1931297 (Refugee)

1931297 (Refugee) [2024] AATA 2607 (16 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Abby Hamden (MARN: 0401329)
CASE NUMBER: 1931297

COUNTRY OF REFERENCE: Nigeria
MEMBER:Kate Millar
DATE:16 April 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 April 2024 at 11:51am
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – Osu – attack on home – physical assault – death of the applicant’s mother – kidnapping – status of Osu – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Nigeria who has applied for a Protection (Subclass 866) visa because of his ethnicity and family circumstances.
[The applicant] applied for the visa on 27 October 2017, and his application was refused by a delegate of the Minister on 18 October 2019 under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused his application because the delegate did not accept [the applicant] was the ethnicity he claimed to be, or that he or his family had been harmed or threatened in Nigeria.
[The applicant] appeared before the Tribunal on 21 November 2023 to give evidence and present arguments and was represented in relation to the review. The Tribunal also took oral evidence from his sister [Sister A], who appeared by telephone from [Country 1].
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).
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–5LA, 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 meet the criteria for the grant of the visa if he or she is a non-citizen in Australia there are 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.
The requirements in s 36(2)(b) and (c) relate to being a member of a family unit of a person who is a refugee or who meet the complementary protection criterion, and do not apply in this case.
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 current report by DFAT is the DFAT Country Information Report Nigeria dated 3 December 2020 (DFAT Report). There is also a current thematic report, the DFAT Thematic Report – Economic Community of West African States (ECOWAS) dated 3 December 2020.
BACKGROUND
[The applicant] was born in Onitsha and said he attended primary school [between specified years] and middle school [between specified years]. After completing middle school, he remained in Onitsha for a year working in his father’s shop selling [product 1]. He then moved to Lagos assisting his brother in his [product 1] business and completing a part-time [course]. While this account locates him in Onitsha until 2016 or 2017, he has also said he moved to Lagos after his mother died in 2010.
His father lives in Onitsha and owns a business [selling product 1]. The remainder of his family composition has been difficult to ascertain and is discussed further below.
[The applicant] arrived in Australia [in] February 2017 as the holder of a student visa. He was enrolled in a [Course 1] but withdrew after one semester and has been employed by [Employer 1] as [an occupation 1] from 1 July 2017. He applied for a protection visa on 27 October 2017.
CLAIMS
In his application for a protection visa, [the applicant] claims:
I left Nigeria because I am a member of the Osu caste (Arusi) in [Ward 1] Local Government area of Imo state. The Osu people are outcasts by the Nwadiala. We are hated and scorned and there have been several brutal attacks at us in my family's house. In 2010 whilst in our home in [Town 1] with my mother, we were attacked by a group of Nwadiala people. The group attacked the village at around midday and demanded the Osu people to leave the village. My mother protested and refused to leave our home. Members of the group started threatening us and taking items from our home and pushing my mother around. They kicked my mother and I out of the house, took over our home. As a result my mother had a [medical condition 1], was taken to hospital and died immediately. I was bashed by one of the members of the group for attempting to defend my mother during the attack and as a result lost my front teeth.
[The applicant] provided a copy of a handwritten death certificate for [the applicant’s mother] [named] listing a cause of death of [deleted] with a date of issue [in] March 2011. The duration of the illness on the death certificate is stated to be one month. The death certificate does not include a date of death. The informant is [Sister A variant], the applicant’s sister.
In a statutory declaration provided before the hearing [the applicant] states he lived between [Town 1] and Onitsha until the end of 2010. Seven men with masks entered the house and kidnapped his sister who was visiting from Lagos. They asked for a ransom of [amount] naira and threatened to kill her unless the ransom was paid. He suspected these men were members of the Nwadiala. His brother came from Lagos and paid the money and 4 days later, his sister was released. In this statutory declaration, he repeats his claims about being attacked in 2010 when he was in [Town 1] with his mother and that in addition to taking valuables the Nwadiala burned farming land around the village. He reports that his mother had a [medical condition 1] and was rushed to the [named] Hospital where she stayed for one month before she went into a coma. After a month she recovered and was released from hospital. He moved in with his mother in Onitsha and she died 4 months later.
