1908684 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to be a member of the Movement for the Actualisation of Sovereign State of Biafra (MASSOB) and feared persecution in Nigeria due to his political opinion. The applicant had arrived in Australia on a student visa in 2016 and subsequently applied for a protection visa in 2018 after withdrawing a partner visa application. The Department of Home Affairs refused the protection visa, leading to the applicant's review application before the Tribunal.

The primary legal issues before the Tribunal were the credibility of the applicant's claims and whether, on the accepted claims, the criteria for a protection visa were fulfilled. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of political opinion, as defined by the Migration Act 1958 (Cth), and whether Australia had protection obligations towards him. The Tribunal also considered whether any exclusion clauses, specifically relating to third-country protection under section 36(3) of the Act, applied to the applicant's case.

The Tribunal noted that the applicant claimed to have been a member of MASSOB since 2005 and alleged that Nigerian authorities had shot at a joint rally of MASSOB and IPOB in August 2015, resulting in deaths and arrests. The applicant also stated he had been beaten on several occasions without arrest and that his life would be in danger if returned to Nigeria. The Tribunal examined the provisions of the ECOWAS Treaty and protocols concerning freedom of movement and residence within member states, as well as country information regarding their practical implementation. Ultimately, the Tribunal was not satisfied that the applicant had an existing right to enter and reside in any ECOWAS country, finding that the ECOWAS protocols had not been fully implemented in practice and that national laws and administrative practices created barriers and uncertainties.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth). This indicates that the Tribunal found the applicant to be a refugee in respect of whom Australia has protection obligations.