1934769 (Refugee)

[2023] AATA 2760

1934769 (Refugee) [2023] AATA 2760 (3 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)

CASE NUMBER:  1934769 and 2215500

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Jason Pennell

DATE:3 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that:

(a)the applicant and the second applicant satisfy s 36(2)(a) of the Act; and

(b)the third applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a). Accordingly, the third applicant satisfies the criteria in s 36(2)(a) of the Migration Act.

Statement made on 3 May 2023 at 10.35am

CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – females in Nigeria – victim of rape – persecution by politically well-connected father – religion – second applicant’s conversion to Christianity – fear of persecution from Muslims – interfaith marriage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
MIMA v Darboy [1998] FCA 931
V v MIMA (1999) 92 FCR 355

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

1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 August 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.[The applicant] and [the second applicant] both made application for protection visa on 3 March 2015. Both the applicant and the second applicant claim to be citizens of Nigeria.

3.[The third applicant] was born [date] and was joined to the applicant’s and second applicant’s protection visa application on 2 March 2016 as a member of the same family unit. The dependent applicant does not raise her own individual claims for protection. The first applicant and the and second applicant have two additional children who were born after the delegate refused to grant the protection visa, and so are not included in this application for review.

4.On 3 August 2016 the delegate refused to grant the applicants a protection visa on the basis that the applicant and the second applicant are not people in respect of whom Australia has protection obligations as outlined in paragraphs 36(2)(a) or s 36(2)(aa) of the Act, and were not members of the same family unit as a as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (paragraphs 36(2)(b) and 36(2)(c) of the Act.

5.On 24 August 2016 the applicants applied for review of the delegate’s refusal decision. The Tribunal affirmed the delegate’s decision [in] February 2018, and that decision was set aside by the Federal Circuit Court by consent [in] December 2019. The matter is now before the Tribunal pursuant to an order of the Court.[1] 

[1]    [Deleted].

6.The first and second applicants appeared before the Tribunal on 15 March 2023 to give evidence and present arguments.

7.The applicants were represented in relation to the review by Ms Kathleen Clare Coffey of AUM Lawyers.

CRITERIA FOR A PROTECTION VISA

8.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

9.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.

10.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).

11.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.

12.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

13.In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

THE APPLICANTS CLAIMS AND EVIDENCE

Applicant’s Identity and Country of Reference 

14.The first applicant claims[2] that she was born [date] in Somolu, Lagos Nigeria. The applicant has provided a copy of the biodata page of her Nigerian passport[3] and a copy of her registration for a Bachelor [Degree] from the [University 1] dated [April] 2014[4]  to the Department. There is no evidence to suggest these are bogus documents and, as such, the Tribunal accepts the applicant’s identity.

[2]    First Applicant’s protection Visa Application; Dept File [deleted].

[3]    First Applicant’s passport, Dept file [deleted]

[4]    First Applicant’s Bachelor [Degree], [University 1]; Dept file No [deleted].

15.The second applicant claims that he was born on [date] in Lagos Nigeria. The applicant has provided a copy of the biodata page of her Nigerian passport[5] to the Department. There is no evidence to suggest these are bogus documents and, as such, the Tribunal accepts the applicant’s identity.

[5]    Second Applicant’s passport, Dept file [deleted]

16.There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the first and second applicant, the Tribunal finds that they are both citizen of Nigeria and as such their protection claims will be assessed against Nigeria as the country of reference and ‘receiving country’ respectively.

Applicants Migration History

17.The first and second applicants arrived in Australia [in] January 2015 and have not departed since. The dependent applicant has not departed Australia since her birth. All applicants currently hold Bridging A (subclass 010) visas with no conditions attached. The table below sets out the applicants’ migration history in Australia.

Date	Event
11/09/2014	The applicant and second applicant applied for Visitor (subclass 600) visas
19/11/2014	The applicant and second applicant were granted Visitor visas
[Date/01/2015	The applicant and second applicant arrived in Australia
03/03/2015	The applicant and second applicant lodged their application for Protection (subclass 866) visas
[Date]	The third (dependent) applicant was born
02/03/2016	The third (dependent) applicant became in included the Protection visa application currently under review.
03/08/2016	Initial Protection visa application refused
24/02/2018	Refusal decision under review at the Tribunal affirmed
[Date/12/2019	Federal Circuit Court of Australia quashed the Tribunal’s first decision and ordered that it review the decision again

Member of the same family unit

18.Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r 1.12 of the Regulations to include a spouse or de-facto partner of the family head.[6]

[6] Reg 1.12(1)(a) of the Migration Regulations 1994

19.In this case the first and second applicant were married in Ikoyi, Lagos, Nigeria [in] December 2014.[7] The third applicant is their daughter. The third applicant was born in [Victoria], Australia on [date].[8] The Tribunal accepts and finds that the first and second applicant are married and that the third applicant is their daughter.   The applicants’ evidence was that their daughter does not have any claims of her own and that she relies on their claims as a member of the family unit. Based on the evidence of the applicants as well as the documentation provided to the Department and the Tribunal, the Tribunal accepts and finds that the third applicant, applicants daughter, is a dependant of the applicant and the second applicant and that they are members of the same family unit.

The Applicants Claims for Protection

[7]    Applicants’ Marriage Certificate dated [December] 2014; Dept File No [deleted]

[8]    Third Applicant’s Birth Certificate Reg No [deleted] dated [February] 2016; Dept File No [deleted].

20.The first applicant’s claims for protection are detailed in her application for protection dated 3 March 2015[9] as follows:

[9]    Dept File No [deleted]

‘Why did you leave that country(s)?

I left my country because I am extremely fearful of what my father and his contacts within the People’s Democratic Party (PDP) and the Egbe Awo Aje Secret Service Society will do to me and my husband.

I will provide more information in a statement to follow.

What do you think will happen to you if you return to that country(s)?

If my husband and I return to Nigeria, we are extremely fearful that my father will order that we be killed or seriously harmed. He has significant influence within the PDP and the Egbe Awo Aje Secret Service Society and could easily arrange for this happen. The fact that my father ordered for me to be raped on four occasions between 2013 and 204 and organised for my husband to be seriously bashed on two occasions in 2014 shows the extent of his influence.

I will provide more information in a statement to follow. 

Did you experience harm in that country(s)?

Yes. Yes, I was raped on four occasions by a group of men between 2013 and 2014. I do not know who the men were who raped me because I was blindfolded on each occasion. On three of the four occasions, the men took me when I was on university campus. On the other occasion, I was taken just before I was about to start my National Youth Service Corp.

I am extremely traumatised by this, and I find it extremely difficult to talk about.

I will provide more information in a statement to follow.

Did you seek help within the country(s) after the harm?

Yes. The first time I was raped, my husband and I went to the police station. The police took down my complaint. They said they would give me a call however, the never followed up on this. I dd not go to the police on the second and third rapes because I felt ashamed, and I did not think they would take the complaint seriously. The fourth time I was raped, my husband and I went to the police station together. Although we didn’t think they could do anything, we also wanted to have it on the record. Unfortunately, the police said that they did not have a file about my first complaint and had to create a new file. They did not do anything to track down those who raped me.

I will provide more information in a statement to follow. 

Did you move, or try to move, to another part of that country(s) to seek safety?

No. My husband and I did not relocate to other parts of Nigeria following the abuse. We were unable to relocate to other parts of Nigeria, firstly because it is unsafe in the north where the Boko Haram terrorists and secondly my father, as an influential and well-connected member of the PDP and Egbe Awo Aje Secret Service Society, would be able to track us down if we relocated to another part of the country.

My husband and I did not try to move to [another country] in 2014, however, we were unable to obtain a visa.

I will provide more information in a statement to follow.

Do you think you will be harmed or mistreated if you return to that country(s)?

Yes. Yes I am extremely fearful that I will be seriously harmed, raped or killed if I return to Nigeria. I am afraid of my father and his contacts within the PDP and Egbe Awo Aje Secret Service Society. They are responsible for causing the harm faced by my husband and I in the past and I am confident they will again inflict further serious harm on is at my father’s direction should we return.

I will provide more information in a statement to follow.

Do you think the authorities of that country(s) can and will protect you if you go back?

No. I am unable to seek protection for the authorities in Nigeria. As I explained in question 93, the police did not follow up on the occasions that I had reported my rapes. In addition, because my father is so influential within the PDP and Egbe Awo Aje Secret Service Society, he would have influence over the authorities should I make any further complaints.

