1909280 (Refugee)

1909280 (Refugee) [2022] AATA 4878 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sabinus Robi (MARN: 0849550)
CASE NUMBER:  1909280
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Peter Vlahos
DATE:9 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

This Statement was made on 9^th November 2022 at 3.16PM.
CATCHWORDS
REFUGEE – protection visa – Nigeria – support for and activism for the rights of the LGBTI community – stepbrother killed by State Security Service (‘SSS’) – credibility concerns – delay in seeking protection – medical conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 5 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Nigeria, applied for the visas on 19 November 2015. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants faced a real chance of serious harm or a real risk of significant harm on the basis of their support for and activism for the rights of the LGBTI community in Nigeria.
The first-named applicant appeared before the Tribunal on 20 September 2022 to give evidence and present arguments. The Tribunal asked the first-named applicant if there were any witnesses who wished to provided evidence to the Tribunal concerning the first-named applicant’s claims. The first-named applicant told the Tribunal there were no witnesses. This was also confirmed to be the case by the applicant’s Solicitor, Mr Robi.
The second-named and third-named applicants were not present at the hearing. The first-named applicant informed the Tribunal that her spouse had no separate or distinct claims of his own he required the Tribunal to address. The third-named applicant is the couple’s daughter – who is a child who attends pre-school.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicants are persons to who Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [date] in [Town 1] in the Nigerian state of Lagos.
A copy of the applicant’s bio-data page of her Nigerian passport as evidence of her identity was provided to the Department and can be found on the Department File [number].
Prior to arriving in Australia [in] June 2015, the applicant had not travelled to any other country.
The applicant (and second-named applicant) were granted a Class TU Subclass 573 Student visa on 13 May 2015 and arrived in Australia on this visa. The applicant (and second-named applicant) have not departed Australia since their arrival. The applicant (attaching the other applicants) applied for a Class XA Subclass 866 Protection visa on 19 November 2015, prior to the expiry of the Student visa on 9 May 2017.
The applicant provided a document titled ‘Reasons for my application’ which was submitted with her protection visa form. In summary, the applicant’s claims were:
·The applicant is the child of her father’s first wife. Her father was married to two women. She has [number] siblings – [number] males and [number] females. Her father’s second wife had [number] children with her father prior to their marriage.
·The applicant is married to the second named applicant and has children of her own.
·The applicant (while in Nigeria) was living with her husband separate from her other family members in a three-bedroom house in Lagos.
·After her marriage in July 2011 the applicant’s stepbrother, [Mr A] came to live with her and her husband because the other members of the applicant’s family did not wish to have anything to do with him because he was not interested in women. This preferment for males caused high suspicions that ‘there was something wrong with him’ and the applicant’s father and extended family did not wish to associate with him. The applicant always had a good relationship with her late stepbrother and despite the ‘suspicions’ both the applicant and her husband agreed to provide him a roof over his head.
·The applicant knew that her stepbrother was ‘gay’ because she asked him why he had no relationships with females, and he revealed his personal sexual feelings. The applicant felt “shocked”, but her instinct was (her brother being a member of her family) to support him. The applicant believed that with the passage of time her stepbrother might “rehabilitate” himself “out of the mess of his perceived homosexuality.”
·The applicant kept her stepbrother’s “homosexuality” a “secret close to her heart” and feared that if others came to know about it, it would cause him to be “burnt alive on the streets”. The applicant also kept her stepbrother’s homosexuality “from her husband” because she was “unsure about his reaction.”
·The applicant watched closely her stepbrother in an attempt to help deal with his “sexuality problem.” However, the applicant did not restrict her stepbrother’s social life and after a time, her stepbrother began bringing his “sexual partners” to the applicant’s home.
·By meeting her stepbrother’s “friends” and “sexual partners” the applicant’s attitude to ‘homosexuals’ began to change. To ‘her surprise’ ‘they’ were ‘all normal young men who lived everyday lives like any other person.’ The applicant then ‘grew fond of having’ her stepbrothers friends in her home and she began to ‘wonder why anyone in his or normal senses would see them as people’ to ‘be singled out for harassment’ and ‘even to be burnt alive on streets’ as was the public ‘belief’ in Nigeria.
·“One day” the applicant heard a “commotion in the streets” outside her home. The applicant observed that her stepbrother was “being hounded by stern-looking people.” Others had gathered also and the applicant’s “stepbrother was shouting that he should be left alone.” Her stepbrother was pleading “that he had done nothing wrong.” The applicant attempted to “protect her stepbrother” from the angry crowd. The applicant recalled that one of the crowd told her that her stepbrother was “trying to woo his brother into a relationship with him.” The applicant with the assistance of some “friendly neighbours” managed to “pull” her stepbrother to “safety within the compound (the house).” The applicant noticed that her stepbrother had been “beaten up badly” by the crowd.
·After the passage of ‘a few hours’, the applicant “heard banging on the gate”. The applicant recalled seeing that there were persons from the SSS – the State Security Service, who “wanted to speak to her brother.” The applicant told them that her brother had been badly beaten by people in the street and should be left alone. The SSS ordered the applicant open or the “would break” the gate and “arrest” the applicant and “her stepbrother.” The SSS entered the compound “beat” the applicant and “went into the house” and “dragged” her stepbrother out of the applicant’s house.
·According to the applicant “late that night” when her husband “returned home” someone was “banging on the gate.” The applicant heard this person shout that her stepbrother’s “corpse is at the gate.” The applicant ran to the gate and recalled “truly” her stepbrother’s body was “there lifeless on the floor.” The applicant recalled that she “screamed, screamed and screamed.”
·The next day, the applicant recalled hearing people “banging on the door” and “shouting” that the applicant should open. They identified themselves as the “SSS” and that the applicant was “under arrest.” Fearing arrest and an uncertain future, the applicant “got a ladder” and “scaled the fence” at the “back of the compound” and “escaped somehow.”
·The same day, the SSS went to the applicant’s husband’s office and “threatened him.” A few days later, the applicant’s husband was “sacked from his work.”
·[In] March 2015, the applicant applied for the renewal of her Nigerian passport. The process was undertaken a third party on the applicant’s behalf. This third party was sympathetic to the applicant’s plight and wanted to get the applicant out of Nigeria. When this person attended Nigerian Immigration Service (NIS) she was approached by an SSS official and taken to an office to be questioned. After entering her details, the SSS official noticed that this person was not the applicant and demanded an explanation as to why she was attempting to renew a passport that belonged to another person. According to the applicant, the third party “begged” the SSS official to release her. Her subsequent release was then agreed to if she paid the SSS the amount of N50,000.00. When the requested amount was paid the SSS official and NIS person told the applicant’s third party that if the applicant’s passport was not renewed “then and there” the applicant would face similar problems. Knowing this, the applicant’s third party returned to the bank and withdrew a further amount of N50,000.00 and provided it to NIS and SSS officials and the passport was issued the next day.
·On 8 May 2015 the applied for her visa which was issued to her [in] May 2015 and the applicant’s date of departure from Nigeria was scheduled [for] June 2015.
·Arriving at the airport and after having her travel document checked and authorised the applicant was approached by person who did not identify themselves to her – who asked her to follow her. The applicant was led to a room and was asked to present her travel documents to this person. The applicant provided them; she was identified as the person in the passport and then was told “to forget about Australia.” The applicant was accused of “being a trouble-maker” who “wanted to turn Nigeria into morality.” The applicant was informed that she “would face the consequences for encouraging ‘gays’ and ‘lesbians’ to ‘Nigerian youths.’ The applicant protested these accusations as ‘not being the truth’ and that ‘she had only tried to rehabilitate her brother’ who had been killed by the SSS. This made the applicant’s interrogator angry. At that moment ‘a man’ ‘came into the office’ and the applicant’s interrogator was asked to see someone else within the building and left. In her absence this ‘man’ enquired of the applicant why she was being detained. The applicant told him in brief her plight and this male ‘told her he could help her’ on condition that he was allowed to “have sex with her” or in the alternative pay, to him the amount of ‘N500,000.00’. The applicant provided this male with all the money she had, and her jewellery and he left the room. In his absence, the applicant proceeded to the departure lounge and entered without delay the plane and left Nigeria.
