1935674 (Refugee)

[2023] AATA 4615

1935674 (Refugee) [2023] AATA 4615 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Isaiah Okorie (MARN: 1793819)

CASE NUMBER:  1935674

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Wendy Banfield

DATE:27 November 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 November 2023 at 1:17pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – membership of particular social groups – young, single mother – fear of harm from close relatives, violent cult member ex-boyfriend and community – global intellectual impairment – female genital mutilation – in line of succession for hereditary position in traditional religious/social group – parents’ support – credibility and applicant’s responsibility to specify particulars and provide sufficient evidence – country information – some social stigma and discrimination but not to level of persecution or harm – unlikely to be forced to accept hereditary position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 5L, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816

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 Home Affairs on 27 November 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Nigeria, applied for the visas on 27 February 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nigeria, that there was a real risk the applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

3. The primary applicant appeared before the Tribunal on 22 May 2023 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s father, [Mr A].

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

   Refugee criteria

5. 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.

6. 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.

7. 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).

8. 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.

   Complementary protection criteria

9. 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

10. 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.

    Applicant’s identity and country of reference

11. [The first applicant] stated in her application for a protection visa that she was born on [Date] in Nigeria. She provided a copy of her Nigerian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts [the first applicant]’s identity.

12. [The secondary applicant] was born on [Date] in Australia. A copy of her Nigerian passport indicating she is a citizen of that country was provided to the Department at the time of application. As the application for a protection visa was refused, the Department did not determine whether [the second applicant] is a member of the family unit of [the first applicant]. At the time of decision [the second applicant] was not a member of the family unit of a non-citizen who holds a protection visa of the same class applied for in the application and who is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) and s 36(2)(aa) of the Act.

13. 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.

14. Based on the documents provided by the applicants and accepted by the Department, the Tribunal finds the applicants are citizens of Nigeria and as such their protection claim will be assessed against Nigeria as the country of reference and 'receiving country' respectively.

    Claims for protection

15. The applicants submitted their claims for protection when they made an application to the Department on 27 February 2019. The claims at the time of application were summarised in the Department’s reasons for decision dated 27 November 2019.

    ·     The applicant arrived in Australia with her parents on a [Specified] subclass visa.

    ·     The applicant will be harmed by close relatives, especially her uncle and aunty for bringing shame and disgrace to the family because she was pregnant outside of marriage. She will be the victim of an honour punishment and killing.

    ·     The applicant's relatives were not aware of her pregnancy.

    ·     The applicant fears if she returns to Nigeria her relatives will harm and kill her.

    ·     Becoming illegally pregnant is a crime in Nigeria and the applicant's relatives may assist in her being kidnapped.

    ·     The authorities are unable to provide her with continuous protection.

    ·     The applicant is unable to relocate with her daughter as her relatives would find her.

16. In written statements to the Department in 2019 [the first applicant] made additional claims that included the following: she was subjected to violence by her ex-boyfriend; her ex-boyfriend threatened that he would kill her after discovering she was pregnant; she was frightened to disclose her pregnancy to her family and relatives; her parents were angry when they found out she was pregnant; she fears family members would kill or harm her and her child due to shame and dishonour.

17. It was claimed that as a young, single, unmarried mother [the first applicant] will be harassed, ill-treated, and persecuted by her relatives, the Igbo and Nigerian community generally both Christian and Muslim; there is social stigma and unmarried mothers are subjected to sexual harassment and bullying; she left Nigeria as she feared her life and the life of her child were in danger; she would be considered an adulterer which attracts harsh punishment; her cognitive impairment may lead to emotional and mental distress and thoughts of suicide; she will not be able to obtain assistance for her mental health; she did not move because her father was appointed to [an employer] in Australia and her family would have traced her.

18. In written submissions to the Department it was also claimed [the first applicant]’s father’s family believe in female circumcision and she does not want it to happen to her, her daughter or her sister; Nigeria is corrupt and unsafe; she would not be able to obtain treatment for health conditions; she would have limited or no social support, security or housing; she does not have the ability to manage her affairs or move to another area; her relatives live in areas throughout Nigeria.

    Department interview

19. [The first applicant] attended an interview with the Department which the Tribunal has considered in this decision. Additional information at interview included the following: the applicant’s intellectual delay is due to a lack of oxygen at birth; she is not receiving any treatment or taking medication; if she needed to go to hospital in Nigeria she would not receive proper treatment; she had difficulty with her education and with teachers and students in Nigeria; she began a course at [Educational institution] but did not complete it; her father’s anger about her pregnancy means he does not speak to her due to the shame and dishonour; her father is a middle child in his family whose opinion is not considered.

20. [The first applicant] claimed her ex-boyfriend is part of a cult and can kill people; he once threw a knife at her; he has denied he is her daughter’s father; she fears her uncles will try to have her, her daughter and her sister undergo female circumcision; her mother is Igbo and the community adhere to traditions.

21. The mother of [the first applicant] gave evidence that [the first applicant]’s father fears facing his family because his daughter was pregnant outside marriage; he wanted to leave her in Nigeria to die but was persuaded to allow her to accompany the family to Australia; circumcision is undertaken at the time of marriage; in Nigeria [the first applicant] will not be accepted; [the first applicant]’s ex-boyfriend would not marry her and will reject the child; [the second applicant]’s birth certificate will need to be changed to include the ex-boyfriend as the father.