I will provide more information in a statement to follow.

Do you think you would be able to relocate within that country(s)?

No. I am unable to relocate to other parts of Nigeria, firstly because it is unsafe in the north where there are Boko Haram terrorists and secondly because my father as an influential and well-connected member of the PDP and Egbe Awo Aje Secret Service Society, would be able to track us down of we relocate to another part of the country.

I will provide more information in a statement to follow.’

21.The delegate summarised[10] the first applicants’ claims as follows:

[10]  Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756

·     She left Nigeria because she is afraid of what her father and his contacts within the People’s Democratic Party (PDP) and the Egbe Aje Secret Society (EASS) will do to herself and her husband.

·     She is afraid her father will order that she and her husband are killed or seriously harmed. Her father could easily arrange for this to happen because he has significant influence within the PDP and the EASS.

·     The applicant’s father arranged for her to be raped on four occasions between 2013 and 2014. He also arranged for her husband to be seriously bashed twice in 2014.

·     She was raped on four occasions by a group of men between 2013 and 2014. The applicant does not know the men who raped her because she was blindfolded on each occasion. On three of the four occasions the men took her when she was on the university campus. On the other occasion she was taken just before was about to start her National Youth Service Camp. The applicant was traumatised by this and finds it difficult to talk about.

·     The applicant and her husband went to the police the first time she was raped. The police took down her complaint but did not follow up on it. She did not go to the police about the second and third rapes. The applicant and her husband went to the police after the fourth rape. The police said they did not have a file about her first complaint and had to create a new file. They did not do anything to track down those who had raped the applicant.

·     The applicant and her husband are unable to relocate within Nigeria. It is unsafe in the north due to Boko Haram terrorists. Her father is an influential member of the PDP and the EASS and would be able to track them down elsewhere in Nigeria.

·     She fears being seriously harmed, raped or killed in Nigeria by her father or his contacts within the PDP or EASS.

·     Her father will have influence over the authorities if she makes further complaints.

22.The second applicant’s claims for protection are detailed in his application for protection dated 3 March 2015[11] as follows:

[11]  Dept File No [deleted]

‘Why did you leave that country(s)?

I left Nigeria because of the sexual abuse that I was subjected to by my father-in-law. My father in lase is a very influential and powerful member of the People’s Democratic Party (PDP) and the Egbe Aje Secret Society.

I am also afraid of retribution from the Muslim community in Nigeria. I converted to Christianity in 2012 in order to marry my wife.

I will provide more information in a statement to follow.

What do you think will happen to you if you return to that country(s)?

If my wife and I return to Nigeria, we are extremely fearful that my father-in-law will order that we be killed or seriously harmed. He has significant influence within the PDP and the Egbe Aje Secret Society, and couple easily arrange for this to happen. The fact that my father-in-law order for me to be seriously bashed on two occasions in 2014 and that my wife be raped on four occasions between 2013 and 2014 shows the extent of his influence.

I am afraid the Muslim community since I converted to Christianity. They believe that I have bought shame to my late father’s name and to Muslim society. I am unable to attend Church and practice my faith as I am extremely fearful of being harmed again.

I will provide more information in a statement to follow. 

Did you experience harm in that country(s)?

My father-in-law sexually abused me every time he needed me and especially when we are traveling.

In early 2013 fur Muslim men took me from my home. For two weeks I was blindfolded and beaten as a result of converting from Islam to Christianity in order to marry my wife.

I will provide more information in a statement to follow.

Did you seek help within the country(s) after the harm?

No. My father-in-law is a powerful and influential person within the PDP and Egbe Aje Secret Society. He has money to pay bribes and influence the authorities, so I did not make a complaint about the sexual abuse I was subjected to.

In 2013 I did not go to the police when I was abducted by a group of Muslim men. Nigerian authorities are notorious for taking bribe and I did not think they could do anything to help me.

I will provide more information in a statement to follow. 

Did you move, or try to move, to another part of that country(s) to seek safety?

My wife and I are unable to relocate to other parts of Nigeria, firstly because it is unsafe in the North where there are Boko Haram terrorists and secondly my father-in-law as an influential and well-connected member of the PDP and Egbe Aje Secret Society, would be able to track us down of we relocate to another part of the country.

My wife and I tried to leave Nigeria and we applied for a tourist visa to [another country]. When that failed, I also applied for a visa to [a second country]. This application was also unsuccessful.

I will provide more information in a statement to follow.

Do you think you will be harmed or mistreated if you return to that country(s)?

Yes. Yes, I am extremely fearful that I will be seriously harmed, sexually abused, or killed if I return to Nigeria. I am afraid of my father-in-law and his contacts within the PDP and Egbe Awo Aje Secret Service Society. They are responsible for causing the harm faced by my wife and I in the past and I am confident they will again inflict further serious harm on us at my fathers-in-law’s direction should we return. I am so afraid of the Muslim community since I converted to Christianity. They believe that I have bought shame to my late father’s name and to Muslim society. I am unable to attend Church and practice my faith as I am extremely fearful of being harmed again.

I will provide more information in a statement to follow.

Do you think the authorities of that country(s) can and will protect you if you go back?

No. I am unable to seek protection for the authorities in Nigeria. As I explained in question 93, the police are very corrupt and failed to follow up on the occasions that my wife and I reported her rapes. In addition, because my father is so influential within the PDP and Egbe Awo Aje Secret Service Society, he would have influence over the authorities should I make any further complaints.

I will provide more information in a statement to follow.

Do you think you would be able to relocate within that country(s)?

No. I can never return to Nigeria, firstly because it is unsafe in the north where there are Boko Haram terrorists and secondly because my father-in-law is influential and a well-connected member of the PDP and Egbe Awo Aje Secret Service Society, would be able to track us down of we relocate to another part of the country.

I will provide more information in a statement to follow.’

23.The delegate summarised the second applicants’ written protection claims in the decision dated 3 August 2016[12] as follows:

[12]  Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756.

·      Applicant two left Nigeria because of sexual abuse by his father-in-law. His father-in law is a powerful and influential member of the PDP and EASS.

·     He is also afraid of retribution from the Muslim community in Nigeria. He converted to Christianity in 2012 in order to marry his wife.

·     Applicant two fears being killed or seriously harmed by his father-in-law. His father-in-law ordered him to be seriously bashed twice and his wife to be raped four times.

·     The Muslim community believe applicant two has brought shame to his late father’s name and to Muslim society.

·     His father-in-law sexually abused him every time he needed him and especially when they went travelling.

·     Applicant two did not complain about the sexual abuse because his father-in-law has the money to pay bribes and influence the authorities.

·     In early 2013 four Muslim men took applicant two from his home. For two weeks he was blindfolded and beaten as a result of converting from Islam to Christianity.

·     He did not go to the police when he was abducted by the group of Muslim men. Nigerian authorities take bribes, and he did not think they would help him.

·     Applicant two and his wife are unable to relocate in Nigeria. It is unsafe in the north due to Boko Haram and his father-in-law would be able to track them down in another part of the country.

·     Applicant two is afraid of being seriously harmed, sexually abused, or killed by his father-in-law or his contacts within the PDP and the EASS. They are responsible for harm to applicant two and his wife in the past.

·     He is also afraid of being harmed by the Muslim community and being unable to attend church and practise his faith.

·     Applicant two is unable to seek protection from the authorities. The police are corrupt and failed to follow up the reports on his wife’s rapes. His father-in-law would have influence over the authorities if applicant two complained.

First Applicant’s Evidence

24.In addition to her evidence to the Tribunal, the applicants’ evidence is contained in her statements dated 1 March 2016[13] and 8 March 2023.[14] In addition, the delegate noted that the applicant made additions to her protection claims in an interview conducted on 7 March 2016.[15]        

[13]  Applicant’s claims dated 1 March 2016; Dept File [deleted].

[14]  Applicant’s statement dated 8 March 2023; AAT file No 1934769 Doc ID: 10830763.

[15] Applicant’s interview 7 March 2016; Protection Visa Assessment dated 3 August 2016 (Dept File [deleted)); AAT File No 1613456 Doc ID 2991756.

25.The applicant’s evidence was that she was born on [date] in Somolu, Lagos Nigeria. Her evidence was that she is a Christian and a member of the Yoruba people. The applicant’s claims that she can read, speak, and write in English and Yoruba.