·While being in Australia, the applicant has tried to “move on with her life.” However, it has been difficult, and she has been having nightmares. The applicant has consulted about her situation with a medical practitioner but continues to experience the aftereffects of the trauma she endured while in Nigeria.
In her application, the applicant stated that she was a Christian, of the Igbo ethnicity and had completed tertiary level education in a Diploma of [Subject 1], a Diploma In [Subject 2], a Bachelor’s degree in [Subject 3] in Nigeria and while in Australia, she had completed a Certificate III in [Subject 4] and a Certification in [Subject 5].
The applicant stated that her family consists of her father, mother, [number] brothers and [number] sisters. The Tribunal noted that the applicant’s father has been married twice.
The applicant’s lawyer and migration agent provided the Tribunal with the following documents in support of the application:
·Applicant’s written submissions addressed to the Tribunal dated 20 September 2022
·Newspaper reports clippings re: LGBTI activism and activities in Nigeria (from various sources) and various dates
·Finish Immigration Service report: “On the status of sexual and gender minorities in Nigeria”, 9 June 2015
·USAID Report, re: “Being LGBT in West Africa”, July 2014
·US Department of State report, re: ‘Nigeria: 2018 Human Rights Report’
·Wikipedia encyclopaedia, ‘State Security Service (Nigeria)’ September 2019
In the written submission provided to Tribunal dated 20 September 2019 the applicant provided the following comments concerning her claims:
Background
·The applicant was born in Nigeria and is a citizen of Nigeria. The applicant arrived in Australia in June 2015 on a student visa and joined her partner who held a student visa, which has now ceased. The applicant has a daughter who was born on [date].
·The applicant at the time she lodged her application for protection visa, did not have the assistance of migration agent.
·The applicant notes that the reason why she did not have the benefit of articulating her claims before the Department was because she was a very active underground member of a small group of people in Nigeria, who were campaigning for the rights of the LGBTI people.
·The applicant notes that her activism was inspired by the fact that her late stepbrother, was ‘gay’ and it was because of his sexual orientation, that the Nigerian security services killed him. Being a ‘pro-gay activist’ openly or underground in Nigeria is risk for male and female activists.
·The applicant described Nigeria as dominated and influenced by extremist religious preaching – both Christian and Muslim denominations. The northern part of Nigeria is dominated by the extreme Muslim religious doctrine under Sunni and Shia sects, who are violently anti-LGBTI. It is in the north, where there is a terrorist insurgency led by Boko Haram and ISIS. Christian Protestant Pentecostal churches dominate the rest of the country. These churches and their congregations are also extreme towards the LGBTI community.
The applicant in her submissions provided a series of country information reports highlighting the official and community attitudes towards the LGBTI community in Nigeria. The applicant also noted from this information the prevalence of violence committed towards LGBTI persons and activities which seemed to be condoned by the Nigerian authorities. In regard to her claims the applicant addressed the delegate’s concerns about her credibility as follows:
Protection claims and credibility claims
·The applicant presented credible claims in her application and her claims were consistent with the country information available and there was a possibility that the applicant’s stepbrother was killed by one of the Nigerian security forces.
·The applicant was being the subject of persecution in Nigeria because of her open support of her stepbrother, who was ‘gay’ and was this caused her to be targeted by the security forces.
·The applicant was confused and is not very sure about the different arms of the national security in Nigeria because (according to the applicant) there is overlap between the Federal and state policing agencies.
·The applicant admits that because of this ‘lack of knowledge’, the applicant may have made an ‘innocent mistake’ in her claim that the SSS were the murderers of her stepbrother, when in fact, it was the police or military.
Intolerance of anyone supporting LGBTI openly or underground
·The applicant considers her claim in regard to the issue of intolerance, is credible and well sourced and is evidenced by authoritative facts such as in reports by Human Rights Watch and Amnesty International.
·According to the applicant, the delegate conclusions that LGBTI persecution is ‘rare’ is ‘incorrect.’
Delay in seeking protection
·The applicant does not contend that she applied for protection five (5) months after she arrived in Australia.
·However, the applicant contends that five months is not a long period before an application for protection is made and in particular, for an applicant in the applicant’s position ‘who had arrived in the country after she had experienced the trauma of her stepbrother being murdered’ and her ‘recovering from the harassment, intimidation and harm’ she experienced and inflicted upon her by the Nigerian police.
·The applicant contends that she did ‘not know’ how to apply for asylum in Australia when she arrived and that any delay in her making an application earlier than five months was also due to the applicant’s limited financial resources.
Protection in another country
·The applicant contends that she (and her family members) cannot relocate to any of the ECOWAS group of countries because none of these countries have laws that provide protection to LGBTI persons and/or pro-LGBTI supporters (as the applicant is).
·The applicant contends that LGBTI people and their supporters, are discriminated, harassed, intimidated and denied human rights in all ECOWAS member countries.[1]
Applicant is a member of a particular social group (PSG)
·The applicant submitted that she belongs to a particular social group, being ‘people who support the rights of the LGBTI in Nigeria’ and hence ought to be provided with protection.
[1] For this conclusion, the applicant relied on evidence from a ‘report’ “Being LGBTI in West Africa” by Phillip P. Rodenbough, July 2014, USAID Being LGBT in West Africa, A Virtual Student Foreign Service Project, at pp.1-77.

The applicant was invited to a Protection interview before the Department on 13 March 2019 of which the applicant attended without the assistance of an interpreter. The applicant was not represented at this interview by a migration agent or lawyer.
The applicant applied for review of the delegate’s decision with the Tribunal on 15 April 2019 and provided a copy of the delegate’s decision record with her application.
The delegate proceeded to make a decision to refuse to grant the applicant a protection visa on 5 April 2019.
Issuance by Department of a non-disclosure certificate
On 30 August 2022, the Department issued pursuant to s.438(1)(b) of the Act a non-disclosure certificate attaching to the applicant’s Departmental and Tribunal files.[2]
[2] see, AAT File 1909280.
EVIDENCE BEFORE THE TRIBUNAL AT THE HEARING
The applicant states in her application that she is an Igbo female who was born in [Town 1], Lagos, Nigeria. She states that she has not travelled to any other country before her arrival in Australia. She identifies as a Christian. She states that she is able to speak, read and write the Igbo and English languages and capable of speaking and reads the Yoruba language.
The applicant states that her family is composed of her parents, [number] brothers and [number] sisters who all reside in Nigeria, except for one sister who is currently living in Austria. The applicant lists no previous employment history, and states in her application that she was financially supported by her parents and by her husband.
The applicant states that she has completed up to tertiary level education in Nigeria as well as having obtained a Certificate III qualifications while residing in Australia. The Tribunal did not cite any documents evidencing this claim namely, that the applicant had gained further qualifications while here, in Australia.
From the application for Protection submitted to the Department, the Tribunal noted that the [second-named applicant] claims to be a male who was born in Benin City, Edo State, Nigeria. He describes himself as a Christian. He states that he can speak, write, and read in the Igbo and English languages, and he can also speak and read the Edo language.
The second-named applicant states that his family consists of his parents, [number] sisters and [number] brothers who all reside in [Country 1] except for his younger sister who still lives in Nigeria. The applicant lists (in the application) his occupation as ‘[Occupation 1]’ while he has been living in Australia, but has previously worked in [various industries] when he lived in Nigeria. He states that he has completed up to tertiary level education in [Subject 6] whilst in Australia.
The [third-named applicant] was born in Australia on [date], in [Suburb 1], Victoria. The child’s parents are the first and second-named applicants.
The applicant confirmed for the Tribunal that she arrived in Australia in June 2015 as the ‘dependent spouse’ attached to her husband’s student visa. The applicant told the Tribunal that her husband had come to Australia to undertake studies in [Subject 6]. The applicant said that her husband did ‘not complete his studies’. The applicant said that her husband was unable to complete his studies because of “financial pressures.”
The applicant said that her husband is current working for a “[workplace]” but did not identify the [workplace] by name.
What caused the applicant to leave Nigeria? The issues of her concern
The Tribunal asked the applicant – what was the cause or causes that made her leave Nigeria and to travel to Australia? The applicant said that she forced to leave Nigeria because she ‘had experienced torture and persecution.’ The applicant said that this ‘torture’ and ‘persecution’ was committed on her by the ‘Nigerian Armed forces’ and in particular by the State Security Service (‘SSS’).
The applicant said that the ‘torture’ and ‘persecution’ occurred sometime in 2011.
The Tribunal asked the applicant – why was she subjected to torture and persecution by the State Security Service and the Nigerian Military? What was the main reason for her being targeted? The applicant explained that her coming to the attention of the authorities was all because of her now deceased stepbrother.
The Tribunal asked the applicant – what did her deceased stepbrother do that the Nigerian authorities became concerned at first with him and later with the applicant? The applicant explained that her late stepbrother was a ‘homosexual’. The applicant said that though she did not approve of homosexuality, she had sympathy for her stepbrother and supported him and his attempts to live his life as he desired.
The applicant said that her stepbrother’s ‘way of life’ was not approved by her family and this had caused her stepbrother to seek refuge with the applicant and her husband. That being so, the applicant told the Tribunal that her stepbrother ‘lived with her’ and ‘her husband’ in their home and continued with his life as he pleased. The applicant told the Tribunal that often her stepbrother would bring to her home ‘his friends’ and introduce them to her.
The applicant said that on one occasion, her stepbrother introduced to her his ‘partner’ who too was a ‘known homosexual’.
The applicant also told the Tribunal that her husband did not approve of what her stepbrother was doing but acquiesced for ‘her sake’.
Nevertheless, though the brother had settled in well in the applicant’s home and tried to continue with his life, according to the applicant, he ‘knew he was in danger’ because of his homosexual lifestyle.
The Tribunal asked the applicant – why was her stepbrother in ‘danger’? The applicant said that his ‘partner was a prominent person.’ She went on to state that her stepbrother’s partner was ‘known to be a homosexual.’
The applicant referred to an ‘incident’ which had occurred where a ‘homosexual was stoned to death by local mobs because he had been discovered with another man.’
The applicant said that her stepbrother ‘knew he was in danger’. She said that it was ‘widely known’ that he was a ‘homosexual’ and lived his life as such.
Sometime in 2011, according to the applicant, her stepbrother indicated that he wanted to live with her because he felt it was safe living with the applicant and her husband. The applicant explained that in reality the stepbrother was ‘in hiding’. At that time her father had ‘disowned him’ because it was brought to his attention that his son was a ‘homosexual’.
The applicant was asked – how long did her stepbrother reside with her and her husband? The applicant recalled that he lived with her for approximately a year.
The applicant was asked by the Tribunal to describe what happened which led to her stepbrother’s death. The applicant (emotionally charged) explained that one day ‘there was a bang on the door’ of her home. The applicant said that she observed that ‘there was a group of people at the door’ and were ‘banging and shouting’ for the ‘door to be opened.’ The applicant at first, did not know what was happening. The Tribunal was told that the applicant attended at the group at her home’s doorstep, and asked them – ‘what did they want?’ The applicant recalled, that while a large group was at her home’s door, others (unidentified persons) were scaling the walls of her property. At the time, according to the applicant, her stepbrother was inside the house.
The Tribunal was told that some of the assembled crowd pushed her aside and proceeded to enter her home trying (as the applicant recalled) to locate her stepbrother. When the mob found him hiding, according to the applicant, ‘they dragged him out of the house’ and proceeded, according to the applicant, to ‘hit him’ and ‘hurling abuse at him.’
The applicant recalled that while she was trying to plead for her stepbrother to be ‘left alone’ she was ‘hit from behind.’
The applicant was asked to give further explanation as to who ‘hit her from behind?’ The applicant said that it was not one person but a ‘mixture’. The applicant went on to describe her assailants as the ‘Nigerian Security’ and most likely ‘members’ of the SSS (State Security Services).
The applicant then said that ‘they’ ‘dragged him’ and ‘threw him into a [awaiting] van’. The applicant described her stepbrother as being ‘half dead’.
The applicant said that her ‘stepbrother was not returned’. His body, according to the applicant was ‘not returned to the family.’
The applicant confirmed that ‘no death certificate’ was issued describing the cause of death or recording the date of her stepbrother’s death.
According to the applicant these events ‘happened in 2012.’
The applicant told the Tribunal that after some time had passed, the family was informed that her stepbrother had be buried ‘in a mass grave’ with ‘others’ but ‘no documents were provided to family recording this’.
What was the consequences of the applicant’s stepbrother’s death for the applicant?
The applicant said that her stepbrother’s tragic death caused her to become an activist for the cause of rights for the LGBTI community in her immediate neighbourhood. The applicant said that she and other women who had found themselves in similar circumstances formed an activist group which was named “[Group 1].”
The applicant said that the purpose of this group was to be an activist group which ‘would speak for people who were persecuted by government and society.’ The applicant said that foremost in the group’s mind was the cause of LGBTI rights in Nigeria.
The applicant identified herself as the ‘founder’ of this activist group she described as the “[Group 1].”
The applicant was asked by the Tribunal to describe some of the group’s public activities. The applicant gave no particular examples of her group’s involvement as a right advocacy group or submitted any publications attributed to the group. The applicant told the Tribunal that since her stepbrother’s death until she left Nigeria in 2015 it was a ‘nightmare living in Nigeria.’
The applicant described her ‘nightmare’ as follows: (1) her husband was threatening her to stop her activist activities; (2) her landlord had evicted her from her home and (3) her family had become aware of her activities and did not approve of them; while (4) she was constantly under State Security attention.
As a result of these pressures on her, the applicant retreated to her grandmother’s home in the village, seeking some refuge. While, according to the applicant, a close friend was making arrangements for her passport and visa enabling her to eventually leave for Australia.
Then, according to the applicant (no exact timeline provided), the applicant’s refuge was discovered, and her grandmother was ‘dragged’ by an angry mob (possible linked or part of the SSS) and then the same mob seized the applicant and dragged her out while beating her. The applicant said she feared ‘she would die’ and then collapsed. The mob thinking that she had ‘died’ left her and left.
Thereafter, according to the applicant, ‘her girlfriend’ organised for her to leave Nigeria.
The applicant said that she was able to get her passport and visa because ‘officials were bribed.’ The applicant said that her visa and passport ‘cost her a lot of money – approximately, NGN9000.00 (which is approximately $31.40 (1NGN= 0.0035AUD, 21/9/2022).
The applicant told the Tribunal while she was waiting to leave for Australia, she was approached by a person who ‘seemed to her’ ‘suspicious’ who took her to one side and tried to ‘detain her in a side room.’ The applicant protested but was told by this person ‘shut up and to follow me…’ which she did. According to the applicant, while being directed to the side room, another person called her would be detainer ‘away’ and told her ‘to leave quickly’ and she was able to allude her detainer boarding her flight to Australia.
The applicant was asked who was this person? The applicant described him as a ‘spy’ who was following her every move. She offered no other description.
The Tribunal asked the applicant if she has continued her anti-regime and pro-LGBTI activities while in Australia where she was free to do as she wanted and in Victoria, in particular, which had a large and activist LGBTI community. The applicant she had done activist work while here in Australia.
The applicant said that she had formed a group like the one she had established while in Nigeria advocating LGBTI rights but provided no evidence to the Tribunal of any activities either in the public domain or through social media.
The Tribunal was also told that that ‘there was activity’ but it was ‘underground’ because the applicant feared being ‘monitored by the Nigerian authorities here in Australia.
Medical issues affecting the applicant
The Tribunal noted and directed the applicant to the information she had provided to the Department concern her particular health issues. The Tribunal drew the applicant’s and her Legal counsel’s attention to page 4 of the delegate’s decision record where it was noted that “in support of her (the applicant’s) claims the applicant has submitted documentary evidence in the form of a medical referral from an Australian GP and a mental health care plan.[3] The applicant confirmed that such information had been provided to the Department. The Tribunal asked the applicant and her legal counsel whether there were any updated and further medical reports which should be put to the Tribunal for the Tribunal to consider.
[3] [Departmental file number]-Documents received post-interview-RID [deleted] – [the applicant] – dated 15 March 2019.
The applicant said that she was ‘seeing her doctor’ but offered no further information or details and did not present as having major medical issues or ongoing health concerns.
Nevertheless, the Tribunal requested of the parties the submission of any medical and/or long term medical or health plans on any medical condition affecting the applicant and the Tribunal further requested (from the applicant’s legal counsel) if such medical reports are available, the Tribunal would consider written submissions concerning whether or not the applicant could receive effective and accessible medical assistance in Nigeria.
Request for further submissions on the applicant’s activities in favour of LGBTI rights in Nigeria and Australia
Furthermore, the Tribunal requested further submissions on the applicant’s claims that she was an activist together with others supporting LGBTI rights in Nigeria and while here in Australia.
The applicant was provided with 14-days from the date of hearing to provide this additional information.
Country Information - Nigeria
Nigeria borders Niger in the north, Chad in the northeast, Cameroon in the east, and Benin in the west. Nigeria is a federal republic comprising 36 states and the Federal Capital Territory, where the capital, Abuja, is located. The largest city in Nigeria is Lagos, one of the largest metropolitan areas in the world and the second largest in Africa.[4]
[4] see, Wikipedia - Nigeria
The DFAT Country Information Report – Nigeria, dated 3 December 2020 states the following about sexual orientation and gender issues in Nigeria:
Sexual Orientation and Gender Identity[5]
[5] Department of Foreign Affairs & Trade (DFAT), Country Information Report – Nigeria, 3 December 2020 at p. 38
3.94Although the Constitution offers general guarantees to the rights to life, privacy, association, assembly, dignity and freedom of expression, Article 15(2) does not include sexual orientation or gender identity as one of the grounds for which discrimination is prohibited. There are no laws explicitly protecting sexual minorities from targeted violence or discrimination.
3.95A number of federal and state laws criminalise same-sex sexual acts. Section 214 of the 1990 Criminal Code criminalises ‘carnal knowledge against the order of nature’ for men and women, carrying a maximum penalty of 14 years’ imprisonment; while Section 217 penalises ‘gross indecency’ for men with up to three years’ imprisonment. The federal Same Sex Marriage (Prohibition) Act (2014) (the SSMPA) imposes sentences of up to 14 years for individuals who enter into a same-sex marriage or civil union, and penalises ‘administering, witnessing, abetting or aiding the solemnisation of a same sex marriage or civil union’ with up to 10 years’ imprisonment. Article 5(2) of the SSMPA penalises public displays of same-sex attraction with up to 10 years’ imprisonment.
3.96In the 12 northern states that have adopted sharia, adults convicted of engaging in same-sex sexual activity may be subject to execution by stoning. DFAT is not aware of any cases in which such penalties have been imposed, although there have been some cases in recent years in which sharia courts have reportedly sentenced individuals convicted of same-sex activities to lashings.
3.97According to the US Department of State, the SSMPA effectively renders illegal all forms of activity supporting or promoting lesbian, gay, bisexual, transgender and/or intersex (LGBTI) rights, or being perceived to do so. In addition to the provisions mentioned above, Article 5(3) of the SSMPA provides for up to 10 years’ imprisonment for anyone who ‘registers, operates or participates in gay clubs, societies or organisations, or supports their activities’. LGBTI persons have reported increased harassment and threats against them in the years following the SSMPA’s passing. Human rights organisations have reported the SSMPA has become a tool used by police and members of the public to legitimise human rights violations against LGBTI persons, such as torture, sexual violence, arbitrary detention, extortion and violations of due process rights. LGBTI advocates have also claimed in some cases local authorities have used the SSMPA to deny members of the LGBTI community access to amenities and education.
3.98There have been a number of widely reported cases in recent years in which LGBTI individuals have been arrested on the basis of their perceived sexual orientation or gender identity. These include (but are not limited to):
oIn January 2020, religious police in Kano state announced the arrest of 15 university graduates who were reportedly ‘planning a gay sex party’. A religious police spokesperson said those arrested had been transferred to a correctional centre to undergo reorientation programs.
oIn November 2019, police in Edo arrested two women rumoured to be in a relationship and publicly declared a ‘war on lesbians’. –
oIn August 2018, police in Lagos arrested 57 individuals at a hotel party, subsequently charging them with public displays of same-sex amorous affection under Section 5(2) of the SSMPA. In December 2019, 47 of the men began trial, making them the first people to go on trial under the Act.[6]
[6] see, Ibid at p. 39.
Media and LGBTI advocates have also reported cases in which police have arrested LGBTI individuals but released them without formal charges after paying a bond, thought in some cases to be a bribe.
3.99In-country sources report all socioeconomic groups in Nigeria hold negative views of homosexuality, which many consider to be alien to traditional African culture. According to a 2017 survey on lesbian, gay and bisexual rights in Nigeria, 90 per cent of respondents supported the introduction of the SSMPA, 90 per cent agreed Nigeria would be a better country without homosexuals, and 83 per cent indicated they would not be willing to accept a homosexual family member. Further, 56 per cent of respondents supported the view that homosexuals should be denied access to public services such as health care, housing, and education.
3.100LGBTI advocacy groups report that individuals accused of homosexuality face a risk of losing their jobs, being compelled to leave their village or neighbourhood, or being subjected to violence which has in some cases been lethal. LGBTI individuals have reported feeling unsafe accessing health care due to the fear of discrimination from nurses and doctors should their sexual orientation or gender identity become known, including being reported to police. In order to avoid societal isolation and discrimination, members of the LGBTI community report feeling compelled to take steps to hide their sexuality. Both gay men and lesbians face considerable societal and family pressure to enter into heterosexual marriages. DFAT considers credible reports of gay men being ostracised and forced out of their family homes once their sexual orientation had become known.
3.101Despite the operating restrictions imposed by the SSMPA, several NGOs have provided LGBTI groups and individuals legal advice, training in advocacy, media training and health services, focusing primarily on HIV and AIDS work. One human rights NGO launched a mobile application in 2017 called ‘Quickcare’ to help LGBTI people access health services and other LGBTI-friendly facilities across Nigeria. Authorities have largely not impeded the work of these groups. In 2018, however, a group called Lesbian Equality and Empowerment Initiatives lost their appeal challenging the refusal of the Corporate Affairs Commission to register them under the Companies and Allied Matters Act, with the judge ruling their name was in breach of the SSMPA.
3.102 DFAT assesses LGBTI individuals face a high risk of legally sanctioned official discrimination and targeting under federal and state law, and a high risk of societal discrimination and violence. These risks increase in the northern states in which sharia applies.[7]
[7] Ibid at p. 39.
Nigerian Armed Forces (NAF)[8]
[8] See, Ibid at p.52.
5.4Chapter 6 Part 3 C of the Constitution (Articles 217-220) sets out the roles and responsibilities of the Nigerian Armed Forces (NAF), which report to the Ministry of Defence. The NAF consists of an Army, Navy and Air Force, and has around 181,000 personnel. Article 217(3) of the Constitution requires that the composition of the officer corps and other ranks reflect the federal character of Nigeria. Nigeria’s military spending in 2019 was the equivalent of 0.5 per cent of GDP. Nigeria’s voluntary military service age is 18; there is no conscription. As noted in Recent History, the military ruled Nigeria for much of the period following independence in 1960 until the return to civilian rule in 1999. While it has not involved itself in politics since that time, many senior political figures (including the current President) are former generals, and the NAF continues to occupy a prominent role in national life.
5.5 In addition to being responsible for Nigeria’s external security, Article 217(2)(c) authorises the President (with support of the National Assembly) to use the NAF to suppress insurrection and act in aid of civil authorities to restore order. In 2019, the NAF was part of continuing joint operations against insurgencies in the Northeast, Southeast, Niger Delta, Middle Belt and Northwest. The NAF has also made a significant contribution to regional peacekeeping efforts, most notably in Liberia and Sierra Leone in the 1990s. In recent years, the NAF has been particularly focused on combating the Boko Haram insurgency in the northeast and worsening communal conflict in the Middle Belt region (see Security Situation).
5.6 The duration of the Boko Haram conflict and the NAF’s failure to eliminate Boko Haram as a security threat has led to criticism, with some commentators contending the NAF is overstretched, understaffed, underequipped and underperforming. Corruption within the NAF has contributed to low morale at troop level: frontline soldiers have publicly complained about inadequate equipment and not receiving wages. As noted elsewhere, human rights observers have raised concerns on a number of occasions that the NAF has committed significant human rights abuses against civilians and suspected insurgents in the context of conducting operations against Boko Haram.
5.7 The Armed Forces Act (2004) dictates that disciplinary action in the NAF is determined by a soldier’s commanding officer, with the decision subject to review by the chain of command. The NAF has a human rights desk to investigate complaints of human rights violations brought by civilians, and a standing general court martial in Maiduguri. The court martial in Maiduguri has convicted soldiers for rape, murder and abduction of civilians. The human rights desk in Maiduguri coordinates with the NHRC and Nigerian Bar Association to receive and investigate complaints, although their capacity and ability to investigate complaints outside major population centres remains limited. According to international observers, many credible accusations of abuses remain investigated.
Nigerian Police Force (NPF)[9]
[9] Ibid at pp.53, 54
5.8Chapter 6 Part 3 B of the Constitution (Articles 214-216) sets out the role and functions of the NPF, which is the country’s principal law enforcement agency. Article 214 prohibits constituent parts of the federation from forming their own police forces. The NPF maintains law and order in each state and engages in border security, maritime and counter-terrorism operations. An inspector general of police, appointed by and reporting directly to the president, commands the NPF.
5.9 With around 370,000 officers, the NPF is one of the largest police forces in the world, although to meet the UN recommended ratio of one police officer per 400 residents it would need to train another 155,000 officers. While the exact number of female NPF officers is unclear, it has historically been low. In-country sources report the NPF suffers from low capacity and insufficient training, while its operational efficiency is hampered by its centralised nature, which makes resource allocation and changes in operating procedure slow to implement in all states.
5.10 Police salaries are low, with recruits earning less than USD400 a year. As a result, police officers are susceptible to corrupt practices to supplement their income and many Nigerians view the NPF as an endemically corrupt organisation (see Corruption). In November 2018, President Buhari approved legislation to increase police salaries in an effort to address corruption and lift performance.
5.11Local and international observers have reported numerous instances in which the NPF has used disproportionate force, including live ammunition, to neutralise unrest or protests (see Extrajudicial Killings). Observers have also reported numerous cases in which NPF officers have arbitrarily arrested and detained individuals, and abused criminal suspects and insurgents in custody (see Arbitrary Arrest and Detention). As noted in Torture, international observers have reported the NPF’s SARS has sometimes used torture to extract confessions later used to try suspects.
5.12Public discontent over the history of reported violence by SARS without accountability culminated in a series of Nigeria-wide protests in October and November 2020, known as the ‘#EndSARS’ movement. The protests followed the reported killing of a man by SARS officers in Delta state, a video of which went viral. On 11 October, the President dissolved SARS with immediate effect, yet protests continued. Amnesty International claimed the military and police fired on protesters in Lagos on 20 October, killing at least 12. The army denied its personnel were involved, but the Lagos Governor has launched an inquiry into the ‘rules of engagement ordered by the Nigerian Army’. The protests have continued as has a Government crack-down on the protest movement but the need for police reform has been widely acknowledged. President Buhari stated in a nationwide broadcast on 22 October that the voice of the protestors had been heard ‘loud and clear’. The creation of state-based Judicial Panels of Inquiry to investigate reports of abuse by the disbanded SARS police unit appears to be the principal result of the protest movement and these are receiving significant media coverage. The panels have been given six months to report. Alongside this response apparently recognising the need for reform, some protesters claim the government is conducting a targeted campaign against people associated with the movement, by freezing bank accounts and withholding passports.
5.13Three government agencies oversee the NPF: the Nigeria Police Council, the Police Service Commission (PSC) and the Ministry of Police Affairs. In-country sources report inadequate resources and a lack of independence have hampered the ability of these organisations (and the NHRC) to prevent and investigate instances of police abuses.
State Security Service - Nigeria[10]
[10] Wikipedia- SSS (State Security Service-Nigeria)
The State Security Service (SSS), self-styled as the Department of State Services (DSS),^[1] is a security agency of Nigeria and one of three successor organisations to the National Security Organization (NSO). The agency is under the Presidency of the Federal Republic of Nigeria, and it reports its activities to the office of the NSA.
Its main responsibilities are within the country and include counter-intelligence, internal security, counter-terrorism, and surveillance as well as investigating some other types of serious crimes against the state. It is also charged with the protection of senior government officials, particularly the President, Vice President, state governors and visiting heads of states and governments with their respective families.
It is headquartered in Abuja. According to the 1998 Presidential Proclamation, the SSS operates as a department within the Ministry of Defence and its under the control of the National Security Adviser.
Controversy surrounding the SSS
Although the notorious NSO was dissolved, the new security establishment in 1990 continued to act arbitrarily and with impunity. The government proscribed radical interest groups like NANS and the Academic Staff Union of Universities, the central body of all university professors and lecturers. Several innocent citizens were subjected to physical assault without government reparations. Human rights remained substantially circumscribed. Decree Number remained in place, and numerous citizens had been incarcerated under it, although the allowable period of detention without charge was reduced from six months to six weeks in January 1990. With the aid of this and other decrees that restricted freedom, usually promulgated retrospectively, such radical and outspoken critics of the government as Gani Fawehinmi, Tai Solarin, and Balarabe Musa were regularly detained. Despite having annulled Decree Number, the government had several brushes with media organizations. In 1988 Newswatch was proscribed for six months, and journalists, academics, and civil rights activists continued to be harassed by state security agents.
Government security forces frequently harass, arrested, and detain editors and reporters from journals critical of the regime. On 4 November 1997 Aoetokunbo Fakeye, defense correspondent for The News, was arrested. On 8 November, Jenkins Alumona, editor of The News, was arrested by SSS agents at a Lagos television station. On 9 November, Onome Osifo-Whiskey, managing editor of Tell magazine, was arrested by SSS agents in Lagos while driving to church with his children.
On 29 October, Osifo-Whiskey had warned that the magazine had received a written death threat, which listed the names of 27 staff members. On 16 November, SSS agents arrested Babafemi Ojudu, editor of the News/Tempo. Rafiu Salau, an administration editor for the News/Tempo, was also arrested in mid-November. Former chairman of the editorial board of the daily The Guardian and a visiting professor of journalism at a US university, Olatunji Dare, was detained overnight and his passport seized upon his arrival from the United States on 2 June 1997. He was told to report to the DSS to retrieve his passport. After being interrogated on 17 June by SSS officials about his activities abroad, his passport was then returned.