[The applicant] further restates his claim to have been harmed in the attack on this mother and claims members of the group had guns and knives. He was hit with a stick [and] sustained [specified injuries]. He says a neighbour took them to the hospital where they gave him medicine, [and treated his injuries]. He stayed with his mother until her death and his father remained in the village by himself. After this attack, he moved to Lagos where he remained until he left Nigeria in February 2017. While he was in Lagos, he worked with his brother in his brother’s business selling [product 1]. In July 2014, the Nwadiala prevented him from boarding a bus when they found out he was an Osu. From 2009 until he left Nigeria in February 2017, the Nwadiala and their militants threatened him in writing and verbally that they will kill him. He claims he was attacked in Lagos when he relocated to Lagos. He claims that if he returns to Nigeria he will be faced with discrimination, harassment and torture.
After the hearing, further submissions were made about whether [the applicant] could relocate to another East African country that is part of the Economic Community of West African States.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether [the applicant] will be harmed if he is returned to Nigeria because of his race or because he is a member of a particular social group. It is necessary to decide if [the applicant] is Osu, and if so whether he has a well-founded fear of persecution because he is Osu.
Credibility
[The applicant] was a poor historian. He had difficulties with dates, his family composition, whether his parents were living together or separately and his location at various points in time. On being asked to explain inconsistencies, he added new claims or diverted in his answers.
Some of the difficulty he had with dates, such as the date of his schooling and relocation to Lagos can be explained. For example, his [birth year] is consistent with commencing school in [year] and together with [number] years of primary and secondary education[1] and a year of working for his father does place him at approximately 2010. This is the year he claims his mother died, and he relocated to Lagos. It is not consistent with his evidence that he finished school in 2015. I do not consider the difficulty he has with dates necessarily detracts from his credibility, however I do not consider dates he provided are reliable.
[1] DFAT Report, [2.32]
[The applicant’s] account of his family composition is also problematic. The family composition [the applicant] provided in his visa application was inconsistent with information the Department obtained through his [social media] account. The family composition in his visa application is also inconsistent with the oral evidence of his sister who said another three people, not named in his visa application, are siblings and that they had the same parents. She later said that the additional siblings she named were not biological siblings, but that they see them like family.
I have considered whether different cultural understanding of family members can explain these differences. [The applicant’s] sister initially provided evidence of having two brothers only. She then said there are three other siblings, one who is in Lagos and one who is in [Town 1]. The location of the third sibling was not specified. [Sister A] clarified that at least two additional siblings had the same parents as her. She separately specified her cousin, showing that she understood the difference between a brother, a sister and a cousin. I am not satisfied that a different cultural understanding of family results in evidence that other people have the same parents as [Sister A].
After various problems with the connection and the call ending as discussed further below, [Sister A's] evidence varied in the proceedings to say these two people are not siblings but were cared for by the family.
Information from [Sister A's] evidence was provided to [the applicant] under s 424AA of the Act. In response he said his parents took care of the people his sister named as siblings, and the eldest is like a family member but not blood related. On being asked if they would then be regarded as Osu and treated similarly, he said that some people treat others who are Osu well.
The inconsistent and incomplete version of the family composition means I cannot rely on [the applicant’s] account of his family composition. This is relevant to his claims that they are Osu and outcasts and are treated badly in [Town 1] as one sibling lives in [Town 1].
[The applicant] provided inconsistent information about the relationship between his parents, claiming at one point they separated after the birth of their first child, and claiming at different points that his father did not know that his mother was Osu. At the hearing, he said his parents were not separated and that his father was aware his mother was Osu.
[The applicant’s] account of where he lived has changed, with his initial claims being that his home was in [Town 1], and his later statutory declaration stating he lived between [Town 1] and Onitsha. At hearing he said that on one occasion he went to [Town 1] with his mother for 1 to 2 months because his parents had a disagreement about whether he should go to Lagos, but they otherwise lived in Onitsha and visited the farm in [Town 1] approximately once a month for 3–4 days. His mother’s death certificate lists her residential and permanent addresses as Onitsha. I find [the applicant’s] claim that his home was in [Town 1] to be unreliable.
I am not satisfied I can rely on [the applicant’s] account of dates, his family composition, his address or the relationship between his parents.
[The applicant’s] claims have been added to over time. They commenced with a claim of being Osu and being attacked in [Town 1], and later included claims that his sister was kidnapped, her business burned, and that he receiving verbal and written threats. He has been represented from the time of his application and I would expect his claims to have been fully stated at the time of his application.
His claim that his sister was kidnapped, while only emerging before the hearing despite being represented throughout the process, requires some consideration despite inconsistent details provided by [the applicant] and his sister.