26.The applicant’s evidence was that her mother and father continue to live in Nigeria. The applicant’s evidence was that her father, [Mr A], was influential and well-connected member of the People’s Democratic Party (PDP) and Egbe Aje Secret Society (EASS). The applicant’s evidence was that the EASS is one of the bad traditional societies.[16] The applicant was not able to tell the Tribunal what her father did specifically for a living, but it was her evidence that he is like a godfather in the PDP with elected officials looking up to him.[17]

[16]  Applicant’s interview 7 March 2016; Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756.

[17]  Ibid.

27.The applicant’s evidence was that she does not recall her parents ever being together. As a result, the applicant’s evidence was that she was raised by her mother who worked as [an occupation]. The applicant has a brother who continues to live and work in Nigeria and a sister who is a student in [Country 1]

28.Her father lived separately from the rest of her family but would visit the family home from time to time. The applicant’s evidence was that she did not have a good relationship with her father as he was physically abusive towards her mother and aggressive and abusive toward her.

29.The applicant completed school in Lagos, Nigeria and attended [University 1] where she obtained a Bachelor [Degree] majoring in [subject]. After university the applicant was initially unemployed until she enrolled in the Nigerian National Youth Service Corps in August 2014, a government program under which she was paid an allowance to teach English in Oghe Community Secondary School. She withdrew from the program in December 2014.[18]

[18]  Part C of the first applicant’s Protection visa application form, Department file number [deleted].

30.While at the [University 1], the applicant was introduced to the second applicant while visiting her mother's brother, Demole, who lived close to the university in Ajegunle.  As a result, they started a relationship and were married in Ikoyi, Lagos, Nigeria [in] December 2014.[19] The applicant claims that their marriage was without the consent of their families due to the fact the second applicant had converted from Islam to Christianity.[20]

[19]   Applicants’ Marriage Certificate dated [December] 2014; Dept File No [deleted].

[20]  Applicant’s interview 7 March 2016; Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756.

31.The applicant’s evidence was that the second applicant converted to Christianity in or about 2012 so that they could get married. Her evidence was that the second applicant and her enjoyed attending a non-African church in Australia. The applicant and the second applicant now have three children [the third applicant] born [date], [Child A] born on [date] and [Child B] born on [date]. All three children were born in Australia.  

32.The applicant’s evidence was that in or about Easter 2009, the applicant introduced the second applicant to her mother at home. At the time, the first applicant’s father happened to be at her home.  At the time the second applicant was not employed and as a result the applicant’s father offered him work. The applicant’s evidence was that her father is an influential person. Despite her initial reluctance, she thought it was a good opportunity for the second applicant to be able to work with her father. The second applicant commenced working for her father in or about 2012.  

33.The applicant’s evidence was that in or about March 2013 at about 3.30pm, when returning for the market she was kidnapped and sexually assaulted (the first assault). Her evidence was that while walking from the bus stop back to the university campus, she noticed a parked car. The next thing she knew she was off her feet and had been pulled inside the car.[21] The applicant claims that she was drugged. She does not recall what happened but states the next thing she knew she was that she regained consciousness where she had been grabbed at around 9:30pm. The applicant claims that she woke feeling dizzy and sore. Given the pain she was in at the time knew she had been sexually assaulted.

[21]  Applicant’s interview 7 March 2016; Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756.

34.The following the first assault the applicant called the second applicant for help and comfort.  At about 11.30pm the second applicant took her to the [Hospital]. Her evidence was that apart form being given the contraceptive pill she did not receive any further treatment.  The doctor did not take any blood tests or check for the presence of drugs in her system. The doctor discussed the possibility of sexually transmitted diseases but did not receive any treatment to prevent her getting HIV.[22]

[22]  Applicant’s interview 7 March 2016; Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756.

35.The applicant’s evidence was that she and the second applicant also attended [Location 1] Police Station to report the first assault. However, the police were dismissive of her report and did not follow up her complaint.[23] The applicant was very concerned and scared. At the time she believed that the attack had been random.  

[23]  Applicant’s claims dated 1 March 2016; Dept File [deleted]

36.The applicant’s evidence was that after the first assault, she received a phone call from her father who asked where she was and if she was alright. Her evidence was that her father rarely called her and given their poor relationship it was strange to have received a call for him asking about her welfare at that time. 

37.In November 2013, the applicant was sexually assaulted a second time at the university when walking back from a lecture to her dormitory (‘the second attack’). Her evidence was that she had left class early. There was a large queue for the shuttle, so she decided to walk from the university to her dormitory. The applicant’s evidence was that when she was close to [a location] on campus she was grabbed. The applicant claims that because she was drugged, she has no specific memory of what happened. However, she claims when she regained consciousness she was helped by a passer-by. The applicant’s evidence was that she was raped but did not tell anyone about the second attack.

38.At the time of the second attack, the second applicant was [overseas] traveling with the applicant’s father on business. Nevertheless, the applicant’s evidence was on the night of the second attack her father called her to ask how she was. Despite being extremely upset by the second attack she was not able to tell her roommates about the attack. The applicant claimed that had she disclosed the assault, she would have been considered dirty and broken and be blamed for what had happened. The applicant’s evidence was that she felt very ashamed by the attack and could not understand why it had happened to her. The applicant obtained the morning after pill from the pharmacy but did not report the second attack to the police because they were unwilling to help her. She did not tell anyone at this time what happened.

39.The applicant’s evidence was that after the second attack she was ‘very afraid, hypervigilant to noise, very suspicious of the people around her.’[24] She claims that she had difficulty concentrating and completing everyday tasks. The applicant claims that she became withdrawn, rarely leaving her dormitory.[25] She became cautious about who she spoke to and where she travelled. Her academic results suffered, and as a result tried to focus solely on study to improve her results and take her mind off what had occurred.[26]

[24]  ibid.

[25]  ibid

[26]  ibid

40.The applicant’s evidence was that in or about February 2014, she was once again attacked while walking from the university’s [named building] to the [Faculty] Building to attend an early evening tutorial (‘the third attack’). Once again, the applicant cannot remember what happened save for the fact that a few hours later she woke up in the university campus. A lady from the hostel [assisted] her back to her dormitory where she went straight to bed.[27] After the third attack, the applicant received a couple of missed calls from her father. The applicant’s evidence was the only time she was receiving calls from her father was on the days she had been attacked.[28]

[27]  ibid

[28]  ibid

41.After the third attack, the applicant called the second applicant and explained what had happened. In addition, she explained the calls she had received from her father. In response the second applicant explained that he was being threatened and abused by her father. The applicant’s evidence was that at this point, she knew her father was behind the attacks. The applicant claims that she became increasingly withdrawn. The applicant did not tell her mother about the attacks because she did not want to stress her or cause her mother to blame herself.[29]

[29]  ibid

42.Finally, in or about August 2014, while walking to her uncle's house the applicant was again attacked (‘the fourth attack’). The applicant does not recall what happened but, her evidence was that she regained consciousness on the side of the road close to her uncle’s house. When she regained consciousness, she was bleeding heavily. The applicant went with second applicant to the [Location 1] Police Station to make a complaint. The Police Station had no record of her first complaint as a result she became scared to tell the police what had happened. The applicant’s evidence was that she did not believe the police would do anything.[30]

[30]  ibid

43.The applicant’s stated that that given the ongoing nature of the attacks the applicant knew she could not remain in Nigeria.[31] The applicant claims that her father was responsible for the attacks. The applicant’s evidence was that her father holds a senior position in the PDP and in the EASS. As a result, he has power, money, and influence. The applicant and the second applicant believed that her father was trafficking money and arms in and out of Nigeria. As such given his power and influence, he is able find and harm both the applicant and the second applicant anywhere in Nigeria and can influence the Nigerian authorities do not provide her with protection. As a result, upon being granted visa in November 2015 the applicant and the second applicant sold all their possessions and travelled to Australia.[32] The applicant claims that the second applicant and her are not able to be protected if they are returned to Nigeria.

[31]  ibid

[32]  ibid

44.The applicant fears that if she is returned to Nigeria she would be further subjected to serious and significant harm from the associates of her father within the PDP and EASS who have attacked her several times in the past.

45.In addition, the applicant fears harm due to being a woman from Nigeria. The applicant’s evidence was that it is common for women to be sexually assaulted in Nigeria. She claims that the authorities do not offer any effective protection. The applicant claims that the authorities believe it is a woman's fault if she is assaulted and as such, they do not investigate sexual assaults. Finally, she claims that, if her community came to know about her sexual assaults, she would be humiliated and ostracised.[33]

[33]   ibid

46.Since arriving in Australia, the applicant has completed a Bachelor [Degree] majoring in [subject] and Diplomas in [subjects]. She has three children with the second applicant, all of whom were born since her arrival in Australia.