22. The Department received post-interview submissions that included further claims about [the first applicant]’s fears of returning to Nigeria. It was claimed she will be mistreated and killed either by her father’s family; the community or her ex-boyfriend’s [Mr B]’s family; her parents were chased with a machete when they attended the ex-boyfriend’s home; [Mr B] is descended from a royal family and his brother is a traditional ruler.

    Evidence at the hearing

23. The representative asked the Tribunal at the start of the hearing to be aware that [the first applicant] may answer questions slowly. It was also advised she has a sunny disposition, and her body language may not represent her feelings. The Tribunal had regard to this advice in conducting the hearing and allowed her father [Mr A] to also give evidence on [the first applicant]’s behalf.

24. [The first applicant] stated she came to Australia in 2016 with her parents and siblings when her father was transferred through his employment. Before leaving Nigeria, she had attended high school and just completed college. She was not working in her home country. In Australia [the first applicant] has casual employment in [Work sector 1]. She is single with one child. [The first applicant] said she applied for protection in 2019 and confirmed she understands the claims made.

25. The Tribunal asked [the first applicant] why she did not apply for protection when she first arrived in Australia. She stated she is a single mother with global intellectual delay, and she was subjected to domestic violence by her ex-boyfriend who is cultist. [The first applicant] claimed she is also applying for protection because she is afraid of female genital mutilation (FGM) for herself and her daughter. The Tribunal asked [the first applicant] again about not applying for protection in 2016. She said her brother passed away in 2018 and she was not concentrating at school. It was claimed she attended a counsellor who advised her to apply for protection because she was pregnant when she arrived in Australia. [The first applicant] continues to live with her family in a suburb of Canberra.

26. The representative submitted [the first applicant]’s claims are that she is a member of particular social groups. First, she is a single mother with global intellectual delay with a violent ex-boyfriend who is a cult member; second, she fears serious harm due to FGM; and third, she belongs to the Ahianjoku social group arising from hereditary membership, but she is a Christian and does not intend to comply.

27. [The first applicant] made submissions about her relationship with her child’s father. She said he was angry when told she was pregnant and threatened to kill her and the baby. It was claimed he would harm her because he is a cultist. She also referred to FGM which was said to be practiced by her father’s family.

28. [The first applicant]’s father [Mr A] gave evidence about his family background and claimed he was warned against having children out of wedlock. He stated he was a [Work sector 2 worker] working in [Job task] in Nigeria. He was appointed to a position in Australia for three years which was extended while a replacement was found. [Mr A] said he currently works in [Work sector 3] in Australia.

29. [Mr A] explained the circumstances of [the first applicant]’s pregnancy. He said he had not been aware of a boyfriend but wanted to know who the young man was. He said they themselves are pro-life. It was alleged [Mr A] was threatened with a machete by [the first applicant]’s ex-boyfriend, he is a cultist and would want to kill her and the child. He said the boy is from a royal family which is considered powerful. He said [the first applicant] told him the young man had threatened to kill her and baby and submitted his daughter is vulnerable and was subjected to violence in the past. The representative stated [the first applicant] would not be able to seek any assistance from her child’s father in Nigeria, and there are aspects of Nigerian law that require it.  He advised that [the first applicant]’s ex-boyfriend has a violent past and his profile as a cultist makes it more likely he will harm her.

30. [Mr A] said his family would seek to impose FGM and [the first applicant] would face being isolated. He said his granddaughter would be taken before a deity or idol and the local people would do whatever the idol deemed. [Mr A] disputed he had any prominence that would allow him to protect his family even though he had accepted his daughter and her child. He said it was barbaric cultural practice that he cannot do anything about.

31. [Mr A] claimed his daughter would be at risk of harm and would be socially isolated if she returned to Nigeria. The Tribunal put to [Mr A] that according to country information children born outside of wedlock have the same rights as any child. He said that may be the case in the West of Nigeria where he grew up but not in the villages. The representative said an unmarried mother is subjected to isolation and ridicule. He made the comparison between the situation in Nigeria as compared to Australia. The representative said if the family have to go back to Nigeria, they do not have a house, [Mr A] is retired, and his wife does not work so they would have to go back to the family home where there are traditional practices. It was claimed that if they did not, the family will be homeless. The Tribunal questioned why people in Nigeria would engage in unlawful behaviour against [Mr A]’s family. It was claimed practices such as FGM are cultural and like LGBTQ rights, everyone should have the same freedoms. The representative said law enforcement see it as cultural rather than unlawful.

32. The Tribunal asked [Mr A] who he believed would harm his daughter and granddaughter. He said it was not about a particular person, even if his family accept [the first applicant], there are kinsmen and extended family. It was claimed that a collective action would be taken. He said in Nigeria [the first applicant] would have to live with them in the village because he is retired and would have nowhere to live.

33. It was submitted there is social stigma associated with [the first applicant]’s developmental condition. It was also claimed she has mental health issues including depression. The Tribunal was referred to a psychologist report in that regard. The representative stated that if [the first applicant] goes back to Nigeria her mental harm will increase. He said Nigeria is suffering “brain drain” of health professionals so the likelihood of help for conditions would be difficult, increasing her exposure to harm. It was claimed [the first applicant] is at risk of serious harm due to her disability; the secondary applicant was born in Australia and only knows the way of life here; and both would be subjected to FGM in Nigeria where there are laws in place but not in practice. It was claimed any future marriage would also be an issue. The representative stated [the first applicant]’s daughter is identifiable due to her Australian accent and would be subjected to torture due to the high incidence of FGM which should not be tolerated by Australia where it is a crime.

34. The Tribunal discussed the Department’s decision where it was accepted [the first applicant] had a violent past relationship, and that she is a single unmarried mother with a child born out of wedlock, but it was not accepted that there was a real risk the applicants would suffer persecution if they returned to Nigeria. It was alleged the delegate did not consider [the first applicant]’s claims holistically including her global intellectual delay, single motherhood with a child out of wedlock and with a violent ex-boyfriend who is a cult member. Instead, it was claimed the assessment was fragmented which meant it did not reach the requisite level of harm.

35. Submissions were made that [the first applicant], like her mother, is in the line of succession for a priestess title in the Ahianjoku cult which she rejects. The representative claimed the Department had accepted the existence of that deity and accepted there are adherents of the cult. He said [the first applicant] only became aware of her history in 2021. In addition, the secondary applicant, who is only [Age], is not aware of it.

1. The applicant’s parents [Mr and Mrs A] made their own applications for protection in Australia and the Tribunal considered their submissions, particularly in relation to the Ahianjoku cult in assessing [the first applicant] and her daughter, the secondary applicants’ claims.

   Country information

2. The Tribunal has taken account of the DFAT Country Information Report - Nigeria, 3 December 2020, and other independent sources of information as relevant:

   Demography

   Nigeria is composed of over 250 ethnic groups (see also Race and Nationality). The Hausa, based predominantly in the north, is the largest, comprising 30 per cent of the population, followed by the Yoruba in the southwest (15.5 per cent), the Igbo in the southeast (15.2 per cent) and the Fulani in the north (6 per cent). English is the official language, although various constitutional articles also provide for the use of other national languages in official settings, including parliamentary business.

   Nigerians predominantly practise Islam and Christianity, with 51.6 per cent of the population identified as Muslim (majority Sunni) and 46.9 per cent identified as Christian. The population is broadly divided between a Muslim north and a Christian south, although there are communities of each located nationwide (see also Religion).

   Security situation

   While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.

   Long-standing tribal, religious, political and community disputes often lead to serious violence and unrest. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic or social grievances in 2019. The majority of these (2,758) occurred in northeastern Borno state, followed by Zamfara state (1,274) and Kaduna state (487), also in the north. Over half of these deaths were related to the Boko Haram insurgency, although deaths have occurred in all parts of the country. According to human rights observers, security forces have often responded to civil unrest with disproportionate force, causing fatalities.

   Igbo

   The Igbo people are the third largest ethnic group in Nigeria, constituting 15 per cent of the population. They originate from southeastern Nigeria and live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. The Igbo speak a number of Igbo dialects. They are predominantly Christian.

   There are no legal provisions targeting the Igbo population in Nigeria and the Igbo, like all Nigerians, are able to move freely within Nigeria. Many Igbo have migrated to other areas of Nigeria, including northern states. Like other non-indigenous communities, Igbo residing in these areas have occasionally faced discrimination from locals: in June 2017, for example, activists in the northern city of Kaduna called for the eviction of Igbo residing in the state. DFAT is not aware of any other significant cases in which Igbo have been specifically targeted for violence or exclusion due to their ethnicity.

   As noted in recent history, in 1967 predominantly Igbo separatists attempted to declare an independent state in eastern Nigeria, known as the Republic of Biafra. This was the catalyst for the Nigerian Civil War (otherwise known as the Biafran War) of 1967-70, which resulted in the separatists’ defeat. Senior Igbo figures have claimed successive Nigerian governments, including the Buhari administration, have subsequently excluded Igbo from senior political, military and civil service positions. A number of political organisations continue to advocate for an independent Biafran state and have occasionally clashed with security authorities.

   DFAT assesses Igbo are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria. Like other non-indigenous communities, Igbo residing outside of their traditional homeland may face localised discrimination.

   Unmarried mothers

   Even though single parenting is becoming more common in Nigeria,[1]  there is a negative perception of being a single mother,[2]  particularly in the context of a religious family and/or community (Christians and Muslims).[3] More broadly, Nigeria is a highly patriarchal society where violence and gender-based discrimination (sexual, physical, psychological, traditional practices, socioeconomic) is frequently experienced by women.[4] In particular, unmarried women, with or without children, face many forms of discrimination.[5]Authors of a July 2012 journal article claim that there is a perception that if a woman lives alone, she would often face notoriety as being a harlot and promiscuous. Extramarital pregnancy is often met with public ridicule.[6]

   [1]  ‘The Social and Religious Challenges of Single Mothers in Nigeria', A M Essien and A A Bassey, American

   [2] ‘Community Perception of Single Parenting in Zaria, Northern Nigeria', E Anyebe, H Lawal, R Dodo, B R Adeniyi, Journal of Nursing and Care, volume 6, issue 4, July 2017, p.1.

   [3] Ibid.

   [4] ‘DFAT Country Information Report Nigeria', Department of Foreign Affairs and Trade (Australia), 3 Dec 2020.

   [5] Country Report on Human Rights Practices for 2018 - Nigeria ', US Department of State, 14 March 2019, p.48.

   [6]  ‘The Social and Religious Challenges of Single Mothers in Nigeria', A M Essien and A A Bassey, American Journal of Social Issues and Humanities, volume 6, number 4, July 2012, p.245-248.

   One of the most significant problems a single mother faces is poverty due to the lack of income. A 2018 journal article indicates that women have a lower income, inadequate access to public assistance, and face cultural discrimination.[7] According to credible reports, many businesses implemented a ‘get pregnant, get fired’ policy.[8] A 2017 EASO report on Nigeria states that if a woman is widowed, she may face violence from her husband’s family, particularly if she is blamed for his death. The couple’s children may experience both verbal and physical abuse, or the ‘relatives may demand that they participate in cultural practices to prove their innocence in relation to the husband’s death’. There is a higher occurrence of maltreatment of widows among the Christians, particularly Catholic, compared to other religious groups.[9]

   [7] 'Entrepreneurial Empowerment of Single Mothers in Ekiti State, Nigeria', Journal of Research and Method in Education, 31 January 2018, p.1.

   [8] Country Report on Human Rights Practices for 2018 - Nigeria', US Department of State, 14 March 2019, p.48.

   [9] ‘Country Focus Nigeria', European Asylum Support Office (EASO), 2 June 2017, p.34.

   Whilst according to DFAT women in Nigeria are generally marginalised, a woman is further marginalised based on her status as a single mother. Although no law prohibits women from owning land, customary land tenure systems only allow men to own the land. As such, women can only gain access to the land via family or marriage. Women also face discrimination in employment due to both religious and traditional practices.[10] In the July 2012 journal article, a businesswoman discusses single motherhood stating that ‘for the Igbo, I don’t think it is part of their culture’. Single motherhood can be ‘seen as a curse rather than a blessing. It is often attributed to ill luck; spell or witchcraft, especially when one passes the expected ‘marriageable age’’.[11]

   [10] ‘Country Report on Human Rights Practices for 2018 - Nigeria ' US Department of State, 14 March 2019, p.35.

   [11] The Social and Religious Challenges of Single Mothers in Nigeria', A M Essien and A A Bassey, American Journal of Social Issues and Humanities, volume 1, number 4 July 2012, p.245.

   Religion

   While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians.

   Ahia Njoku

   No information was found specifically stating members of the Igbo community are required to serve Ahia Njoku. General information was found in relation to customs and practices for the worship of Ahia Njoku within the indigenous religious system of the Igbo.

   Indigenous religious practices regarding worship of Ahia Njoku[12] vary from tribe to tribe.[13]
   Yam is a staple food of Igbo-land that is highly revered, consequently occupying a sacred position within Igbo communities.[14] Some Igbo tribes dedicated children to the service of Ahia Njoku and these children were known as Njoku.[15] As adults, these children were expected to become prosperous yam farmers and the Igbo community held them in high revere, considering them as ‘nobility’.[16] Sources did not mention how these children were selected to take up the mantle of Njoku/Nmaji.

   [12] Ahia Njoku also known as Ahiajoku, Ifejioku, Uhianjoku, Aha Njoku, Ahia-ji Oku and Njoku Ji, is a God/Goddess of agriculture, and in particular the yam. The Igbo Pantheon: A Hermeneutic of Selected Igbo African Deities', Prof. Kanu Ikechukwu Anthony, O.S.A., Department of Philosophy and Religious Studies Tansian University, August 2018, pp. 9-10, 20220707142957; and 'Towards an Understanding of Igbo Traditional Religious Life and Philosophy', Emmanuel Nlenanya Onwu, 1 January 2002, CIS0F8D958461 'Nigerian History: The Forgotten Gods of Igbo Culture', Isaac Ogbodo, Medium, 29 November 2019, 20220708150102.

   [13] The Igbo community are located predominantly in the south-eastern part of Nigeria and consists of five states that are known as core Igbo-speaking states: Imo, Enugu, Ebonyi, Anambra and Abia. Igbo people are also located in the Nigerian states of: Delta, Rivers, Bayelsa and Akwa Ibom. Conflicts Between African Traditional Religion and Christianity in Eastern Nigeria: The Igbo Example, Vol. 7, Iss. 2, SAGE Open Publications, 31 March 2017, p. 1, 20220708091955.

   [14] 'Cultural Reconstruction of Iwa Ji Festival in Igbo-Ukwu, and Fractured Igbo Identity', Francesca C. Ukpokolo, Obiageli C. Okoye, and Olatunde B. Lawuyi, University of Ibadan, 10 May 2018, p. 152, 20220711145647

   [15] 'Njoku Ji; The Guardian Deity Of Yams And One Of The Forgotten Deities Of Igbo Land', N Opera News (Nigeria), January 2022, 20220707150351 and 'The myth of Ahiajoku – originator of the New yam festival', Woke Nation TV, 30 September 2021, 20220707151902.

   [16] 'Njoku Ji; The Guardian Deity Of Yams And One Of The Forgotten Deities Of Igbo Land', N Opera News (Nigeria), January 2022, 20220707150351 and 'The myth of Ahiajoku – originator of the New yam festival', Woke Nation TV, 30 September 2021, 20220707151902.

   The worship of Ahia Njoku is part of a traditional religion system which is orally transmitted to
   subsequent generations. Consequently, it has been widely diffused among its adherents. Igbo
   indigenous religion links the living with the ancestors and those yet to be born in a mystic continuum. Within the traditional religious beliefs of the Igbo there is a high degree of ritualisation which includes the officiating of elders, kings, priests (such as chief and fetish priests) and diviners.[17]

   [17] Conflicts Between African Traditional Religion and Christianity in Eastern Nigeria: The Igbo Example, Vol. 7, Iss. 2, SAGE Open Publications, 31 March 2017, p. 2, 20220708091955

   No information was located which specifically stated consequences for people who refused to take up the mantle of becoming Nmaji/Njoku. No information was found relating to devotees of Ahia Njoku engaging in violence against people unwilling to be involved or opposed to serving the deity.

   In a dated 2010 response the Immigration and Refugee Board of Canada provided information relating to a person who refuses a chief priest or fetish priest position which they have been selected for. A Professor of History at the African Studies Centre (ASC) provided the following information regarding respect and fear of fetish/shrine priests.

   …the ASC Professor stated that in rural communities, local shrines are influential and community
   members ‘respect and even fear’ the shrine priest. The ASC Professor said that local shrines serve as informal arbitrators of justice, particularly given that Nigeria’s criminal justice system is ‘not functioning’. Similarly, the Professor wrote that shrines are ‘not really religious institutions’ but rather ‘legal institutions,’ adding they are becoming more influential as Nigeria’s criminal justice system ‘deteriorates’.

   The ASC professor expressed the view that it would not be considered an offence against the shrine for someone to refuse the role of chief priest or fetish priest. The ASC Professor stated that he had never heard of the priesthood being forced on anyone in Nigeria. The shrine would want a successor who had the interest in and aptitude for the role, in the opinion of the ASC Professor. The successor would also likely be initiated at a young age. A University of London Professor said that his research indicates that there are no consequences for someone who refuses a position of chief priest or fetish priest. [18]

   Female Genital Mutilation/Cutting (FGM/C)

   According to the World Health Organization (WHO), female genital mutilation/cutting (FGM/C) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. The practice is mostly carried out by traditional circumcisers, who often play other central roles in communities, such as attending childbirths. In many settings, health care providers perform FGM/C due to the belief the procedure is safer when medicalised.

   Although illegal and in decline, FGM/C continues to be practised in Nigeria. According to a National Bureau of Statistics/UNICEF report published in February 2018, over 18 per cent of women aged 15-49 years had undergone some form of FGM/C, compared to almost 25 per cent in 2013 and 27 per cent in 2011. The report also found 82 per cent of those who had undergone FGM/C had done so before the age of five. Although FGM/C is more common in the southern, predominantly Christian regions, it is practised within both Christian and Muslim communities. The highest FGM/C prevalence rates are in the southeast and southwest (33 and 41 per cent respectively) and the lowest prevalence rate is in the northeast (1 per cent). FGM/C prevalence varies considerably between ethnic groups: whereas prevalence among Yoruba and Igbo women is 45 per cent and 29 per cent respectively, it is 14 per cent for both Hausa and Fulani women and 9 per cent across all other ethnic groups. The practice is virtually unknown among Igala and Tiv women, who mostly live in the south and central belt of the country.

   The VAPP Act prohibits FGM/C, making it a federal offence. It penalises a person convicted of performing female circumcision or genital mutilation with a maximum of four years in prison, a fine of 200,000 naira (AUD635), or both. It punishes anyone convicted of aiding or abetting such a person with a maximum of two years’ imprisonment, a fine of 100,000 naira (AUD369), or both. As noted in the previous section, however, the VAPP Act automatically applies within the FCT, but must be passed separately in each state. DFAT understands only 13 states have implemented the VAPP Act to date.

   Cultural and societal norms support the continuation of FGM/C in Nigeria. Cultural attitudes behind the practice of FGM/C include notions of cleanliness or hygiene; prevention of promiscuity; enhancing fertility; marriage prospects and fidelity; fulfilled womanhood; and/or the idea that it protects babies during childbirth. Girls may be ostracised, shunned or assaulted by their family or community if they have not undergone FGM/C.

   Several international and local NGOs work to reduce the practice of FGM/C in Nigeria, including the WHO, UNICEF and the African Union. The capacity of the government to provide effective protection is limited in some parts of the country, in particular in Borno, Adamawa, Yobe, Plateau, Benue, Nasarawa, Taraba and Zamfara states. As family members are often the perpetrators, reporting rates for FGM/C are low. There are no reports that FGM/C has occurred without the consent of parents. International observers report there have not been any prosecutions in relation to FGM/C to date.[19]

   [18] NGA103485.E: Nigeria: Consequences for a person to refuse a chief priest or fetish priest position for which they have been selected in south and central Nigeria', Canadian IRB: Immigration and Refugee Board of Canada, Immigration and Refugee Board of Canada, 6 July 2010, 2256.

   [19] DFAT Country Information Report Nigeria', Department of Foreign Affairs and Trade (Australia), 3 Dec 2020.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Analysis

3. The Tribunal is inquisitorial and can seek out evidence it requires to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

4. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[20] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[21] This is consistent with the established proposition that it is for the applicant to make his or her own case.[22]

   [20] Section 5AAA of the Act.

   [21] Ibid (with effect from 14 April 2015).

   [22] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

5. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

6. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[23] In this regard, the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[24] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the Court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

   [23] Fox v Percy (2003) 214 CLR 118

   [24] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

1. The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[25] A similar approach is taken in the Department’s Refugee Law Guidelines[26] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[27] which provides useful guidance for this Tribunal.