The combination of the unreliability of [the applicant’s] evidence and the emergence of new claims means that I consider [the applicant’s] claims should be addressed with considerable caution, and that new claims with no supporting evidence are not reliable. However, given the gravity of his claims I also consider that his claims should be assessed with some care despite not accepting many aspects of his account.
Evidence of [Sister A]
[Sister A] gave evidence by telephone from [Country 1]. There were difficulties with taking her evidence as the call repeatedly ended. She had to be repeatedly asked to take her telephone off speakerphone to assist with the clarity of the call.
[Sister A] moved to [Country 1] in 2022 and holds a student visa. She said her brother [Brother A] had recently also arrived in [Country 1]. They are supported by their father and because [Brother A] was working.
[Sister A] said that after their mother died in 2010, she moved to Lagos after issues they had in the village. She was running a business, but problems kept happening and between 2010 and 2019 she had a fire at her business, then an accident, then an attack. Her business was burned in 2019 and after this decided she needed to change location completely and travelled to [Country 1].
[Sister A] said that because of where they come from people know they are Osu and were harassing them, making their lives a living hell, and that other people did not want to do business with them. In 2019 her shop was burned, her stock was destroyed, and she lost her livelihood.
[Sister A] said that when she was going home from Lagos to Onitsha to see her father she was attacked. She said when she was going home to see her mother from Lagos to Onitsha she was kidnapped on the road and held hostage for 4 days. After her father and eldest brother paid a ransom of [amount] naira, she was released in [Town 1]. On being asked if she knew any of the people who took her, she said she knows they were Nwadiala from everything that was happening.
[Sister A] initially named [Brother A] and her brother [(the applicant)] when asked the names of any brothers and sisters. She said she did not have other brothers and sisters but did have cousins in [Town 1].
I asked [Sister A] about the names of people who appear in [the applicant’s] [social media] account, and she responded as follows:
·     [Sister B] is her “sister cousin.” I asked what she means by sister cousin, and [Sister A] clarified that [Sister B] has the same parents as [Sister A]. [Sister B] lives in Lagos.
·     [Brother B] is her brother. He has the same parents as her. [Brother B] lives in [Town 1], in Anambra.
·     [Cousin A] is her cousin, and he lives in Australia.
·     [Sister C] is her sister.
On being asked again how many brothers and sisters she has [Sister A] again placed the call on speakerphone, and the call became indistinct and then disconnected. Attempts to call again went to voicemail. On being reconnected, I asked [Sister A] if she had ended the call, then the call again disconnected before again going to voicemail.
[The applicant’s] representative suggested that in the place of oral evidence [Sister A] provide a statutory declaration on her family composition after the hearing. I declined to adjourn to allow for a statutory declaration, to obtain independent evidence of the family composition. On being reconnected, [Sister A] was again asked how many brothers and sisters she has, the call again disconnected and again went to voicemail.
The Tribunal adjourned for a short time to test the telephone line and found that calls to [Country 1] were clear and did not drop out.
[Sister A] again later answered the call but could not explain why the call ended. She said her brothers and sisters are her two brothers and herself. On being asked why she said [Brother B] is a brother with the same parents who lives in [Town 1], the call again ended.
On being reconnected, [Sister A] said she was not ending the calls, and she has found the line sometimes fluctuates when she calls her brother. On again being asked why she said [Brother B] was her brother and he has the same parents, she said that they have been family friends since time immemorial, and they see them like family. She said she did not answer that they had the same parents and may not have understood. She said they call them family, but they are not biologically related. She said they are only three siblings.
She was asked again about [Sister C], and [Sister A] said she is part of the family the same as [Sister B].
I had serious concerns about [Sister A’s] evidence as when she gave evidence inconsistent with [the applicant] the call ended. The call was placed on speakerphone which increased the difficulty in understanding her. I did not find [Sister A] to be a convincing witness because of her vague, changing and intermittent evidence.
ASSESSMENT OF CLAIMS
Ownership of land
[The applicant] said that on their marriage, his father gave his mother land in [Town 1] which his mother farmed, cultivating [crops]. She employed 3–4 people from the village to assist her. [The applicant] gave oral evidence that his mother owned the farm in [Town 1] which was held in her own name, and she had papers to show that she owned the land.

An article on the Osu caste system provided by [the applicant][2] states that people who are Osu cannot own land. In response he said his mother owned land because his father had transferred it to his mother.
[2] Abia, O.T et al (2021) “Osu Caste System and Human Rights in Igboland” Global Journal of Social Sciences Vol 20, 2021: pp69–76 at p73
As I did not find this article persuasive, and in light of my findings below that the caste system is limited, I accept [the applicant’s] mother held the title to the land in [Town 1].
[The applicant’s] account of the family’s involvement with the land has varied. In his visa application he refers to his home being in [Town 1], and that his mother was forced to leave their home and that their home was taken over. In his visa application, he does not list [Town 1] as a place he has lived and lists an Onitsha address.
I find that the land in [Town 1] was owned by his mother and used by his mother for farming, but that the home of the family was in Onitsha.
Attack on [the applicant] and his mother
In his application, [the applicant] said there was an attack on his home by the Nwadiala and they kicked him and his mother out of the house and took over their home. He said his mother had a [medical condition 1], was taken to hospital and died immediately.
The death certificate he provided for his mother, [named], states the cause of her death was [deleted], and she had been ill for 1 month. The death certificate does not state there was an attack on her, or that she suffered a [medical condition 1]. The death certificate lists her place of death as [a named] Hospital which is in Onitsha.
[The applicant] claimed at hearing he and his mother were attacked by Nwadiala militants at the farm in [Town 1]. He said they went to harvest at the farm, and were attacked by six people, who pushed his mother, and she had a [medical condition 1]. He claims he [suffered specified injuries]. A door at the front of the house was broken. He said the Nwadiala took their harvest and left. [The applicant] said he and his mother were taken to a hospital in [Town 1]. His mother was unconscious for 3 days and was transferred to Onitsha when she regained consciousness. His mother was in hospital for a month before going home for 1 week before she died.
[The applicant] said the police did an investigation but did not tell them the outcome of the investigation.
[The applicant] has provided differing accounts of the attack on him and his mother and his mother’s death in the context of being a witness who was not generally reliable in his evidence. I do not accept that he and his mother were attacked in the village or that they were attacked by Nwadiala.
Location of the family
In his application form, [the applicant] refers to [Town 1] being his home. He claims his family ran from [Town 1] to Lagos to escape. He does not list [Town 1] as a previous address in his application form, instead listing Onitsha as his address.
At hearing, he said that he lived in Onitsha and completed all of his primary and secondary education in Onitsha. His application form lists his secondary education school as located in [a location], which is approximately 40 minutes from Onitsha.
He said he travelled to [Town 1] once a month for 3–4 days other than one period when he stayed there for 1 to 2 months. His mother’s death certificate, while listing her town/village as [Town 1] states her permanent address and residential address as [a specified address]. This is an address in Onitsha. [The applicant] said his father continues to live in Onitsha.
Onitsha is a separate town to [Town 1], and it takes approximately [time] to drive to [Town 1] from the address in Onitsha.
I accept that [the applicant’s] mother was from [Town 1] and owned land in [Town 1]. However, I reject the claim in his application that an attack occurred “at his home,” or that the family fled from [Town 1] to Lagos. I find in accordance with his evidence that his family home at that time was in Onitsha, and that his father continues to live in Onitsha.
Time living in Lagos
In his application form, [the applicant] claims the family fled from [Town 1] to Lagos. I have found the family lived in Onitsha.
[The applicant] initially said at hearing he was in Lagos for 6 months and later amended that time to 7 years or from the time his mother died. He said the 6 months was a mistake and he intended to say 6 years. His sister said she went to Lagos after their mother died.
While it is difficult to determine with any certainty where [the applicant] lived while he was in Nigeria, I am satisfied that if he returns to Nigeria, he will return to Lagos or Onitsha.
Osu customs
Another article provided by [the applicant] said people who are Osu can be identified by a cut finger or ear and this kind of marking is done in a ceremony.[3] [The applicant] could not tell me more about this practice and said they do not do this anymore.
[3] Abia, O.T et al (2021) “Osu Caste System and Human Rights in Igboland” Global Journal of Social Sciences Vol 20, 2021: pp69–76 at p71
While it was submitted on his behalf that he would face torture or cruel, inhuman or degrading treatment or punishment because of consecration as an Osu, this was not [the applicant’s] oral evidence. I do not accept he would be subjected to this treatment.
I also find that [the applicant] could not provide anything other than vague generalities about Osu customs or history, other than saying that they are treated badly by others.