The Second Applicant’s Evidence

47.In addition to his evidence to the Tribunal, the second applicant’s evidence is contained in his statements dated 1 March 2016[34] and 8 March 2023.[35] In addition, the delegate noted that the applicant made additions to his protection claims in an interview conducted on 7 March 2016.[36]

[34]  Applicant’s claims dated 1 March 2016; Dept File [deleted].

[35]  Applicant’s statement dated 8 March 2023; AAT file No 1934769 Doc ID: 10830763.

[36] Applicant’s interview 7 March 2016; Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756.

48.The second applicant’s evidence was that he was born on [date] in Lagos, Nigeria.[37]  He claims that he is Yoruba and that he is a Christian. [38]  

[37]  Part C of the second applicant’s Protection visa application form, Department file number [deleted].

[38]  ibid

49.The second applicant’s father worked as a businessman [in] Lagos. His father passed away in 2006. The second applicant’s mother continues to live in Lagos together with his [brothers] and [sisters].  The second applicant’s evidence was that he was raised as a Muslim. His parents were strict Muslims and would attend the Mosque located close to their home 5 times per day. The second applicant’s evidence was that his father was a religious leader in their community.   

50.The second applicant’s evidence was that he initially attended school in Lagos but completed his secondary schooling [in] Ile Ife Osun State, Nigeria. The second applicant then attended [University 2] at which he completed a Bachelor [degree].   

51.The second applicant and the applicant initially meet through a friend of her uncle's neighbour in or about 2008 and were married [in] December 2014. The applicant and the second applicant now have three children, [the third applicant] born [date], [Child A] born on [date] and [Child B] born on [date]. All their children were born in Australia, and they continue to live together as a family.

52.The second applicant’s evidence was he and the applicant delayed getting married because of the applicant having to complete her studies and his conversion to Christianity. The second applicant’s evidence was that in 2012, he converted to Christianity. As Muslims, the second applicant’s family were against his conversion to Christianity and his marriage to the applicant. The second applicant claims that he had taken an interest in Christianity for many years. He claims that the applicant had taught him more about Christianity and he thought the beliefs and principles of the religion were more akin to his personal beliefs. The second applicant was baptised at [Church 1], Magodo, Lagos Nigeria. The applicant and he continue to attend Church with their children in Australia at the [Church 2] in [Town 1 in Australia].

53.The second applicant’s evidence was that in or about 2013 four men came to his family home and kidnapped him. He claims he was blindfolded and taken away. The second applicant’s evidence was that he was held in a room for a couple of weeks during which he was beaten and told that he must convert back to Islam. The second applicant claims he still has the [scar]. The second applicant claims that he was released on an undertaking that he would stop attending church. He claims that he was dropped off on the side of the road near Ikorodu, Nigeria. The second applicant stated that because his father was a religious leader in his community his conversion to Christianity was not looked up favourably by his family and his community.

54.In or around March 2009, the second applicant claims that he was invited to the applicant’s home for Easter to meet her mother and siblings.  Her father was also present, and he explained to him that he was looking for work. As a result, the applicant’s father offered him a job and explained that it would require him to travel on a regular basis.  As a result, he started working for the applicant’s father.  The second applicant’s evidence was that he travelled regularly with the applicant’s father [overseas] on business. On each trip he was required to transport large sums of money. However, despite working for him, the second applicant was not aware of the purpose of the trips and was not able to tell the Tribunal what the applicant’s father did for a living.

55.In or about September 2012 the second applicant travelled to [Country 1] with the applicant’s father. While on the trip the applicant’s father invited him for a drink and after a time made an advance towards the second applicant suggesting that they have sex. His evidence was that he initially thought the applicant’s father was testing him to ensure he would refuse and be faithful to his daughter. The second applicant claimed that because homosexuality is illegal Nigeria, it was a topic of conversation that he did not expect the applicant’s father to raise. Nevertheless, the second applicant refused the applicant’s father’s advance.  

56.In or about December 2012, the second applicant again travelled to [Country 1] with the applicant’s father.  He claims that while having a drink at the hotel bar the applicant’s father suggested that they have sexual relations stating that he may enjoy it as he believed men were better than women at satisfying a person's needs. The second applicant’s claims he was uncomfortable with the conversation given he was in a relationship with the applicant. He declined the applicant’s father’s advance and tried to avoid being alone with him.

57.The second applicant’s evidence was that they then travelled to [Country 2]. At dinner the applicant’s father again propositioned the second applicant to have sex. The second applicant refused but the applicant’s father would not take no for an answer. As a result, he took the second applicant to his hotel room and forced him to have sex with him. The second applicant claims he felt powerless and ashamed. He felt he could not tell the applicant about what had occurred. His evidence was that applicant’s father is a very powerful person. He is aligned with both the PDP and the EASS and is involved with the trading of weapons in and out of Nigeria. As a result, the second applicant claims that he fears him and was compelled to adhere to his demands.

58.The second applicant claims that the applicant’s father continued to force him to have sexual relations with him and that he threatened to kill the second applicant if he refused. The second applicant believes that the applicant’s father wanted to destroy the relationship between him and the applicant. 

59.In about March 2013, the applicant called the second applicant, in an emotional state, and informed him about the first attack. The second applicant accompanied her to the [Location 1] Police Station and to the hospital for treatment. They made a report to the police, but they were dismissive and unhelpful.

60.In or about February 2014, the applicant informed the second applicant about the second and third attacks. In response the second applicant informed the applicant that he had been sexually mistreated by her father. The second applicant claims that in his culture, raped women are considered shamed women and cannot enter relationships. Accordingly, the second applicant’s evidence was that he and the applicant believed the applicant’s father had been ordering the attacks on the applicant as part of his attempt to break up their relationship.

61.In or about mid-2014, the applicant’s father asked him to travel overseas with him again. The applicant refused as he feared he would be assaulted again. As a result, the applicant’s father demanded that the second applicant go and see him otherwise he would hunt him down. Upon meeting the applicant’s father, the second applicant was badly beaten and injured by his bodyguards. A couple of months later, the applicant’s father again asked the second applicant to travel [overseas] with him. The second applicant refused to go, stating that he wanted to study for an exam.  Once again, the applicant’s father demanded that the second applicant meet him upon which he was bashed by his bodyguards.

62.The second applicant’s evidence[39] was that the applicant’s father’s bodyguard[warned] him that if he did not abide by what the applicant’s father wanted, he would face further issues. He suggested that the second applicant leave the applicant and do as the applicant’s father demanded. The second applicant claims that in or about November 2022 it was reported [that] [the bodyguard] had been killed.[40]

[39]   Second Applicant’s statement dated 8 March 2023; AAT file No 1934769 Doc ID: 10830763

[40] [DELETED].

63.In about August 2014, the applicant informed the second applicant that she had been sexually abused again. He went to her and to the police station to make a complaint. The police station said they had no record of the first complaint. The applicant became scared to speak to the police and as a result no further report was made.

64.The second applicant claims that he fears harm for the applicant’s father and his associates who abused and assaulted him prior to his departure from Nigeria. Her father believes that he owns the second applicant and that he must adhere to all his demands. The second applicant claims that the applicant’s father would consider the fact he has fled the country with his daughter a betrayal and ensure that he is killed.

65.The second applicant also claims that he fears returning to Nigeria because of his conversion to Christianity. He claims that religious tensions are very high in Nigeria and due to his conversion, he would be at risk of serious harm. He claims that he has attended church regularly in Australia. Their church community has provided a high level of support while in Australia. The Islamic community believe he has acted badly in converting from Islam to Christianity especially as his father is a well-known Sheik.

66.As such the second applicant claims that if he is returned to Nigeria there is a real chance he will be seriously harmed by the applicant’s father and his associates and because he is a convert from Islam to Christianity.

The Applicants’ Supporting Documentation

67.The applicants have provided the following material to the Department and the Tribunal in support of their protection visa application:

·Form 866, part B and C – Application for a Protection (Class XA) visa[41]

[41]  Dept file No [deleted].

·Clinical Information Request/Response of the [named] Hospital dated 4 March 2016[42]

[42] Dept file No [deleted].

·[Health service 1] Mental Health Inpatient Discharge Summary for the second applicant dated 4 March 2016[43]

[43] ibid f 183.

·Certified copy of the first applicant’s passport[44]

[44]  ibid ff 65-81.

·Copy of the first applicant’s birth certificate[45]

[45]  ibid f 163.

·Statutory declaration of the second applicant (undated)[46]

[46]  ibid ff 160-162.

·Statutory declaration of the first applicant (undated)[47]

[47]  ibid 157-159.

·Letter from Pastor [A] of [Church 2] dated 4 February 2016[48]

[48]  ibid f 156

·Mental Health Act 2014 Section 30 form in respect of the first applicant dated 13 July 2015[49]

[49]  ibid f 155.

·[Airline] tickets in the second applicant’s name[50]

[50]  ibid f 64.

·Certified copy of the second applicant’s passport[51]

[51]  ibid ff 47-63.

·The first applicant’s student card from the [University 1][52]

[52]  ibid f 46.

·Certified copy of the marriage certificate of the first and second applicant[53]

[53]  ibid f 45.

·Bank statements, statutory declarations, train tickets and form provided in support of an application for status resolution support service assistance[54]

[54]  ibid ff 100-152.

·Legal submissions from the applicants’ representative[55]

[55]  Dept file No [deleted].

·[University 1] student card of the first applicant[56]

[56]  ibid (no folio number).

·[University 1] student card of the second applicant[57]

[57]  ibid.

·Receipt of the first applicant’s university fees[58]

[58]   ibid.

·Letter from the National Youth Service Corps addressed to the first applicant[59]

[59]  ibid.

·Bachelor [degree] of the first applicant[60]

[60]  ibid.

·Certificate from the local council naming the first applicant[61]

[61]  ibid.

·Academic transcript and enrolment documents of the second applicant[62]

[62]  ibid ff 2-9.

·[Health service 1] Mental Health Inpatient Discharge Summary for the first applicant dated 17 July 2015[63]

[63]  ibid ff 12-13.

·[Organisation 1] psychological assessment report [dated] 29 February 2016.[64]

[64]   Ibid, ff 10-11.

·The delegate’s decision record, dated 3 August 2016[65]

[65]   AAT File No 163456, Doc ID 2991756.

·Informal statement from the second applicant sent 12 December 2016[66]

[66]   AAT File No 163456, Doc ID 3181368.

·Handwritten statement of the second applicant, undated, received 12 July 2017[67]

[67]   AAT File No 163456, Doc ID 3553071.

·Letter from Dr [B] of [a] Medical Clinic describing the first applicant’s mental ill health, dated 14 February 2017[68]

[68]   ibid.

·Letter from Dr [B] of [a] Medical Clinic describing the first applicant’s pregnancy, due date and mental ill health and antidepressant treatment dated 14 February 2017[69]

[69]   ibid.

·Letter from [named] Hospital confirming the first applicant’s obstetric ultrasound appointment on 5 June 2017.[70]

[70]   ibid.

·[Orgranistion 1] psychological assessment report [dated] 29 February 2016[71]

[71]   ibid.

·[Organisation 2] letter of support for the applicants [dated] 17 February 2017[72]

[72]   ibid.

·[Organisation 2] letter outlining support provided to the [applicants][73]

[73]   ibid.

·[Organisation 2] letter outlining support provided to the applicants [dated] 12 July 2017[74]

[74]   ibid.

·Letter from Pastor [A] of [Church 2] dated 4 February 2016[75]

[75]   ibid.

·Handwritten statement from the second applicant received 23 January 2018[76]

[76]   AAT File No 163456 Doc ID 3553071& Doc ID 3912136.

·Letter from [Organisation 3] outlining the first applicant’s mental ill health and impact on her parenting dated 21 December 2017.

·Letter from Centrelink dated [July] 2017 stating that the first applicant’s benefits claim cannot be assessed due to missing details in the application[77]

[77]  ibid.

·Letter from Centrelink dated [November] 2017 outlining the first applicant’s ineligibility for welfare benefits.

·Letter from [named] Lawyers seeking payment of childcare debt owed by the first and second applicants to [named] Children Centre dated 31 October 2017.[78]

[78]  ibid.

·Letter from [the] Children’s Centre dated 10 October 2017 seeking payment of childcare debt and invoice[79]

[79]  ibid.

·Letter from Dr [B] of [a] Medical Clinic describing the first applicant’s mental ill health dated 14 March 2018[80]

[80]  AAT File No 163456 Doc ID 3553071 &, Doc ID 4239610.

·Letter from [a] psychologist, outlining the first applicant’s mental ill health, including her postnatal depression and anxiety dated 22 February 2018[81]

[81]  ibid.

·Letter from [Organisation 3] outlining the first applicant’s mental ill health and impact on her parenting dated 9 March 2018[82]

[82]  ibid.

·Letter of support from [a] child and family practitioner received 28 June 2018[83]

[83]  AAT File No 163456 Doc ID 3553071 & Doc ID: 4458525.

·Letter from [a second] psychologist, outlining the first applicant’s mental ill health, including her postnatal depression and anxiety dated 23 July 2018[84]

[84]  ibid.

·Legal submissions by Kate Coffey of AUM Lawyers received 29 August 2018[85]

[85]  AAT File No 163456, Doc ID: 4661425.

·Victoria Police lost property report concerning the first and second applicants’ passports[86]

[86]  ibid.

·Post-hearing legal submissions dated 14 October 2018.[87]

[87]  ibid AAT File No 163456, Doc ID: 4817543.

·Letter of support and copy of passport biodata page of [named person], undated[88]

[88]  ibid AAT File No 163456, Doc ID: 8405881.

·Letter of support and copy of passport biodata page of [named person], undated[89]

[89]  ibid.

·Letter of support, copy of passport biodata page and Australian citizenship certificate of [named person], undated[90]

[90]  ibid.

·Letter of support from [named person], undated[91]

[91]  ibid.

·Letter of support from [named  person] dated 25 January 2021[92]

[92]  ibid.

·Letter of support from [named person], [Health service 2], dated 25 January 2021[93]

[93]  ibid.

·Letter confirming the second applicant’s employment as [an Occupation 1] with [named employer] dated 27 January 2021[94]

[94]  ibid.

·Discharge letter from [an] Occupational Therapist of [Health service 2], concerning the first applicant, dated 20 January 2021[95]

·Statement of the first applicant dated 8 March 2023[96]

·Statement of the second applicant dated 8 March 2023[97]

·Legal submissions dated 8 March 2023[98]

·Psychiatric report by Dr [C] of [Health service 3], describing the mental health of the first and second applicants dated 12 December 2021[99]

·Letter of support from [a second] Pastor of [Church 2], dated 8 March 2023[100]

·Letter from [the second] psychologist, outlining the first applicant’s mental ill health, including her postnatal depression and anxiety dated 7 March 2023[101]

·Letter of support and [Country 1] residence card of [name deleted], undated[102]

·Nigerian Corporate Registry business name search showing [named business], as being registered [in] May 2012 and is currently inactive.[103]

·Letter from [a] mental health social worker, outlining his assessment and therapeutic support of the first and second applicants, dated 10 March 2023.[104]

[95]  ibid.

[96]AAT File No 163456, Doc ID: 10830763.

[97]ibid.

[98]ibid.

[99]ibid.

[100]ibid.

[101]ibid.

[102]ibid.

[103]ibid.

[104]AAT File No 163456, Doc ID: 10843841.

COUNTRY INFORMATION

Mandatory considerations

68.In accordance with the Ministerial Direction No. 84 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to those parts of the DFAT report on Nigeria dated 3 December 2020 (‘DFAT Report’) reproduced in Annexure ‘A’ herein.

ASSESSMENT OF CLAIMS AND FINDINGS

69.The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Credibility

70.When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers the Tribunal’s questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

71.The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim,[105] nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[106]

[105] s 5AAA Migration Act 1958

[106]   MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v    MIEA (1985) 6 FCR 155 at 169–70

72.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[107] Care must be taken that the approach does not result in an exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

[107]  Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p 482

73.If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[108] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

The accepted facts

[108]  The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

74.Having considered the applicant’s evidence, the Tribunal accepts and finds that the applicant:

(a)was born on [date] in Somolu, Lagos Nigeria.

(b)is a Christian and a member of the Yoruba people.

(c)can read, speak, and write in English and Yoruba.

(d)has a mother and father who continue to live in Nigeria.

(e)has a brother who continues to live and work in Nigeria and a sister who is a student in [Country 1].

