1908684 (Refugee)

1908684 (Refugee) [2021] AATA 3668 (19 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1908684

COUNTRY OF REFERENCE: Nigeria
MEMBER:David McCulloch
DATE:19 July 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).

Statement made on 19 July 2021 at 11:38am
CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – Biafran separatists – Movement for the Actualisation of Sovereign State of Biafra (MASSOB) – extrajudicial killings – repression of political protests – delay in applying for protection – third country protection – Economic Community of West African States (ECOWAS) entry and residence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MIMAC v SZRHU [2013] FCAFC 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Suntharajah v MIMA [2001] FCA 1391
V856/00A v MIMA (2001) 114 FCR 408
WAGH v MIMIA (2003) 131 FCR 269
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 April 2019 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 6 August 2018. The delegate refused to grant the visa.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal in this manner on 13 July 2021 at 9.30pm. Although there was present at the hearing an interpreter in the Igbo and English languages, the applicant elected to communicate in English. The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant was granted a [Student] visa on 1 June 2016 and entered Australia [in] June 2016. The applicant applied for a Partner Combined (UK 820/BS 801) visa on 8 July 2017, which was withdrawn on 24 July 2018. The applicant applied for a Protection visa on 6 August 2018 which was refused by the Department on 4 April 2019. The applicant applied for a review of that decision on 9 April 2019.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [City 1], Anambra State, Nigeria. The applicant is a Christian and is of Igbo ethnicity. The applicant can speak Igbo, and can speak, read and write in English. The applicant has a father, mother, [and specified family members] who all reside in Nigeria; he is in contact with them via telephone ‘every fortnight or month’. The applicant has a de facto partner who resides in Australia. The applicant resided in [City 1], Anambra, Nigeria from [year of birth] until December 2015, he then moved to [a named town in] Lagos, Nigeria where he resided until June 2016, before coming to Australia. The applicant studied a [course] at [a named college] from 18 June 2016 until 1 May 2017. The applicant lists no employment in Nigeria. In Australia he worked from 1 May 2017 until ‘current’ as [an occupation] at [Employer 1]. The applicant has never travelled to any other countries, nor left Australia since arrival. The applicant was sentenced to [a term of] imprisonment for the charge of ‘recklessly giving other foreign travel document issued to self’ [in] July 2017, and was released from custody [in] February 2018 on account of time served in pre-sentence custody.
The applicant provided a statutory declaration setting out his claims for protection as follows (not corrected for spelling or grammar):
PROTECTION STATEMENT
My name is [applicant name]. I am from [City 1] in Anambra State of Nigeria.
I am a member of Movement for the Actualisation of Sovereign State of Biafra (MASSOB). MASSOB has been in the forefront of the bid to bringing to reality the state of Biafra out of the present day Nigeria. This is remain a problem for the Nigerian government. However, having our members in Nigeria and this is known in every country worldwide. I have been a member of this group since 2005 and that is why I have been on the radar of the Nigerian authorities.
Shortly before I left Nigeria for Australia, precisely in August 2015, there was a joint rally of MASSOB and IPOB in which the Nigerian authorities shot at us killing a lot of our members and many others in jail without trial. I have seen our members killed and I have on many occasion been beaten without any arrests.
I had an agent that prepared the documents for me to come and study in Australia, however, my intentions were that I had the mind of applying for protection in Australia.
As my life will be in danger when I return to Nigeria, I am appealing to the Australian government to grant me protection.
The applicant provided an additional statement to the Tribunal dated 17 April 2019. The statement indicates that the applicant has been a member of the Biafran movement since 2003. The applicant refers to a protest in which authorities shot at protesters. The applicant’s close friend who was next to him lost his life. After the shootings, people started to run. The applicant took his shirt off which identified him as Biafran. The applicant has lived in fear since.
The applicant provides information concerning his ability to travel to a country part of the European Community of Western African States (‘ECOWAS’) treaty and indicates the same danger would face him in those countries.
The applicant provided to the Department receipts of payment by the applicant to Movement for the Actualisation of Sovereign State of Biafra (‘MASSOB’) in 2009 and 2010. Also provided are receipts of payment by the applicant to New Biafra in 2005, 2004, 2009 and 2011. Additional receipts were provided to the Tribunal of payments to New Biafra in 2007 and 2008.
The applicant provided to the Department three photographs which show individuals, including presumably the applicant with other individuals wearing a ‘Free Biafra’ t-shirt. Also provided is a photograph of a flag and what appear to be a number of dead bodies lying on a street.
The applicant provided to the Tribunal the following:
- A letter from [a named official] [of a named Nigerian political group in] Australia and [another official] [of the same Nigerian political group in Australia]), dated [in] June 2021 which states that the applicant is a Biafran and a persecuted Biafran activist. The letter also states that the applicant is a committed member of Australia’s community of the [Nigerian political group] and is a person of good character. In addition, the letter suggests that if the applicant is deported, being a Biafran activist and a member of [the political group in] Australia puts the applicant’s life at a much higher risk in Nigeria of being kidnapped, tortured and secretly assassinated by Nigeria’s secret security agents. The letter also mentions that there are several cases of abduction, assassination and imprisonment of [the group’s] members in Nigeria.
- A statement from [an official] of [an Australian] branch of [the political group], undated, which states that what the applicant has stated is true and that there is an ongoing genocide on Biafran land sponsored by Nigeria that includes daily abduction, extrajudicial killings, destruction of lives and property, and rapes.
- A statement from [Ms A], dated 15 June 2021 which states that she is the wife of the applicant, the applicant is a person of good character and is saddened by stories of killings of Igbo people. The letter also states that there is a high level of violence, corruption and terrorism throughout Nigeria and that [Ms A] has seen some media reports about the living conditions of Igbo people. [Ms A] indicates that she has attended Biafra meetings in Australia on several occasions.
The applicant provided to the Tribunal on a USB, eight videos relating to conflicts involving Biafran supporters and groups, including footage of the attacks. In the hearing, the applicant indicated that these are videos provided to indicate the general security situation in Nigeria involving Biafra and do not pertain to matters involving the applicant specifically or personally, although he indicated that similar incidents that are depicted had happened to him.
Independent information
The 2020 DFAT report on Nigeria provides the following information:
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, para [2.1] – [2.5].
[…]
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, para [3.7] – [3.10].
[…]
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 countercoups 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. [3]
[3] DFAT, Country Information Report – Nigeria, 3 December 2020, para [3.45] – [3.52].
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.
The applicant, in both the interview with the delegate and in the Tribunal hearing, was detailed and consistent in terms of claims of involvement in Biafran movements since about 2003. In the hearing, the applicant gave evidence that he was initially involved in MASSOB, but that a split emerged with a leader of MASSOB founding IPOB which the applicant then became a part of.
The applicant provided detail of his involvement in numerous protests over the years, many of which he claimed involved repression by authorities including the use of teargas and shootings. The applicant’s evidence in this respect was detailed and given with an emotional content that persuaded the Tribunal that the applicant was providing evidence as to events that actually occurred. The applicant’s account as to repression by Nigerian authorities in Biafran protests is consistent with independent information.
The applicant was consistent in both the interview and in the hearing of an incident in a protest in around 2011 in which a friend of the applicant who was participating in a protest with the applicant, was killed when shot at by Nigerian authorities.
The applicant was also consistent in the interview and the hearing that when involved with IPOB he had a leadership role involving [specified events]. The applicant also indicated in the hearing that when in MASSOB he was the [specified leader] of a local unit of the organisation.
The applicant gave evidence in the hearing consistent with independent evidence of the security situation for Biafran separatists deteriorating in the second half of 2015 because of the return of the IPOB leader, Nnamdi Kanu. The applicant indicated in the hearing that at this point he was making arrangements to seek to come to Australia to study and that he moved from his home area in Anambra to Lagos where he stayed with [a relative], partially in response to the increased actions by authorities in his home area.
The Tribunal explored with the applicant in the hearing his motivation for coming to Australia in the middle of 2016. The applicant indicated that his intention was to come to Australia to study. The Tribunal put to the applicant that it seemed puzzling that at this point the applicant did not appear to be seeking to come to Australia for fear of his safety. In response, the applicant indicated that this fear only emerged after he had arrived in Australia because the repressive attitudes of authorities in Nigeria and the killings of Biafran supporters continued and increased.
The Tribunal put to the applicant in the hearing credibility concerns as a result of his delay from arrival in 2016 until August 2018 in applying for a Protection visa, and instead making an unsuccessful Partner visa application. In response, the applicant indicated that he had thought that initially after discussion with his ex-partner that his safety in Australia would be protected by a successful Partner visa application. It was only after this was rejected that he made the application for a Protection visa.
The applicant indicated in the hearing that he would feel compelled on return to Nigeria to continue to be involved with the Biafran separatist movement. The applicant indicated that he could not relocate within Nigeria to escape harm because his activities in support of Biafrans would result in adverse attention from authorities wherever he was located in Nigeria.
Considering all of the evidence, the Tribunal is satisfied as to the credibility of the applicant’s substantive claims. The Tribunal is satisfied that the applicant was involved in MASSOB in Nigeria from 2003 and then later IPOB. The Tribunal is satisfied that the applicant participated in protests with these organisations, many of which resulted in repressive action from Nigerian authorities including shooting at the protesters and the use of teargas. The Tribunal is satisfied that in protests that the applicant was involved in individuals involved were shot, including a friend of the applicant’s having been shot and killed in around 2011.
The Tribunal is satisfied on the evidence that the applicant has been involved in [the named Nigerian political group] in Australia.
The Tribunal has some concern over the fact that the applicant did not come to Australia for the specific reason of seeking protection, but came to study. At the time of his arrival here in mid-2016, the situation that had been facing Biafran supporters from authorities in Nigeria had been particularly severe, suggesting that the applicant, if his claims were true, might well have come to Australia for reason of his safety and made a much earlier application for the Protection visa.
However, ultimately this does not undermine the Tribunal’s belief of the applicant’s evidence as to his involvement in Biafran political activities in Nigeria given the consistency and detail of his evidence in this respect.
The Tribunal accepts it not unreasonable that the applicant considered that an avenue for a Partner visa would provide a permanent right to stay in Australia and thus facilitate his protection. For that reason, the delay in the applicant applying for the Protection visa does not ultimately undermine his substantive claims.
The Tribunal is satisfied that on return to Nigeria the applicant would wish to continue his involvement in the Biafran movement. This would include the applicant participating in Biafran protests.
The Tribunal is satisfied on the independent information in the DFAT report that individuals currently actively involved in Biafran protests in Nigeria face a real chance from authorities of loss of life or significant physical harassment or significant physical ill-treatment as a result of repressive action from authorities towards protesters, including gunfire. The Tribunal is therefore satisfied that this results in the applicant facing a real chance of serious harm because of his intention to continue to be involved with the movement and in protests.
The Tribunal is satisfied that the reason for the persecution is the applicant’s political opinion in support of Biafrans, and that this would be the essential and significant reason for the harm. The Tribunal is satisfied that the persecution involves systematic and discriminatory conduct.
The Tribunal is satisfied that the applicant would wish to continue his involvement in support of Biafrans wherever he would reside in Nigeria and that his activities in this respect would attract adverse attention from authorities. The Tribunal therefore considers that the real chance of persecution relates to all areas of Nigeria.
Given these findings, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act as far as Nigeria is concerned. The Tribunal is satisfied that the applicant meets the criteria set out in s 36(2)(a) of the Act as Nigeria is concerned.
Does the applicant have the right to enter and reside in a third country?
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Having found that the applicant meets the criteria set out in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant has not taken all possible steps to avail himself of a right to enter and reside in a country apart from Australia.
The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. The right must be a right to both enter and reside: WAGH v MIMIA (2003) 131 FCR 269 per Hill J. The right must be existing, and not a past or lapsed right, or a potential right or expectancy: Suntharajah v MIMA [2001] FCA 1391.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a presently existing liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A) (i.e. no need to be legally enforceable).
Nigeria is a member of the ECOWAS founded in 1975 with the aim of promoting regional economic integration. There are 15 member states including: Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.
There are three pillars of ECOWAS – entry, residence and establishment, as enshrined in the ‘Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence And Establishment’ signed in May 1979.[4] Since the signing of this Protocol, ECOWAS has gradually implemented a number of protocols over three phases that have outlined the legal requirements of member nations.
[4] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[5] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries for 90 days provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[6]
[5] IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.23 ACP Observatory on Migration, Annex of ‘Across Artificial Borders: An assessment of labour migration in the ECOWAS region’ – Liberia country report, 1 January 2014, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, CIS22697, p.42, >
A 2014 ACP Observatory on Migration/IOM report[7] stated in part that:
In relation to the first phase (Right of Entry), all the 15 Member States have abolished visa and entry requirements for those staying up to 90 days. This means that Community citizens in possession of valid travel documents and international health certificate can stay in any ECOWAS member State for up to 90 days without any prior administrative or police formality linked to their stay.
[7] ACP, Across Artificial Borders: An assessment of labour migration in the ECOWAS region, Research 2014, p.66, [
The ECOWAS protocols have made considerable legal headway in establishing freedom of movement between ECOWAS member states in practice.[8] According to a DFAT report on Nigeria from 2018:
Nigerians can freely enter the fourteen member states covered by the ECOWAS Treaty with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS. Nigerians can apply for an ECOWAS Travel Certificate from an NIS office. Applicants require less documentation to obtain the Certificate than to obtain a Nigerian passport. An applicant must provide photographs, a birth certificate or statutory declaration of age, a letter of introduction from an employer and a letter of confirmation of Nigerian citizenship from the applicant's local government chairman.
DFAT understands that movement within ECOWAS is generally free. While some countries have rules relating to residence permits, authorities rarely implement them. Porous borders, tribal links (people of the same ethnic background living in different ECOWAS countries), circular and cyclical migration, especially in the field of agriculture, and lack of knowledge of border laws allow the regular movement of Nigerians to and from other ECOWAS countries. [9]
[8] Integrate Africa website:
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018.
Notwithstanding that all states have ratified the Free Movement Protocol, and there are gradual efforts to progress implementation, there have been a number of implementation challenges, including as recently identified by DFAT.[10] A key challenge is inconsistency between ECOWAS protocols and national laws and policies.[11] Some sources suggest that full freedom of movement and rights to reside are limited by independent laws and restrictions, administrative harassment and extortion.[12] Reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws[13] particularly as each state determines the admissibility of non-citizens. Commentators have suggested that until states agree to restrict determinations of admissibility to the ECOWAS recommended grounds of public order, public health and public security, the entitlements of the protocols are undermined by the states’ recourse to overly broad or arbitrary grounds of inadmissibility.[14] A now somewhat outdated report commissioned by the UNHCR detailed inadmissibility provisions in ECOWAS countries.[15] According to the report, ‘the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would‑be migrants seemingly without need of explanation or process’. The report suggests that most countries require some form of medical or health certificate. Some require evidence of a return ticket and means of support. Some countries simply maintain an open discretion to refuse admission.[16] Further, a non-citizen’s right to entry may be limited because of a limited understanding and application by member states of the obligations under the Treaty.[17]
[10] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[11] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[12] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[13] ACP Observatory on Migration, Annex of ‘Across Artificial Borders: An assessment of labour migration in the ECOWAS region’ – Ghana country report , 1 January 2014, pp.46 & 47, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.27, United Nations High Commissioner for Refugees, New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol, 1 December 2007, pp.9 &11 Katy Long and Jeff Crisp, Migration, mobility and solutions: an evolving perspective, Forced Migration Review, vol. 35, pp.56-57,
[15] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.
[16] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.
[17] UN High Commission for Refugees (UNHCR), UNHCR and IOM, Nationality, Migration and Statelessness in West Africa, June 2015, p.86, >
The Ghana News Agency, in a report appearing on the Government of Ghana Official website, refers to a meeting between ‘Representatives of civil society, the private sector and the media from the ECOWAS member-states’ held in Accra, Ghana, that attempted ‘to fashion out practical ways to stem harassment on the highways and borders within the region’. The report commented on restrictions to ‘free movement’ between ECOWAS member states, such as ‘illegal barriers and roadblocks’, ‘the extortion of money from travellers’, ‘systematic racketeering’, and some ‘immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document’.[18] While this report was in 2008, these kinds of impediments are still commented on and recognised by ECOWAS itself. An article in 2017 refers to the ECOWAS Commission President stating that harassment comprised a major handicap to free movement of persons.[19]
[18] Ghana News Agency, Ghana Hosts ECOWAS Meeting On Border Harassment, 3 April 2008,
[19] ECOWAS website:
A UNHCR report in 2015 provides the following information on the implementation of the ECOWAS Treaty and protocols in practice:
Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[20]
[20] UN High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, p.86, type="1">
The UNHCR report continues:
At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds” … The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[21]
[21] Ibid, p.87.
More recently, the report of the Special Rapporteur on Migration in Niger in 2019 found that there are restrictions on entry which violated ECOWAS principles.[22]
[22] UN Human Rights Council, Report of Special Rapporteur on the human rights of migrants – Niger, 16 May 2019,
Article 3 of the Protocol gives the right of all ECOWAS members to travel to any state for up to 90 days without a visa, provided that they carry valid travel documents and health certificates. If, however, they decide to extend the stay, an authorisation beyond the 90 days is required. Member states reserve the right to refuse admission to any citizen they consider to be an inadmissible citizen under their law. The phases relating to right of residence and right of establishment have not been fully implemented. Once the 90 days is finished, according to the Protocol, applicants must apply for residence permits, a process which is dependent on national laws and arbitrarily applied by officials. They must apply and obtain a residence and work permit just like non-ECOWAS residents, and obtaining documentation is difficult.[23] The right to residence is not guaranteed.[24] Refusal is possible on the grounds of public order, public security or public health.[25]
[23] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[24] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[25] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
Further, articles have suggested that the COVID-19 pandemic has practically led to the ‘suspension’ of the ECOWAS Free Movement Protocol. Many land borders remain closed.[26]
[26] Open Democracy, What will international migration in West Africa look like after COVID-19? 16 December 2020; MEDAM_PolicyBrief_ECOWAS.pdf (ecdpm.org) June 2020
Most ECOWAS countries closed their borders in April 2020 due to the COVID-19 pandemic.[27] Aljazeera reported on the closure of airspace and lockdowns in a number of states.[28] An academic article in the American Journal of International Law in 2020 states:
Immediately after the first signs of COVID-19 in West Africa in March-April 2020, twelve countries officially closed their borders. Other countries, such as Benin, Ivory Coast and Senegal, adopted a more pragmatic approach by merely limiting to essential crossings any arrivals or departures over land, and by adopting human[1]itarian corridors. Many of these measures are based on Article 4 of the 1979 Dakar Protocol of the Economic Community of West African States (ECOWAS) and Article 91 of the amended Treaty of the West African Economic and Monetary Union (known under its French acronym UEMOA), which authorize states to limit the freedom of movement and residence for reasons of public order, public security, or public health. The measures, however, have heavily impacted the legal regime of free movement of persons throughout the ECOWAS area. In the following analysis, I will show that the measures have (1) contributed to the disintegration of the legal regime of free movement of persons in ECOWAS and (2) instrumentalized COVID-19 for political ends in ways that are counterproductive for the region.[29]
[27] OECD, When a global virus meets local realities: Coronavirus (COVID-19) in West Africa (oecd.org), 11 May 2020
[28] Al Jazeera,
[29] American Journal of International Law, Free Movement of Persons in West Africa Under the Strain of COVID-19, Cambridge Core, November 2020
The courts have found that a right under s 36(3) must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise (V856/00A v MIMA (2001) 114 FCR 408). The Tribunal notes that Article 3 of the Protocol Relating to Free Movement of Persons makes it a requirement of entry to any ECOWAS state that the applicant possesses a valid travel document and international health certificate.[30]
[30] Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, ECOWAS, 29 May 1979
Given the barriers to entry in the above sources and the uncertainty as to whether the applicant would be authorised to stay after 90 days, the Tribunal is not satisfied that the applicant has an existing right (a liberty, permission or privilege) to enter and reside in the ECOWAS countries.
The Tribunal is satisfied therefore that the applicant does not have a right to temporarily or permanently enter and reside in any country other than Nigeria and that s 36(3) does not apply in the applicant’s case.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) and that no exclusion under s 36(3) applies.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).
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.
…

[2021] AATA 3668

19 July 2021

Key Legal Topics

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Immigration

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Procedural Fairness

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