Identification as Osu
[The applicant] was asked how other people would know he is Osu if he is in Nigeria. He said he would be identified as Osu because of his accent and his religious beliefs. [The applicant] said he is Christian and Igbo.
In the decision of the delegate, it was recorded that [the applicant] said he could be identified as Osu by his [name]. [The applicant] did not respond to questions about how his name identifies him as Osu, and said it means he does not practise idolatry.
Igbo are described by DFAT as predominantly Christian,[4] and Nigeria is roughly evenly divided into Christian and Muslim populations.[5]
[4] DFAT Report, [3.7]
[5] DFAT Report, [3.12]
[The applicant] was asked how being Christian would identify him as Osu. He said that in [Town 1] people practise idolatry. This does not provide a reason why people in Lagos would identify him as Osu. His father continues to live in Onitsha, and his siblings or close family friends live in Lagos and [Town 1].
I am not persuaded [the applicant] will be recognised as Osu, particularly in areas such as Lagos which are outside Igboland.
Verbal and written threats between 2009–2017
[The applicant] states he was threatened verbally and in writing between 2009 until February 2017 by the Nwadiala and their militants.
[The applicant] has not produced any evidence to support his claims of verbal or written threats and I do not accept he was subjected to verbal or physical threats.
Prevented from boarding a bus
[The applicant] claims that in July 2014 he was prevented from entering a bus by Nwadiala after they found out he was Osu.
Little turns on whether he was or was not prevented from getting on a bus on one occasion. As he was in Lagos at the time, while he may have been prevented from getting on a bus, I do not consider he had information to support this was because he is Osu or that he was prevented from boarding by Nwadiala.
Kidnapping of his sister
[The applicant] first claimed that his sister had been kidnapped in a statutory declaration, sworn 14 November 2023. This is after he made the claims in his application, an interview with the delegate and the delegate’s decision. He was represented throughout his application by a migration agent.
[The applicant] claims his sister was kidnapped in [Town 1] at the beginning of 2010 when his mother was still alive when his sister came to visit. In his statutory declaration he states seven men with masks entered their home and kidnapped his sister, and he thought she was held for 2 days. The kidnappers knew she was working in Lagos. Their brother paid the ransom of [amount] naira. [The applicant] claims the Nwadiala were the kidnappers as they mentioned they were Nwadiala.
[Sister A] said she was attacked and told she cannot keep coming and going from the village. She said she was going to see her father when she was kidnapped, was held hostage for 4 days and the kidnappers asked for [amount] naira. The kidnappers released her in [Town 1] after her elder brother and father paid the ransom. She said she thought the people who kidnapped her were Nwadiala because of everything happening around them at the time.
Neither [the applicant] nor his sister gave convincing evidence about [Sister A] being kidnapped, or even if she had been kidnapped that the people who kidnapped her were Nwadiala, or that this occurred because they are Osu.
DFAT report that:
Kidnappings and abductions have become an acute concern across the country, with 685 kidnappings recorded in the first quarter of 2019 alone. While kidnapping has been a tactic of Boko Haram during its insurgency (see following section), it has increasingly been used by factions in intercommunal conflicts elsewhere in the country and by criminals demanding ransom.[6]
[6] DFAT Report, [2.57]
[The applicant] agreed there are many kidnappings in Nigeria and that it is a risk regardless of whether the person was Osu. He said that his sister was kidnapped because she was Osu as they were not that rich. As the family paid the ransom demanded and she was released after the payment of the ransom, I do not accept if she = was kidnapped this is because she was Osu, and instead find if the kidnapping occurred that it was a criminal act.
I also do not accept that even if his sister was kidnapped this shows that [the applicant] would be at risk of harm in the reasonably foreseeable future if he returns to Nigeria.
Burning of his sister’s shop
[The applicant] said his sister’s business in Lagos was set on fire in 2019 but she does not know why this happened.
[Sister A] gave evidence that her shop caught fire in 2019, and all her stock burned. [She] said she lost her means of livelihood and had to start again. She thinks her shop was burned because she is Osu and that it was burned by Nwadiala who think the Osu cannot have a good life.
[Sister A’s] shop was in Lagos, which is a Yoruba environment.[7] It is not in Igboland where the caste system, while waning, exists.
[7] About Lagos – Lagos State Government
There is nothing other than [Sister A’s] statements and her belief that the Nwadiala were responsible for the fire at her shop to establish this was the case. [Sister A] said authorities were advised of the burning of her shop, but things do not work in Nigeria, unlike in [Country 1] where she is studying.