(f)completed school in Lagos, Nigeria and attended the [University 1] where she obtained a Bachelor [Degree] majoring in [subject].

(g)was enrolled in the Nigerian National Youth Service Corps program from August 2014 to December 2014.[109]

(h)married the second applicant in Ikoyi, Lagos, Nigeria [in] December 2014.[110]

(i)has three children[111] (including the third applicant) with the second applicant, all of whom were born in Australia.

[109]  Part C of the first applicant’s Protection visa application form, Department file number [deleted].

[110]  Applicants’ Marriage Certificate dated [December] 2014; Dept File No [deleted]

[111] [The third applicant] born [date], [Child A] born on   [date] and [Child B] born on [date].

75.Having considered the second applicant’s evidence, the Tribunal accepts and finds that the applicant:

(a)was that he was born on [date] in Lagos, Nigeria. [112] 

(b)is Christian and an ethnic Yoruba person. [113] 

(c)father passed away in 2006 and worked as a businessman [in] Lagos.

(d)mother continues to live in Lagos.

(e)has [brothers] and [sisters]. 

(f)was raised as a Muslim and that his father was a religious leader in the community.   

(g)attended school in Lagos but completed his secondary schooling [in] Ile Ife Osun State, Nigeria.

(h)attended [University 2] and completed a Bachelor [degree].  

(i)married the applicant [in] December 2014 with whom he has three children.

(j)converted to Christianity in or about 2012. He was baptised at [Church 1], Magodo, Lagos Nigeria. The applicant and second applicant continue to attend Church with their children in Australia at the [Church 2] in [Town 1 in Australia].

[112]  Part C of the second applicant’s Protection visa application form, Department file number   [deleted].

[113]  ibid

The applicants’ relevant grounds

76.The applicant submits that her claims for a protection visa fall within the scope of s 5J(1)(a) of the Act by reason of her membership of a particular social group (PSG). The applicant claims that as a woman from Nigeria or alternatively as a woman from Nigeria who had been sexually assaulted, she is a member of PSG.[114]

[114]  Applicants Submissions dated 8 March 2023; AAT file No:1934769 Doc ID:10830763 

77.As a member of a PSG the applicant must be recognised (by the persecutor or persecutors) as sharing a connection or falling under some general classification.[115] When a person claims to fear being persecuted by reason of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L of the Act states:

[115]  Applicant S v MIMA (2004) 217 CLR 387

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.

78.In MIMA v Khawar (2002) 210 CLR [116] the High Court, when considering the refugee convention, found that it would be open for the Tribunal to declare that 'women in Pakistan' meets the description of PSG. On the issue of such a large group His Honour Chief Justice Gleeson stated that:[117]

'The size of the group does not necessarily stand in the way ... There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur.'

[116] MIMA v Khawar (2002) 210 CLR 1

[117] MIMA v Khawar (2002) 210 CLR 1 at [33]

79.In this case the applicant claims that being a female from Nigeria is a characteristic that is so fundamental to her identity or conscience that she should not be forced to renounce it. In addition, it is a characteristic that distinguishes the group from the rest of society.  That is, women in Nigeria, or alternatively women in Nigeria who have been sexually abused. As such, the Tribunal accepts that the applicant is a member of a PSG pursuant to s 5L. Accordingly the Tribunal accepts her claim falls within the scope of s 5J(1)(a) of the Act.

80.The applicant and second applicant both submit that their protection claims fall within the scope of s 5J(1)(a) of the Act by reason of their religion. The second applicant claims that he is a Christian convert while the applicant claims she will face harm from Islamic extremists opposed to Christians and interfaith marriage.  The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[118] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

[118] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]–[22])

81.The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[119] as:

71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

73Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’

[119]   UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73] question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[120]  It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[121]

[120] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285

[121]    See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion

83.It has been held that persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[122] It requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[123]

[122]    Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

[123] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)

84.In this case, the second applicant claims that he has rejected Islam and converted to Christianity. He claims that the essential and significant reason for him being persecuted upon his return to Nigeria is as an apostate having rejected Islam and becoming a Christian. His evidence was that he was baptized at [Church 1], Magodo, Lagos Nigeria in 2012 and continues to attend [Church 2] in [Town 1 in Australia] in Australia. The applicants provided a letter dated 4 February 2016 from Pastor [A] of [Church 2] confirming that they attend the Church as claimed.[124] Based on the applicants’ evidence and the documentation provided, the Tribunal accepts that the second applicant has converted to Christianity as claimed. Accordingly the Tribunal accepts that the second applicant’s claims fall within the scope of s 5J(1) of the Act by reason of his religion as claimed.

[124] Letter from Pastor [A] of [Church 2] dated 4 February 2016. Dept File No [deleted]

85.The applicant claims that she will be harmed from Islamic extremist opposed to Christians and interfaith marriage. Having accepted that the second applicant has converted to Christianity and that the applicant, and second applicant are married, the Tribunal accepts that her claim falls within s.5J(1)(a) of the Act as a Christian and a party to an interfaith marriage. 

86.In addition, the second applicant submits that his claims fall within the scope s 5J(1)(a) of the Act by reason of his imputed political opinion having worked for the applicant’s father. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[125] notes that ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he/she has a fear of persecution for holding such opinions.’ That is, the applicant must hold opinions not tolerated by the authorities and such opinions will come to the notice of the authorities or will be attributed to the applicant by the authorities upon his return to Nigeria.

[125] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paragraphs 80–86; Chan v MIEA (1989) 169 CLR 379 at 392

87.The Full Federal Court in V v MIMA[126] observed in relation to a person’s political opinion that:

(a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[127]

(b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[128]

(c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[129]

(d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts reflective of an unstated political agenda will be the holding of a political opinion;[130]

(e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[131]

[126] V v MIMA (1999) 92 FCR 355 at 363. It is noted that the Court’s observations were made in the context of dealing with the Convention

[127] ibid

[128]ibid

[129]ibid

[130]ibid

[131]ibid

88.The second applicant’s fear of persecution based on his political opinion (having regard to all the circumstances) is a question of fact.[132] In this case, the second applicant claims he has a well‑founded fear of persecution by reason of his imputed political opinion as a person who worked for the applicant’s father. Based on the second applicant’s evidence to the Tribunal, the Tribunal accepts that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his imputed political opinion.

The applicant’s well-founded fear

[132]Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998) at 4

89.Section 5J of the Act states that for the purposes of application under the Act, a person has a well‑founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In Chan v MIEA[133] the Court held that a ‘well‑founded fear’, for the purposes of the Convention, involved both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[134]

[133]Chan v MIEA (1989) 169 CLR 379 at 396

[134]Chan v MIEA (1989) 169 CLR 379 at 396; MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ

90.However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[135]

“Well‑founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

[135]Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397

91.In MIEA v Guo, the Court stated that:[136]

Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well‑founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

[136]MIEA v Guo (1997) 191 CLR 559 at 572

92.For the reasons detailed below, the Tribunal does accept the applicant has a well‑founded fear of persecution pursuant to s 36(2)(a) of the Act on the basis of her membership of a PSG, being a woman in Nigeria/woman who has suffered sexual assault, if she is returned to Nigeria. The Tribunal also accepts that the second applicant has a well-founded fear fear of persecution pursuant to s 36(2)(a) of the Act on the basis of his religion, either as an apostate, or due to his interfaith marriage.

The applicant’s claims as a refugee

Applicant as a Nigerian woman.

93.The applicant claims that as a Nigerian woman there is a real chance that she will be seriously harmed if she is returned to Nigeria. The applicant’s evidence was from March 2013 to August 2014 she was assaulted, abducted, and sexually abused on four occasions. The applicant was not able to provide specific detail in relation to each attack as she claims that on each occasion she was drugged and made unconscious. Nevertheless, her evidence was that after each attack she awoke at or near the location from which she was abducted and that on each occasion she had been sexually abused. Her evidence was that she was aware that she had been sexually assaulted because of the vaginal pain she experienced after each assault.[137] The applicant gave specific evidence to the Tribunal in relation to the timing and location of each attach. In addition, the applicant was able to give evidence in relation to the time she awoke from each attack and provide details as to what she did after each attack.

