and threats to the applicant and named others, unattributed, and certified in 2015, both in Enugu and Queensland, as a true copy (‘the Black Axe verse’).
9.4.Handwritten note by the applicant dated May 2016 enclosing copies of online news articles (‘the online reports’).
9.5.The online reports are variously dated throughout 2015 and 2016 and relate to alleged mutilation and killings of Biafra community members and burning of Christian churches in Enugu State by Fulani herdsmen; cult-war related killing and razing in Enugu, Ogun, Lagos, Edo, and Rivers States, including Black Axe clashes with rival cults in university towns and at universities in Enugu; terror gang threats, attacks and killings in Enugu State.
Other departmental records:
10.1.Decision record relating to the delegate’s refusal decision.
10.2.Interview audio file.
10.3.Case file.
10.4.Internal records relating to the applicant.
Application for review
The Tribunal wrote to the applicant’s representative inviting the applicants to attend a hearing on 16 September 2022 and to provide pre-hearing submissions.
Prior to the hearing, the applicant’s representative provided to the Tribunal:
12.1.Confirmation that the applicant intended to participate in the hearing with the assistance of his representative.
12.2.A request that the Tribunal take witness evidence from the applicant’s partner.
12.3.A submission dated 7 September 2022 (‘the ministerial intervention submission’) prepared by the applicant’s representative including these key passages:
Although [the applicant] is adamant that he did not apply for the protection visa just to remain in Australia as the delegate claimed and that he has a genuine fear of returning to Nigeria due to the violence he experienced, he acknowledges the difficulty he has of providing such evidence noting that most of it would be based on his words alone.
So as not to unnecessarily use the Tribunal’s time, [the applicant] concedes that he has no intention to challenge the delegate’s decision given that the purpose of the appeal is to obtain a recommendation from the AAT for the Minister to intervene in his matter.
We kindly request for the AAT to make a recommendation for the Minister to intervene in [the applicant’s] matter as he has exhausted all his options in Australia.
The Hearing
The applicant and his partner appeared before the Tribunal at a hearing conducted in person on 16 September 2022. Their daughter was also present throughout the hearing but did not participate. The applicant’s representative was present at the hearing. The applicant confirmed to the member that he did not require interpretation.
The member read aloud for the applicant’s benefit the key passages from the ministerial intervention submission set out above and explained to the applicant that if he concedes he does not have claims for protection that meet the requirements of Australian law, the member would not hear his evidence regarding those claims and would proceed to hear his evidence and his partner’s evidence in support of the ministerial intervention submission. The member also explained to the applicant that in these circumstances the Tribunal would make a decision on the papers that was likely to be a decision to affirm the delegate’s decision to refuse his protection visa application.
The member further explained to the applicant that if he believes he does have claims for protection that meet the requirements of Australian law, the member would hear his evidence regarding those claims.
The member gave the applicant the opportunity to confer with his representative in private before indicating how he wanted to proceed with the hearing. After conferring, the applicant said that everything he put in his protection visa application and gave to the Department is true, and his fears are real, however he wanted to take the ministerial intervention option rather than give evidence about his protection claims. The applicant’s representative stated that he had advised the applicant that his protection claims did not meet the requirements of Australian law.
The applicant did not give evidence about his protection claims.
The member read aloud for the applicant’s benefit section 3 of the Minister’s guidelines on ministerial powers (s351, s417 and s501J) setting out the principles for ministerial intervention, and specifically drew his attention to the principle that says if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for the Minister to intervene.
The applicant gave evidence that was consistent with the ministerial intervention submission and emphasised his concerns about the adverse impact on his daughter and partner both in the event that he was returned to Nigeria and separated from them both for an extended period, or if his daughter and partner accompanied him to Nigeria while he made a partner visa application and put at risk of harm due to the high levels of violence in Nigeria.
The applicant’s partner gave evidence in support of the applicant’s evidence.
The applicant’s representative affirmed the contents of the ministerial intervention submission.
CONSIDERATION OF CLAIMS AND EVIDENCE ON THE PAPERS
Analysis, reasoning and findings
Was the applicant targeted and attacked by Black Axe members in Enugu, Nigeria?
The DFAT Country Report for Nigeria dated 10 February 2015, the report closest in time to the dates of the applicant’s claims, states that the Igbo originate from south-eastern Nigeria, Christianity is their predominant religion, and Enugu is among a number of states where they live in large numbers. The Igbo are able to participate in political, social and cultural life in Nigeria without interference, and to freely move within Nigeria.
The Tribunal notes the applicant claims to be of Igbo ethnicity and Christian faith, and to have grown up, lived and worked in Enugu State.
The 2015 DFAT Country Report also states that Black Axe, also known as the Neo-Black Movement of Africa is a confraternity that emerged from the University of Benin in Edo State in southern Nigeria. In Nigeria, a confraternity is a group that is nominally university-based. Over time, they have operated as criminal gangs called campus cults and they have been linked to political violence. Students are occasionally targeted by campus cults such as the Black Axe for membership and may face intimidation, threats and sometimes violence if they refuse to join. Young men are more likely to be targeted for membership. Inter-cult violence occasionally results in the death of cult members and some individuals attempting to leave a cult have been assaulted by other cult members. Often, the only way to escape unwanted attention from campus cults is to change universities.
The Tribunal notes the applicant does not claim he was attending university in Enugu at the time of the claimed attacks on him, or that he has ever attended university in Enugu. The Tribunal also notes the applicant does not claim to have ever joined the Black Axe or any other cult, or to have been involved in any inter-cult conflict.
The applicant’s statement provides dates and details of claimed attacks on him and the injuries he received. The Tribunal notes however the applicant does not explain the circumstances in which Black Axe members tried to recruit him and his refusal on religious grounds, including the dates, locations, the individuals involved, how he identified them as Black Axe members, what was said and threatened on each occasion, and how he responded. For these reasons, the Tribunal gives no weight to the applicant’s statement as evidence he was targeted and attacked by Black Axe members.
The brother’s statement generally repeats some of the claims made in the applicant’s statement, however the Tribunal notes it significantly lacks any detail that would assist in verifying that the attacks on the applicant were carried out by Black Axe members. For this reason, and the reason that the applicant’s brother is very likely to provide a statement in support of the applicant’s case, the Tribunal gives no weight to the brother’s statement as evidence the applicant was targeted and attacked by Black Axe members.
The applicant has provided no explanation of the Black Axe verse, including who wrote it, when it was written, why it was written, the circumstances in which he received it, and what happened as a consequence. For these reasons, the Tribunal gives no weight to the Black Axe verse as evidence the applicant was targeted and attacked by Black Axe members.
The Tribunal notes the online reports are variously dated throughout 2015 and 2016, four and seven years after the applicant claims he was attacked by Black Axe members. The Tribunal also notes the online reports mostly do not relate to the activities of the Black Axe movement in Nigeria, and those that do, refer to their clashes with rival cults in university towns and at universities in Enugu and terror gang threats and killings. For these reasons, the Tribunal gives no weight to the online reports as evidence the applicant was targeted and attacked by Black Axe members.

The Tribunal notes the applicant, some months after he claims he was first attacked by Black Axe members, left Enugu in April 2012 to study in [Country 1] and returned to Enugu voluntarily for a holiday in January 2013. The Tribunal does not accept that if the applicant feared for his life, he would have voluntarily returned to Enugu.
Based on the above, the Tribunal does not accept the applicant was targeted and attacked by Black Axe members in Enugu. The Tribunal therefore does not accept that any threats or harm to the applicant’s friend and family occurred as a result of the applicant being targeted and attacked by Black Axe members or that the applicant’s family continue to fear harm as a result of the applicant being targeted and attacked by Black Axe members.
The Tribunal notes the applicant arrived in Australia in December 2013 but did not apply for protection until January 2016. The Tribunal also notes there is no evidence providing a reasonable explanation for the delay. The Tribunal considers that a nearly three-year delay in applying for protection, without reasonable explanation, diminishes the credibility of the applicant’s claims for protection.
If the applicant is returned to Nigeria, what is the chance he would be persecuted by Black Axe members?
The most recent DFAT Country Information Report for Nigeria dated 3 December 2020 states that many confraternities/cults operate more like gangs than religious cults. Young men in particular are targeted to join for protection and through peer pressure. Many young men and women also voluntarily join, as confraternity membership offers opportunities to earn money and gain power. The process of gaining membership can include violent initiation, in some cases reportedly including beatings and/or rape. The Black Axe Movement, like other confraternities/cults, targets students for membership, and students who refuse to join may face intimidation and violence. DFAT assesses members of confraternities/cult face a high risk of experiencing violence from other organisations or from their own group should they attempt to leave.
A Department of Home Affairs Q&A Report dated 21 May 2020 describes violent clashes in Anambra State (on Enugu’s western border) in 2018 and 2019 between the rival cults, Black Axe and Vikings, resulting in killings and arrests by police.
The Tribunal notes the applicant is now aged [age], no longer a young man, he is not a student nor has he indicated an intention to complete further university studies, he does not claim to have ever been a Black Axe member or a member of any other confraternity/cult nor has he indicated an intention to do so, and he does not claim to have been involved in any inter-cult conflict.
The Tribunal notes the online reports mostly do not relate to the activities of the Black Axe movement in Nigeria, and those that do, refer to their clashes with rival cults in university towns and at universities in Enugu and terror gang threats and killings. Based on the above, the Tribunal gives no weight to the online reports as evidence of a chance the applicant would be targeted and attacked by Black Axe members if he is returned to Nigeria.
Based on the above, and given the Tribunal does not accept the applicant was previously targeted and attacked by Black Axe members in Enugu, the Tribunal finds there is a remote chance the applicant would be persecuted by Black Axe members if he is returned to Nigeria.
If the applicant is returned to Nigeria, what is the chance he would be persecuted by Boko Haram insurgents?
The most recent DFAT Country Report for Nigeria dated 3 December 2020 states that DFAT assesses the Igbo are not specifically targeted for their ethnicity throughout Nigeria.
The 2020 DFAT Country Report also states that the Boko Haram insurgency has targeted a range of groups, including those associated with the government (including police, military and politicians), individuals seen as supporting ‘western’ concepts such as secular education or elections, foreign aid workers, and clerics from other Muslim traditions and Christian preachers. Christians are opportunistically targeted by Boko Haram, however Muslims are victims of attacks in greater numbers than Christians principally because they constitute a greater proportion of the population in the affected northern states. DFAT assesses Boko Haram poses a serious threat to security in the northeast of Nigeria with limited prospects of being neutralised in the short term.
The Tribunal notes the applicant, a Christian, makes no claims of having been threatened or harmed by Boko Haram insurgents when he was in Nigeria.
The applicant’s statement and the brother’s statement broadly describe killings by the Boko Haram in Nigeria since the insurgency in 2009. While these statements to some extent generally accord with the 2020 DFAT Country Report, they do not make the distinction that the serious threat to security is in the northeast of Nigeria. For this reason, and the reason that the applicant’s brother is very likely to provide a statement in support of the applicant’s case, the Tribunal gives limited weight to these statements as evidence of a chance the applicant would be persecuted by Boko Haram insurgents if he is returned to Nigeria.
The applicant’s statement and the brother’s statement refer to the loss of their [Relative A] in a suicide bomb blast in the central Nigerian city of Jos in July 2015 resulting in many dead and wounded. While the applicant has provided copies of the [Relative A’s] death certificate and affidavit of death sworn by the [Relative A’s] brother, the Tribunal notes neither statement explains the circumstances of the suicide bomb blast or provides any details about the [Relative A] or why he was a target and how that would pose a threat to the applicant; nor do they provide any verifying information that the Boko Haram were the perpetrators. For these reasons, and the reason that the applicant’s brother is very likely to provide a statement in support of the applicant’s case, the Tribunal gives no weight to the statements as evidence of a chance the applicant would be persecuted by Boko Haram insurgents if he is returned to Nigeria.
The 2015 DFAT Country Report pre-dates the claimed suicide bomb blast in Jos in July 2015. The next report published, the DFAT Country Information Report for Nigeria dated 9 March 2018, makes no reference to it, but refers to a number Boko Haram targeted assassinations of Muslim preachers and clerics in 2011 and 2014 in Kaduna State, the suicide bombing of men and boys at a mosque in Borno State, and the abduction of female students from secondary schools in Borno and Yobo States in 2014 and 2018. DFAT also assessed in the 2018 report that Christians and Muslims residing in the middle belt and southern states face an extremely low risk of violence from Boko Haram.
The Tribunal notes the online reports do not relate to the activities of Boko Haram insurgents in the southern states of Nigeria. For this reason, the Tribunal gives no weight to the online reports as evidence of a chance the applicant would be persecuted by Boko Haram insurgents if he is returned to Nigeria.
The Tribunal notes the applicant and his family are from Enugu, a southern state of Nigeria, outside the region assessed by DFAT to be under threat from the Boko Haram. The Tribunal considers it likely that the applicant would return to Enugu where his father and brothers live if he is returned to Nigeria.
Based on the above, the Tribunal finds there is a remote chance the applicant would be persecuted by Boko Haram insurgents if he is returned to Nigeria.
Other considerations
In considering the claims and evidence, the Tribunal has taken account of:
45.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
45.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
45.3.Country information assessments set out in Attachment B.
CONSIDERATION OF REQUEST FOR REFERRAL FOR MINISTERIAL INTERVENTION
Are there unique or exceptional circumstances?
The ministerial intervention submission seeks to address the unique or exceptional circumstances requirement set out in the Minister’s guidelines on ministerial powers (s351, s417 and s501J). The key points made in the submission are:
46.1.The applicant’s partner and daughter are both Australian citizens.
46.2.The applicant and his partner share the care of their daughter and they manage their work responsibilities accordingly. The applicant intends to apply for a partner visa, however due to the Department’s refusal of a previous partner visa application, he must make any future application offshore, in Nigeria. He has been told by the Department the wait time for the processing of a partner visa application could be up to 36 months. He believes that being separated from, and unable to care for, his daughter for that period would cause serious, ongoing and irreversible harm to her.
46.3.The applicant and his partner have been in a committed defacto relationship since February 2018. The applicant believes his partner would suffer emotional, mental and financial hardship if they were separated for that period. He believes his absence would limit his partner’s ability to work as she would be their daughter’s sole carer. He also believes he would earn considerably less in Nigeria and this would limit his ability to financially support his partner and daughter.
46.4.If the applicant is returned to Nigeria, he believes his partner and daughter would have to travel with him to avoid the hardship and harm of separation. The submission cites the Australian Government’s travel advice for Nigeria, in particular highlighting the incidence of violent crime and terrorist attacks, and references official country information. The applicant believes that if his partner and daughter were to accompany him to Nigeria, they would be exposed to risks of serious harm.
46.5.The submission cites Australia’s international convention obligations for the protection of an Australian child.
46.6.The applicant has been trained and qualified as [a worker in industries 1 and 2] and has been working for six years in this sector. He believes he has a valuable contribution to make to a sector experiencing critical worker shortages.
46.7.The applicant believes the period of 26 days in 2014 he was unlawful in Australia was due to an administrative error and he presented himself to the Department to have it rectified.
46.8.The applicant believes he meets the criteria for a partner visa, and the strict application of the legislation preventing him from applying onshore will result in an unfair and unreasonable outcome.
The Tribunal notes the most recent DFAT Country Report for Nigeria dated 3 December 2020 states that:
While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry.
CONCLUSIONS
Based on the evidence, analysis, reasoning and findings set out 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 evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c).
Having regard to the Minister’s guidelines on ministerial powers (s351, s417 and s501J), the Tribunal considers that the ministerial intervention submission raises valid unique or exceptional circumstances warranting referral of the case to the Department for consideration by the Minister pursuant to s 417 of the Migration Act 1958 (Cth).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.
ATTACHMENT B
Relevant Country Information
DFAT Country Report Nigeria dated 10 February 2015
Nigeria is historically divided between the north and south along religious and ethnic lines. Muslims and people of predominantly Hausa-Fulani and Kanuri ethnicity dominate the northern states, and Christians of predominantly Igbo and Yoruba ethnicity dominate the southern states. A mix of Muslims and Christians of various ethnicities make up the middle belt.
2.23Boko Haram has launched increasingly frequent attacks on both civilian and military targets, predominantly in the north-east but also in central Nigeria and in large urban centers such as Abuja. On 25 June 2014, a large explosion in Abuja caused more than twenty deaths and a large number of injuries, this followed earlier attacks in the capital in May and April 2014 which resulted in ninety deaths. On 20 May 2014, two car bombs killed at least 118 people and injured many more in Plateau state.
2.27Boko Haram has carried-out targeted assassinations against Muslim preachers who refuse to join the group, including prominent clerics such as Bashir Kashara (killed in October 2010), Ibrahim Ahmad Abdullahi, a non-violent preacher (killed in March 2011), and Ibrahim Birkuti, a popular preacher (killed in June 2011). Most recently in July 2014 prominent moderate cleric Sheikh Dahiru Bauchi was targeted by a bomb attack in Kaduna.
2.28In April 2014, Boko Haram abducted more than 200 female students from a secondary school in Chibok, Borno State. Schools in the area had been closed for weeks due to the ongoing violence; the girls had then returned to sit their final exams. The majority of the girls had not been released at the time of writing this report.
3.5        The Igbo have faced attacks from Boko Haram in the middle belt and northern states of Nigeria. In January 2011, forty Igbo people were taken from a bus and killed after the bus had entered a predominantly Muslim area in the city of Jos in Plateau State. In November 2011, Igbo residents in the middle and northern states of Plateau, Kaduna, Nasarawa, Niger and Borno evacuated to the south in response to attacks by Boko Haram. Such attacks have been opportunistic, isolated and infrequent and DFAT assesses the Igbo people do not face societal violence on a day-to-day basis in Nigeria.
3.15There have been numerous attacks on predominantly Muslim occupied villages in the northeastern states of Borno, Yobe and Adamawa. In November 2014, Boko Haram fighters burnt homes, killed several people and occupied villages in Adamawa state. This continues a series of attacks committed across all three states under a state of emergency that since August 2014 that have resulted in over 500 deaths and 300 kidnappings. Numerous local government areas are now under direct Boko Haram control as a result. The girls who were abducted from Chibok in April 2014 by Boko Haram (see ‘Security Situation-Boko Haram’, above) are understood to be made up of a mix of Muslims and Christians. Christians have also been targeted in the northeastern states of Borno, Yobe and Adamawa and occasionally in the central state of Plateau. Boko Haram killed four Christians in Yobe, 25 Christians in Adamawa and six in Gombe in separate attacks in January 2012. The group destroyed two churches in Bauchi on 22 January 2012.
3.16DFAT assesses that both Christians and Muslims face a moderate risk of violence from Boko Haram when they remain domiciled in the north-eastern states of Borno, Yobe and Adamawa, particularly if they are based close to the fighting. Attacks on Christians by Boko Haram are opportunistic and infrequent. Individual Christians are highly unlikely to be targeted. Many Christians have moved internally within Nigeria to escape the risks posed by the Boko Haram insurgency.
3.59The Neo-Black Movement of Africa (also called Black Axe) is a “confraternity” that emerged from the University of Benin in Edo State in southern Nigeria. In Nigeria, a confraternity is a group that is nominally university-based. The first confraternity, the Pyrates Confraternity was created as a social organisation for students. However, as new confraternities were formed, they became increasingly violent through the 1970s and 1980s. By the 1990s, many confraternities largely operated as criminal gangs, called "campus cults" in Nigeria. Besides normal criminal activity, confraternities have been linked to political violence, as well as the conflict in the Niger Delta.
3.60Students are occasionally targeted by campus cults such as the Black Axe for membership and may face intimidation, threats and sometimes violence if they refuse to join. Young men are more likely to be targeted for membership. Credible sources report that inter-cult violence occasionally results in the death of cult members and some individuals attempting to leave a cult have been assaulted by other cult members. Often the only way to escape unwanted attention from campus cults is to change universities.
DFAT Country Information Report Nigeria 9 March 2018
2.39Boko Haram has carried-out targeted assassinations against Muslim preachers who refuse to join the group, including prominent clerics such as Bashir Kashara (killed in October 2010), Ibrahim Ahmad Abdullahi (killed in March 2011), and Ibrahim Birkuti (killed in June 2011). In July 2014, Boko Haram targeted a prominent moderate cleric, Sheikh Dahiru Bauchi, with a bomb attack in Kaduna.
2.41In April 2014, Boko Haram abducted more than 200 female students from a secondary school in Chibok, Borno State. Schools in the area had been closed for weeks due to violence, but the girls had returned to sit their final exams when they were abducted. In May 2017, 82 of the girls were freed in a prisoner swap with Boko Haram. Over 100 girls are still in captivity.