While [Sister A’s] shop may have caught fire I do not accept this is because she or any of her family members are Osu.
Findings of fact
Having considered the claims made by [the applicant] and while having some doubt, I accept that he is Osu. I accept that his mother owned land in [Town 1]. I find that if returned to Nigeria, [the applicant] would return to Lagos or to Onitsha where he has family or close family friends.
I do not accept that his sister was kidnapped but even if she was, I reject the claims that this is because she is Osu and that the Nwadiala were the kidnappers. I accept his sister’s business may have burned but reject that this is because she is Osu or that this was an act by people who are Nwadiala.
I reject claims that [the applicant] or his family lived in [Town 1], that his mother died following an attack on the property by Nwadiala, that he was prevented from boarding a bus because he is Osu, or that he faced verbal and physical threats.
The assessment of [the applicant’s] application then turns on the treatment of people who are Osu in Nigeria.
Treatment of people who are Osu in Nigeria
According to a 2022 report from the Canadian Immigration and Refugee Board[8] the Osu are a caste of ethnicity of Igbo people, who were historically considered inferior to the Nwadiala. A response to a research request dated 10 November 2022 from the Immigration and Refugee Board of Canada[9] states the “Osu caste is a cultural system linked to Igbo people and limited to regions and states located in Southeastern Nigeria, where they are the majority.”
[8] Responses to Information Requests - Immigration and Refugee Board of Canada (irb.gc.ca)
[9] Responses to Information Requests - Immigration and Refugee Board of Canada (irb.gc.ca)
The “people considered Osu are ‘stigmatised’ and experience ‘discriminat[ion]’ from others in the Igboland but do not face ‘abuse or violence’ from society.” It is stated that people who are Osu may experience better societal treatment if they leave southeastern Nigeria and relocate elsewhere as the Osu caste system is limited to Igboland. Government officials are reported to generally take a neutral attitude towards Osu people. The Enugu state government is reported to have abolished the Osu caste system and other places in Nigeria have also abolished the caste system.
A report was provided from the Refugee Documentation Centre in Ireland, “Nigeria – Researched and compiled by the Refugee Documentation Centre of Ireland on 26 and 27 September 2010”. This is a compilation of citations from reports ranging from 2005–2010. This quotes a UN Committee on the Elimination of Racial Discrimination Report from 2007 expressing concern about allegations that members of the Osu community are subjected to social exclusion, segregation and mistreatment as well as discrimination in employment and marriage. It quotes an Australian Refugee Review Tribunal decision, which in turn quotes 1999 and 2003 reports of the Osu being more of a status than a caste but sharing certain caste characteristics. Osu status is hereditary although it can also be acquired through marriage. Although outwardly indistinguishable the Osu are reported to live in separate villages and are unable to marry Igbo freemen or women. There is one report cited which states a group of Osu were attacked when trying to resettle in 1999 and one person was killed. It otherwise states that the Osu may be subjected to public ridicule. It also quotes a report as saying that now the only trouble the Osu encounter is when they try to get married.
A third report from the Global Journal of Social Sciences “Osu Caste System and Human Rights in Igboland” (1900 – 2017)[10] states people who are Osu “have experienced all forms of dehumanisation and discrimination, social isolation and human rights abuses throughout their lifetime as a result of their status”.[11] The article proceeds to assess the Osu caste system against universal human rights. It was not a persuasive article. It contains vague assertions about the effect of being Osu, generally without source material or references. It is claimed in the article Osu are discriminated against but does not specify how this discrimination occurs. It is claimed Osu are sentenced to death to appease the Gods, but I could not locate any other material that supports this contention.
[10] Abia, O.T et al (2021) “Osu Caste System and Human Rights in Igboland” Global Journal of Social Sciences Vol 20, 2021: pp 69–76
[11] Ibid, p70
The article states that a person who is Osu constantly faces torture, degradation and inhuman treatment with a claim that “[w]hile consecrating an Osu, his hands and feet are tied like an animal, his head is scrapped (sic) and half his body is painted with white chalk. He is left for some couple of days after one of his ears or fingers is cut. This cut gives him a permanent mark.” The types of practices such as ill-treatment of Osu people related to blood sacrifices are reported to be no longer practised.[12] [The applicant] said it does happen and people are killed and hanged. On being advised the Tribunal could not locate any reports of Osu people being killed or hanged, [the applicant] said this does happen, and people are hanged or beheaded or castrated. He referred to events before he was born when they used to kill people, but also said this occurred not long ago. He said the system is still active at home.