   [25] SZLVZ v MIAC [2008] FCA 1816 at [25].

   [26] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).

   [27] UNHCR, re-issued February 2019 at [203]–[204].

2. The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to Nigeria  they would be persecuted for one of those reasons. If not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

4. [The first applicant] claims she has a well-founded fear of persecution because of her membership of particular social groups. It is claimed [the first applicant] is a single mother whose former boyfriend, her child’s father and his family would want to harm her if she returned to Nigeria; she fears harm from her own father’s family due to her status as an unmarried mother and because they would force her to undergo FGM; and she is a Christian who rejects the Ahianjoku traditional cult which she is said to be associated through hereditary succession. [The first applicant] claims her daughter, the secondary applicant in this case would be persecuted for the same reasons.

5. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal accepts [the first applicant] is a member of particular social group, those being an unmarried mother with a child out of wedlock, a woman who had a violent relationship with an ex-boyfriend who has rejected her child, and as a person with a level of intellectual impairment.

6. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

7. The Tribunal considered [the first applicant]’s overall profile in assessing whether she holds a fear of being persecuted and whether there is a real chance she and [the second applicant] would be persecuted if they returned to Nigeria. In doing so, the Tribunal weighed each of [the first applicant]’s claims and made its findings based on her circumstances as a whole.

   Abusive ex-boyfriend

8. The Tribunal is satisfied [the first applicant] has a subjective fear of harm if she returns to Nigeria because of past experiences with her ex-boyfriend. Although it is accepted [the first applicant] may have experienced abuse by her child’s father, the Tribunal does not accept that objectively [the first applicant]’s ex-boyfriend or his family would want to harm her or her daughter [the second applicant], or that they would attempt to do so. According to the evidence, the ex-boyfriend rejected [the first applicant] when he learnt she was pregnant and has not had any involvement with her or [the secondary applicant]. It was claimed the ex-boyfriend is a cult member and descended from royalty which gives him and his family status and importance in Nigeria. Nevertheless, [the second applicant] was born in Australia and is now [Age] years old. She had not met her father or his family and there is no reason she would have to in future. It was claimed there are matters in Nigeria that would require the input of a child’s father but the details of any such requirements were vague. A lack of recognition or input from a child’s father does not amount to persecution of the mother or child. It was also claimed [the first applicant] would not be able to claim any kind of support from [the second applicant]’s biological father, which may be the case, but it would be a continuation of the current situation since the family have been living in Australia.

   Regarding claims [the first applicant]’s ex-boyfriend would seek to harm her and [the second applicant] because he is a cultist and has a royal background, the Tribunal is not persuaded this is likely to occur for the reasons claimed or for any other reason. Country information indicates many confraternities or cults in Nigeria involve acts of violence and operate essentially like criminal gangs. DFAT reports the involvement of cults in poorer areas, and in the political arena such as members being co-opted to support political rallies. It is also reported cult violence occasionally results in the death of cult members, and cult members have assaulted individuals who attempt to leave.[28] [The first applicant] has not been, and would not in future, be involved with her ex-boyfriend or the cult he is said to belong to. There is no evidence before the Tribunal to support the claim that [the first applicant]’s ex-boyfriend would seek to harm her or [the second applicant] due to his involvement in a cult or because of his descent from an important family and the Tribunal is not satisfied they are at real risk of harm from him, or anyone associate with him.

   Single, unmarried mother

   [28] DFAT Country Information Report – Nigeria 3 December 2020.

9. The Tribunal accepts [the first applicant] became pregnant by her ex-boyfriend with whom she had an abusive former relationship and that he and his family rejected her and refused to acknowledge the baby. It is also accepted the ex-boyfriend was hostile and threatening to [the first applicant] and her family. Nevertheless, the evidence indicates [the first applicant]’s own family, particularly her father were for some time very angry with her and had difficulty reconciling themselves to the fact she was an unmarried mother whose child was born out of wedlock.

10. The Tribunal notes that in evidence to the Department, [the first applicant] and her mother claimed [the first applicant]’s father told her that had she not travelled to Australia the family in Nigeria would have killed her and her daughter. She also heard from her father repeatedly that his family, including her uncles and other relatives will kill her and her daughter, and they will cast them into an “evil forest”. [The first applicant] was allegedly told the entire family and village will deal with her according to their customs and traditions. Evidence was also submitted that due to the extent of her father’s anger [about her pregnancy] [the first applicant] reported the matter to her counsellor at school. This resulted in child protection officials being informed and sent to visit the family home.

11. [Mr A]’s evidence at the Tribunal hearing was that he feared his family, his kinsmen or community members would in fact harm his daughter and granddaughter and that he would be powerless to protect her. However, the evidence indicates the hostility and threats have emanated largely from [Mr A]. There was no evidence presented that there have been actual threats made to [the first applicant] or her daughter by anyone other than him. [Mr A] said he grew up knowing that having a child out of wedlock should not occur, and he described how he was met with anger and rejection when he attempted to communicate with [the first applicant]’s former boyfriend and his family. It was clear to him that the father of [the first applicant]’s child would not marry her, nor would he acknowledge his parentage of [the second applicant]. Based on evidence at the hearing, and the fact the family have continued to live together in Australia, it is apparent [Mr A] supports his daughter more fully than in the past. It appears however that his past anger and threats have instilled a level of fear in [the first applicant] about her status as an unmarried mother and what may happen if she returns to Nigeria. For this reason, the Tribunal is satisfied [the first applicant] holds a subjective fear of harm to herself and her daughter if she returns to Nigeria.

12. Based on country information, the Tribunal accepts [the applicants] may experience some discrimination in Nigeria due to [the first applicant]’s unmarried mother status and the associated social stigma.[29] However, the Tribunal is not satisfied there is a real chance [the first applicant] will be persecuted amounting to serious harm because she has a child and is not married. [The first applicant]’s family have accepted their daughter and granddaughter, and they continue to support them socially and practically by providing accommodation and care. The Tribunal is satisfied [Mr and Mrs A] will continue to support [the applicants] as they have done while in Australia.

    Global intellectual delay

    [29] ‘Single Motherhood: Experiences of Never Married Women in Lagos, Nigeria’, Adejoh, Kuteyi, Ogunsola, Adeoye, The Nigerian Journal of Sociology and Anthropology 17(2): 100-112.

13. Based on the evidence provided, the Tribunal accepts the applicant has global intellectual delay. While this may impact her learning potential, she has nevertheless been able to attend school and gain a level of education. According to the evidence, [the first applicant] has previously worked in a [Workplace] and has also been able to secure employment in [Work sector 1]. This indicates an ability to be productive and earn an income, albeit by continuing to live with and receive support from her parents. The Tribunal was advised by the representative at the hearing that [the first applicant] may respond to questions slowly and had an overall “sunny disposition” which may not correspond to her true feelings. While it was apparent [the first applicant] is relatively passive and deferred to her father during the hearing, the Tribunal observed that she was able to answer questions appropriately, use relatively sophisticated language and understand the proceedings. As found by the Department delegate, the Tribunal is satisfied [the first applicant] would be able to work in a vocational area in her home country as she has in Australia.

14. The representative submitted there is a lack of health professionals in Nigeria and [the first applicant] would not be able to access adequate health care should she require any treatment there. There is no evidence she requires any ongoing medical treatment but if she did need to access a doctor or mental health professional in future, she would have the same rights to do so as any other Nigerian citizen. In the refugee context, persecution involves systematic and discriminatory conduct. Difficulty accessing health care by an individual for economic reasons or due to a lack of facilities does not amount to persecution of that individual.

    FGM

15. The applicants’ claims include fears that they could be forced to undergo FGM if they return to Nigeria, particularly by [Mr A]’s family, and that it will be expected if they intend to marry in future. The Tribunal notes that FGM is illegal in Nigeria and in decline but continues to be practiced. Amongst the Igbo ethnic group, UNICEF reports that the prevalence of FGM is 29% of that population. This means by far the majority of Igbo women do not undergo FGM. Amongst those groups in Nigeria who continue to support the practice for social or cultural reasons, it is reported girls who have not undergone FGM may be ostracised, shunned, or assaulted by their family or community.

16. During the hearing the representative claimed that if the family have to return to Nigeria, they do not have a house anymore and to avoid being homeless, they will have to live with extended family and be subjected to traditional practices. [Mr A] was said to be retired and his wife does not work. It was claimed practices such as FGM are cultural but like other types of human rights, everyone should have the same freedoms. This and the evidence of [Mr A] indicated [the first applicant]’s parents do not support FGM and would not be in favour of it being imposed on [the first applicant] or her daughter. DFAT country information states there are no reports that FGM has occurred without the consent of parents.

17. The Tribunal nevertheless considered the evidence regarding the prevalence of FGM and the family circumstances of [the applicants]. It is noted [the first applicant]’s father [Mr A] is an educated and resourceful individual who worked as a professional in a [Work sector 2] position which included an overseas [position in] Australia. He has been able to find employment in Australia after leaving his role with [Employer 1] and continue to support his family. [Mrs A] was also a [Work sector 2] employee and worked in [a certain] role for more than 30 years. Although [Mr A] stated he is retired, he also declared he is currently working in [Work sector 3]. While the applicants may face some financial difficulty if they return to Nigeria, the Tribunal is not satisfied they would have no option but to live in a village with family members who may wish to harm them. The evidence indicates [Mr A] does not support FGM, but he claimed he would be powerless to protect his daughter and granddaughter. The Tribunal does not accept is the case, and given his background, the Tribunal is not satisfied any extended family, kinsmen or community members would be able to force their will upon him such that he would acquiesce and agree to [the applicants] undergoing FGM.  

18. For these reasons, the Tribunal is not satisfied there is a real chance [the first applicant], or her daughter would be persecuted and suffer serious harm due to the infliction of the traditional practice of FGM if they returned to Nigeria.

    Ahianjoku

19. [The first applicant]’s parents [Mr and Mrs A] made claims in their own protection visa applications that [Mrs A] is descended from a traditional village yam cult and despite growing up in Lagos, she was expected to take up a primary role as a priestess following the death of her mother. It was further claimed that in 2021, [the first applicant] was informed that the same was expected of her and would also be expected of her daughter [the second applicant]. This was said to be because of the herititary nature of membership with the Ahianjoku.

