2003868 (Refugee)
[2022] AATA 4423
•9 November 2022
2003868 (Refugee) [2022] AATA 4423 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Paul OConnor (MARN: 0854511)
CASE NUMBER: 2003868
COUNTRY OF REFERENCE: Nigeria
MEMBER:Peter Vlahos
DATE:9 November 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 9th November 2022 at 9.55AM
CATCHWORDS
REFUGEE – protection visa – Nigeria – ethnicity and political opinion – Igbo and official of Biafran separatist party – home raided, applicant assaulted and injured, arrested and tortured – employment terminated and arrest warrant issued – credibility – political activities and profile overstated – previous international travel and return – employment with government agency – duties and profile overstated – selected to represent government at international event and allowed to depart without question – country information – not necessary to consider treaty right to enter other countries – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (3), (5A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nigeria, applied for the visa on 1 July 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant faced a real chance of serious harm or a real risk of significant harm on the basis of his claimed political profile and Igbo ethnicity.
The applicant appeared before the Tribunal on 12 October 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person to who Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [Date] in the Nigerian state of Enugu.
A copy of the applicant’s bio-data page of his Nigerian passport and Nigerian birth certificate as evidence of his identity was provided to the Department and can be found on the Department File [Reference number].
Prior to arriving in Australia on [date] June 2016, the applicant travelled and resided in [Country] for study purposes in June 2014 to October 2015before returning to Nigeria.
The applicant was granted a Class FA Subclass 600 Tourist visa on 17 May 2017 and arrived in Australia on this visa. The applicant has not departed Australia since his arrival. The applicant applied for a Class XA Subclass 866 Protection visa on 1 July 2016, prior to the expiry of his Tourist visa on 19 September 2016.
The applicant provided a document titled ‘My Statement’ which was submitted with his protection application form. In summary, the applicant’s claims were:
§The applicant is from the Igbo people and the Igbo have continuously marginalised by the Hausa and Yoruba ethnic groups.
§The continuous marginalisation of the Igbo people forced the applicant to take an active role in fighting for the independence of the Igbo.
§The applicant was the [Official 1] for the Igbo Youth forum in 2010 which soon merged with the “Movement for the Actualisation of the Sovereign State of Biafra” (MASSOB) where the applicant acted as [Official position 2]. MASSOB seeks to achieve freedom of the Biafra people via road shows and civil disobidence.
- [In] April 2016, the applicant’s residence at [Street] was ransacked by the [Suburb] police. The applicant believed that the police were looking for documents and written evidence of his involvement in MASSOB independence movement. The police did not have a warrant and they entered his residence by force. The applicant reported this invasion of his privacy to the Commissioner of Police, but nothing resulted, and the Commissioner claimed that he has been unable to find the perpetrators.
- [In] May 2016, after a meeting of the regional executive meeting at Onitsha, the applicant and others were approached by another member of the executive who was first to leave who informed them that police were heading in their direction and that group should try to allude them. As the group tried to disperse the police had already surrounded the area. The police then commenced hitting and kicking the group. The applicant approached the leader of the police to plead with them to stop this violence. The applicant was assaulted and beaten until he lost consciousness. The applicant was left to die but was lucky to be taken to hospital by ‘unknown good Samaritans’, after the police had left.
- On 30 May 2016, the applicant recalled that [A] (the [Official position 3]) and [Ms B] were leading a peace procession to commemorate the 49th Anniversary of the Declaration of Independence of the now defunct Biafran Republic by the late warlord, Odumegwu Ojukwu. The applicant recalled the Nigerian army and police opened fire on the applicant and others and 30 members of the association lost their life including [Ms B]. While 50 persons were arrested and sent to an unknown destination, others were seriously injured and some seriously wounded members were taken to a hospital in Nkpor, near Onitsha, but were refused medical assistance by order of the “government killer machine.”
- On [date] June 2016, the applicant was arrested on his way to work. The applicant was blindfolded and transported to an unknown destination where he was tortured. The applicant said that he was asked to publicly denounce his membership of MASSOB and to drop all the legal cases that he had filed in the courts on behalf of MASSOB. The applicant also recalled that the authorities wanted to know the whereabouts of the key members of MASSSOB. On that occasion the applicant was released after the intervention of a civil liberties group.
Organisation.
- On [date] June 2016, the applicant was among the 30 executive members of MASSOB who signed a petition against the torture, harm, and genocide that the government of Nigeria was committing.
- On [date] June 2016 the applicant left Nigeria to attend [an event] in Australia but was advised by his director when he arrived in Australia that his appointment to the Ministry had been terminated and there was a warrant for the applicant’s arrest – “alive or dead.”
- On 25 June 2016, the applicant’s wife advised the applicant that she feared for her life and that she had noticed that she was under surveillance.
- The applicant believes that relocation within Nigeria is not an option for him because the authorities will recognise him.
In his application, the applicant stated that he was a Christian, of the Igbo ethnicity and had completed up to university level education in [Subject 1] in Nigeria and further studies in [Subject 2] in [Country]. The applicant said that he was [an Occupation 1] and that he could speak, read, and write in the Igbo and English languages.
The applicant stated that his family was composed of his wife, child (through adoption), mother and brother who all reside in Nigeria. His father is deceased.
In a Statutory Declaration made on 15 August 2022, the applicant stated that the following as claims:
·The applicant grew up in the south-eastern part of Nigeria with Biafran (Igbo) parents. From childhood, his parents and grandad narrated the events of the Nigerian Biafran war. As the applicant grew up, he began to understand their painful emotions, as he lived the realities of the Igbo people still wanting independence and their marginalisation ranging from government appointments to allocation of funds for infrastructure development.
·Fulani herdsmen and the Boko Haram terrorist group target mainly Igbo settlements. The Fulani herdsmen go to people’s farms and let their cows feed on people’s crops, hence destroying their farms. When the farm owners ask them to leave, they get butchered. Boko Haram bomb churches and settlements, and the government supported these organisations, with the President calling them “our Misguided brothers”.
·Many people known by the applicant’s family were killed by the Fulani herdsmen and the Boko Haram terrorist group. The applicant and his family have all experienced harm from the government, denied rights and health care. The applicant felt angry at his experiences and felt a growing responsibility to ‘fix this’.
·The applicant decided to take an active role in fighting for the independence of the Igbo. The applicant joined the Igbo youth’s forum in 2010. This group acted as a pressure group on government to make them respond favourably to the needs of the Igbo people.
·In 2010, the applicant became ‘[Official 1]’ of the association which merged with the ‘Movement for the Actualisation of the Sovereign State of Biafra’ (MASSOB). This organisation was founded by Ralph Uwazuruike. MASSOB promotes a non-violent resistance against the Nigerian authorities.
·The applicant attended meetings, rallies and activities which had him moving from one state to the other, aiming to educate the Igbo on the need to put pressure on the government to recognise the Igbo as an independent state.
·As MASSOB increased its membership, some other groups started forming within the organisation. The Indigenous People of Biafra (IPOB) emerged in 2012. IPOB emerged with the aim to continue the movement that had been led by MASSOB.
·MASSOB ran two rallies a week. This routine occurred between 2007 and 2011while the applicant was studying [at] university.
·After the applicant graduated from [Subject 1] school, the applicant undertook his ‘mandatory one-year national youth Corp programme’. This was work experience for graduates to enable them to gain work experience in various areas. The applicant was posted to [Ministry 1] in Enugu state.
·After the applicant completed his compulsory service in [Year], he went to [Country] to study for a Masters degree and having completed this, he returned to Nigeria in 2015 where the applicant began working for [Ministry 2]. The applicant was appointed to the position of [Job roles] on [Job function]. The applicant at the same time established his [Self-employment]. The applicant also maintained his involvement with MASSOB and was appointed the ‘[Official position 2]’ of the Enugu Branch.
·Biafra became part of Nigeria after the war which commenced in 1967 and ended in 1970. Biafra lost the war to Nigeria and was incorporated as a part of the Nigerian state. The Igbo people lived with persecution since 1970 until today.
·The leader of MASSOB was a Nigerian, Ralph Uwazuruike, who adopted the principle of non-violence.
·In 2011, the applicant was arrested alongside Ralph Uwazuruike at a local event which had been held to honour one of the Igbo people’s leaders. Those arrested were later freed on the orders from the President.
·As protests increased, the MASSOB gained more supporters and the government tried to silence it and as the [Official position 2], the applicant became a target of the authorities. [In] April 2016 the applicant’s house was ransacked while the applicant was at work by the [Suburb] Police force.
·The purpose for the ‘ransacking’ was for the police to locate documents and written evidence. The police did not have a warrant. The incident was reported to the Commissioner of Police, but the police claimed they were unable to find the perpetrators.
·As the protests continued, the harm increased and members were injured, disappeared, or were killed. [In] May 2016, after the holding of a regional executive meeting which was held at Onitsha, the executive was approached by a member of the executive and were told to disperse because the police were about to intervene with the use of force. As the assembled were dispersing, the police approached and began hitting the assembled. The applicant approached the leader of the [Police] to plead with him to stop the violence. The applicant was beaten and left for dead. The applicant’s life was saved by the intervention of unknown ‘good Samaritans’ who rushed him to hospital for treatment of his injuries.
·Many other rallies and protests were held, and the applicant was a speaker at these rallies and protests. At one rally where the applicant was speaking in May 2016, the police intervened and tried to disperse the assembled with tear-gas, beatings and shooting with live ammunition.
·On 30 May 2016, the applicant and other executives, [A] ([Official position 3]) and the late [Ms B], were leading a peace protest commemorating the 49th Anniversary of the Declaration of Independence of the Biafran Republic when the Nigerian army and police opened fire on the assembled and 30 members of the MASSOB lost their lives, including [Ms B], while 50 persons were arrested and sent off to an unknown destination. Others, who were seriously injured were taken to hospital in Nkpor but were refused medical assistance at gunpoint by the Nigerian military.
·The Nigerian police unlawfully arrest and intimidate members of MASSOB. On [date] June 2016, while on his way to work the applicant was stopped by three police, was arrested and taken blindfolded to an unknown destination and was tortured. The applicant was asked to denounce his membership of MASSOB and to cease all legal actions that the applicant had filed in the courts on MASSOB’s behalf. The police also pressured the applicant to reveal the whereabouts of key members. After the intervention of key civil liberties organisation, the applicant and others were released.
·On [date] June 2016, the applicant left Nigeria to travel to Australia to attend [an Event] but when he arrived in Brisbane, he was advised by his director that his employment with [Ministry 2] had been terminated and that there was a standing order to seek his arrest issued by the authorities if he returned to Nigeria.
·On 25 June 2016, the applicant’s wife advised him that she feared for her life and that of the couple’s daughter and that she had noticed that her movements were the subject of surveillance.
·The applicant believes that if he is returned to Nigeria, he will be detained by the authorities for an indefinite period, questioned and tortured and even killed.
·The applicant states that the Nigerian police are still randomly arresting MASSOB members.[1]
·The applicant cannot live in safety in Nigeria. The applicant is an outspoken activist and [Occupation 1] who supports the cause (MASSOB) and a sympathiser.
·The applicant does not consider it safe to seek to relocate in any country of the ECOWAS (Economic Community of West African States) because they offer no real sanctuary for MASSOB activists and many like Sunday Igboho was arrested in Cotonou, Benin while he was in transit to [another country].[2]
[1] >
The applicant was invited to a Protection interview before the Department on 11 November 2019.
The delegate proceeded to make a decision to refuse to grant the applicant a protection visa on 27 February 2020.
Evidence before the Tribunal
The applicant applied for review of the delegate’s decision with the Tribunal on 27 February 2020 and provided a copy of the delegate’s record with his application.
The Tribunal received a late submission prior to the scheduling of the hearing.
List of evidence
The applicant provided the following additional information:[3]
[3] [Reference number] - CID: [deleted] – [Surname] – Supporting documents submitted at the PV interview –newspaper article – evidence of employment – Medical Report – Affidavit by the applicant’s brother - 11/11/2019 also see AAT File.
·An article from the Nigerian [newspaper] dated [March] 2018 “[deleted].”
·Notification of Appointment (dated [2012]) as a [Job title] with [Ministry 1] in Enugu.
·Medical Report (dated 14 August 2016) from [Hospital] in Enugu.
·Affidavit of Fact (dated 8 November 2019) by the applicant’s brother, [Mr C].
·Letter of appointment from [Ministry 1] dated [2012]. The letter records his appointment as a [Job title]
At the end of the scheduled hearing, the applicant with the assistance of his registered migration agent undertook to provide a number of corroborative documents in a post-hearing submission and to do so by 3 November 2022.
There are no non-disclosure certificates attached to the applicant’s Departmental and Tribunal files.
Country Information - Nigeria
Nigeria borders Niger in the north, Chad in the northeast, Cameroon in the east, and Benin in the West. Nigeria is a federal republic comprising of 36 states and the Federal Capital Territory, where the capital, Abuja, is located. The largest city in Nigeria is Lagos, one of the largest metropolitan areas in the world and the second largest in Africa.[4]
[4] Nigeria- see Wikipedia
The DFAT Country Information Report – Nigeria, dated 3 December 2020 states the following about the demography of Nigeria:
DEMOGRAPHY
2.6 Nigeria is Africa’s most populous nation. It has an estimated population of 206 million, growing at an annual rate of 2.6 per cent. Nigeria’s population is young, with a median age of 18.6 years. Sixty-two per cent of the population is aged 24 years or below, and 41.7 per cent is aged 14 years or below.
2.7 Significant population clusters are scattered throughout the country, with the highest density areas in the south and southwest. Nigeria’s largest population centre is the former capital of Lagos, located in the southwest (14.4 million), followed by the northern city of Kano (4 million), the southwest city of Ibadan (3.6 million), the capital Abuja in the central region (3.3 million), and the southern cities of Port Harcourt (3 million) and Benin City (1.7 million). Nigeria has an estimated urbanisation rate of 4.23 per cent per annum, and a current urban population of around 52 per cent.
2.8 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 populous nation. It has an estimated population of 206 million, growing at an annual rate of 2.6 per cent. Nigeria’s population is young, with a median age of 18.6 years. Sixty-two per cent of the population is aged 24 years or below, and 41.7 per cent is aged 14 years or below. Significant population clusters are scattered throughout the country, with the highest density areas in the south and southwest. Nigeria’s largest population centre is the former capital of Lagos, located in the southwest (14.4 million), followed by the northern city of Kano (4 million), the southwest city of Ibadan (3.6 million), the capital Abuja in the central region (3.3 million), and the southern cities of Port Harcourt (3 million) and Benin City (1.7 million). Nigeria has an estimated urbanisation rate of 4.23 per cent per annum, and a current urban population 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.
2.9 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).
2.10 Nigeria has a significant population of conflict-related internally displaced persons (IDP). According to the Office of the United Nations High Commissioner for Refugees (UNHCR), as of August 2019 there were approximately two million persons displaced in the Lake Chad Basin region, primarily as a result of the Boko Haram insurgency (see Security Situation). According to the International Organization for Migration, children younger than age 18 constituted 56 per cent of that IDP population, with 23 per cent of them younger than age six.The same DFAT Country Information report states the following about the Igbo people:
Igbo
3.7 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.
3.8 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.
3.9 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 (see Biafra Secessionists).
3.10 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.
The same DFAT Country Information report stated the following on Biafran separatists:
Biafran separatists
3.48 While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.
3.49 While the two groups (and other Biafran secessionist movements) have called for independence to occur through peaceful means, such as via referendum, central authorities have strongly rejected such calls, stating the country’s unity is ‘not negotiable’. In October 2015, security forces arrested IPOB’s UK-based leader Nnamdi Kanu on his return to Nigeria, charging him with treason and sedition. Kanu’s arrest sparked nationwide protests among his followers, leading to serious clashes with security forces. Amnesty International reported in November 2016 that, on a number of occasions across the southeast, the military had fired live ammunition with little or no warning to disperse crowds, causing multiple fatalities; while security forces also shot at least 60 people dead in the space of two days in connection with events to mark Biafra Remembrance Day in Onitsha, Ananambra state.
3.50 After Kanu’s release from detention in April 2017 failed to end the demonstrations, security forces launched a military operation, Operation Python Dance, to quell the agitation in the southeast. According to international observers, a September 2017 security operation against IPOB supporters at Kanu’s home resulted in up to 150 deaths. Authorities subsequently designated IPOB a terrorist organisation., While the clampdown by security forces appeared to largely curtail IPOB’s public activities, November 2020 saw a new outbreak of open conflict in the southeast of the country. Rivers state Governor Nyesom Wike has reportedly ‘declared war’ on the group following an attack on security forces which killed six soldiers and four police officers. In her September 2019 post-visit report, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution noted she had received a large number of allegations of killings of IPOB members by military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings. The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges; and there had not been any convictions of IPOB members since 2015 due to the discontinuance or dismissal of charges.
3.51 DFAT understands that, although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to conduct public activities. There have also been recent reports of deaths, injuries and mass arrests of MASSOB members in the context of clashes with security forces during pro-Biafra demonstrations. In May 2019, two MASSOB members were reportedly killed and 15 wounded following clashes with police at a MASSOB anniversary event in Onitsha, Anambra state, while in the same period a MASSOB member was reportedly arrested and tortured at a police station in Mgbidi, Imo state. In September 2018, 125 MASSOB members were reportedly arrested, with some sustaining injuries, during a rally in Anambra state.
3.52 DFAT assesses that, as members of a proscribed organisation, IPOB members face a risk of arrest that is likely to be higher for those in leadership positions. Ordinary members of IPOB, MASSOB and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
On the basis of the copy of the applicant’s Nigerian passport and birth certificate, and with no evidence to the contrary, the Tribunal is also satisfied that the applicant is a citizen of the Federal Republic of Nigeria. The Tribunal finds that Nigeria is his receiving country for the purpose of assessing his claims to be assessed under sections 36(2)(a) and 36(2)(aa).
Third country information
Sections 36(2)(a) and (aa) are qualified by subsections 3 to 5A which set out circumstances in which Australia is taken to have protection obligations. The qualification is s.36(3) which provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia.
As the applicant is a citizen of Nigeria, the applicant was provided with an opportunity to outline the reasons he could not enter and reside, either temporarily or permanently, in one of the Economic Community of West Africa States countries during the scheduled hearing.
The Economic Community of West African States or ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted.[5] The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[6]
[5] DFAT Thematic Report – Economic Community of West African States (ECOWAS), dated 3 December 2020, p.6.
[6] Ibid, p.14.
The applicant raised concerns that the Nigerian authorities’ influence with the authorities of other ECOWAS members was sufficiently significant whereby he faced the prospect of being returned from one of those third countries on the basis of his membership of a prescribed organisation in Nigeria, pursuant to s 36(5A).
However, as the Tribunal has made findings in this decision that the applicant’s does not meet the criteria under sections 36(2)(a) and 36(2)(a), it is not required to consider whether the applicant section 36(3), (4), (5) and (5A) are applicable.
Credibility concerns and the Tribunal’s finds
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All of this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Notwithstanding the Tribunal’s adverse credibility findings below, it accepts the following personal attributes of the applicant to be credible:
·The applicant was born [in] Nigeria’s Enugu State in [Year], as claimed;
·The applicant belongs to Biafran or Igbo family and that his ethnicity is Igbo; and that he can speak, read and write in Igbo, Nigerian Pidgin (Naija) and English languages;
·The applicant’s father is a retired [Occupation 2] and that his mother is [an Occupation 3];
·That his parents remain in Nigeria; and that he has two siblings: a brother who is currently in Australia and with whom the appclaint resides; a brother residing in Nigeria who is [an Occupation 3] in a [Workplace] in Enugu state;
·The applicant and his family belongs to the Roman Catholic faith, as claimed;
·The applicant travelled to [Country] as a student in 2013 and remained there until his return in 2016; and that his educational attainment includes a Bachelor’s degree in [Subject 1] at [University] and a Master of [Subject 2] from [Country];
·The applicant formally married to a fellow Nigerian national in 2017 and his wife is a graduate in a [Subject 3] degree;
·The applicant and his wife adopted a dependent child from a relative and that they do not have any biological children of their own;
For the purposes of making findings under sections 36(2)(a) and (aa), the Tribunal makes the findings that should the applicant return to Nigeria, Enugu State is the applicant’s home area. This is based on his family mostly residing in Enugu State where the applicant was born, educated, and resided for most of his life while living in Nigeria.
The applicant’s claims based on Biafran secessionism
Claims by the applicant having a political profile with the Igbo Youth Forum and MASSOB
In his application, statutory declaration, and oral evidence before the Tribunal the applicant claimed that he was a member of the Igbo Youth Forum (hereafter referred to as ‘IYF’) which was later incorporated into the new political organisation which is known as the ‘Movement for the Actualisation of the Sovereign State of Biafra (or known as ‘MASSOB’). He told the Tribunal that in both organisations of which he was a member, the applicant was a ‘[Official position 2]’ and a ‘member’ of the MASSOB ‘executive.’ The applicant was asked when he joined the IYF, and the Tribunal was told that he joined it in [2010] and that he later became the ‘[Official 1]’ of the IYF. The Tribunal asked the applicant to explain his role as the IYF’s [Official 1] and he explained that he was responsible for organising meetings, the recording of minutes of the various committee meetings, processing the correspondence of the organisation and he oversaw with other members of the executive committee the ‘education of the Igbo youth.’ The applicant also attended rallies which were held by the IYF to make known publicly the plight and concerns of the Igbo people.
The Tribunal noted that the applicant’s involvement with IYF was while he was attending to his studies in [Subject 1] at university. Of particular interest to the Tribunal was the applicant’s responses as to what he – as the [Official 1] – undertook to carry out on behalf of the membership and as an integral part of the organisation’s membership. As the Tribunal noted above, the applicant’s descriptions of his actions and portfolio responsibilities as a member of the IYF executive were provided in indefinite and broad descriptions of what he was responsible for as the [Official 1] of the IYF. The Tribunal asked the applicant on a number of occasions to explain his position as [Official 1] by providing details of particular actions he remembered he had carried out on behalf of IYF. In response to the Tribunal’s enquiries, the applicant said that he was the public advocate for the Igbo youth. He also told the Tribunal that he on occasions ‘appealed to government to make it listen about what affected the Igbo youth and people.’ He told the Tribunal that he had attempted (as the [Official 1]) to make known what was of a general concern to his people and known as ‘the marginalisation’ of the Igbo people. The applicant was concerned that the Igbo people were not ‘appointed at the top political positions in Nigeria’ and that most of the Igbo ‘did not attend university studies.’ The applicant, despite the Tribunal’s repeated requests to provide specific instances of his actual involvement - displaying particular initiatives he – as the ‘[Official 1]’ and his executive were involved in, only provided broad policy aims but no specific examples where he and his executive had made a particular policy request of the Nigerian government in time while he was involved in the IYF. One would expect an active political operative as was claimed to have ready examples of his involvement as the [Official 1] of IYF. The applicant when asked repeatedly by the Tribunal to provide examples of his actions as a political operative in a very important and public position (as a [Official 1]) provided very general descriptions of his position and role which leads the Tribunal to conclude that the applicant may have had and has an interest in the plight of his people – even, when at university, he may have engaged himself in the IYF but it not in the way he described his engagement to the Tribunal in his evidence. His description of his role as the ‘[Official 1]’ of the IYF was not credible in the opinion of the Tribunal. An involvement may have been the case as he claimed in the IYF while at university but not to the level that he had acquired to himself a ‘high political profile’ as a national representative of the IYF and the Igbo people. The applicant’s descriptions of what he did as he described to the Tribunal did portray a ‘high political profile.’ Therefore, the Tribunal is not satisfied and finds on the evidence before it that the applicant had or has a political profile at any level of significance because of him having been a member of the IYF or from any position he may have held within that organisation which would have attach to him a particular and ongoing interest of the Nigerian authorities.
In addition, the applicant told the Tribunal that sometime in 2011 he decided to join the political organisation known as ‘MASSOB.’ He told the Tribunal that he was attracted to MASSOB because it was an organisation that stood a more direct way in public in support of the rights of the Igbo people. He also emphasised that he joined MASSOB because it was an organisation which opposed the Nigerian government’s attempts to marginalise the Igbo people and was considered by the Nigerian government as a threat to the Nigerian state establishment.
When asked by the Tribunal about the applicant’s role as a member of MASSOB, the applicant told the Tribunal that he had been MASSOB’s [Official position 2] for the Enugu state branch and member of the executive. The applicant also said that he had helped to organise and participated in a number of public rallies. The applicant has remained a committed member of MASSOB.
At the hearing the applicant was asked to explain his statement in paragraph [19] of his statutory declaration.[7] The Tribunal noted that the applicant states the following:
In the year I became the [Official 1] of the association which soon merged with the ‘Movement for the Actualisation of the Sovereign State of Biafra (MASSOB)’. The organisation was founded by Ralph Uwazuruike. The organisation promotes a non-violent resistance against the Nigerian auithorities
[7] see AAT File Applicant’s statutory declaration dated 15 August 2022
The applicant was asked by the Tribunal to explain his position as claimed being the ‘[Official 1]’ of MASSOB. The applicant admitted that he had never been a ‘[Official 1]’ as had been provided for in his statutory declaration but provided no explanation as to how this description of his position in MASSOB (which was factually untrue) came to be included in his statutory declaration. The Tribunal having listened to the applicant’s responses to the Tribunal’s questions noted that the applicant presented as a person who spoke, read, and understood the English language well. He had studied for a considerable period of time for a Master of [Subject 2] in [Country] and had successfully completed his studies and had worked for a period in [Country]. Therefore, a misunderstanding of language was not an issue in this instance as an explanation of what had been incorporated in the applicant’s statutory declaration. The Tribunal provided time (post-hearing) for further submissions on this discrepancy, but none was provided. This discrepancy in a document that had been ‘sworn as true and correct’ by the applicant and submitted to the Tribunal as bona fide – the truth of his circumstances, adds to the concerns of Tribunal concerning the applicant’s overall claims not being credible and that they had been submitted only because the applicant had decided to attempt to remain in this country by any means possible.
In the Tribunal asked the applicant to describe his position as the ’s ‘[Official position 2]’ of MASSOB. The applicant told the Tribunal that as – the [Official position 2], he was responsible for ‘organising meetings’, ‘advising on the law’ and to make sure ‘that rallies held were legally held.’
The Tribunal asked the applicant to provide examples as to how, as the organisation’s [Official position 2], he made sure that the organisation’s rallies were held ‘legally’. The Tribunal was told that he would check the details that a proposed rally met the public order requirements that were put in place by the local authorities. Again, when pressed by the Tribunal to provide examples of this, the applicant did not provide any specific examples of this having been carried out by him. Also, the applicant told the Tribunal that he would draft and file cases in the local court involving members being arraigned before the local courts because of their political activities against the Nigerian government as members of MASSOB. Again, the Tribunal asked for specific examples of the applicant as the [Official position 2] filing cases in the local courts on behalf of MASSOB members. The Tribunal was provided with no specific examples or with a particular recollection of one which one would expect from an experienced [Official position 2] and member of the executive of MASSOB When pressed to provide the Tribunal with specific examples, the applicant admitted that his role as [Official position 2] was to assist counsel (in the preparation of documents) but that other counsel had the responsibility before the courts as advocates.
In the Tribunal’s opinion, the applicant’s evidence describing position as MASSOB’s [Official position 2] was sparse and lacking the detail and actual knowledge one would expect of [an Official position 2] of a major political organisation heavily involved in Nigerian politics for the entire state of Enugu and an advocate of the Igbo people as was claimed. The positions claimed by the applicant to have had as an important member of the executive of MOSSOB did not attach to the responsibilities one would have expected such a person would have and the applicant provided no substantial evidence that would have persuaded the Tribunal to accept that he was [an Official position 2] as he claimed and that his position as [Official position 2] had provided him with the ‘high political profile’ to cause him to fear for his life or to be described and considered as a person of interest (because of such activities) by the Nigerian authorities. Again, the Tribunal accepts that the applicant may have been a member of MASSOB, but the Tribunal finds that it cannot accept for the reasons provided above, that the applicant had a high political profile in Nigeria or was a person of interest to the Nigerian government because of his membership of MASSOB or because of any activities of importance he had involved himself in because he was a member of MASSOB.
(a) the applicant as member of [Ministry 2]
The Tribunal noted the applicant claimed that after his university studies in [Subject 1] and his time studying in [Country], he returned to Nigeria in 2015 and after a brief employment period with [Ministry 1], he transferred to [Ministry 2]. The applicant claimed that his position in the Ministry was that of [Job titles]. He described these two roles as overseeing the process of developing the government’s [policy], while at the same time he was involved together with others on the Ministry’s ‘[Job function]’. When asked by the Tribunal to provide a specific and detailed description of his role – as the [Job title] in the Ministry, the applicant’s response was to describe his position as being responsible for ‘providing [advice]’ as it affected the ‘government’s [policy].’ The applicant described his role on the [Job function] as being in a ‘senior capacity.’ The applicant provided no specific examples of how he shaped or contributed to policy development as a senior member as he claimed.
Moreover, the Tribunal asked the applicant how he managed to gain such a senior position in a government Ministry despite his political beliefs. The applicant said that his studies in [Country] assisted him to secure this employment. When the Tribunal repeated its request for the applicant to describe in detail his work as a public servant in the said Ministry and ‘senior member’ of ‘[Job function]’ the applicant said that he ‘had to do a lot of research on [policy]’ and to ‘review any world-wide developments on issues of [policy] development’ which would assist the Ministry in developing Nigeria’s national [policy].
The Tribunal noted that the applicant had submitted documents to substantiate his claim that he was employed by [Ministry 2]. Having said that, the Tribunal is not convinced that the applicant held senior positions in the Ministry based on the sparse descriptions he provided to the Tribunal of his duties and responsibilities. Moreover, his answers to the Tribunal’s questioning about his role and responsibilities at the Ministry lacked any substantial detail which would make the Tribunal understand and be convinced that he was a [Job role] of any repute and ‘a senior member’ of an important ministerial advisory [Job function]. That is not to say the applicant did not work in the Ministry and on the [Job function] but, in the Tribunal’s opinion, and from the evidence, his position was at a very minor level of no real importance or significance. As noted by the Tribunal earlier on in this decision, the applicant’s evidence to the Tribunal and his description of his work in such positions did not display knowledge or seniority or any substance or particular understanding of what it meant to draft, prepare and submit [advice] for others to consider or that he was operating as ‘in a senior capacity’ on a [Job function] charged with the responsibility of developing policy for a country’s [system]. The applicant’s responses to the Tribunal’s questioning reveal a person of very limited knowledge and experience and unable to provide any convincing detail of his work which would lend credibility to his claims. Therefore, the Tribunal accepts that the applicant may have been employed in [Ministries] he claims but the Tribunal does not accept as credible the applicant’s claims that he occupied any positions of seniority as [Job title] or in any other position of seniority as was he claimed.
The Tribunal noted at paragraph [35] in the applicant’s statutory declaration he stated the following:
…[In] May 2016, after our regional executive at Onitsha, we approached by one of our [executive], who was first to leave the venue, that the police were heading to the location and we should find our way to safety. As we are about running from the venue the police had already surround the area. They started hitting and kicking everyone. I approached the leader of the team from [police division], Onitsha Anambra state. I was slapped and beaten and shot in my left [Body part 1], which led to me passing out. I was then left on my own to die. I was very lucky that I was rescued by good Samaritans after the police left the scene and was rushed to hospital.
The applicant goes on at paragraph [40] to state the following:
I travelled to Australia on [date] June 2016 to attend [an Event] but, was advised by my director when I called to inform him that I arrived safely, that my appointment has been terminated and there is a standing order to arrest me dead or alive if I ever return to Nigeria.
At the hearing, the applicant told the Tribunal that he came to Australia to attend an international [event] as the ‘representative’ of the ‘Nigerian government.’ Indeed, one would ask the question – why would a known (as was claimed) MASSOB activist in a position of authority and working for [Ministry 2] in positions of seniority and having been involved in public protests and having been allegedly shot by the police and left to die bleeding and on another occasion being detained and later released by ‘Presidential decree’ (as claimed) be permitted to represent the government he opposed?
Would such an individual (1) maintain his position in a government organisation, and (2) in a short period of time between protests, shootings and detentions, and tortures be allowed without question and interrogation, permitted to leave Nigeria to represent the government , he opposes openly in public at an international [event] in Australia? The Tribunal does not think these set of circumstances as submitted by the applicant are credible. The country information that the Tribunal has incorporated within the body of this decision shows a government in Nigeria that is very sensitive to individuals and organisations taking aim at its control of the country via armed insurrection or public protests.[8] Considering this information in unison with what the applicant has claimed and attempted to explain in his oral evidence and statutory declaration submitted to the Tribunal and further evidence, the Tribunal accepts that the applicant may have had some sympathy for the plight of his people (the Igbo), he may have heard from his elders about the tragic events and history of the short-lived ‘Biafran Republic’ but the applicant was insignificant in any organisational sense concerning MASSOB and in the Ministry to which he claimed to have worked for. If it was not so, the applicant would not have been permitted to leave Nigeria for Australia. The applicant would have been in custody or in some form of confinement at the state’s pleasure. Instead, he was free to leave his country on a legal travel document issued by the Nigerian authorities. His claims while here in Australia are not accepted by the Tribunal and were proffered by him only as a means to attract the protection obligations of Australia of which for the reasons stated by the Tribunal above, the Tribunal finds that he fails to do.
(b) Claims of torture by the Nigerian police on [date] June 2016
[8] see, Country Information – DFAT
In his statutory declaration the applicant stated that on [date] June 2016 he was arrested on his way to work.[9] The applicant claimed that he was blindfolded, taken to an unknown destination where he was demanded of him to ‘publicly to denounce his MASSOB membership’, cease all legal cases that he had filed on behalf of MASSOB, and he was asked to reveal the ‘whereabouts’ of ‘key members of MASSOB’. The applicant claimed that it took the intervention of a civil liberty organisation to secure his release. At the hearing the applicant provided no description of this event in any detail – except to tell the Tribunal that he was abducted and tortured by elements of the Nigerian police. The applicant provided no description of any others which assisted in his release from police detention. The minimal detail which provided of the circumstances which led to his detention, his lack of information about the police torture inflicted on him, and not being able to describe how he was released from this unlawful detention, leads the Tribunal to conclude and find that it cannot not accept the applicant’s claims as being credible. The Tribunal does not accept as the truth that the applicant had been detained by the Nigerian police and that he had been tortured in order for him to reveal details about the MASSOB membership, while at the same time extracting from him his public denouncement of his membership of MASSOB.
(c) Medical report [in] May 2016
[9] refer to AAT File, Applicant’s Statutory Declaration
The Tribunal note of a copy of a medical report which had been issued by the ‘[HOSPITAL]’ and signed by a doctor/consultant [and] is dated 11 October 2022. The body of this report records that the applicant who is named was presented [in] May 2016 “unconscious”, and “confirmed to have been shot by the police.”[10] The same report also records that on “June [date], 2016, late evening, he (the applicant) had reported to the hospital and confirmed he was assaulted by the police…”
[10] see, AAT File, Applicant’s documents provided post-Hearing
What is of interest to the Tribunal concerning this document is that it records that he (the applicant) reported and confirmed the issues recorded by the hospital in question. In other words, the applicant told the hospital who caused his injuries. The Tribunal finds it difficult to accept that a local hospital would record ‘police involvement’ on a medical certificate (on its own initiative). The Tribunal also noted that the medical report provided different dates, for example, it is issued on 11 October 2022 recording issues that happened in 2016. The Tribunal is unable to assess the authenticity of the document due to a lack of any security feature. However, the Tribunal noted that the available country information reports the significant prevalence of fraudulent documents originating from Nigeria.[11]Therefore, taking into account the country information and historicity of the report and the information it displays, the Tribunal gives little weight to this evidence.
[11] ‘Country Background Note – Nigeria’, UK Home Office, January 2020, 202001231102; DFAT ‘Nigeria Country Information Report, March 2018 at p. 34; similar concerns reported in DFAT Country Information Report – Nigeria, 3 December 2020.
The Tribunal also noted that the certification provided by a [a second doctor] dated 21 October 2022, after examining the applicant’s scar certified that “[the applicant] has a scar on his left lateral [Body part 2] with full range of [Body part 3] movements.” The medical practitioner provided no professional opinion about the cause of the scar or any opinion on its origins. The Tribunal, therefore, does not accept the applicant’s claim that the scar on his left [Body part 2] was caused by the police having shot him as he claimed.
The applicant’s migration agent provided further medical certifications (or reports) from a [Dr G] of [Clinic] dated 2 November 2022 stating that he conducted an examination of the applicant’s left [Body part 3] and reported – a “healed scare”. [Dr G] ends his report by stating that the ‘scar’ he examined was “consistent with the bullet wound he (the applicant described) as having occurred in his home country of Nigeria [in] May 2016.” Again, the Tribunal considers that this certification by an (Australian-registered) medical practitioner does not provide conclusive evidence that the scar was the result of a bullet wound inflicted on the applicant by the Nigerian military or other security services having fired at him. The comments relate again to what the “he” (the applicant) had “described.”
(d) Other claims
(a)Police search of his home [in] April 2016
The applicant claimed that [in] April 2016 the police ransacked his house for “sensitive MASSOB documents” and he subsequently went to the Police Commissioner of Enugu State and lodged a complaint.[12] The applicant provided no further details concerning the police commissioner. As the Tribunal discussed earlier in this decision, the Tribunal did not find the applicant’s claims of involvement with MASSOB as he claimed being in an executive position in that organisation to be credible. Therefore, the Tribunal does not find it credible that the police ransacked the applicant’s home seeking information that was ‘sensitive’ to MASSOB.
[12] see, Applicant’s Statutory Declaration in AAT File
The applicant also provided (post-hearing) a letter from a [named person] under the letterhead of the ‘Movement for the Actualization of the Sovereign State of Biafra (MASSOB) dated 12 October 2022[13]. The writer of the letter “confirmed” on “12th August 2022” that “men of the Directorate of State Security and men of the Nigerian Police force” stormed the secretariat seeking to “arrest some of the members” of MOSSOB. One of those arrested the letter writes was its writer. The writer also states that he was “shown” “a warrant” that had the names of others including the applicant’s name. The Tribunal has concerns with this latest “evidence” as far as it relates to the applicant. First, why the issue of the warrant at this particular time? What investigations were going on, if they were going on? More to the point, why would the Nigerian security state wait until now to ‘arrest’ the applicant? If the Nigerian authorities thought the applicant an issue for them, as the country information reports, he would not have been allowed to leave Nigeria. The applicant left Nigeria without any hinderance. Further, the authenticity of the document cannot be determined by the Tribunal and the Tribunal has noted previously its concerns with documents originating from Nigeria and is aware of the country information that is available which reports the prevalence of fraudulent documents. Finally, the Tribunal has no information (independent) before it and none provided which reported such raids having occurred on MOSSOB at the time that this letter was composed. The Tribunal notes this letter but gives it no weight whatsoever.
(b)MASSOB demonstration on 30 May 2016
[13] see AAT File for document referenced
The applicant also claimed in his evidence before the Tribunal and in his statutory declaration[14] that on 30 May 2016, he and other MASSOB executives, led a demonstration in Anambra State when the police and the armed forces opened fire on the demonstrators. The applicant claimed that while many people were injured, he managed to escape without physical harm. Country information reports that on 30 May 2016 protests were held in a number of states in Nigeria to commemorate the 49th Anniversary of the Declaration of an Independent Republic of Biafra where a number of people were killed and injured during those protests.[15]
[14] Ibid
[15] ‘Group 22 Information Centre Asylum and Migration Briefing Notes June 2016’, Germany: Federal Office for Migration and Asylum, 6 June 2016, CIS38A80123148; ‘Dozens Killed, Several Injure as Biafra Day Rallies Turn Bloody’, This Day, 31 May 2016, 20191111161220; ‘South-East burns as Biafra Day turns bloody’, Vanguard, 31 May 2016, 20191111131557; ‘Nigeria: Scores Feared Dead As Biafra Celebrates Anniversary’, Mbawike, N, Leadership – Nigeria, 31 May 2016, 20191113180109.
The Tribunal noted as did the Department’s delegate in his decision record, that these protests in Nigeria were widely covered by the Nigerian media and international news networks. While the applicant claims to have been involved with other executives in these protests no information has been referenced which documents the applicant’s involvement in this particular protest. Also, the fact that the applicant was able to leave Nigeria on a validly issued passport to come to Australia indicates that he was of no particular interest to the authorities for having been involved in anti-government activity which was significant or of a major concern to them. If the situation was different, the applicant would have been prevented from exiting Nigeria.
The Tribunal discussed these issues with the applicant and after having also noted the country information which reported large scale arrests of protestors including MASSOB executive members[16] the Tribunal noted that the applicant continued (according to his evidence) working for the Ministry uninterrupted until his later abduction on [date] June 2016. As the Tribunal noted earlier, the Tribunal did not find the applicant’s claims of his involvement with MASSOB and his executive position in MASSOB to be credible and therefore, the Tribunal does not accept as credible that the applicant led or was part of a demonstration or that he was an active participant in the demonstration which occurred on 30 May 2016.
(c)Nigerian Newspaper article
[16] “Nigeria: ‘Bullets were raining everywhere”, Amnesty International, 24 November 2016, at p. 36, 20191101114922.
The applicant submitted into evidence before the Tribunal a copy of an article from a Nigerian [newspaper] dated [March] 2018 which is titled “[Title].” The article names ‘[applicant name]’ as an “Australian based leader of group” who is quoted in the article as saying that “[Quotation].”[17]
[17] [Surname] – Supporting documents submitted at the PV interview – newspaper article [Reference 2]
The Tribunal raised this issue with the applicant and his migration agent at the hearing and asked for an explanation and sought information from the applicant concerning any activities he had involved himself while in Australia with other Nigerians protesting about matters concerning his people in Nigeria. The applicant mentioned that he and others met on a regular basis and discussed the situation concerning the Igbo peoples in Nigeria and though the applicant said he remained (while in Australia) ‘an active member’ he provided very little information to substantiate his claim that he was continuing his political activities while here, in Australia.
The Tribunal observed the [newspaper] article and noted the [Name] mentioned in the article is not (as the Department delegate noted) the applicant’s full name and (as the Department delegate noted) the name ‘[Name]’ in the open media attaches to a number of individuals including females. The Tribunal presented this information at the hearing to the applicant and to his migration agent present and neither offered any comments.
The Tribunal did note the country information reports on the prevalence of fraudulent newspaper articles in Nigeria.[18]
[18] DFAT Country Information Report – Nigeria (9 March 2019) at p. 20, CIS7B83941414; ‘Fake news’ damaging media trust in Africa’, University of Cape Town News, 22 November 2018, 20191230135943.
The applicant was provided by the Tribunal with time to provide information on his anti-Nigerian government activities while here in Australia with other Nigerians, but no details were provided to the Tribunal.
As the Tribunal noted earlier in this decision, it did not find the applicant’s claims of involvement as he claimed as a MASSOB member and in an executive position in MASSOB as credible. Therefore, the Tribunal does not give any weight to the newspaper article submitted by the applicant.
Overall, having considered the issue of credibility as it attaches to the applicant’s claims and evidence leads the Tribunal to conclude that the applicant is not a person that values the truth and therefore, is not a credible witness. Moreover, the applicant’s willingness to provide deliberately misleading information to the Tribunal compels the Tribunal to conclude and find that the applicant manufactured his claims only to procure and to advance his chances for a protection visa while in Australia.
Based on the Tribunal’s discussion above of the evidence, the Tribunal concludes and finds the following:
(a) it does not accept as credible the applicant’s involvement with MASSOB, and that the applicant had a ‘high political profile’ because of his position in MASSOB
(b) it does not accept as credible the applicant’s claims of his adverse relationship and experiences with the Nigerian authorities while in Nigeria
(c) it does not accept that the applicant is a person of interest to the Nigerian authorities because of any association he may have had with the IYF while at university or with MASSOB as he claimed
Therefore, the Tribunal concludes and finds that the applicant, for the reasons stated above, does not have a well-founded fear of persecution if he was to return to Nigeria in the reasonably foreseeable future from any institution, person or part of Nigerian state and security for because of his political opinions actual or imputed associated with any of his activities while at university or his later life concerning issues and organisations supporting of the Igbo peoples or for any other one or more reasons provided for in s. 5J(1)(a)(b) and (c) of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion of complementary protection in s 36(2)(aa). For the reasons given above in paragraphs [41] to [75], the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm because of any political profile or political beliefs he may have had or have concerning the issue of Biafra or for reason or reasons of his Igbo ethnicity.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
MemberAttachment - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
-
Standing
-
Appeal
0
5
0