[12] Responses to Information Requests - Immigration and Refugee Board of Canada (irb.gc.ca)
I do not accept that if torture, cruel and degrading treatment etc. were carried out on people because they are Osu that this would not be reported in Nigeria’s “lively media landscape.”[13] Information on other circumstances in Nigeria, such as the treatment of women, members of separatist groups, and disputes between herders and farmers is readily available.[14]
[13] DFAT Report, [3.62]
[14] See, for example, the DFAT Report, and Country Guidance Nigeria 2021 | European Union Agency for Asylum (europa.eu)

100. The Obi (King) of Onitsha is reported to have called to abolish the Osu caste system in Igboland stating it has no place in the current century.[15] It is reported that an event abolishing the Osu caste system was set to take place or took place in Anambra State on 28 December 2018 with the support of Igbo socio-cultural organisations and Christian groups.[16] In 2022, the Archbishop of the Catholic Diocese of Owerri was reported to have said the Church has completely abolished the Osu caste system in Igboland.[17] The Irete Autonomous Community in Owerri West Local Area of Imo State also abolished the Osu caste system in July 2018 with the support of 18 villages.[18] Reports of abolishing the caste system are also recorded in Nsukka and Nkanu local government areas of Enugu State.[19]
101. There are also reports that the practice of the caste system appears to have resurfaced and that despite attempts to end the caste system it remains a dominant practice in many Igbo communities.[20]
102. I accept there is an historical form of caste system under which people who are Osu were treated badly by people who are not in this group. This is a historical cultural system which has attracted approbation from leaders in the Igbo and Christian communities, and support for this system has waned, although has re-emerged in some areas more recently. I accept that people who are Osu may suffer low levels of discrimination in the community such as being prevented from marrying by some families of those who are not Osu.
103. On the basis of the report that the Osu caste system is limited to Igboland,[21] I am not satisfied this occurs in all parts of Nigeria but occurs in smaller localised and more rural areas and these areas have become smaller with the efforts of local leaders to abolish this system.
104. More particularly to [the applicant], I do not accept that any significant levels of discrimination occur in Onitsha where the Obi has reportedly abolished the system or in Lagos where [the applicant] claims to have lived, worked and studied for at 6 years before travelling to Australia.
105. It follows that I do not consider [the applicant] would face a risk of serious or significant harm if he were to return to Nigeria because he is Osu. I do not consider he would be at risk of harm because his mother owned land in Awokwa. I do not accept that any events that occurred in relation to his sister occurred because she is Osu. I accept his mother died but do not accept that either she or [the applicant] were attacked.
106. [The applicant] claimed at the hearing that if he returns it will affect him mentally. He has not seen a doctor about his mental health, it has not affected his ability to work in Australia and he does not have any evidence of suffering a mental illness. He did not offer more information about this claim. I do not accept that he is at risk of harm if he returns to Nigeria, and I am therefore also not satisfied that his mental health will suffer if he returns to Nigeria.

[15] Responses to Information Requests - Immigration and Refugee Board of Canada (irb.gc.ca)
[16] Ibid
[17] Ibid
[18] Ibid
[19] Ibid
[20] Ibid
[21] Ibid
CONCLUSION
107. I do not accept that any discrimination suffered by people who are Osu amounts to serious harm in accordance with the Act. If significant ill-treatment was experienced by this group, I consider there would be reports of this ill-treatment.
108. As I do not accept [the applicant] faces a real risk of serious harm, he does not meet the definition of a well-founded fear of persecution in s 5J of the Act and does not meet the definition of a refugee in s 5H of the Act. He therefore does not meet the requirements in s 36(2)(a) for a protection visa.
109. I am not satisfied that any discrimination [the applicant] may experience amounts to significant harm as defined by the Act.
110. I do not accept [the applicant] faces a real risk of significant harm as a reasonably foreseeable consequence of returning to Nigeria and therefor I am not satisfied he meets the requirements of s 36(2)(aa) of the Act for the grant of a protection visa.

There is no suggestion that [the applicant] satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criteria in s 36(2) for the grant of a protection visa, and the decision under review is affirmed.
DECISION

112. The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior 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.
…

[2024] AATA 2607

16 April 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction