2006121 (Refugee)

[2022] AATA 5120

2006121 (Refugee) [2022] AATA 5120 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANT’S REPRESENTATIVE:        Rayan Hazim, solicitor

CASE NUMBER:  2006121

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Kate Chapple

DATE:10 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

The Tribunal refers the case to the Department to be brought to the Minister’s attention.

Statement made on 10 November 2022 at 4:41pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – Christian – practising Christian and preacher with the Church of Christ – fears of being persecuted – significant economic hardship – harm by Muslim non-state actors for his beliefs – intends to practise his faith –– no protection obligations – referred to Ministerial Intervention  – decision under review affirmed    

LEGISLATION
Migration Act 1958, ss 5H, 5J – 5LA, 36, 65, 351, 417, 499, 501J
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

EVIDENCE BEFORE THE TRIBUNAL

Timeline

1. Departmental and Tribunal records disclose these key dates:

   1.1.Applicant’s first arrival in Australia: [in] August 2015.

   1.2.Applicant’s subsequent arrival in Australia: [in] March 2017.

   1.3.Applicant’s last arrival in Australia: [in]  August 2017.

   1.4.Application for protection visa: 4 June 2019.

   1.5.Delegate’s decision to refuse protection visa application: 12 March 2020.

   1.6.Application for review: 26 March 2020.

   Protection visa application

2. The applicant’s written protection claims and supporting evidence are set out in the following documents:

   2.1.The applicant’s protection visa application.

3. The applicant’s protection claims are summarised by him as follows:

   3.1.I am a Nigerian national of Urhobo ethnicity from Oghara, Delta State and a follower of the Christian faith.

   3.2.The Muslim Fulani herdsmen are in conflict with my tribe, and they killed my grandfather over property and money.

   3.3.My grandfather was killed by the Muslim Fulani herdsmen, and my grandmother died as a result of the stress caused by the onslaught of the herdsmen.

   3.4.The ruling party of Nigeria and the president are seeking to radicalise and Islamise the country.

   3.5.I fear harm from Islamic groups including Boko Haram and the Fulani herdsmen who actively target Christians.

   3.6.As a Christian, I cannot expect help from Nigerian authorities.

4. Other departmental records:

   4.1.Decision record relating to the delegate’s refusal decision.

   4.2.Interview audio file.

   4.3.Case file.

   4.4.Internal records relating to the applicant.

   Application for review

5. The Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 20 October 2022 and to provide pre-hearing submissions.

6. On 3 October 2022, the applicant’s representative wrote to the Tribunal requesting a postponement of the hearing on the basis that the Department had not yet responded to the Freedom of Information (FOI) request relating to departmental file. The Tribunal wrote to the applicant’s representative on 7 October 2022 advising that the FOI request had been finalised and the hearing would proceed as scheduled.

7. On 7 October 2022, the applicant’s representative wrote to the Tribunal again requesting a postponement of the hearing on the basis that there would be some delay before they would receive the departmental file, including the interview audio file, pursuant to the FOI request. The Tribunal granted a hearing postponement to 4 November 2022.

8. Prior to the hearing, the applicant’s representative provided to the Tribunal:

   8.1.Confirmation that the applicant intended to participate in the hearing with the assistance of his representative.

   8.2.The applicant’s statutory declaration dated 27 October 2022.

   8.3.Submission by the applicant’s representative dated 27 October 2022.

   The Hearing

9. The applicant appeared before the Tribunal at a hearing conducted via video link on 4 November 2022. The applicant’s representative attended the hearing by telephone. The applicant chose to speak in English and did not request the assistance of an interpreter.

10. The applicant gave the following evidence:

    Family background and living in Nigeria

    10.1.The applicant was born in [DOB] in Delta State, southern Nigeria. His mother was very young when she had him, and his father was a [occupation deleted] who travelled often around Nigeria for his work, so at the age of three months, the applicant went to live with his maternal grandparents in Godo, Kaduna state, in the middle belt of Nigeria. He travelled to the south from time to time for schooling. The applicant is somewhat older than his siblings who were born in [year deleted] and [year deleted]; they did not live with the maternal grandparents. The applicant never met his paternal grandparents.

    10.2.The applicant’s maternal grandparents were farmers who owned farmland in Kaduna State. As that region became more insecure due to the spread of Islam, they moved south to Delta state where his grandfather was originally from, bought some farmland and continued farming. The applicant’s maternal grandmother died in 2009 or 2010.

    10.3.The applicant’s father was a [occupation deleted] and later worked for the Nigerian [company deleted]. His mother was a [occupation deleted]. Both are now retired and live in Benin City, Edo state, southern Nigeria, with the applicant’s siblings and eldest son.

    10.4.Before the rise of Boko Haram, the applicant recalls violent conflict between Muslims and Christians through the 1990s where houses were bombed and people were killed. During these conflicts, his grandparents would take him to the south to escape danger.

    10.5.The applicant lived in Delta State from 2009 to 2012. He worked as a [occupation 1]in government and private [organisations] in the north and south of Nigeria during this time. In 2012, he went to [Country 1] where he completed a [Bachelor’s degree] and graduated in 2014. He was married by then and had a son in 2011. His wife and son lived in Delta State while he studied in [Country 1]. In 2014, the applicant’s son, then aged 3, went to live with the applicant’s parents in Benin City.

    10.6.The applicant’s dream was to return to Nigeria from [Country 1] and continue his life there. When he returned from [Country 1], he saw that the situation had worsened with more killings in the north and the further movement of the Fulani south. He worked as an [occupation 2] in the capital, Abuja for about five months. He then received notice that he had been accepted into an 18-month Masters program in [a course] at [a] university [in Australia].

    10.7.The applicant did not experience any targeting or harm from any state or non-state actor while living in Nigeria.

    Practising Christianity in Nigeria

    10.8.Growing up, the applicant was strongly influenced by the Christian faith. His [relative] was introduced to the Church of Christ by his eldest son who lived in [Country 2]. After visiting his son and learning the church doctrine, the applicant’s [relative] brought the teachings back to northern Nigeria and opened their home to the community for worship. He was considered a church leader; church evangelists from the [Country 2] and [Country 3] would visit him in Nigeria. The applicant also learnt the church doctrine, he was baptised, and, as a male, began preaching in Nigeria, which he continued when he lived in [Country 1]. The applicant’s mother is a committed member of the church; however his father is a Baptist, and there is some conflict between the beliefs of the two faiths.

    Coming to Australia

    10.9.The applicant came to Australia in August 2015 on a student visa to undertake the Masters program. His wife and son travelled with him. His younger son was born in [year deleted]. He intended to return to Nigeria at the completion of the program in December 2017.

    Fulani herdsmen

    10.10.When the applicant was still in Nigeria the Muslim Fulani herdsmen had already started to move south. The Nigerian president is a Fulani and one of his objectives is to give Fulanis land in every state. The Fulani are in conflict with the applicant’s tribe, Urhobo, but it’s not a tribal war, it’s largely religious, between Muslims and Christians, with the Muslims wanting to Islamise Nigeria.