20. As part of an assessment of [Mrs A]’s claims, the Tribunal considered the background of [Mr and Mrs A] and their circumstances in Nigeria. Their evidence was that [Mrs A] lived in Lagos with her aunt from the age of [age], she attended school and in [specified Decade], she earned several [certificates]. She was appointed to a position in [Employer 2] in 1981 and according to a retirement letter, was employed [for] [Number] years. [Mr A] worked for [Employer 3] in Nigeria and secured an overseas [position in] Australia in 2016. The Tribunal found that the lives and work history of [Mr and Mrs A] suggested a mainstream, professional existence and was not consistent with the background of a person who is destined for a village life as a priestess with the Ahianjoku. It was claimed [Ms A]’s aunt was trusted to care for her in Lagos during her childhood despite her alleged inherited role as a priestess which the Tribunal did not find to be credible. The Tribunal found [Mrs A]’s upbringing and life in Nigeria raised doubt that it was ever intended for her to inherit a significant role in the Ahianjoku cult or that she would be expected to fulfil such a role in future.

21. The limited information available to the Tribunal about the Ahianjoku indicated it would not be considered an offence for a person to refuse the role of priest or priestess. This is because a successor who had an interest in and aptitude for the role would be preferred. Research academics suggest any successor would likely be initiated at a young age and there are no known consequences for someone who refuses a position of chief priest or fetish priest. In the case of [Mr and Mrs A], the Tribunal preferred the information available from reliable academic sources to that offered by the applicants which, it was considered, was provided to bolster claims for protection in Australia. As the Tribunal did not accept [the first applicant]’s mother [Mrs A] is expected to assume a role as a priestess in the Ahianjoku cult and that she may be harmed in Nigeria if she continues to refuse, the Tribunal is not satisfied [the first applicant] or [the second applicant] will be expected to play a part in a cult that they have had no involvement in, and would likely be unwilling to participate in in future.

    The secondary applicant

22. The Tribunal is not satisfied [the first applicant] will be persecuted if she returns to Nigeria, nor is it persuaded [the second applicant] will be persecuted or harmed because she was born out of wedlock, she would be subjected to FGM, or because of a family association with a traditional cult. [The second applicant] will continue to have the care of her mother and although she was born in Australia, she has lived with and been brought up by her Nigerian family who also support her and have been instrumental in raising her. This arrangement, that has been in place in Australia, could continue in the applicants’ home country.

23. For these reasons, the Tribunal is not satisfied the applicants meet the refugee criteria in s 36(2)(a) of the Act.

    Assessment - complementary protection

24. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

25. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[30] The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

    [30] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]

1. The applicants did not specifically claim that they are at risk of being arbitrarily deprived of their lives; or that the death penalty will be carried out. [The first applicant] has claimed she fears she and her daughter would be killed or seriously harmed by her ex-boyfriend who belongs to a cult and has a royal heritage, or by her father’s extended family who will be shamed by her having a child out of wedlock and not being married, and would want her to undergo FGM, or by members of the Ahianjoku cult due to her being perceived as a future priestess.

2. In assessing the evidence in this regard, the Tribunal considered whether there is a real and personal risk to the applicants. It was not claimed that either applicant would be killed by the state. Where the threat is from non-state actors, the Tribunal must first be satisfied that there are extremely widespread conditions of violence and second, that there is a particular risk to the individual in question.[31] Independent country information does not support the claims made that young women with a profile such as [the first applicant] are at risk of being killed or that illegitimate children will be killed or harmed because of their status. As outlined in this decision, the Tribunal does not accept the primary applicant [the first applicant] and her daughter [the second applicant] will be subjected to serious harm by her ex-boyfriend, his family, her extended family members, kinsmen, or the community. Although it is accepted [the first applicant] may be subjected to a level of discrimination and social disapproval due to her status as an unmarried mother, the Tribunal is not satisfied there is a particular risk of harm to her in this case or that she is at any greater risk of harm than other women in Nigeria.

   [31] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.1 (generally) and 3.4.1.2, as re-issued 29 February 2020.

3. Based on the evidence provided by [Mr and Mrs A], the Tribunal was not satisfied [the first applicant] or [the second applicant] would suffer serious harm because they would be expected to assume a role in a traditional cult against their wishes as Christians. The Tribunal did not accept [Mrs A] had a life and background in Nigeria that was consistent with the claims made. The Tribunal did not find the applicants’ claims that they would suffer harm because they will have an unavoidable hereditary role to play in the Ahianjoku cult to be credible. 

4. The Tribunal has found that [the first applicant]’s parents do not support FGM and for this reason, they would not agree to the practice being imposed on their daughter or granddaughter. The Tribunal is satisfied they would not allow any other party to do so and would be unlikely to put themselves in the vicinity of people who may expect the traditional practice to be carried out on [Mr A]’s daughters or granddaughter. Therefore, the Tribunal does not accept there is real risk the applicants will suffer torture in the form of forced FGM if they return to Nigeria.

5. For the reasons given above the Tribunal is not satisfied that either of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.

6. There is no suggestion that the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).

   DECISION

7. The Tribunal affirms the decision not to grant the applicants protection visas.

   Wendy Banfield
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

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

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   
   

Journal of Social Issues and Humanities, volume 6, number 4, 1 July 2012, p.247; Community
Perception of Single Parenting in Zaria, Northern Nigeria', E Anyebe, H Lawal, R Dodo, B R Adeniyi, Journal of
Nursing and Care, volume 6, issue 4, July 2017, p.1.