2.44Targeted attacks increased in June to September 2017, with bomb blasts at the Dalori IDP camp, Maiduguri university, Molai general hospital in Maiduguri, and a major coordinated gun attack on the Maiduguri city itself. On 21 November 2017, suicide bombers killed 50 men and boys at a mosque during morning prayers. Fighters believed to be Boko Haram abducted up to 115 schoolgirls from a science and technical college in Dapchi, Yobe State in February 2018.
3.17DFAT assesses that both Christians and Muslims living in the north-eastern states of Borno, Yobe and Adamawa face a moderate risk of violence from Boko Haram, particularly if they live close to the fighting. Attacks on Christians by Boko Haram are opportunistic and infrequent, and highly unlikely to target individual Christians. Many Christians have moved internally within Nigeria to escape the risks posed by the Boko Haram insurgency. DFAT assesses that Christians and Muslims residing in the middle belt and southern states face an extremely low risk of violence from Boko Haram or ISIS-WA.
3.71DFAT understands several ‘cults’ now have a presence in high schools as well as the streets, operating more like gangs rather than religious cults. Young men in particular are targeted to join cults for protection and because of peer pressure. However, many young men and women voluntarily join – cult membership can mean access to money and power. Membership generally involves a violent initiation, which can include beatings and rape.
3.72The Neo-Black Movement of Africa (also called Black Axe) is a “confraternity” that emerged from the University of Benin in Edo State in southern Nigeria. The first confraternity, the Pyrates Confraternity was as a social organisation for students. However, as new confraternities formed, they became increasingly violent through the 1970s and 1980s. By the 1990s, many confraternities largely operated as criminal gangs, called "campus cults" in Nigeria. Besides normal criminal activity, confraternities have been linked to political violence, and to the conflict in the Niger Delta.
3.73Campus cults such as the Black Axe target students for membership. Students who refuse to join may face intimidation, threats and sometimes violence. Young men are more likely to be targeted. DFAT considers credible reports that inter-cult violence occasionally results in the death of cult members and that cult members have assaulted individuals who attempt to leave. Often the only way to escape unwanted attention from campus cults is to change universities.
3.74DFAT assesses that members of the Black Axe group do not face violence on a day-to-day basis. If a member wishes to leave the group, they may face intimidation and threats; however, DFAT is not aware of any person being killed for leaving the group.
Department of Home Affairs Standard Q&A Report Nigeria dated 21 May 2020
Country information located shows that the Black Axe student cult is active in the Anambra State in Nigeria and its members have been arrested by the police for their involvement in criminal activities.
The Black Axe (also known as Aye – from its motto ‘Ayei! Axemen’) emerged on the campuses of Nigerian universities and educational institutions from the Neo-Black Movement of Africa but started operating as criminal gangs by the 1990s and have become linked to political violence, criminal activity and people trafficking. It is one of many confraternities or student cults that are associated with ‘violent initiation rites and illegal activities (such as killings, human trafficking, drugs trafficking, smuggling, extortions, kidnapping, and forced recruitment’, violence and death. According to the 2018 Australian Department of Foreign Affairs and Trade (DFAT) country information report for Nigeria.
Campus cults such as the Black Axe target students for membership. Students who refuse to join may face intimidation, threats and sometimes violence. Young men are more likely to be targeted. DFAT considers credible reports that inter-cult violence occasionally results in the death of cult members and that cult members have assaulted individuals who attempt to leave. Often the only way to escape unwanted attention from campus cults is to change universities.
DFAT assesses that members of the Black Axe group do not face violence on a day-to-day basis. If a member wishes to leave the group, they may face intimidation and threats; however, DFAT is not aware of any person being killed for leaving the group.
A 2015 journal article examining student cults in Nigerian tertiary institutions while focusing on the Nnamdi Azikiwe University in Awka (the capital of the Anambra State which is one of the southern States of Nigeria) notes the presence of student cults in that institution. Another journal article published in 2017 notes the existence of the Black Axe cult (which had earlier originated in the University of Benin and largely comprised of members belonging to the two dominant tribes of southern Nigeria, namely, Yoruba and Igbo) in the southern universities of Nigeria leading to cult violence.
The activities of the cults create fear among the people and, according to Berlin-based journalist, Sean Williams, ‘few Nigerians dare cross the Black Axe’. In January 2018, 20 people were killed and 60 arrested in Awka as a result of clashes between rival cults of the Black Axe and the Vikings. In June 2018, 16 people were killed in Awka as a result of clashes between the rival cults — the Black Axe and the Vikings.
In 2019, several Nigerian media articles referred to the activities of the Black Axe cult in the Anambra State. For example: in March 2019, two persons were killed as a result of a clash between the Black Axe and the Vikings cults during Assembly elections in Anambra; in April 2019, a member of the Black Axe cult was arrested for alleged displaying locally made weapons while other members fled from the scene in the north of the Anambra State; in August 2019, the police arrested four suspected members of the Black Axe and Viking co-fraternities in Awka following a violent clash between members of the two co-fraternities; also in August, the police arrested 85 cult suspects and recovered dangerous weapons in Awka; in December 2019, police arrested four men who were allegedly preparing to initiate new members into the Black Axe confraternity.
The cult-related killings that took place in the Anambra State in 2019 were not only attributed to the two rival cults — the Black Axe and the Vikings — but also to ‘some top politicians’ in the State who were alleged to have sponsored killings in the State for which they were arrested by the police.
DFAT Country Information Report Nigeria 3 December 2020
2.54       While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.
2.60      While initially headquartered in the north-eastern city of Maiduguri and still largely centred in Borno state, the Boko Haram insurgency has spread across northern and central Nigeria and into neighbouring countries. The group has also carried out attacks against the police and UN headquarters in Abuja. The Boko Haram insurgency has resulted in thousands of deaths and injuries, widespread destruction, the internal displacement of approximately 2.7 million persons and the external displacement of almost 250,000 Nigerians to neighbouring countries.
The Boko Haram insurgency has targeted a range of groups, including those associated with the government (including police, military and politicians); individuals seen as supporting ‘western’ concepts such as secular education or elections; foreign aid workers; and clerics from other Muslim traditions and Christian preachers. Christians are opportunistically targeted by Boko Haram. However, Muslims are also victims of attacks, in greater numbers than Christians, principally because they constitute a greater proportion of the population in the affected northern states.
2.61       Its insurgent activities have included conventional warfare against state security forces; targeted killings of perceived opponents; bombings of churches, bus ranks, bars and military barracks; and mass attacks on villages and towns, resulting in looting, killing and mass abductions, including of children. In 2014, Boko Haram abducted 276 mostly Christian schoolgirls from Chibok, Borno state, reportedly forcing them to convert to Islam and become ‘wives’ for Boko Haram fighters. Around 100 of the Chibok girls remain unaccounted for. In February 2018, insurgents abducted a further 110 schoolgirls from Dapchi, Yobe state, releasing 104 of the girls two weeks later after negotiations with the government. Five of the remaining girls reportedly died in captivity and one girl continues to be held hostage, allegedly for refusing to deny her Christian faith.
2.62       Boko Haram has also paid, forcibly conscripted, or otherwise coerced young boys and girls to serve in its ranks and perpetrate attacks and raids, plant improvised explosive devices (IEDs), serve as spies, and carry out person-borne IED bombings, often under the influence of drugs. For example, in the June 2019 attack in Konduga, Borno state, Boko Haram insurgents remotely detonated explosives strapped to two girls and a boy, killing 30 people.
2.63       Attempts by security authorities to curtail the Boko Haram insurgency in an enduring fashion have not proved fully successful to date. The government initially declared a state of emergency in May 2013 in the three northeastern states in which Boko Haram was strongest – Borno, Yobe and Adamawa – while in the same year, the Office of the Prosecutor in the International Criminal Court declared the fighting in northeastern Nigeria to be a non-international armed conflict. By March 2015, a regional coalition made up of troops from Nigeria, Cameroon, Chad and Niger had succeeded in winning back all of the towns under Boko Haram’s control, leading President Buhari to declare in 2015 that Boko Haram had been ‘technically defeated’.
The insurgency has successfully regrouped in recent years, however, and continues to represent a significant security threat in the northeastern states. International observers report there was a resurgence of Boko Haram activity in 2019, with Boko Haram responsible for 1,136 deaths in Nigeria in 2019, compared to 872 in 2018.
2.64       Examples of recent Boko Haram insurgent activities include (but are not limited to):
-in January 2019, Boko Haram fighters killed at least 60 people in the town of Rann, Borno State;
-in July 2019, suspected Boko Haram fighters killed at least 65 people attending a funeral in Borno state; while in the same month a Da’esh-aligned faction of Boko Haram kidnapped six aid workers near Damasak in Borno state, subsequently executing five of them.
-On 28 September 2020, militants from ISWAP overran a Nigerian military base in the northeastern town of Gubio, killing soldiers and seizing materiel.
2.65       On 28 November 2020, in an attack centred on the village of Koshobe in Borno state, at least 43 farmers were killed in what the UN described as ‘the most violent direct attack against innocent civilians this year’. Some reports claim up to 110 people were killed, including around 30 beheaded. A number of people, including around ten women, remain missing, presumably abducted. The attack occurred relatively close to the state capital of Maiduguri, and is strongly believed to have been carried out by ISWAP.
2.66       Boko Haram’s resurgence comes despite the deployment of thousands of troops to the northeastern states, and the reported government allocation of almost USD80 million (AUD110.8 million) per quarter to combat the insurgency. International observers have expressed concern over a lack of discipline in military operations, noting that reports of low morale among soldiers caused by insufficient military equipment and medical care (and fuelled by high rates of corruption within the military) may be degrading the effectiveness of efforts to defeat the insurgency. Human rights groups have also raised repeated concerns government security forces have committed significant human rights abuses in the context of counter-insurgency efforts against Boko Haram, including extrajudicial killings, torture, arbitrary arrests and other abuses (see relevant sections).
2.67       DFAT assesses Boko Haram poses a serious ongoing threat to security in the northeast of Nigeria, with limited prospects of being neutralised in the short term.
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.
3.10       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.
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.
3.128     Confraternities/cults are mostly concentrated in the southern states of Nigeria, particularly Rivers, Bayelsa, Delta and Edo states. Some reportedly have an overseas presence through diaspora communities, although DFAT is not aware of any operating in Australia. Initially introduced by Nigerian scholars returning from the United States in the 1950s as a variation of student confraternities, many confraternities/cults have become more violent over time and are now essentially criminal gangs. There have been reports linking confraternities/cults with political violence, with some politicians reportedly co-opting them to support their political rallies and disrupt those of opposition groups.
3.129     In-country sources report that, in addition to operating on university campuses, several confraternities/cults also have a presence in high schools and thrive in poor urban areas. Many young men (and some women) voluntarily join confraternities/cults, motivated by the opportunity to earn money and gain power, but some reportedly join through peer pressure, under threat of reprisal or to gain protection. Inter-cult violence reportedly occasionally results in the death of cult members, and cult members have assaulted individuals who attempt to leave.
3.130     DFAT understands many confraternities/cults operate more like gangs than religious cults. Young men in particular are targeted to join confraternities for protection and through peer pressure. Many young men and women also voluntarily join, as confraternity membership offers opportunities to earn money and gain power. The process of gaining membership can include violent initiation, in some cases reportedly including beatings and/or rape. According to Amnesty International, over 60 people were killed in 2019 in Rivers state alone through cult-related violence.
3.131     Some of the more prominent confraternities/cults are the Pyrates confraternity, created at the University of Ibadan campus in 1952 and Nigeria’s oldest; the Buccaneers Confraternity, the Family Confraternity and the Black Axe Movement. The latter emerged from the University of Benin in the southern state of Edo. From its origins as an idealistic confraternity, the group has reportedly grown into a sophisticated criminal organisation, with international chapters established outside Nigeria. The Black Axe Movement, like other confraternities/cults, targets students for membership, and students who refuse to join may face intimidation and violence.
3.132     The Rivers state government signed an anti-cultism bill into law in March 2018. The bill prescribes the death penalty for any cultist who kills during a cult activity and life imprisonment for any cultist apprehended. This follows similar laws implemented by the southern Edo, Ebonyi, Kwara, Enugu and Akwa Ibom state governments.
3.133     DFAT assesses members of confraternities/ cults face a high risk of legal sanction if they reside in states in which their organisations are proscribed. They also face a high risk of experiencing violence from other organisations or from their own group should they attempt to leave.

[2022] AATA 4059

19 September 2022

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Immigration

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Procedural Fairness

Statutory Construction

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Standing