    10.11.Sometime in 2017, when the applicant was already in Australia, the applicant’s father called to let him know that a group of Fulani raided farm properties in the south, including his grandfather’s farm property; the grandfather was unable to escape and he was killed.

    10.12.Three other members of the applicant’s family on his mother’s side have been killed by the Fulani.

    10.13.The grandfather’s farm property is still owned by the applicant’s family, however it can’t be farmed because it is too dangerous, so it has been abandoned.

    Visiting Nigeria

    10.14.In [the year] of 2017, the applicant travelled to Nigeria to visit his son and parents in Benin City. The applicant was very worried about the dangers of returning to Nigeria, but he needed to go for the sake of his son and parents.

    10.15.Sometime in 2017, the applicant’s mother received a note from an unknown source threatening to kidnap the applicant’s son and demand a ransom. The mother reported the threat to the police, but didn’t keep the note or make a copy of it. She doesn’t know who the threat came from, and believes it was random. The applicant believes this is about poverty in Nigeria, not just insecurity; if hoodlums know that someone lives abroad, they assume there’s wealth, and this is common tactic to extort money.

    10.16.Following the kidnapping threat, the applicant arranged guard dogs at his parents’ house, and paid, and continues to pay, regular bribes to a police officer to constantly monitor the premises. Nothing eventuated from the kidnapping threat. The applicant believes this is due to the extra security measures.

    10.17.The applicant’s son goes to school in [City 1]; however schooling is conducted mostly online now because it is too dangerous for children to attend in person.

    Boko Haram

    10.18.At the end of the applicant’s visit to Nigeria in 2017, he was travelling on a public bus to Lagos ahead of his departure to Australia the following day. He could hear gun shots and a stampede. The Boko Haram had blocked the road and were stopping vehicles, kidnapping and killing people. His bus managed to turn around and escape the violence. Today, it’s too dangerous to travel by road in Nigeria. Even the rail lines and airports have been attacked by Muslim terrorists.

    10.19.The government doesn’t protect Christians. The Fulani and other Muslim terrorists are not arrested for these attacks. Community youths are arrested for illegal possession of firearms, and the terrorists get away with possession of AK-47s.

    Living in Australia

    10.20.The applicant completed only a year of his Masters program because there wasn’t enough money and he needed to work to support his family in Australia and his son, parents, and siblings in Nigeria.

    10.21.The applicant and his wife separated in 2019. The younger son lives with his mother in Queensland.

    10.22.The applicant re-partnered and had twin boys in 2020. The boys’ mother subsequently died and the applicant has again re-partnered. The applicant’s new partner and twins are Australian citizens.

    10.23.The applicant opened his own [business] in Queensland, however it folded during the COVID restrictions. He has since moved to Victoria with his family and works four jobs in [a] sectors. He has acquired Certificate II and III qualifications and is working towards a Diploma.

    10.24.The applicant earns a total of approximately $4000 per week, which goes toward supporting his family in Australia and his son, parents, and siblings in Nigeria.

    Practising Christianity in Australia

    10.25.The applicant continued his association with the Church of Christ when he was living in Queensland. He gathered in a home group to worship each Sunday with five other families in his local community, and every month or two, they would all attend the big church some distance away. Men are the preachers in the Church of Christ faith, at home and at church; the men in the families would share the roles of teaching, communion, sermon, and singing.

    10.26.The applicant does not frequent the church in Victoria as he able to earn more money doing weekend shifts.

    Application for protection

    10.27.When the applicant returned to Australia from his visit to Nigeria in 2017, he decided that he couldn’t go back as his life was nearly put to an end on the bus journey to Lagos.

    10.28.The applicant didn’t apply for protection until 2019 because he thought we would be able to get immigration status in Australia through his company. When that was refused, he sought legal advice and was advised to seek protection.

    10.29.The applicant fears that as a Christian and a preacher, he is already known in Nigeria and a target. He has blood relatives in the north and south of Nigeria. His mother is at risk in the house in Benin City because if the Fulani attack, she could be harmed because of her relatives in the north. Everyone who is a Christian is a target.

    10.30.Christianity is part of the applicant’s life; he can’t conceal his religious identity and beliefs. If you’re stopped in the street, the Muslim terrorists demand that you recite sections of the Koran. Being a practising Christian in Nigeria now is like being on a suicide mission. Every day is a killing blood bath. The government doesn’t report on who is killed, but they are all Christians.

    10.31.Based on the country information and his experience of being in Nigeria, the applicant doesn’t believe that the Nigerian government would afford him any protection.

    10.32.The Tribunal asked the applicant how he would be impacted by the Muslim Fulanis given that he would not be farming if he returned to Nigeria. The applicant replied that it’s not just about farmland, but about Islamising Nigeria.

    10.33.The applicant is helping to get his brother and sister out of Nigeria. His brother is going to [Country 4] on a humanitarian visa, and his sister is going to the [Country 5] to study Masters.

    10.34.The applicant’s plan, once his siblings are settled elsewhere, and he’s saved enough money and his siblings are earning money, is to relocate his parents and son to Ghana under ECOWAS. He thinks this would cost $6000 to $7000.

    10.35.The applicant couldn’t return to Nigeria to join his parents and son in Benin City or in the plan to move to Ghana because he would be unable to get employment in Nigeria as there are no jobs, and therefore he would be unable to fund the relocation costs. He needs to stay in Australia to earn and save the funds.

    Unrelated issue

    10.36.The Tribunal brought certain information to the attention of the applicant in order to give him an opportunity to comment.

    10.37.The information was described by the Tribunal to the applicant as information provided by the Department in the form of copies of documents. One document shows that the applicant’s ex-wife and two sons were originally on his protection visa application as secondary applicants. Another document shows that the applicant’s ex-wife withdrew her herself and their younger son from the protection visa application in January 2020 on the day of the departmental interview. Another document is an application for a temporary domestic violence protection order made by the applicant’s ex-wife against the applicant in January 2020 including allegations of multiple incidents of violence from 2010 to 2019. The last document is a letter sent by the applicant to the Department on 1 February 2020 denying the allegations.

    10.38.The applicant commented that his ex-wife ended the marriage, he didn’t see it coming. She took him to the police and made the allegations of domestic violence. He realised she was scared of going back to Nigeria and she didn’t think they had a good case, so she withdrew from the application and made her own. She now has protection in Australia, and when she got her permanent visa, she didn’t return to the court on the domestic violence matter.

    10.39.The Tribunal indicated to the applicant and his representative at the hearing that this issue had no relevance to the review.

    Post-hearing submissions

11. In the days following the hearing, the applicant’s representative provided to the Tribunal a series of online news and country reports dated 2018 and 2022 relating to incidents of banditry, kidnapping, Islamic Jihadist and Fulani militia terrorism and attacks and killings of civilians, Christians and Christian leaders in northern, central and southern states Nigeria (‘the online reports’).