[137]Medical report by Dr [C], [Health service 3] dated 12 December 2021; AAT File No:1934769 Doc ID:10830763 

94.The applicant provided medical reports in relation to her mental health. A medical report by [Health service 3][138] states that the applicant suffers for Post-Traumatic Stress Syndrome (PYSD). The report notes that the applicant first came to the attention of public health /psychiatric services after an attempted suicide [in] 2015. The report states that the applicant experienced flashbacks exacerbated by viewing programs regarding violence, rape and immigration. The applicant is receiving medication for her PTSD. In addition the applicant provided a further psychology report that states she is suffering from depression and anxiety.[139]The Tribunal accepts and finds that the applicant suffers from PTSD. Based on the applicant’s evidence and the medial reports provided by the applicant, the Tribunal accepts that she was assaulted, abducted, and sexually abused on the four occasions as claimed.

[138]Medical report by Dr [C], [Health service 3] dated 12 December 2021; AAT File No:1934769 Doc ID:10830763 

[139]Report by [the second psychologist], [named] Psychology dated 7 March 2023; AAT File No:1934769 Doc ID:10830763

95.The applicant’s evidence was that claims that her father was influential and well-connected member of the PDP and EASS. Her evidence was that her father is like a godfather in the PDP with elected officials looking up to him.[140] The country information[141] reports that [Mr A] is a political strong man in Nigerian politics. He is described as a money launderer and occultic, who belongs to many secret cult groups and a political kingmaker who has his own private security. There was no reference to EASS in an internet search conducted by the Tribunal. Nevertheless, the applicants both claimed that EASS is one of the bad traditional societies in Nigeria.[142] In any event, based on the available country information, the Tribunal accepts and finds that the applicant’s father is involved in a secret cult group in Nigeria as claimed. As such, the Tribunal accepts that the applicant’s father is influential and well-connected member of the PDP and EASS as claimed.

[140]ibid

[141]   [DELETED].

[142]Applicant’s interview 7 March 2016; Protection Visa Assessment dated 3 August 2016 (Dept File [deleted]); AAT File No 1613456 Doc ID 2991756.

3.33 While generally respecting the rights of freedom of expression and assembly, federal and state authorities have occasionally banned and targeted gatherings that they have concluded might lead to unrest (due to the gatherings’ political, ethnic, or religious nature). Human rights groups have criticised federal and state governments for prohibiting or dispersing protests that are critical of authorities or associated with controversial groups. Security services have occasionally used excessive force when dispersing protesters, which has resulted in fatalities (see Extrajudicial Killings).

3.34 In August 2019, Omoyele Sowore, a former presidential candidate, political activist, and founder of Sahara Reporters, was arrested after calling for nationwide protests with the tagline #RevolutionNow. Sowore was released on bail on 5 December 2019, nearly a month after he had met the bail requirements, but was re-detained by state security authorities the following day. Sowore was subsequently released from custody on 24 December 2019 after the Attorney General ordered his conditional release.

3.35 While #RevolutionNow protests took place in Lagos, Osun, Ondo and Cross Rivers states in the second half of 2019, international observers report none were attended by more than a few hundred participants, who in many cases were outnumbered by security forces. When protests in Lagos and Osun became violent, police used tear gas to disperse protesters, and also arrested protesters in Lagos, Osun, and Cross River. To DFAT’s knowledge, there have not been any subsequent #RevolutionNow protests.

…

Women

3.74 Nigeria is a State Party to the CEDAW and its Optional Protocol (see Human Rights Framework). Article 15(2) of the Constitution prohibits discrimination on the grounds of sex, Article 42(1) guarantees the equality of citizens regardless of sex, and Article 17(3)(c) commits the State to directing policies to ensure equal pay for equal work without discrimination on the grounds of sex. Several states have laws mandating equal opportunity for women.

3.75 Despite these constitutional protections, human rights observers report sex-based discrimination and violence remains a significant risk for women and girls in Nigeria. The World Economic Forum 2020 Global Gender Gap report ranked Nigeria 128 out of 153 countries (and 27 out of 34 in Sub-Saharan Africa) in terms of women’s economic participation and opportunity, educational attainment, political empowerment, and health and survival.

3.76 Women play active and vital roles in the informal economy, particularly in agriculture, processing of foodstuffs and selling of goods at markets. However, they are under-represented in the formal sector, and international observers report many women experience considerable economic discrimination due to traditional and religious practices. The law does not mandate equal remuneration for work of equal value, nor does it mandate non-discrimination based on sex in hiring. NGOs have expressed concern about discrimination against women in the private sector, particularly in access to employment, promotion to higher professional positions, and salary equity. According to credible reports, many businesses maintain an informal ‘get pregnant, get fired’ policy. Police regulations provide for special recruitment requirements and conditions of service applying to women, particularly the criteria and provisions relating to pregnancy and marital status. Women employed in the business sector did not receive equal pay for equal work and often encountered difficulty in acquiring commercial credit or obtaining tax deductions or rebates as heads of households. Unmarried women in particular endured many forms of discrimination.

3.77 While no laws limit the participation of women in the political process, religious and cultural barriers restrict their leadership opportunities, particularly in the north. Women made up only 12 per cent of candidates in the 2019 general elections, and less than 4 per cent of those elected were women (down from a high of 8 per cent of National Assembly members elected in 2007). None of Nigeria’s 36 state governors is a woman. Only seven women were included in President Buhari’s post-election ministerial list of 43 nominees. State houses of assembly and local government councils have similarly low levels of female participation. In 2019, the Inter-Parliamentary Union ranked Nigeria 180 out of 193 countries on percentage of women in national parliaments.

3.78 Nigeria remains a patriarchal society in many respects. For example, the testimony of women reportedly carries less weight than that of men in many criminal courts, and women can arrange but not post bail at most police detention facilities. While no laws prohibit women from owning land, customary land tenure systems may make it difficult for women to do so, with women gaining access to land only via marriage or family. Many customary practices also do not recognise a woman’s right to inherit her husband’s property, and many widows reportedly become destitute when their in-laws take virtually all of their late husband’s property. So-called ‘widowhood practices’ occur in different manifestations nationwide. Confinement, which occurs predominantly in the northeast, involves widows being subject to social restrictions for as long as a year, during which time they shave their heads and dress in black. In other areas, communities reportedly regard a widow as a part of her husband’s property to be ‘inherited’ by his family. Human rights observers report that purdah, the cultural practice of secluding women and pubescent girls from unrelated men, continues in parts of the north.

3.79 DFAT assesses that, notwithstanding constitutional and legislative protections, women in Nigeria face a moderate risk of societal discrimination due to a number of significant disadvantages. These include the threat of gender-based violence and other sexually-based harassment, including from state authorities (see following section) and long-standing traditional values and gender roles that limit their full participation in the workplace and community.

Gender-based Violence (GBV)

3.80 It is difficult to accurately determine rates of gender-based violence (GBV) in Nigeria due to a lack of reliable data and under-reporting. To DFAT’s knowledge, there have not been any credible national surveys relating to GBV since 2013. International observers report, however, that GBV in the form of domestic and intimate partner violence is widespread across all geographic locations, socioeconomic levels, and religious and ethnic groups, and that many consider it socially acceptable. Human rights observers report police often view domestic violence as a private matter, and will either refuse to intervene in domestic disputes or blame the victim for provoking the abuse. In rural areas, courts and police are reluctant to intervene to protect women who formally accuse their husbands of abuse if the level of alleged abuse did not exceed local customary norms. Families of women subjected to domestic violence will often refuse them support and pressure them to stay with abusive husbands.

3.81 In-country sources report rates of domestic violence have spiked during the COVID-19 pandemic. In June 2020, Nigeria’s 36 state governors unanimously declared a state of emergency after a series of high profile cases of GBV sparked nationwide protests by activists, both online and at rallies. As part of their declaration, the governors called on all states to immediately launch sex offender registries and to push for tougher federal punishment for abuse and violence against women.

3.82 There is no comprehensive law for combatting GBV that applies across the country. While the Violence Against Persons Prohibition Act (2015; VAPP Act) addresses multiple forms of GBV, including sexual violence, physical violence, psychological violence, harmful traditional practices and socioeconomic violence, its provisions apply automatically only within the FCT. Other states must pass it separately for its provisions to take effect, and DFAT understands only 13 states have done so to date. While some, mostly southern, states have enacted laws prohibiting some forms of GBV or have sought to safeguard certain rights, a majority of states do not have such legislation. State criminal codes continue to govern most rape and sexual assault cases across the country, and typically allow for lesser sentences than those mandated in the VAPP Act.

3.83 The VAPP Act cites spousal battery, forceful ejection from the home, forced financial dependence or economic abuse, harmful widowhood practices, female genital mutilation/cutting (FGM/C; see section following), other harmful traditional practices, substance attacks (such as acid attacks), political violence, and violence by state actors (especially government security forces) as offences. It provides for a public register of convicted sex offenders, and mandates penalties for conviction of rape and/or sexual assault ranging from 12 years’ to life imprisonment for offenders older than 14 and a maximum of 14 years’ imprisonment for all others. It also provides for up to three years’ imprisonment, a maximum fine of 200,000 naira (AUD737), or both for conviction of spousal battery.

3.84 The VAPP Act offers some protections to victims and survivors of GBV in the jurisdictions in which it applies. For example, it provides for the appointment of protection officers at the local government level to coordinate with courts and provide for victims to receive medical, psychosocial, legal, rehabilitative and reintegration assistance. The VAPP Act also authorises court to issue protection orders upon application by a victim, and includes provisions to protect the identity of rape victims and a provision empowering courts to award appropriate compensation to victims of rape. Under the VAPP Act, victims and survivors of GBV are entitled to comprehensive medical, psychological, social and legal assistance by accredited service providers and government agencies, with their identities protected during court cases.

…

STATE PROTECTION

5.1 Security and law enforcement in Nigeria is managed at the federal level through the Nigerian Armed Forces (NAF), the Department of State Services (DSS) and the Nigerian Police Force (NPF). The government also utilises groups created for specific purposes, such as the CJTF (which supports security operations against Boko Haram).

5.2 Capacity constraints have limited the NPF’s ability to control societal violence, particularly in areas under a state of emergency and in Middle Belt conflict zones between mostly Fulani herders, and Muslim and Christian farmers (See Security Situation). As a result, the government routinely relies on the military to provide community policing in areas that experience high levels of violence. In 2019, the Nigerian military reportedly conducted active security operations in almost all 36 states, effectively replacing policing operations in many areas.

5.3 As noted elsewhere, there have been numerous reports of human rights violations or other abuses of power committed by the security forces and other government officials or agents. While the government has taken some steps to investigate alleged abuses, there have been few public reports of prosecutions of officials who have committed violations and impunity remains widespread at all levels of government. DFAT assesses a complaint lodged by an ordinary citizen of a violation committed by a state official is unlikely to result in either prosecution or restitution.

…

Nigerian Police Force (NPF)

5.8 Chapter 6 Part 3 B of the Constitution (Articles 214-216) sets out the role and functions of the NPF, which is the country’s principal law enforcement agency. Article 214 prohibits constituent parts of the federation from forming their own police forces. The NPF maintains law and order in each state and engages in border security, maritime and counter-terrorism operations. An inspector general of police, appointed by and reporting directly to the president, commands the NPF.

5.9 With around 370,000 officers, the NPF is one of the largest police forces in the world, although to meet the UN recommended ratio of one police officer per 400 residents it would need to train another 155,000 officers. While the exact number of female NPF officers is unclear, it has historically been low. In-country sources report the NPF suffers from low capacity and insufficient training, while its operational efficiency is hampered by its centralised nature, which makes resource allocation and changes in operating procedure slow to implement in all states.

5.10 Police salaries are low, with recruits earning less than USD400 a year. As a result, police officers are susceptible to corrupt practices to supplement their income and many Nigerians view the NPF as an endemically corrupt organisation (see Corruption). In November 2018, President Buhari approved legislation to increase police salaries in an effort to address corruption and lift performance.

5.11 Local and international observers have reported numerous instances in which the NPF has used disproportionate force, including live ammunition, to neutralise unrest or protests (see Extrajudicial Killings). Observers have also reported numerous cases in which NPF officers have arbitrarily arrested and detained individuals, and abused criminal suspects and insurgents in custody (see Arbitrary Arrest and Detention). As noted in Torture, international observers have reported the NPF’s SARS has sometimes used torture to extract confessions later used to try suspects.

5.12 Public discontent over the history of reported violence by SARS without accountability culminated in a series of Nigeria-wide protests in October and November 2020, known as the ‘#EndSARS’ movement. The protests followed the reported killing of a man by SARS officers in Delta state, a video of which went viral. On 11 October, the President dissolved SARS with immediate effect, yet protests continued. Amnesty International claimed the military and police fired on protesters in Lagos on 20 October, killing at least 12. The army denied its personnel were involved, but the Lagos Governor has launched an inquiry into the ‘rules of engagement ordered by the Nigerian Army’. The protests have continued as has a Government crack-down on the protest movement but the need for police reform has been widely acknowledged. President Buhari stated in a nationwide broadcast on 22 October that the voice of the protestors had been heard ‘loud and clear’. The creation of state-based Judicial Panels of Inquiry to investigate reports of abuse by the disbanded SARS police unit appears to be the principal result of the protest movement and these are receiving significant media coverage. The panels have been given six months to report. Alongside this response apparently recognising the need for reform, some protesters claim the government is conducting a targeted campaign against people associated with the movement, by freezing bank accounts and withholding passports.

5.13 Three government agencies oversee the NPF: the Nigeria Police Council, the Police Service Commission (PSC) and the Ministry of Police Affairs. In-country sources report inadequate resources and a lack of independence have hampered the ability of these organisations (and the NHRC) to prevent and investigate instances of police abuses.

…

INTERNAL RELOCATION

5.30 Freedom of movement is one of the fundamental rights guaranteed in Nigeria’s Constitution, and Article 41(1) guarantees the right of citizens to move freely throughout Nigeria and to reside in any part of the country. While there are no legal impediments to internal relocation in Nigeria, state and local governments reportedly frequently discriminate against ethnic groups not indigenous to their areas (see Race/Nationality).

5.31 Internal migration is very common in Nigeria. Nigerians often live and work in different parts of the country from their family origins or birthplaces. This distribution reflects a multitude of factors such as: employment opportunities in sectors such as the telecommunications, construction, wholesale and retail trade, and manufacturing across Nigeria; educational opportunities; placement of young Nigerian graduates as part of national service or internship arrangements; herdsmen or farmers seeking new grazing or agricultural opportunities; the existence of relatives or family support structures in other parts of the country; as well as internal displacement due to poverty or conflict in the northeast of the country. Internal migration includes both northerners moving to the south and southerners moving to more northerly locations such as Kaduna or Kano or to the FCT.

5.32 On occasion, non-indigenes can experience challenges moving to a new state if they do not possess familial connections or financial means in their new locations. Non-indigenes may face official discrimination when attempting to access government services, including university places or employment in the civil sector (see Race/Nationality). These restrictions do not, however, apply in the larger urban centres of Lagos and Abuja

5.33 Nigeria has almost three million IDPs from the Boko Haram insurgency in the northeast and the Middle Belt conflict (see Security Situation). The UNHCR reports IDPs in Nigeria represent all religions and ethnicities. The majority have settled freely in host communities where they have familial connections or in state-run camps established in response to the conflicts. While some IDPs have moved to southern Nigeria in response to the insurgency, differences in language and culture, and lack of family ties, may discourage large-scale migration from the north to the south.

5.34 DFAT assesses Nigerians can and do freely relocate internally. Internal relocation can be more challenging for non-indigenes due to language, religious and cultural differences, particularly between northern and southern states, although this has not prevented such internal migration from occurring.

Economic Community of West African States (ECOWAS) Travel Certificates

5.35 ECOWAS is a regional grouping of fifteen West African nations focused on economic integration. Nigerians can freely enter any of the member states covered by the ECOWAS Treaty with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS nations. Further information on ECOWAS is provided in the DFAT Thematic Report on ECOWAS.

5.36 The Nigerian Immigration Service (NIS) issues ECOWAS Travel Certificates, which are valid for two years and renewable for a further two years. Applicants must provide a completed application form, three recent coloured passport photographs, evidence of age (a birth certificate or statutory declaration), a letter of introduction from an employer (for salaried workers) and a letter of confirmation of Nigerian citizenship from the applicant's local government chairman. Student and trainee applicants must provide letters of introduction from the heads of their institutions accepting immigration responsibility.

TREATMENT OF RETURNEES

5.37 Article 41(1) of the Constitution states no citizen shall be expelled from Nigeria or refused entry or exit from the country. Article 41(2)(a) and (b), however, permit the State to impose restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent them from leaving Nigeria; or provide for the removal of any person from Nigeria to any other country to be tried outside Nigeria for any criminal offence, or undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which they have been found guilty, provided there is reciprocal agreement between Nigeria and such other country in relation to the matter.

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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