1921288 (Refugee) - [2024] ARTA 568

1921288 (Refugee) [2024] ARTA 568 (20 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 1921288
Tribunal:General Member David McCulloch
Date:20 November 2024

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 20 November 2024 at 8:42am
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – homosexual – detention – torture – physical assault – fear of killing – arranged marriage – internal relocation – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Nigeria, applied for the visa on 25 January 2017. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 12 November 2024 at 9.30 am to give evidence and present arguments. The applicant communicated in English.
The applicant was represented in relation to the review. The representative attended the 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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, protection criteria are met. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The delegate’s decision indicates that the applicant arrived in Australia [in] November 2016 on a Visitor FA-600 visa that had been granted on 25 October 2016. The application for the protection visa was lodged on 25 January 2017.
The application form for the protection visa indicates the following in relation to the applicant. The applicant was born on [date] in [Town 1], Imo State. The applicant is a Pentecostal Christian and is separated from a relationship that began on 20 March 2006. The separation occurred on 23 December 2014 in Nigeria. The applicant is asked to list family members but indicates that this is not applicable. The applicant indicates that he is not in contact with relatives outside of Australia.
Apart from transit on the way to Australia the applicant has travelled to no other countries apart from his home country.
The applicant lists three different addresses lived at in Lagos State up until coming to Australia. The applicant completed primary school in [specified year]. The applicant withdrew from a secondary school in [year] before continuing secondary education at another school [later that year].
In terms of employment, the applicant indicates that he was an apprentice with no other details provided from [finishing school] until January 1994. From January 1994 until March 1996 the applicant was unemployed. From March 1996 until November 2016 the applicant was a trader with no other details provided. From November 2016 until currently the applicant has been unemployed.
In answer to the question as to why the applicant left Nigeria, he indicates that it was because his family and community discovered that he was gay. They disowned the applicant and discriminated against him. Recently they threatened to harm and kill the applicant if he continued to live as a gay person. The applicant refers to the potential to be imprisoned in Nigeria because of his sexuality.
The applicant indicates that if he returns to Nigeria he will be tortured, killed or even stoned to death. In the alternative, the applicant will be imprisoned for not less than 14 years. The police and military are against gay practices.
The applicant indicates that during secondary school he was caught kissing his boyfriend and was brutally mobbed by other students who felt that he had committed an abomination. They reported the applicant to school authorities. Later the applicant was handed over to police who tortured, brutalised and detained the applicant for about a week without food. He was suspended from school and could not finish his studies.
The applicant indicates that he sought help from authorities like the police, but they were hostile to the applicant and did not protect him. Rather they exposed the applicant to more danger, to the mob and the hostile community.
The applicant indicates he tried to move to the northern part of Nigeria, to Bauchi and then to Gombe for safety. However because of Islamic religion and their hatred for gays they wanted to behead the applicant. The applicant then ran away to Benue state but he was still being threatened by police so he went completely into hiding until he moved back to Lagos to hide.
The applicant provided an additional statement to the Tribunal in the form of a Statutory Declaration dated 4 November 2024.
The applicant refers in the statement to his birth on [date]. He indicates that he was married in 2006 and has a [child] from the marriage born in [year] and [another child] born in [year]. The applicant indicates that he was divorced [in] June 2021. Evidence of the divorce is provided.
The applicant indicates that he is currently in a casual relationship with [Partner A] and he identifies as a homosexual man. A supporting letter is provided by [Partner A].
The applicant’s normal occupation is as [an occupation 1]. He indicates that he arrived in Australia [in] November 2016 on a visitor visa.
The applicant indicates that he realised he was gay at secondary school at the approximate age of [age]. His first experience with a male was with his school boyfriend, [Partner B]. They were both caught kissing in a school toilet and were brutally mobbed. The incident was reported to the school who informed the local police station. The applicant was detained by authorities for one week and was tortured, brutalised and not allowed to eat any food.
After the incident, the applicant was ostracised by pupils and society generally. The applicant thereafter spent his life trying to conceal his true sexual orientation in fear of being caught and further humiliation, physical harm or detention.
The applicant relocated to the northern regions of Nigeria but this was unsafe as it was predominantly Muslim. The applicant then returned to Lagos and to satisfy his father a marriage was arranged. The applicant grew to love his wife but they were never truly happy as they did not have a sexual connection.
The applicant had aspirations to live a free and gay lifestyle so he decided to travel to [Country 1] to experience a short period of freedom. The applicant did not apply for a protection visa there as he had a good job Nigeria and did not want to lose this opportunity.
The applicant indicates that [in] August 2009 his brother was caught in a homosexual act with his boyfriend and was severely beaten by mobs. A death certificate and hospital report is provided in relation to the applicant’s brother.
The applicant fears returning to Nigeria as he could not ‘come out’ as a gay man without being subject to humiliation, and physical and mental harm.
The applicant also fears returning to Nigeria on the basis of his Christian belief. In Nigeria, the Christian community and his parishioners are aware of his past and sexual orientation. They did not accept the applicant and he will not be able to attend church and freely practice his religion. Christians in Nigeria are in the minority and there is a fear of discrimination, harm and persecution from the extremist Islamic community. Authorities in Nigeria turn a blind eye to the threatened harm Christains face from the Muslim community.
The applicant indicates that authorities will also not protect him in relation to harm due to his sexuality. Independent information is attached to the statement detailing harm faced by GLBT individuals in Nigeria.
The applicant details previous travel in terms of a one-month holiday in [Country 1] in 2006 and travel to [Country 2] in 2015 for a work trip for one month. The applicant did not apply for protection visas on these travels as intolerance towards the GLBT community was not as significant at that time. Fundamental Islam has increased in Nigeria in recent years.
The applicant also indicates there is no safe place where he can relocate to in Nigeria.
The applicant refers to his social activities in Australia and refers to currently being in a casual relationship with [Partner A] who has been in Australia for a long period of time. They met at [Venue 1] in February 2024 through the same circle of friends. The applicant continues to attend gay clubs such as [Venue 1] and [Venue 2] with his partner and their friends.
The applicant is enjoying freedom in Australia which he did not have in Nigeria. The applicant was previously on the dating site [named] but he terminated the account when he met [Partner A]. Their relationship is still fresh and although it is casual, the applicant hopes that in the future it will develop into more. The applicant cannot return to Nigeria and live in the open in a relationship with [Partner A] without fear of being killed or imprisoned for 14 years.
Various photographs are provided of male individuals in what appeared to be bar or nightclub settings. Handwritten notes accompanying the photographs indicate that they show the applicant and others:
- on 11 February 2023 at [Venue 1]
- on 7 October 2023 at [Venue 1]
- on 22 December 2023 at [Venue 1]
- on 9 August 2024 at [Venue 1]
- on 14 June 2024 at [Venue 2].
Provided is a letter dated 31 October 2024 from [Partner A] who lives at an address in [Suburb 1], New South Wales. He indicates his casual relationship with the applicant. They met at [Venue 1] in February 2024. They are two gay friends that like each other and share a casual, open relationship and they frequently socialise together.
Provided is a character reference dated 24 October 2024 from [Mr A] who indicates he is [an occupation 2]. He has known the applicant for seven years. The applicant is indicated to be hard-working and honest. It indicates that the applicant had confided in him in terms of the discrimination he receives from fellow Nigerians in Sydney. This is because of his sexual orientation. These Nigerians look down on the applicant for being gay. It indicated that the applicant feels at home in the wider Australian community who welcome him. He is thankful for the hospitality and openness of the Australian way of life and the kindness he has received from strangers.
Provided is a letter of support from [Nurse A], undated, who lives in [Suburb 2], New South Wales. [Nurse A] indicates that he is a registered nurse at [Hospital 1]. He has known the applicant for the last 22 years, initially in Lagos. They then encountered each other in [Suburb 3], New South Wales.
During their time in Nigeria, [Nurse A] became aware of rumours about the applicant’s sexual orientation. Similar rumours have surfaced within the Nigerian community here in Australia. Initially, the applicant suspected that [Nurse A] was spreading the information but over time he realised that [Nurse A] was not responsible.
[Nurse A] has encouraged the applicant to become more involved in the community rather than isolate himself. He introduced the applicant to a community organisation for people from [Region 1] living in Australia. However, after attending a few times, the applicant stopped attending because of perceived stigma and him feeling uncomfortable. Over time the applicant has begun to trust the [Nurse A] enough to ask for this reference.
[Nurse A] indicates that the applicant is an easy-going person who abides by Australia’s laws, works hard and is friendly towards those who accept him for who he is, although he can be reserved and tends not to mingle often.
Independent information
The 2020 DFAT report on Nigeria provides the following information (underlining added):
Sexual Orientation and Gender Identity
[3.94] Although 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.
[3.95] A 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.
[3.96] In 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.
[3.97] According 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.
[3.98] There 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):
·     In 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.
·     In November 2019, police in Edo arrested two women rumoured to be in a relationship and publicly declared a ‘war on lesbians.’
·     In 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.
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.
[3.99] In-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.
[3.100] LGBTI 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.
[3.101] Despite 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.[1]
[1] DFAT, Country Information Report – Nigeria, 3 December 2020, para [3.94]–[3.102].
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that “in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants.” The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that “the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.” The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
The applicant’s childhood, work and relationship history in Nigeria together with substantive claims for protection were explored in the hearing.
Based on evidence in the hearing the Tribunal has some credibility concerns with aspects of the applicant’s claims and evidence. There is a significant difference between the applicant’s work history as indicated in the application form for the protection visa and the information provided in the Tribunal hearing. There is a difference between the application form for the protection visa and the evidence at the Tribunal hearing as to whether the applicant attended one or two secondary schools and whether or not he completed secondary school. The applicant was also internally inconsistent in relation to evidence of his secondary schooling in the Tribunal hearing.
In relation to the claims for protection, the applicant has been inconsistent as to his knowledge of what happened to his school boyfriend [Partner B], and whether he had ever had contact with [Partner B’s] father.
In the hearing the applicant indicated that he never saw [Partner B] after what happened in secondary school or had knowledge of what had happened to him. In contrast, in the interview with the delegate the applicant indicated that he last saw [Partner B], much later, in 1989 and that [Partner B] had moved to [Country 1]. Further, in the Tribunal hearing the applicant indicated that he never had contact with [Partner B’s] father which is inconsistent with what was indicated at the interview with the delegate in which he indicated that [Partner B’s] father later assisted the applicant in a number of ways.
These various credibility concerns have caused the Tribunal to be particularly searching in relation to substantive claims for protection. They create a significant concern that aspects of the applicant’s claims, particularly relating to [Partner B] and what happened in high school and the incarceration by police has been either fabricated or embellished. Credibility concerns in relation to the applicant are reinforced by inconsistencies in terms of background information including employment.
The Tribunal in the hearing questioned the applicant as to his entering into a marriage with a woman in 2006 despite his sexuality together with the acting out of his sexuality during his life in Nigeria.
The applicant gave evidence on these issues which was broadly consistent with written claims and evidence given in the interview with the delegate. The applicant in the hearing gave evidence that the marriage with his wife had been arranged by his father. He indicated that after their first child his wife confronted the applicant about his sexuality and the applicant admitted his sexuality to his wife. The applicant indicated that over the course of his adult life in Nigeria he would clandestinely attend bars and clubs that he named which, although not labelled as “gay” were nevertheless places where he could connect with gay men who he would have casual one night encounters with. The applicant in the hearing gave the names of two clubs he would attend in Lagos which was consistent with clubs that he had named in the interview with the delegate.
The applicant in the interview with the delegate had referred to a named individual who had worked in [Agency 1] in [Country 3] who he had sexually connected with in Lagos at one point. In the Tribunal hearing the Tribunal asked the applicant to recount information relating to an individual from [Country 3] who he had had an encounter with in Nigeria. The applicant could not remember the name of this individual but was able to indicate that the person had worked at [Agency 1] in [Country 3]. The consistency of this peripheral information provided by the applicant was persuasive to the Tribunal as to the truth of the applicant’s claimed sexual encounter with this person in Nigeria.
More broadly, the way the applicant in the hearing gave evidence of the relationship with his wife and her discovery and confrontation with the applicant concerning sexuality, persuaded the Tribunal that the applicant was genuinely encountering the conflict in the relationship due to his sexuality. The applicant’s evidence of his clandestinely meeting of men at bars and clubs was also delivered in a way that persuaded the Tribunal the applicant was genuinely describing such encounters.
The Tribunal explored throughout the hearing his same-sex activities during his time in Sydney from his arrival in 2016. The Tribunal questioned the applicant about the nature of his relationship with the two individuals, apart from [Partner A], who have provided supporting statements as to the applicant’s sexuality.
The applicant in the hearing gave evidence that early in his time in Sydney he had had a sexual connection with an individual he met at the club who he saw a few times but eventually discovered was married. This was consistent with evidence given by the applicant in the interview with the delegate.
The applicant in the hearing gave evidence of his attending same-sex bars and clubs, mostly around [a location] in Sydney. The applicant gave this evidence with knowledge and detail that broadly satisfied the Tribunal that the applicant was genuinely attending these establishments.
The applicant in the hearing had a smart phone. The Tribunal asked the applicant if he was in a position to show the Tribunal any text messages or other conversations with individuals during his time in Sydney that would corroborate his sexuality.
In response the applicant showed the Tribunal a text message response with a named male individual in September 2024 which clearly indicated a romantic/sexual connection between the applicant and the other party. A conversation from August 2024 with another male individual indicated a romantic/sexual connection with that person.
The Tribunal put to the applicant that these encounters occurred while it was indicated he was in a relationship with [Partner A]. Consistent with [Partner A’s] written statement, the applicant indicated that that relationship was casual and not exclusive.
The applicant indicated that he had been on the dating site [named] which he still had on his phone but he had not used it for some time.
At the end of the hearing, the Tribunal indicated that it might consider holding a second hearing to hear oral evidence from the individuals who had provided supporting statements. The applicant indicated that it would be possible for these individuals to give evidence.
On reflection after hearing, the Tribunal was in a position to be satisfied as to substantive claims for protection without the need for a further hearing.
Although the Tribunal considers that there has been concoction and embellishment in terms of what happened at school with [Partner B], together with inconsistencies in terms of key background information such as education and work history, the Tribunal is satisfied that the applicant is gay, and has had same-sex encounters in both Nigeria and Australia.
The Tribunal is persuaded that the applicant is homosexual and during his time in Nigeria he sought to hide this, including entering into an arranged marriage at the behest of his family. The Tribunal is satisfied that the applicant over the years in Nigeria connected clandestinely with men for casual encounters.
The Tribunal is satisfied that the applicant has from his time in Sydney connected with men in the gay community including attending gay clubs and bars and has had same-sex relationships.
The Tribunal is satisfied that on return to Nigeria the applicant would go as a gay man and would wish to live a gay lifestyle if it were not for the fear of harm. In terms of treatment of gay men in Nigeria the Tribunal has considered information in the DFAT report extracted, information provided by the applicant as well as significant amounts of independent information that the Tribunal has previously had access to and other matters. This readily establishes that gay men in Nigeria are significantly reviled and can be subject to significant discrimination and mistreatment, including physical violence. Homosexuality is illegal and prosecutions occur.
The Tribunal is therefore satisfied that if the applicant acted as he wished in relation to sexuality on return to Nigeria he would face a real chance of serious harm. The Tribunal considers that the applicant faces a real risk of serious harm that includes a combination of severe discrimination and physical mistreatment. The Tribunal considers that the essential and significant reason for the harm would be the applicant belonging to the particular social group of gay men. The Tribunal considers that the harm would be systematic and discriminatory.
Given the harm is as a product of the widespread view of Nigerian society, the Tribunal does not consider there is anywhere in Nigeria that the applicant could relocate to where he would be free of the risk of harm. Thus, the risk applies to all parts of Nigeria.
For the reasons set out in the Tribunal decision constituted by this Member in matter number 2304065 decided on 1 March 2024, the Tribunal does not consider that the applicant has the right to enter and reside in any Economic Community of West African States (ECOWAS), apart from Nigeria. The Tribunal is not satisfied that the applicant has the right to enter and reside in any other country.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Act.
Date of hearing:      12 November 2024
Representative:        Ms Katrina Feghali (MARN: 1174363)
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.
…