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country information – violence against Christians

12. The Tribunal notes the significant complexity of the issues relating to violence perpetrated against Christians in Nigeria by various actors (such as the Boko Haram, Islamic State West Africa Province and Muslim Fulani terrorist groups), including the motivations for the violence, religious and otherwise; the regions most exposed to the violence; recent trends in the spread of the violence; and the difficulty in distinguishing the violence from the widespread indiscriminate violence against civilians in Nigeria. The following extracts from recent government and NGO country reports and peer-reviewed academic literature demonstrate this point:

    12.1.ACLED (Armed Conflict Location & Event Data Project)’s fact sheet, “Attacks on Christians Spike in Nigeria Alongside Overall Rise in Violence Targeting Civilians”, dated 21 July 2022, states that:

    12.1.1.Key trends:

    -    Political violence targeting the Christian community has become more common since 2020.

    -    Attacks on the Christian community have risen amid a wider increase in violence targeting civilians around the country: total civilian targeting increased by 28% from 2020 to 2021, and this trend has continued into 2022.

    -    Despite the spike in anti-Christian attacks, the Christian community is not one of the predominant targets of political violence in Nigeria. While Christians make up roughly 50% of the population, violence in which Christians have been specifically targeted in relation to their religious identity accounts for only 5% of reported civilian targeting events.

    -    The rise in violence targeting civilians is additionally linked to a broader surge in overall political violence in Nigeria. ACLED records a 19% increase in political violence events in 2021 compared to 2020, and nearly a third more fatalities. This trend has also continued into 2022.

    12.1.2.A series of attacks targeting churches as well as Catholic and Protestant leaders has raised concerns about escalating violence against the Christian community in Nigeria. Dozens of Christians were killed in early June in Ondo State shortly after the high-profile abductions of Methodist church leaders in Abia state and Catholic priests in Katsina state. ACLED data show that the number of incidents of violence targeting Christians in relation to their religious identity in Nigeria increased by 21% in 2021 compared to 2020. The average number of monthly incidents of violence targeting Christians has risen over 25% since 2021. Some trends also point to the potential expansion of Islamist violence into southern states with a higher Christian population, such as a recent uptick in clashes with police and explosive detonations in Kabba, Kogi state. 

    12.1.3.At the same time, ACLED data suggest that the surge in attacks targeting Christians is part of a wider spike in political violence — including an overall rise in violence against civilians, specifically — across the country. Total political violence in Nigeria increased by 19% from 2020 to 2021, and political violence levels have remained heightened so far in 2022. Christians are not the most frequently targeted identity group in Nigeria, with a higher rate of attacks targeting groups based on gender and ethnicity as well as profession and government affiliation. Attacks targeting civilian communities, irrespective of religious affiliation, increased by 28% in 2021 relative to 2020, and this trend has also continued into 2022.

    12.1.4.Outside of the northwest and north-central regions, Borno state has registered the second-highest number of violent events targeting Christians in recent years, following Kaduna state. Since 2020, the total number of organized political violence events in Borno state has declined. Violence targeting Christians comprised less than 2% of all organized political violence in the state in 2020 and 2021. So far in 2022, violence targeting Christians has further shifted outside Borno, with only a single event recorded in the state during the first half of the year. Violence targeting Christians in Borno state remains proportionate with broader organized political violence trends, similar to the northwest and north-central regions.

    12.1.5.While the Boko Haram insurgency has been traditionally concentrated in the northeast, particularly in Borno state, ACLED data indicate that Islamist militants are expanding operations and shifting closer to the Federal Capital Territory. So far, Islamist militant violence targeting Christians outside Borno has remained constant and relatively limited, at two reported events per year in 2020 and 2021, as well as the first half of 2022. However, there is potential for the threat of violence to escalate as militant groups continue to move south into new areas with large Christian populations.

    12.1.6.Both international media and southern Nigerian media frequently frame the violence in the north and the Middle Belt area as religious conflicts between Islamist groups and Muslim ethnoreligious communities, on one side, and Christian ethnoreligious communities on the other. Within this framework, the conflict is portrayed as primarily arising from religious tensions or divisions. Analysis of ACLED data indicates that this is an oversimplification: for example, violence in the northwest spans a range of identities, livelihoods, and territorial divides, and is perpetrated by multiple communal and political militias. A deeper look at the country’s complex political violence landscape is required to develop effective policies aimed at mitigating the growing threat to vulnerable communities as the overall security situation continues to deteriorate throughout Nigeria.

    12.2.The 2021 Netherlands country of origin report for Nigeria states that:

    12.2.1.North-East zone, comprising Bauchi, Borno, Taraba, Adamawa, Gombe and Yobe, is known to be the most insecure part of Nigeria due to the presence of Boko Haram. Recent analyses have indicated that there is a risk of Boko Haram expanding into the North-Central and North-West zones, with the various Boko Haram factions benefiting from instability due to the ongoing violence between farmers and herders and criminal activity by gangs.

    12.2.2.Analysts and humanitarian organisations criticise the Nigerian military for failing to provide civilians with adequate protection in the struggle against Boko Haram.

    12.2.3.The Middle Belt was again the setting during this period for an ongoing conflict between (mainly Christian) farmers and (mainly Muslim) Fulani herders. In 2018, the situation escalated in particular in the states of Benue, Plateau and Nasarawa in the North-Central zone, and in the states of Adawama and Taraba in the North-East zone.

    12.2.4.Scarcity of land and water and conflicting land claims are the main causes of violence between herders and farmers in the Middle Belt. Suitable pastures where herders can graze their flocks have become ever scarcer. This has led to an increase in conflicts over land between herders and farmers in the north of the Middle Belt and the migration of herders to the south to find suitable grazing land there. This in turn has annoyed local farmers, whose crops have been affected by grazing livestock.

    12.2.5.Most herders belong to the overwhelmingly Muslim Fulani group, while the farmers are of various ethnic/religious backgrounds, including Christian in many cases. Experts largely agree that the conflict is primarily about access to land and resources. Some political and religious leaders, but also national and international interest groups, incorrectly treat the conflict as a religious clash between Muslims and Christians. The number of actual casualties on both sides is unclear, as figures on the conflict in the Middle Belt are unreliable due to a lack of independent monitoring of the conflict. What is beyond dispute is that both Muslims and Christians are perpetrators and victims.

    12.2.6.Because the division between herders and farmers coincides to a certain extent with religious dividing lines, this conflict was and is increasingly described by local actors on both sides as a religious conflict. Some international interest groups, including Christian advocacy groups, in Europe and the United States have expressed particular concern about the position of Christians. However, this tendency to describe the conflict in religious terms has been strongly called into question by several sources, including the Vatican ambassador to Nigeria.

    12.2.7.There is no state campaign of violence against Christians or Muslims. Violence against Christians is no more tolerated than against Muslims, nor is there any question of systematic marginalisation of Christians by the government. However, the government has also shown an inability to respond adequately to the violence, and there is a general lack of accountability for all forms of violence by all perpetrators.

    12.3.The US Department of State Nigeria 2021 International Religious Freedom Report states that:

    12.3.1.According to government services, NGOs, media, academic, and other observers, the level of insecurity driven by rising criminality worsened during the year. Because issues of religion, ethnicity, land and resource competition, and criminality are often closely linked, it was difficult to categorize many incidents as being solely, or even primarily, based on religious identity.

    12.3.2.Numerous fatal clashes continued to occur throughout the year in the North Central region between predominantly Christian farmers from various ethnic groups and predominantly Muslim herders. There were also incidents of violence involving predominantly Muslim herders and Christian or Muslim farmers in the North West region.

    12.3.3.In addition, criminal groups continued to commit crimes of opportunity, including kidnapping for ransom, armed robbery, and banditry in the North West, North Central, and South East regions. According to security experts, the criminal activity in these regions increased in volume, geographic scope, and attendant violence during the year. Media reported on at least six attacks by bandits or armed criminal gangs on religious sites, including mosques and churches.

    12.3.4.Multiple academic and media sources said banditry and ideologically neutral criminality, rather than religious differences, were the primary drivers of violence in the North West region. Christian organizations, however, said clergy were often targeted as victims of these crimes, because they were viewed as soft targets who often travelled conspicuously without security in the evenings, were typically unarmed, had access to money, and generated significant media attention.

    12.3.5.In May, Mercy Corps released a report entitled, Fear of the Unknown: Religion, Identity, and Conflict in Northern Nigeria, which reported on the religious attitudes of northerners it surveyed to gauge the perceived influence of religious actors, beliefs, and identities in violent conflict in the north:

    -    Only some violence in the north had been interreligious in nature and that Muslims and Christians were both perpetrators and victims.

    -    Since 2016, deaths from conflicts over religious issues have waned relative to the number of people killed by criminal violence and conflicts over land and cattle grazing. While deaths from inter-religious violence increased in 2020, they still paled in comparison to those caused by crime and resource conflicts. These trends were confirmed in interviews and surveys. Equally important, interreligious violence has been perpetrated by, and on, both Muslims and Christians.

    -    Christians appear to have suffered more attacks on average, and likely as a result, they were more likely to report feeling victimized. Yet a majority of Muslim and Christian respondents said that members of both faiths are responsible for violence in their area, as opposed to pinning blame solely on one side.

    12.3.6.Numerous fatal intercommunal clashes continued throughout the year in the North Central region between predominantly Christian farmers from various ethnic groups and predominantly Muslim herders. According to the ICG, the causes of the North West turmoil were complex and interrelated, saying that “Environmental degradation and rapid population growth have aggravated resource competition between herders and farmers.

    12.3.7.The Secretary of State determined that Nigeria did not meet the criteria to be designated as a Country of Particular Concern for engaging in or tolerating particularly severe violations of religious freedom or as a Special Watch List country for engaging in or tolerating severe violations of religious freedom under the International Religious Freedom Act of 1998 when such designations were announced on November 15, 2021.

    12.4.The 2020 DFAT Country Report for Nigeria states that:

    12.4.1.The Boko Haram insurgency has spread across northern and central Nigeria and into neighbouring countries. The Boko Haram insurgency has targeted a range of groups, including those associated with the government (including police, military and politicians); individuals seen as supporting ‘western’ concepts such as secular education or elections; foreign aid workers; and clerics from other Muslim traditions and Christian preachers. Christians are opportunistically targeted by Boko Haram. However, Muslims are also victims of attacks, in greater numbers than Christians, principally because they constitute a greater proportion of the population in the affected northern states.

    12.4.2.Attempts by security authorities to curtail the Boko Haram insurgency in an enduring fashion have not proved fully successful to date. The insurgency has successfully regrouped in recent years, however, and continues to represent a significant security threat in the north-eastern states.

    12.4.3.DFAT assesses Boko Haram poses a serious ongoing threat to security in the northeast of Nigeria, with limited prospects of being neutralised in the short term.

    12.4.4.A rolling conflict between farmers and migratory herdsmen in the Middle Belt region (Plateau, Adamawa, Nasarawa and Taraba states) has escalated considerably since January 2018, claiming more civilian lives than the Boko Haram insurgency, displacing hundreds of thousands and sharpening ethnic, regional and religious polarisation. Fundamentally a land-use dispute, the conflict has taken on religious and ethnic dimensions. International Crisis Group has described the conflict as Nigeria’s gravest security challenge.

    12.4.5.Since its 2018 escalation, the conflict has involved an ongoing series of clashes between predominantly Fulani herdsmen, and mostly Muslim farmers followed by reprisal attacks against villages. Hundreds have been killed or injured in the clashes, and there have been numerous cases of conflict-related abductions. Clashes and reprisal attacks continued throughout 2019, most notably with the killing of over 130 people in Kajuru, Kaduna State, in clashes between Fulani and Adara communities.

    12.5.Jideofor Adibe, Professor of International Relations and Political Science, Nasarawa State University, Keffi writes in his piece, “Christians in Nigeria feel under attack: why it’s a complicated story”, published in The Conversation online on 3 August 2022, that:

    12.5.1.The International Christian Concern, in a report on 15 May 2022, described Nigeria as the world’s scariest country in which to be a Christian. The report argued that Christian communities in the Middle Belt of Nigeria have effectively suffered a twenty-year long genocide. Attacks appear to be escalating. In early June 40 worshippers were killed in a church attack in Owo, Ondo state, south-west Nigeria. The BBC reported that by the middle of this year there had already been 23 attacks on church premises and people linked to them. This was compared with 31 attacks in 2021 and 18 in 2020.

    12.5.2.Non-Christian groups have their own stories of mistreatment. The Muslim Rights Concern, an Islamic rights group, has alleged that Muslims in Yorubaland, southwestern Nigeria, face persecution. Practitioners of traditional African religion equally complain of being persecuted. In particular they complain that institutional practices show preference to Christianity and Islam. Atheists similarly complain of persecution. There are also cases of interdenominational discrimination within the Christian and Islamic faith adherents. For instance, members of the Islamic Movement in Nigeria routinely complain of persecution and police brutality from members of the dominant Sunni Muslims.

    12.5.3.Several factors explain why the alleged persecution of Christians seems to dominate headlines more than complaints from other religious groups.

    12.5.4.The first is competition between Christianity and Islam. Both religions are constantly competing for space and control. Each suspects the other of wanting to encroach on its space and poach its members. In recent years, Muslims have proudly announced that Islam is the fastest rising religion in the world. This has stoked fears in the Christian community. Similarly, many Muslims fear that globalisation and western culture undermine Islam and therefore view them with suspicion, if not antagonism.

    12.5.5.The second factor is open violence. Tension between Muslims and Christians has sometimes blown up into deadly violence. 

    12.5.6.Third is the fact that the Nigerian state seems to recognise only Islam and Christianity. This is despite a constitutional provision guaranteeing freedom of religion.

    12.5.7.Fourth is the issue of cultural insensitivity towards minority groups. Across the country, there is a pervasive culture of insensitivity to minority groups’ concerns in virtually all spheres of life, including politics and religion. This gives the impression of the glorification of majority tyranny.

    12.5.8.Additionally, President Muhammadu Buhari’s government has been accused of favouring Muslims in critical political appointments even though the populations of Muslims and Christians are about evenly balanced. This has heightened the sense of exclusion and suspicion among Christians. There’s a danger that tensions could escalate in the run-up to next year’s elections in the country.

    12.5.9.Tensions between religious groups are also fuelled by attacks by Boko Haram and Islamic State West Africa Province. Boko Haram and the Islamic State West Africa Province attack both Christians and Muslims as well as government assets. But when Christians are victims, it tends to remind them of the groups’ avowed goal of establishing an Islamic caliphate. The attacks appear to be aimed at legitimising the religious basis of the groups’ terrorism among their members. It is sometimes difficult to isolate a religious motive behind the attacks. 

    12.6.Mark Hill QC, practising at the London bar and Visiting Professor of Law and Distinguished Fellow at the University of Notre Dame London Law Program, and Thomas J Hellebrand, Candidate for Juris Doctor, Notre Dame Law School, write in their 2022 piece, “Religious Persecution in Africa: Nigeria, Algeria, and Eritrea”, published in Heinonline, that:

    12.6.1.Religious persecution in Africa is conceptually complicated because of the prevalence of armed non-state actors who are often the primary perpetrators. Thus, religious persecution in some African states is not necessarily between the government and the oppressed but more nuanced and multi-faceted involving a network of organizations, groups, and individuals. Further, religious persecution in Africa coexists within a mixed narrative of economic, political, and social grievances.

    12.6.2.Nigerians generally identify along religious and ethnic lines. The population is split fairly evenly between Christians and Muslims, and religious demographics overlap with ethnic identities. Hausa-Fulani in the north are majority Muslim, the Igbo of south-eastern Nigeria are majority Christian, and the Yoruba of southwestern Nigeria have large populations of both Christians and Muslims. Express provision is made for freedom of religion in Section 38 of its Constitution that dates from 1999: "Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance."

    12.6.3.Since the early 2000s, religious freedom in Nigeria has gradually been deteriorating given the rise of religious persecutors. There are two main jihadist groups operating in Nigeria: Boko Haram and an ISIS splinter group called the Islamic State West Africa Province (ISWAP). Additionally, Fulani herder-militant groups have been perpetuators of persecution against both Muslims and Christians in Nigeria, including kidnapping for the payment of ransom.

    12.6.4.The Nigerian government has failed to combat the violence and destruction. As to the motivations behind the religious persecution, Boko Haram (meaning "western education is forbidden") is the most infamous jihadist group in West Africa. It is an Islamic militant group that developed in the early 2000s to overthrow the Nigerian government in the north—which it perceived to be materially and spiritually corrupt—and establish an Islamic state. In addition to government, military, and police targets, Boko Haram has launched violent attacks on churches, religious schools, and seminaries, and abducted and executed Christian clergy. Its members have also kidnapped hundreds of Christian school children, keeping them in captivity until they renounce their Christian faith. In two decades, an estimated 36,000 people have died in Boko Haram attacks.

    12.6.5.Perhaps less well known as religious persecutors are the Fulani herder-militants, as opposed to the Fulani ethnic group as a whole. The ethnic group is composed of traditionally semi-nomadic herders and number about seven million in Nigeria alone. In 2018, Fulani herder-militants were responsible for six times as many deaths as Boko Haram. Commentators suggest that this violence is primarily economically motivated. Labelling the violence in Nigeria as an Islamic persecution of Christians, they argue, is an inaccurate narrative that only causes more division. The Catholic bishops however argue that Fulani groups are adopting an increasingly violent jihadist ideology or otherwise cooperating with Boko Haram and ISWAP. They also point out that the Fulani herder-militant attacks are systematic and organised, deliberately targeting Christians and their property. These are no bandits but religiously motivated persecutors of Christians. And to some, the persecutions are properly categorised as genocide. A series of reports corroborate the claim that many Fulani attacks are religiously motivated: Christians are forced to convert to Islam, churches are burned down, and Christian ministers are abducted or killed.

    12.6.6.Reports from the first half of 2021 alone showed Nigerian Christians being murdered at a rate of seventeen believers a day. A common form of religious persecution in Nigeria is Islamist raids on smaller Christian villages in rural areas of central and northern states. Frequently, the men and boys are killed while the women and girls are abducted to be used as ransom, in human trafficking, or as slaves. Jihadists have burned down a large number of Christian churches. They have also targeted religious ministers-shooting, beheading, and kidnapping Christian priests and pastors.

    12.6.7.The Nigerian Government has been criticized for its inability or unwillingness to take adequate measures to prevent religious persecution. The government's resources are thinly stretched and its police and military are unable to protect communities even when they have been tipped off to an impending attack. There has also been speculation that certain officials in the Nigerian government have neglected to prosecute Fulani herder-militants or been complicit by aiding or enabling the religious persecutions.

    12.6.8.In sum, Christians in Nigeria, especially in the central and northern states, are vulnerable to jihadist attacks. Nigerian jihadists are heavily armed, can operate in small groups, and will often strike civilian targets. Their objective seems to be to eliminate Christianity from Nigeria and establish an Islamic state along the lines of the one temporarily formed in the Middle East. Fulani herder-militants, although perhaps initially motivated by socioeconomic grievances, have adopted a violent Islamic ideology that understands Christians as inherently oppositional.

    12.7.Reverend Williams Kaura Abba writes in his 2022 piece, “A Systematic Persecution of Christians and the Church in Northern Nigeria: The Church’s Response”, published in Joras, the Nigerian Journal of Religion and Society, that:

    12.7.1.Events in our country, particularly in the North, have so much heightened the spate, such that the nation is today rated one of the most dangerous to be a Christian n (ODUSA.org/wwl). Some of these events evoking Christian persecution in Northern Nigeria are a global rise in radical or fanatical Islam, the ravaging effects of deforestation that is pushing the Fulani herdsmen to the Southern part of the country; poor Islamic theological education; unbridled desire to assume Nigeria’s political and economic control and aggressive evangelism (Sani, 2007; & Falako 2012).

    12.7.2.The quest by Islamic scholars and politicians to persecute Christians for the gains of domination is dividing the nation along ethnic and political affiliations.

    12.7.3.The dichotomy is more noticeable in Northern Nigeria where religious affiliation determines everything: recruitment into the armed forces, employment, promotion and even admission into schools (Turaki, 1993).

    12.7.4.Since the dawn of the 21^st century, and with horrifying acceleration in recent years, verified reports of murders, rapes, mutilations, and kidnapping of Christians in Nigeria have persistently increased. These attacks are frequently accompanied by the torching of homes, Churches, villages and farmlands. A July 15, 2020 headline reports that 1,202 Nigerian Christians were killed in the first six months of 2020 (Smith, 2020). This is in addition to the 11,000 Christians who have been killed since June 2015 (Emeka, 2020). Such violence has reached a point at which expert observers and analysts are warning of a progressive genocide – a slow motion war specifically targeting Christians across Africa's largest and most economically powerful nation.

    12.7.5.The type of persecution that Christians in Northern Nigeria face is insidious persecution. This type of persecution is prevalent and endemic in Northern states of the federation and typified by the daily experiences of many Christian minorities in the Northern region. Some examples of this type of persecution include: discrimination in employment.

    12.7.6.Other examples of insidious persecution include but not limited to stagnation in promotion in public service; suppression of ministries; preventing Christian pupils from receiving Christian Religious Education; denying Christians the opportunity to reach elective and appointive positions; imposing the veil on Christian female students; denying Christian students a place of worship on campuses (whereas mosques are built in virtually every block); discrimination in admission in tertiary institutions (professional courses are an exclusive preserve of Muslim students while those of other faiths are admitted for nonprofessional courses – where Christians are lucky, check out the ratio); forcing and abduction of young Christian girls into marriage against their parents' wishes (while forbidding their daughters from having any relationships with Christian boys). Such discrimination is very common in most of our Northern states and has become the new normal for Christians in Northern states.

    12.7.7.In a nutshell, insidious persecution in the North is made possible oftentimes through the deployment of instruments of state to target and marginalize Christians. This type of persecution impinges on the dignity, development and religious liberty of Christians.

    12.7.8.The second type of persecution that Christians in Northern Nigeria are subjected to is known as elevated persecution. This form of persecution was before now intermittent, but in recent times has become more entrenched and is evolving.

    12.7.9.Elevated persecution is a more lethal form of persecution. It is employed by extremists such as Boko Haram, ISWAP, Fulani herdsmen Terrorists against Christians in Northern Nigeria. Not satisfied with the outcomes of insidious persecution, Islamists began to adopt a more vicious strategy against Christians living in the region. At first, it took the form of sporadic violence involving attacks against Christians and Churches and homes.

    12.7.10.Nigerian Christians are subjected to such episodic attacks at the slightest rumour of blasphemy or provocation, whether committed in Nigeria or abroad. After such attacks occur, the usual reaction from state authorities and Islamic religious leaders is to dismiss the action as the activities of miscreants and hoodlums. The government hurries to carry out an investigation into the incident with a promise to bring the culprits to justice but soon afterwards, nothing is ever heard regarding that.

    12.7.11.In the last ten years or more, elevated persecution has assumed a more lethal dimension in the North. Boko Haram is seeking to establish and entrench a strict version of Sharia and to establish Islamic or Theocratic state in Northern Nigeria. For this reason, they have engaged in terrorist attacks against Christians and other non-Muslims from other traditions.

    12.7.12.Elevated persecution has taken another pattern in the last 3-4 years. This has taken the form of invasions of isolated, geographically dispersed Christian villages by armed terrorists of Fulani extraction. These attacks have become increasingly widespread and highly organised and sophisticated. Armed attackers take victims by surprise, usually arriving late at night or before dawn to wreak havoc on sleepy communities.

    States like Plateau, Benue, Taraba, Adamawa, Borno, Niger, Kaduna, etc. have all tasted the brutality of these assailants and persecutors. For us in Kaduna state, denizens have had a fair share of the brutality of these assailants who are usually of the Fulani stock but who are often referred to by government as bandits. In recent time, we had these sporadic attacks on our communities in Southern Kaduna resulting in the death of many innocent Christians, and some churches either destroyed or touched.

    12.7.13.Increasingly, overt hostility to the presence of Christianity in Muslim hinterlands has manifested itself in frequent outbreaks of violence. As a consequence, there are many abandoned Church owned properties in neighbourhoods that Christians can no longer enter.

    Country information – security situation

1. The European Asylum Support Office (EASO) Nigeria Security Situation Country of Origin Information Report dated June 2021 states that:

   13.1.Nigeria’s long-standing security challenges continued in 2019 and 2020 and have been described as stemming from militant Islamists predominantly active in the North-East Region moving into north-western states; violence related to armed bandits and criminal violence in the North-West and North-Central Regions and street gangs in the South-West Region; conflict between farmers and herders mainly in the Middle Belt but increasingly moving to southern states; communal and ethnic clashes in the North-Central Region and increasingly in the southern states; Biafra separatists in the South-East Region and oil militants in southern Nigeria, particularly the Niger Delta.

   13.2.Certain areas up north are no longer safe for Christians to practice their faith freely. The once flourishing areas for Christians have become dangerous and no-go areas. Thus, Christians have found solace and safety in the South. Region and oil militants in southern Nigeria, particularly the Niger Delta. Election-related violence mainly occurred throughout January to March 2019. Covering the first half of 2019, the UN described the security situation in Nigeria as ‘volatile’, with ongoing conflict due to Boko Haram’s presence, resulting in a worsening of the existing humanitarian situation and affecting population displacement and food insecurity. Global Rights described Nigeria’s 2019 threshold of violence as ‘very high’.

   13.3.Security across Nigeria has been reported as being ‘challenged’ in 2020 through Islamist groups’ operations in the north, ‘low-level insurrection’ in Niger Delta, ongoing farmer-herder conflict in the Middle Belt, which sometimes includes ethnic and religious components, and widespread criminality across the country. In the first six months of 2020 violent attacks surpassed those recorded in total in 2019. During 2020 Nigeria continued to experience various security challenges, including violent extremists’ attacks against security forces, kidnappings (for example from July to October 2020 there were about 102 incidents in the Federal Capital Territory alone), and protests which turned into violence and riots in a number of states.

   13.4.According to Amnesty International, while engaged in fighting insurgent groups that commit atrocities against civilians, the security forces - including military, police and community-based militias – have also been implicated in ‘serious civilian harm’ and human rights violations, including unlawful killings, sexual violence and abuse, recruitment and use of child soldiers, arbitrary arrest and detention, torture and other forms of ill treatment of civilians. In December 2020 the Office of the Prosecutor of the International Criminal Court ‘concluded that war crimes and crimes against humanity had been committed by Boko Haram, and the Nigerian military and that Nigerian authorities had failed to investigate and prosecute these crimes, therefore warranting a full investigation’. Civilian authorities have not always maintained effective control over the military and police.

   13.5.Nigeria is confronted by multiple security challenges: Islamist groups resurgent in the North-East Region; conflict in the North-West Region involving herder-allied groups, vigilantes, criminal gangs and jihadists; ethno-communal violence between nomadic cattle herders and farming communities in the North-West Region and from the Middle Belt southward; long-running discontent and militancy in the Niger Delta; and separatist Biafra agitation in the South-East Region. The ‘weakened, stretched, and demoralised security services’ are deployed in 35 of Nigeria’s 36 states, and are entering the second decade of their war against Boko Haram. The police and military have struggled to meet the multiple security missions across the country, including ‘participating in the Multinational Joint Task Force, countering terrorism, enforcing maritime security, countering narcotics trafficking and other criminal networks, and peacekeeping’, and the police force in particular has been considered ‘oppressive and ineffective’, underfunded, untrained, susceptible to endemic corruption, increasing the burden on the military to take on internal security operations.

   Churches of Christ Nigeria

2. The Church of Christ website states that: Church of Christ Nigeria is an organization devoted to the ministry and support for the work of the churches of Christ in Nigeria and related ministry efforts. Our involvement in Nigeria began in 1988 when [Mr SN] providentially visited the congregation in Pearland, Texas. Since then, there have been numerous visits by Evangelists and others to and from Nigeria, thousands of dollars have been raised for this work, and countless souls have been added to God's kingdom as a result of this work. Today, American Preachers Ty Fleming, Ray Cook, Shawn Zybach, Jerry Lowry and Michael McCorkle have assumed the day-to-day responsibilities for the work in Nigeria and abroad. 

   Applicant’s claims and evidence

3. The Tribunal considers the applicant’s claim and evidence regarding his long-term commitment to the Christian faith and involvement as a worshipper and preacher with the Church of Christ to be credible. The Tribunal considers however that the applicant’s claim regarding his [relative’s] involvement in bringing the Church of Christ to northern Nigeria is not substantiated by the applicant’s or other evidence.

4. The Tribunal considers that the applicant’s evidence in relation to his claims that his (maternal) grandfather was killed by Muslim Fulani herdsmen on his farm property in Delta State sometime in 2017, and that his grandfather was targeted because of his Christian faith, lacks particulars regarding timing, context and surrounding circumstances, individuals involved, witnesses, attribution, motivation, and lacks any corroborative record or account, and therefore is not sufficient to substantiate the claims.

5. The Tribunal notes the 2018 DFAT Country Report states that conflicts between the largely Muslim Fulani nomadic pastoralists and Christian farmers of the Berom tribe have traditionally occurred mainly in Plateau state over the past decade and that the conflict has recently moved into the central northern states of Katsina, Nassarawa, Benue and Kaduna. Delta state is however in the south-south region of Nigeria. The DFAT report further states that Christian settlers and Muslim herdsmen continue to clash in central and northern Nigeria over land disputes and often in connection with national elections. While the clashes amplify a complex set of religious, ethnic and political tensions, in essence they represent competition for limited resources including land and political power. The Boko Haram insurgency has also forced increasing numbers of herdsman to migrate south.

6. The Tribunal considers that the applicant’s claim that his (maternal) grandmother died as a result of the stress caused by the onslaught of the herdsmen is not substantiated by the applicant’s or other evidence. The Tribunal notes the applicant’s evidence that his grandmother died in 2009 or 2010, which was some years before his grandfather’s death and therefore unrelated to the claimed circumstances of the grandfather’s death.

7. The Tribunal considers the applicant’s evidence regarding his claim that the bus he was travelling on to Lagos in 2017 was potentially under attack from the Boko Haram lacks particulars regarding location, context and surrounding circumstances, individuals involved, witnesses, attribution, motivation, and lacks any corroborative record or account, and therefore is not sufficient to substantiate the claim.

8. The Tribunal considers the applicant’s evidence regarding his claim that his mother received a note sometime in 2017 from an unknown source threatening to kidnap his son for ransom lacks particulars regarding timing, the contents of the note, context and surrounding circumstances, attribution, motivation, and lacks any corroborative account or record, for example a copy of the note or the police report, and therefore is not sufficient to substantiate the claim.

9. The Tribunal considers that the applicant’s claim that he is a target of ransom threats by unidentified non-state actors if he is returned to Nigeria because he has been abroad and will be perceived to have money, is not substantiated by the applicant’s or other evidence.

10. The Tribunal considers that the applicant’s claim that three other members of the applicant’s family on his mother’s side have been killed by the Fulani is not substantiated by the applicant’s or other evidence.

11. The single remaining claim for the Tribunal to assess and determine is whether on the evidence before it, including relevant country information, the applicant has a well-founded fear of persecution by reason of his Christianity if he is returned to Nigeria.

12. The Tribunal accepts that the applicant, notwithstanding his fear of danger from escalating violence, visited Nigeria on two occasions in 2017 out of care and concern for his son, parents and siblings, and therefore the Tribunal does not consider that this diminishes the credibility of the applicant’s claim.

13. The Tribunal notes the applicant’s evidence that while living in Nigeria he did not experience any targeting or harm from any state or non-state actor for his Christian identity and beliefs or for any other reason.

14. The Tribunal notes that apart from the applicant’s claim regarding the threatened kidnapping of his son, which the Tribunal considers is not substantiated, the applicant’s parents, siblings and son have not experienced any targeting or harm from any state or non-state actor for any reason while living in Benin City. The Tribunal notes the applicant’s evidence that his mother is most at risk because of her Christianity and family ties in the north. The Tribunal accepts the applicant’s evidence that he has arranged extra security measures for the Benin City house his family members reside in.

15. The Tribunal notes the applicant’s evidence that his maternal grandfather’s farm property in Delta state, while still held in the family, has been abandoned and is not being farmed. The Tribunal further notes that the applicant, his parents and his siblings are not farmers.

16. The Tribunal acknowledges that the security situation in Nigeria has become increasingly unstable and dangerous since the applicant last lived there in 2015 and last visited in 2017, and continues to evolve, noting that the Nigerian government elections are scheduled to be held in February 2023 and have the potential to cause an escalation in violence.

17. As demonstrated by the most recent country information set out in this decision record, the attributions and motivations for the widespread violence across Nigeria are complex and multi-faceted. The Tribunal accepts that the online reports provided by the applicant’s representative generally reflect this position.

18. Based on the country information set out in this decision record, the Tribunal notes that:

    30.1.While the violent actions of the Boko Haram, Islamic State West Africa Province and Muslim Fulani terrorist groups in Nigeria are variously motivated and directed, they are, at least in part, to varying extents across Nigeria, motivated by religious agendas and differences and directed at Christian communities.

    30.2.While there has been an overall rise in violence by various non-state actors against civilians across Nigeria, including random killing, kidnapping for ransom, armed robbery and banditry, there has been a 25% increase since 2021 in attacks targeting Christians for their religious identity.

    30.3.While Islamic violence against Christian communities has historically predominated in the northern regions of Nigeria, expansion towards the south has occurred and there is potential for it to further expand to southern states with higher Christians populations.

    30.4.There is no state-mandated campaign of violence against Christians or marginalisation of Christians, however there is a perception by Christians that the government favours Muslims, which has heightened their sense of exclusion and suspicion, and there’s a danger tensions could escalate in the run-up to the 2023 Nigerian elections.

    30.5.The Nigerian government has demonstrated a lack of accountability for and inability to respond adequately to all forms of violence by all perpetrators. Further, the government has been criticised for its inability or unwillingness to take adequate measures to prevent religious persecution or to protect communities vulnerable to attack. 

    30.6.The Nigerian police and military have struggled to meet the multiple security missions across the country, and the police force in particular has been considered oppressive and ineffective, underfunded, untrained, and susceptible to endemic corruption.

19. The Tribunal notes the applicant’s evidence that he considers the relocation of his parents and son to Ghana under the ECOWAS Free Movement Protocol to be an option to secure their safety, and his own, if he could afford it. The Tribunal further notes that the applicant took no steps to pursue this option on his two visits to Nigeria in 2017.

    Other considerations

20. In considering the claims and evidence, the Tribunal has also taken account of:

    32.1.The applicant’s statutory declaration dated 27 October 2022.

    32.2.Submission by the applicant’s representative dated 27 October 2022.

    32.3.The country information referenced in Attachment B.

    32.4.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.

    32.5.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.

    Findings of fact

21. Based on the consideration of claims and evidence and supporting material set out above, and taking into account the country information and other considerations, the Tribunal finds that:

    33.1.The applicant is a citizen of Nigeria.

    33.2.The applicant is a long-term practising Christian and has been a preacher with the Church of Christ in Nigeria, [Country 1] and Australia.

    33.3.If returned to Nigeria, it is likely that the applicant would live with his parents, son and siblings in Benin City, Edo state in southern Nigeria, however his need for employment and his need to practise his Christian faith would likely require him to travel to other regions of Nigeria.

    33.4.If returned to Nigeria, the applicant fears being targeted by Muslim non-state actors for his Christian identity and beliefs and, as a result, being subjected to threats on his life and physical violence and harm, and being unable to secure employment, resulting in significant economic hardship. 

    33.5.If returned to Nigeria, there is a real chance that the applicant’s fears would be realised.

    33.6.Given the evolving expansion of Islamic violence from the northern to the southern regions of Nigeria, the applicant’s susceptibility to targeting and harm by Muslim non-state actors for his Christian identity and beliefs is nationwide.

    33.7.While the applicant has arranged and paid for, through bribes, protection measures for his family in their house in Benin City, he would be unlikely to be able to continue to pay for those measures because of his inability to seek employment.

    33.8.The Nigerian authorities are unlikely to be willing or able to protect the applicant from targeting and harm by Muslim non-state actors for his Christian identity and beliefs.

    33.9.If returned to Nigeria, the applicant would continue to maintain his Christian identity and beliefs and to practise his faith.

    33.10.The applicant is aware of and has acknowledged his right to relocate from Nigeria to Ghana under the ECOWAS Free Movement Protocol, and he has not taken any steps to exercise that right.

    Application of law

22. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

23. Based on the findings of fact:

    35.1.The applicant is a non-citizen in Australia.

    35.2.The applicant is a Christian.

    35.3.The applicant fears being persecuted in Nigeria for his Christian identity and beliefs.

    35.4.There is a real chance that, if the applicant returned to Nigeria, he would be persecuted for his Christian identity and beliefs.

    35.5.The persecution would involve serious harm to the applicant.

    35.6.The real chance of persecution relates to all areas of Nigeria.

    35.7.There are no effective protection measures available to the applicant in Nigeria.

    35.8.The applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Nigeria.

    35.9.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.

    35.10.The applicant is outside Nigeria, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Nigeria.

    35.11.The applicant has not satisfied the requirement of s 36(3) of the Act and taken all possible steps to avail himself of his right to enter and reside, whether temporarily or permanently, in any country apart from Australia, in particular his right exercisable under the ECOWAS Free Movement Protocol. On that basis, Australia is taken not to have protection obligations in respect of the applicant.

    CONSIDERATION OF GROUNDS FOR REFERRAL FOR MINISTERIAL INTERVENTION

24. Having regard to the applicant’s case and circumstances, in particular the issues explained below, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s417 of the Act, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’, the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention:

    36.1.The Tribunal has determined that the applicant has a well-founded fear of persecution as defined in s 5J of the Act.

    36.2.While the applicant is denied protection under the Act because he has not satisfied the requirement of s 36(3) of the Act, for him to return to Nigeria in order to exercise his right under the ECOWAS Free Movement Protocol to relocate himself and his parents and son to, for example, Ghana would, of itself, expose him to a real chance of persecution for the reasons previously set out in this decision record.

    36.3.The applicant has a partner and twin boys aged two, all of whom are Australian citizens. If the applicant is returned to Nigeria, he is faced with the choice of taking his partner and twins with him and exposing them to a high risk of harm due to the widespread violence in Nigeria, or leaving them in Australia and being separated from them for an indefinite period with the prospect he may not survive due to his real chance of persecution in Nigeria.

    36.4.The applicant’s employment in Australia enables him to provide financial support to his partner and twin boys, and his younger son who lives with his ex-wife. If the applicant is returned to Nigeria, he is unlikely to secure employment and he would be unable to continue to provide this support.

    36.5.The applicant is working and training in  [a particular sector] in Australia, sectors of significant need, with critical worker shortages.

    CONCLUSIONS

25. Based on the evidence, analysis, reasoning and findings set out 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) of the Act.

26. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) 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)(b) or (c).

2. Having regard to the Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J), the Tribunal considers that the ministerial intervention submission raises valid unique or exceptional circumstances warranting referral of the case to the Department for consideration by the Minister pursuant to s 417 of the Act.

   decision

3. The Tribunal affirms the decision not to grant the applicant a protection visa.

4. The Tribunal refers the case to the Department to be brought to the Minister’s attention.

   Kate Chapple
   Member

   
   
   

   ATTACHMENT A

   Summary of applicable law

   The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.

   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).

   Relevant extracts 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.

   ATTACHMENT B

   References to Country Information

   ·DFAT Country Report, Nigeria, 10 February 2015

   ·DFAT Country Report, Nigeria, 9 March 2018

   ·DFAT Country Report, Nigeria, 3 December 2020

   ·Netherlands country of origin information report for Nigeria, March 2021

   ·EASO Nigeria Security Situation Country of Origin Report June 2021

   ·The US Department of State Nigeria 2021 International Religious Freedom Report

   ·ACLED fact sheet, “Attacks on Christians Spike in Nigeria Alongside Overall Rise in Violence Targeting Civilians”, dated 21 July 2022

   ·Jideofor Adibe, “Christians in Nigeria feel under attack: why it’s a complicated story”, published in The Conversation online on 3 August 2022

   ·Mark Hill QC and Thomas J Hellebrand, “Religious Persecution in Africa: Nigeria, Algeria, and Eritrea”, published in Heinonline, 2022.

   ·Reverend Williams Kaura Abba, “A Systematic Persecution of Christians and the Church in Northern Nigeria: The Church’s Response”, published in Joras, the Nigerian Journal of Religion and Society, 2022.