The SSS has also been accused of repressing the political activities of opposition groups. Public meetings are arbitrarily cancelled or prevented, including cultural events, academic conferences, and human rights meetings. On 25 September 1997, police and SSS agents broke up a Human Rights Africa (HRA) seminar for students in Jos, arrested HARA director Tunji Abayomi and 4 others, and briefly detained some 70 students. Abayomi and the others were held for 10 days and then released on bail. A 1 May 1998 workshop on conflict management in Port Harcourt was cancelled when the SSS warned local coordinators that such a meeting could not be held on Workers Day, a local holiday. Similar workshops elsewhere proceeded unimpeded despite the holiday.
In an exclusive report on September 29, 2020, Peoples Gazette reported lengthy details exposing nepotism and favouritism in the recruitment of personnel of the State Security Service led by Bichi, the report became known as the "SSS recruitment scandal". The report cited many sources, including serving personnel of the agency, who gave figures of how the agency neglected the official procedures for recruitment to favour individuals from the local government area of the director-general and the Northern region of Nigeria against the Southern region.^[17][18]
Leaders across the Southern and Middle Belt regions of Nigeria criticised the process and threatened to sue the State Security Service and the director-general for it.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference

On the basis of the copy of the applicants’ Nigerian passports and certificates of birth and with no evidence to the contrary, the Tribunal is also satisfied that the applicants are citizens of the Federal Republic of Nigeria. The Tribunal finds that Nigeria is the applicants’ receiving country for the purposes of assessing their individual and cumulative claims to be assessed under sections 36(2)(a) and 36(2)(aa).
Third country information
Section 36(2)(a) and (aa) are qualified by subsections (3) to (5A) of the Act which set out the circumstances in which Australia is taken not to have protection obligations. The qualification in s. 36(3) provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia.
As the applicants are citizens of Nigeria, the applicants were provided with an opportunity to outline the reasons they could not enter and reside, either temporarily or permanently, in the Economic Community of West Africa States countries during the scheduled hearing.
The Economic Community of West African States or ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted.[11] The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[12]
[11] DFAT Thematic Report – Economic Community of West African States (ECOWAS), dated 3 December 2020, p.6.
[12] Ibid, p.14.
The applicants raised concerns that the Nigerian authorities’ influence with the authorities of other ECOWAS members was sufficiently significant whereby they faced the prospect of being returned from one of those third countries on the basis of their membership or being supporters or associated with those of a prescribed organisation (LBGTI activists) in Nigeria, pursuant to s 36(5A).
However, as the Tribunal has made findings in this decision that the applicants do not meet the criteria under sections 36(2)(a) and 36(2)(a), it is not required to consider whether the applicant section 36(3), (4), (5) and (5A) are applicable.
Credibility Concerns and Findings
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Accepted personal circumstances
Notwithstanding the Tribunal’s adverse credibility finds below, it accepts the following personal attributes of the applicant to be credible:
·The applicant was born at [Town 1] in Nigeria’s Lagos state, as claimed;
·The applicant belongs to the Igbo ethnicity;
·That her parents remain in Nigeria; and that she has [number] brothers and [number] sisters;
·The applicant and her family belongs to the Christian faith, as claimed;
·The applicant has received her education in Nigeria – both primary, secondary, and tertiary and has completed tertiary studies while in Australia;
·The applicant is married and has a child
For the purposes of making findings under sections 36(2)(a) and (aa), the Tribunal makes findings that should the applicant and the other applicants return to Nigeria, Lagos state is the applicants’ home area. This is based on her family mostly residing in Lagos state where the applicant was educated and resided for most of her life while in Nigeria.
The Applicant’s claims
For the reasons that follow, the Tribunal does not accept the applicant’s claims that she and her family members because of her actions fears harm in Nigeria because of the applicant’s public support for her deceased stepbrother who was a known homosexual and for her later support for the cause of rights for the LGBTI community in Nigeria.
The Evidence
(a)The applicant’s claim that her stepbrother was murdered
The applicant provided very little evidence concerning her pro-LGBTI activities while in Nigeria. Also, the Tribunal noted that the applicant provided certain medical reports related to her health which the Tribunal will discuss later.
The applicant claimed that her deceased stepbrother who was a homosexual had come to live with her and her husband in Lagos after the applicant’s family had disowned him. The applicant said that at first she genuinely did not approve of his homosexuality because of her strong Christian beliefs but supported her stepbrother while at the same time trying to convince him to take a different path concerning his life and the way he wished to live his life. The applicant claimed that her husband did not know her stepbrother’s sexual preferences at the time when he came to live with them but later found out. The applicant claimed that after a while living with her stepbrother and having met many of his male friends, she became more sympathetic to the LGBTI cause and community. According to the applicant, the LGBTI were normal human beings that should not be treated or considered differently by the general community.
At the hearing, the applicant was asked to describe what happened which led her stepbrother’s death. The applicant (with emotion) explained that one day ‘there was a bang on the door’ of her home. The applicant said that she observed that ‘there was a group of persons at the door’ who were in an excited mood and ‘shouting for the door’ (to her home’s compound) to be open’. At first, the applicant claimed she did not know what was happening. The Tribunal was told that the applicant attended the group and asked them ‘what they wanted.’ It was claimed at the time, her stepbrother was inside her house. The Tribunal was told that some of the assembled crowd pushed her aside and proceeded to trespass her home – with one purpose in mind, to locate her stepbrother’s whereabouts. The applicant then claimed the angry mob found her brother and ‘they dragged him out of the house’ and proceeded, according to the applicant, to ‘hit him’ and to ‘hurl abuse at him.’ The applicant throughout this time claimed that she was trying to plead with the crowd for her stepbrother to be left alone but was ignored and assaulted.
The applicant then claimed that ‘they’, the crowd, ‘dragged’ her stepbrother and then, ‘threw him into an awaiting van’. The applicant claimed that her brother at that time was ‘half dead.’ The applicant then claimed that her ‘stepbrother was not returned’. According to her evidence before the Tribunal at the hearing, her stepbrother’s body was ‘not returned to the family.’ The applicant then claimed that after some time having passed, ‘the family was informed that her stepbrother had been buried’ in a ‘mass grave’ ‘with others’ and that no documents[13] were provided to the family recording her stepbrother’s death.
[13] The applicant provided no documents concerning any official recognition or record of her stepbrother’s death.
The applicant’s narrative of her stepbrother’s death lacks credibility. First, the applicant provided the Tribunal with a different version of the circumstances which led to her stepbrother’s alleged murder by an angry crowd. Second, at the hearing, the applicant said that a crowd that was associated with the local Nigerian authorities and security by force apprehended her stepbrother and after repeatedly assaulting him, took him away and then the applicant’s family was informed (together the applicant) that her brother had been buried in a “mass grave” with “others”. This response was in direct contrast to her original claim that her stepbrother had been ‘taken away’ by the crowd (and authorities) and then returned ‘leaving him lifeless at the front gate’ of the applicant’s home. The applicant’s evidence before the Tribunal was not consistent with what she had provided in her original claims. Also, there is no country information or any reliable and independent news sources before the Tribunal recording the occurrence of any extra-judicial killings having occurred in Lagos, Nigeria in 2011. Second, the applicant provided very little documentary information to support her claim that her stepbrother was actually deceased. There is no death certificate recording his passing or any corroborative evidence – only the applicant’s claims which the Tribunal for reasons provided does not accept as credible.
(b)the applicant’s claim that she was targeted for her sympathy and public activism in support of the LGBTI community in Nigeria and after
Second, the applicant claimed that after her brother had been murdered, the SSS (the Nigerian State Security Service) returned to her home to apprehend her, but she escaped. The applicant’s recollection how she eluded the police or the Nigerian State Security Services lacks the detail to attached to this claim any credibility. The applicant gave very little detail in her explanation, except to say she escaped them. Also, the applicant told the Tribunal that after her stepbrother’s death, she established a group with others (she did not provide any details), the name of this group was, according to the applicant, was “[Group 1]”.[14] The group’s aim was, according to the applicant who also described herself as the group’s founder, to support LGBTI persons and their rights in Nigeria. The Tribunal asked the applicant to provide details of her group’s activities as a LGBTI activist group. Again, the applicant provided very little information which indicated to the Tribunal that she was as she claimed, a pro-LGBTI activist and that she had committed herself to certain activities with others which made her attractive and the centre of attention by the authorities and ultimately forcing her to leave Nigeria. The Tribunal accepts that it is not determinative, that the absence of probative evidence would lead the Tribunal to question how reliable and credible an applicant’s written and oral evidence was. However, the applicant’s narrative of events concerning her stepbrother’s murder, pro-LGBTI community activities while in Nigeria and subsequent and relentless harassment provided very little factual evidence to convince the Tribunal that the applicant in fact feared harm from the authorities and Nigerian society.
[14] see, paragraph [58]
The Tribunal noted that according to the country information, the State Security Service (SSS) is the primary domestic intelligence agency in Nigeria and is also known as the Department of State Services. It was not explained to the Tribunal by the applicant or her counsel why the SSS would be involved in the persecution of the applicant rather than the Nigerian Police Force (NPF), which is the primary law enforcement institution in Nigeria and has been reported to have harassed high-profile commentators on sensitive issues such as sectarianism and terrorism (caused by Boko Haram). The NPF and SSS do not typically intervene in matters of human rights defenders,[15] however provocateurs may be prevented from leaving the country if they make public comments about campaigning overseas but otherwise [they] will not be detained.[16]
[15] DFAT Country Information Report – Nigeria, Department of Foreign Affairs and Trade, 09 March 2018 at p.19, see paragraph [ 3.33] CIS7B83941414.
[16] Ibid, see paragraph [3.38].
Nigeria’s Same Sex (Prohibition) Act 2014 imposes jail sentences of up to ten years for homosexual sex and 14 years for same-sex marriage.[17] The Act captures a broad range of activities and conduct; for example, guests at a same-sex weddings are also liable to be jailed for up to 10 years. Public displays of same-sex behaviour can attract a 10-year jail term, whereas failing to report a gay individual attracts a five-year term. Gay clubs and societies are not allowed to operate in Nigeria and the penalty is also up to 10-years in jail. Same-sex conduct was criminalised in Nigeria prior to 2014.[18]
[17] DFAT Country Information Report – Nigeria, Department of Foreign Affairs and Trade, 09 March 2018, at paragraph [3.57] CIS7B83941414
[18] “Tell Me Where I Can Be Safe”: The Impact of Nigeria’s Same Sex Marriage (Prohibition) Act, Human Rights Watch, 01 October 2016, CIS380122673 at p. 16.
Despite the existence of these laws and general community support for them, in reality the laws are not well enforced.[19] Prosecutions are infrequent in practice despite some arrests being made under the Act.[20] LGBTI people and their supporters suffer a high level of official discrimination, widespread societal opposition, commonly hide their sexuality, are ostracised by their families, lose their jobs, and leave their villages.[21] Following the operation of the Act, there were some reported attacks against LGBTI people, particularly in early 2014, although these significantly lessened since then and are historically out of the ordinary (if they were to occur) despite the general climate of intolerance.[22] The applicant claimed that she was relentlessly pursued over a considerable period of time for providing support for her gay step-brother. The country information does not report that this does not happen in Nigeria, but it is the considered opinion of the Tribunal (in the alternative) that it would seem highly unlikely that Nigerian officials (police or security services) would utilise their resources on pursuing the applicant after the death, as she claimed, of her stepbrother without some basis or justification. The applicant’s claims that this was the case that she faced while in Nigeria also leads the Tribunal to question her credibility as a witness of substance.
[19] Ibid, see paragraph [3.59]
[20] ‘Not Dancing to Their Music – The Effects of Homophobia, Biophobia and Transphobia on the lives of LGBTQ People in Nigeria’ Bisi Alimi Foundation, 01 January 2017, CISED50AD7919, at p. 26
[21] Ibid, DFAT see paragraph [3.63].
[22] Ibid, see DFAT at paragraph [3.64]
In addition to this, the applicant provided no corroborative evidence of her activities as a pro-LGBTI activist when asked by the Tribunal to describe in detail her activities as an LGBTI community supporter and activist in Nigeria. The applicant had claimed to have come to the adverse attention of the Nigerian authorities and to her neighbours in Lagos in 2011 but the evidence of this adverse attention by the Nigerian authorities was described in very minimal terms. The applicant did not provide an explanation as to how she eluded the Nigerian authorities from 2011 until she decided to leave Nigeria in 2015 when she claimed (at paragraph 62) that she was ‘constantly’ under their attention.
Moreover, the applicant claimed that while hiding at her grandmother’s home, she had a friend organising her passport and visa. The applicant claimed that her passport and visa cost her approximately NGN9,000.00.
In her evidence to the Tribunal, the applicant claimed that while waiting to leave for Australia at the airport, she was approached by ‘a person’ who ‘seemed to her’ suspicious and took her to a side room and tried to detain her there against her will. The applicant was asked who this unidentified person was and the description she provided was that she believed he was ‘a spy’.[23] The applicant claimed that during this brief detention, another person interrupted matters and eventually the opportunity was presented to her which allowed her to escape onto the awaiting plane (see, paragraph 67). The applicant again provided a very different recollection of her ‘escape’ from Nigeria when read against what she had recalled to the delegate in her statement at her department interview. The applicant was provided with the opportunity to provide further submissions in writing concerning her claims but provided no further explanations as to any of the disparities in her evidence. Having said this, the applicant’s differing recollections as to what happened to her in Nigeria, and the lack of corroborative evidence leads the Tribunal to conclude and find that the applicant had concocted the claims placed before the Tribunal for review only to enhance her claim for a protection visa. The applicant’s original claims were the truth as to the actual circumstances which caused her to leave Nigeria in 2015.
[23] see AAT File, Letter dated 26 September 2022, [Ms B] – Psychologist [Suburb 2]

100. More to the point, the applicant’s claim to having some notoriety because of some public work as pro-LGBTI activist in Nigeria and having formed a pro-LGBTI activist group while in Nigeria is also not credible in the Tribunal’s opinion. The applicant provided no substantial details of any activities while she was in Nigeria which justified her claim that she was a person with a ‘high profile’ in Nigeria and that because of this activity she was under (as she described it) ‘constant attention.’ The Tribunal from the evidence before it does not see this as the truth.
101. The applicant was asked whether she had undertaken any pro-LGBTI activities while in Australia. Again, the applicant told the Tribunal she had undertaken anti-Nigerian government activities related to LGBTI issues and advocated LGBTI concerns in Victoria concerning the LGBTI community in Nigeria. The applicant said that she had formed a group like the one she had established in Nigeria but provided no detail or description of what these activities consisted of. The applicant then explained that her activities were all conducted in an “underground” manner because she “feared being monitored by the Nigerian authorities.”[24] Again, the Tribunal considers these claims of pro-LGBTI activities while in Australia as not being credible. The applicant provided no substantive evidence. She provided no details of her group she had formed or any details as to how she was active in her support for the plight of the LGBTI community in Nigeria. Indeed, the applicant provided the explanation that her activities were clandestine or underground because she feared “being monitored by the Nigerian authorities.” The Tribunal does not accept this justification for the lack of details in these claims of the applicant. As the Tribunal stated earlier on, the applicant was of no interest to the authorities in Nigeria when she left Nigeria despite her implausible narrative. If she was suspected of something, she would not have alluded the Nigerian security services. Also, the applicant delayed her leaving from Nigeria for a considerable period of time, and her explanations of how she alluded the Nigerian authorities were not detailed as one would expect from a person who had meticulously planned her escape from Nigeria and her storyline varied. The applicant had no reason or reasons to operate in an underground manner as she claimed, the Tribunal concludes that she is not credible in her explanations about her activities in Australia.

[24] see, paragraph [69] to [71] above.
102. Therefore, the Tribunal having considered the evidence individually and cumulatively concludes and finds that it is not satisfied that the applicant has experienced harm (or will experience harm in the reasonably foreseeable future) as she claimed and for the reasons she claimed while in Nigeria or that she is a supporter of the LGBTI people or cause in Nigeria and while in Australia, or that she fears being systematically targeted for these reasons by the instruments of the state or the community in Nigeria in general, or for any other reason or reasons as provided for in s. 5J(1) (a), (b) or (c) of the Act.
Notification regarding the disclosure of certain information to the Administrative Appeals Tribunal under s. 438 of the Migration Act
103. The Tribunal noted that at the hearing the Tribunal made it known to the applicant and her legal counsel, Mr Sabinus Robi that:
a.On 30 August 2022, the Tribunal received information about the applicant from the Department of Home Affairs.
b.The Department of Home Affairs provided a Certificate issued under s. 438 of the Act.
c.The certificate indicated that the Department had received certain information about the applicant.
d.In the certificate, the Delegate certified that the disclosure of this material would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
e.The certificate is signed by [Mr C], a Delegate of the Minister for Home Affairs and a Delegate of the Sectary of Department for Home Affairs.

104. The Tribunal sought comment from Mr Robi about the certificate issue by the Department and the reasons for this.
105. On 21 October 2022, Mr Robi wrote to the Tribunal requesting the Tribunal to take into consideration the attached evidence he had provided on his client’s behalf. That evidence was (a) copies of a Nigerian and Victorian Marriage certificate, (b) a Victorian Birth Certificate of applicant’s child and (c) Medical certificate of the main applicant dated 26 September 2022.
106. The Tribunal is satisfied with this evidence provided by the applicant’s legal counsel and explanation provided.
107. Accordingly, the Tribunal finds that the certificate is valid but the information to which the certificate applies is not relevant to the applicant’s review application because the information is not relevant to the applicant’s claims for protection
(c)The Tribunal notes that on Delay in seeking protection while in Australia

108. The Tribunal also in assessing the applicant’s overall credibility took note of the according to her Protection visa application form, the applicant’s Student visa was granted on 13 May 2015. However, her departure from Nigeria occurred [in] June 2015. The applicant then sought protection on 19 November 2015, five months after her arrival in Australia and four years after her stepbrother was allegedly murdered.
109. Noting that an adverse inference may be drawn from an unexplained delay in seeking protection,[25] the Tribunal provided the applicant with an opportunity to explain as to why she delayed matters concerning her application for Protection visa. The applicant’s legal counsel, Mr Robi, in his submission to the Tribunal,[26] stated that it was not in dispute that the applicant applied for protection five months after she arrived in Australia. However, the applicant’s legal counsel stated that “five months was not a long period for a person such as the applicant, who had arrived in the country after she had experienced such trauma of her brother being murdered and herself recovering from harassment, intimidation and harm, she experienced from the Nigerian police.”[27] The Tribunal also noted that the applicant’s Student visa was cancelled on 9 May 2017. Having considered the submissions made, the Tribunal concludes and finds that there was a lengthy delay in the applicant applying for protection and this contributes to the concerns of Tribunal which have already been explained in this decision above as far as it concerns the depth and genuineness of the applicant’s fear of harm as she claimed she experienced in Nigeria. The applicant appears from the facts before the Tribunal to have had ample opportunity to apply for protection at an earlier time and she chose not to do so. Therefore, the Tribunal finds that this delay adds to its concerns of credibility as to the applicant facing a genuine fear of harm (and future) harm in Nigeria.
(d)Applicant’s medical conditions
[25] Selvadurai v Minister of Immigration and Ethnic Affairs (1994) ALD 346
[26] see, AAT File written submission dated 20 September 2019 by KAPRIVI LEGAL, Mr Sabinus Robi LL.B. LL.M, MBA at p.7
[27] Ibid written submission at p.7

110. The applicant also provided medical evidence concerning her health condition from [Medical Clinic 1], [Suburb 1][28] and from a [Ms B] – Psychologist.[29] The first letter, bearing the signature of a [Dr C] suggests that the applicant ‘is suffering from depression and anxiety in response to a traumatic life experience [which] happened in Nigeria.’ It goes on to report that the ‘applicant is taking antidepressants for depression with minimal improvement’ and concludes that the applicant had been referred to a psychologist for further attention. The psychologist’s letter/report in the name of a [Ms B], states that the applicant ‘could commence addressing the underlying emotional, psychological and social issues that encompass the clinical symptoms’ but provided no long-term assessment. The Tribunal noted that no assessment was submitted by the applicant’s health practitioners with regards to any concerns they may have had for the applicant not being able to receive professional assistance for her depression in Nigeria or for any concern on the availability or not of antidepressants in Nigeria if the applicant had to return to Nigeria. It was also noted that the applicant’s legal counsel provided no submission concerning the applicant and her medical condition in addition to the reports he provided from the applicant’s health practitioners.
111. The Tribunal accepts that the applicant suffers from an adjustment disorder. In its assessment of the risk of significant harm resulting from her diagnosed conditions, the Tribunal is guided by the UK decision of Soering v United Kingdom (1989) 11 EHRR 439 in which it was found that there is no general principle of international law that an individual is entitled to remain in country in order to continue to benefit from medical or other forms of assistance provided by the host country.
112. Whilst the right to health is guaranteed by Article 12 of the International Covenant on Economic Social and Cultural Rights, this does not give rise to an implied non-refoulement obligation. In the case of D v United Kingdom (1997) 24 EHRR 423, the European Court of Human Rights found obligations were owed to an AIDS patient in the final stages of illness where there was no prospect of medical care or support in the country of return. The Tribunal finds that the applicant’s conditions are not at this level of harm.
113. It is reasonable for the Tribunal to consider that the standard of care and accessibility of mental or other health services and facilities in Nigeria may not be equal or similar with those in Australia. However, such detriment as this would cause the applicant is not provided for by the Act, which requires a real risk that the applicant would suffer significant harm as is exhaustively defined by s. 36(2A) of the Act. There is no evidence that the applicant would be denied medical treatment and support in Nigeria for any reason or that she would suffer cruel or unusually treatment or punishment, or degrading treatment or punishment. Having considered the applicant’s situation and the evidence before the Tribunal, the Tribunal finds that there is no real risk of the applicant facing significant harm, as defined by s. 36(2A) of the Act if she was to return to Nigeria in the foreseeable future.
114. Based on this information and in the absence of any contrary information or any reference to any country information that is relevant to this claim, the Tribunal accepts that the applicant suffers from certain health conditions.
115. The Tribunal noted that the applicants’ husband and child (the second-named and third-named applicants) did not provide any specific claims of their own except to claim that they were members of the same family unit.
[28] see AAT File
[29] see AAT File, Medical report – [Medical Clinic 1] [Suburb 2], [Dr C] dated 26 September 2022
Conclusion
116. For the reasons given above, the Tribunal is not satisfied that the applicants face a real chance of persecution in Fiji in the reasonably foreseeable future and therefore the applicants are not persons in respect of whom Australia has protection obligations as provided for by s.36(2)(a) of the Act.

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision

118. The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Vlahos
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4878

9 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction