2007066 (Refugee)

2007066 (Refugee) [2022] AATA 4882 (29 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ehsan Azadi (MARN: 1279450)
CASE NUMBER:  2007066
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Wayne Pennell
DATE:29 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act.

Statement made on 29 November 2022 at 7:17am
CATCHWORDS
REFUGEE – protection visa – Nigeria – ethnicity and political opinion – Igbo and member of Biafran separatist organisation – military raid on meeting and arson of business – religion – Catholic Christians – delay in applying for protection – told by friend to wait until visitor visas expired – spontaneous and consistent evidence – plausible explanations for lack of documentation despite provision of non-authentic identity card – country information – effective protection measures not available – claim on ground of religion not accepted – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong (1997) 191 CLR 559
Re Prasad v MIEA (1985) 6 FCR 155
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SZLPN v MIAC [2010] FCA 202
SZQEN v MIAC [2012] FCA 387
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 (the delegate) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]The delegate’s decision was provided to the applicant on 01/04/2020.
The applicants who claim to be citizens of Nigeria applied for protection visas.[2] The delegate refused to grant the visas[3] on the basis that the applicants were not refugees as defined by the Act[4] and therefore they were not persons in respect of whom Australia has protection obligations.[5] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Nigeria, there was a real risk they would suffer significant harm and they were not persons in respect of whom Australia has protection obligations.[6]
[2]The applicant’s application was received by the Department of Home Affairs on 15/10/2018.
[3]The delegate’s refusal was made on 01/04/2020.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a).
[6]Migration Act 1958 (Cth), s 36(2)(aa).
The applicants filed an application with the Tribunal to review the delegate’s decision[7] and accompanying that application was a copy of the delegate’s decision. They were represented in relation to the review and at a subsequent time, they were advised that the Tribunal had considered all the material relating to their application but was unable to make a favourable decision on that information alone.[8]
[7]The applicant’s review application was filed with the Tribunal on 14/04/2020.
[8]The Tribunal advised the applicant on 23/09/2022.
The Tribunal invited the applicants to give oral evidence and present arguments at a hearing,[9] and they subsequently advised the Tribunal that they would appear at the review hearing and present their evidence and arguments.
[9]The Tribunal’s review hearing was listed for 17/11/2022.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of the Migration Act 1958 (Cth) (the Act) and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] That is, the applicant 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.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]
[19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
Country of reference and Applicants’ identity
The applicants claim to be Nigerian citizens and provided copies of their passports to authenticate this claim.[21] The Tribunal accepts the applicants’ identity and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is the applicants’ country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]The primary applicant’s passport was issued on [Date 1] 2017 and the secondary applicant’s passport was issued on [Date 2] 2017.
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
Mandatory considerations
In accordance with Ministerial Direction No. 84 made under the Act,[24] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[24]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF THE APPLICANTS’ CASE
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Nigeria, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[25]
[25]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicants claim they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicants claim they 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 applicants to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicants’ case for them. It is their responsibility to specify all particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of their claims, or to establish or assist in establishing the claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicants.[27]
[26]Migration Act 1958 (Cth), s 5AAA.
[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANTS’ BACKGROUND AND CLAIMS
The primary applicant is aged [Age]. The secondary applicant is aged [Age] and the applicants have been married for over 35 years.[28] The applicants have [children], all of whom are now adults. When carefully assessing the personal circumstances of both applicants, the Tribunal is satisfied that the secondary applicant is a member of the primary applicant’s family unit, and therefore they are members of the same family unit.[29] The Tribunal also notes that the secondary applicant does not have her own claims.
[28]The parties were married on [date]/1987.
[29]As defined in the Migration Act (1858 (Cth), s 5(1) and Migration Regulations 1994 (Cth), r 1.12.
The primary applicant’s evidence is that both he and the secondary applicant are from the Igbo tribe in Nigeria. They are both Christians and practice the Catholic faith.
The primary applicant has been involved in the Biafra struggle in Nigeria since the 1960s. Around that time, a series of ethnic clashes between Northern Muslims and the Igbo, and other ethnic groups of Eastern Nigeria Region living in Northern Nigeria took place. In July 1966, elements within the Nigerian army assassinated the Nigerian military head of state and peace negotiations between the military government the regional government of Eastern Nigeria failed. These events led to a regional council of Eastern Nigeria deciding that the region should secede and proclaim the Republic of Biafra. What resulted from that is known as the Nigerian Civil War or the Nigerian-Biafran War which lasted for almost three years, after which the federal government re-absorbed Biafra into Nigeria. It is estimated that several million Eastern Nigerians died from the war, including somewhere between 10,000 to 30,000 Igbo people. There were many homes, schools, and hospitals destroyed in the conflict and the federal government of Nigeria denied Igbo people access to any of their savings placed in Nigerian banks. Very little by way of compensation was provided to them and the war led to a great deal of discrimination against the Igbo people at the hands of other ethnic groups.
At the start of the war, the primary applicant was aged about [Age] and would have been almost [Age] years of age when it finished. He explained that during the war he joined a group called [Group 1]. He was not provided with any weapons, and his role was primarily to help civilians and soldiers as part of a welfare group. He later joined [Group 2], which will also welfare group. As part of his role with that group, he took supplies to the war zone, all on foot.
In January 1970, shortly before the war ended, he was captured by enemy soldiers. As punishment he was forced to carry two mortar bombs on his head as he walked for more than 40 miles (approximately 65 kilometres). The primary applicant went on to describe that after the war in 1970, the government did not give the Biafran people amnesty; instead, they were used as slave workers on cocoa farms. His brother was one such person who was used as a slave worker during that year. The Igbos people who fled during the war had their property declared ‘abandoned’ and they were unable to recover it. He said that ‘we’ had no money to go to school after the war ended and it was not until 1975 that there was a reduction in educational fees which allowed him to enrol in a university. At that time, he was aged about [Age] and he enrolled in [a University] and started studying [Subject 1]. When he completed the first semester, he was not allocated only marks. When he complained to the University’s registrar, he was told that because he was an Igbo it was not entirely clear why he was allowed to enrol in that university. His entry form was returned to him, and he was asked to leave the University.
In 1983, he went to Lagos where he started working in a [Workplace] and later started some part time studies in [Subject 2]. In 1995, he and the secondary applicant started a [business] which they operated up until shortly before they travelled to Australia.
The primary applicant said that before 1999, no one dared mentioned Biafra. Even after the war, just simply naming Biafra was an offence. For that reason, and although the applicants were told that they could not say they were from Biafra, they still maintained their Biafran beliefs. It was during 1999 that he became aware that an organisation called the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) had been established, although the primary applicant was not part of the organisation at that time.
By 2012, a group called the Indigenous People of Biafra (IPOB) was formed by Mazi Nnamdi Kanu (Kanu) and broke away from MASSOB. IPOB’s aim was to seek to create an independent state of Biafra. The primary applicant said that Kanu was very faithful and committed to IPOB’s struggle; and although MASSOB is still around, IPOB became the more prominent organisation.
The primary applicant said that in 2014 he joined IPOB in Lagos. The Lagos group was called [Group 3]. He joined because his family had suffered a lot from being Biafran and he could not do anything besides stay loyal to his Biafran beliefs. When he joined IPOB, he took an oath of allegiance that he would not betray IPOB’s struggle or give away any information that would jeopardise it. He said that everything was done in secrecy as IPOB had been outlawed and designated as a terrorist organisation in Nigeria. When he joined IPOB, he was given a membership card but did not bring that card with him to Australia. This was because he had to pass through the security at the airport and to carry the card on his person was too risky as IPOB was outlawed by the government. This issue relating to his membership card will be revisited later in these reasons.
The primary applicant later became a leader of a IPOB unit in his village where he educated people about the IPOB’s cause. The Unit’s activities were mostly protesting and talking to people to remind them about the IPOB position, in particular young people who were most affected. As a unit leader in Lagos, he also attended a group called the Free Leaders Association, which was not part of IPOB, and attendees were not only Igbos. As a result of him attending those meetings, he said that bad things started happening to him.
In 2017, the primary applicant attended a meeting at [a Location]. While there, the army raided [the property]. The raid led to the death of [members] of IPOB who were attending that same meeting. The applicant managed to flee the [Location] and was fortunate not to be harmed like the others who were killed. Kanu also escaped that night and he disappeared from public view for over a year until he resurfaced in Israel.
At about this time, the applicants were operating their [business] in Lagos. Not very long after the primary applicant managed to escape the military raid on [the Location], their [factory] was targeted and burned down. They suspect that because they were Igbo and Christians, and the primary applicant was connected to IPOB, the arsonists were sent by the government. They lost approximately $112,000 as a result of the fire. They re-established their business at a different location only to have their business again destroyed by arsonists in January 2018. The Tribunal accepts that because of the primary applicant’s association with IPOB, the business belonging to both applicants was targeted for arson.
Because they have a daughter living in Australia, the applicants applied for and were granted visitor visas to allow them to travel to Australia.[30] Because of their profile, and what had occurred to their businesses, the applicants feared that they would be stopped and detained at the airport when they tried to depart Nigeria. To avoid suspicion and not to attract attention to themselves, they engaged the help of a friend who was a military officer. That friend accompanied them at the airport and guided them through the airport’s security. The applicants were able to validate that claim by producing to the Tribunal a photograph of them both at the airport in company with their friend who was wearing a Nigerian military uniform. The Tribunal accepts the applicants’ claim in regard to having their friend, the military officer, had guided them through the airport’s security.
[30]Visitor visas issued to the applicants in July 2018, and they arrived in Australia on [Date]/07/2018.

The Tribunal notes that the applicants had been in Australia for approximately three months before they lodged their application for protection visas. They claimed that they had been given the incorrect advice by a friend who told them to wait until their visitor visas expired before they made their application for protection visas. The Tribunal accepts their explanation for the late lodgement of the application as a logical and valid one given that their visitor visas were to expire less than two weeks after they lodged their protection visa application.
In explaining their well-founded fear of returning to Nigeria, the applicants believe that if they return to Nigeria, they will be harmed or killed because of the primary applicant’s membership and position within IPOB. They also know that at present, no one is operating their business and if they went back and re-established the business, the authorities will become aware of this, and they will be easily found and targeted.
APPLICANTS’ CLAIMS
Actual or imputed political opinion
The applicants claim that they both have a well-founded fear that if they were to return to Nigeria, they will be persecuted because they are both Igbo people from Imo State in Nigeria, and that fear is even further heightened because of the primary applicant’s association with the outlawed group known as IPOB.
The primary applicant originates from [City 1] which is located within the Imo State. Imo State is situated in the southern part of Nigeria. The secondary applicant was born in [Region] which is also located within Imo State. Imo State is primarily inhabited by Igbo people. The Tribunal finds that notwithstanding they had experienced harm when they lived in Lagos, the applicants originate from Imo State, and they identify as people from the Igbos tribe.
Therefore, the Tribunal finds that the applicants’ risk of the feared persecution is characterised to not only Lagos, but also Imo State. This view is supported by the court’s determination in respect to the applicants’ home region or home area that:
….. the reference in the cases to “home region” or “home area” (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a “home region” or “home area” is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a “home region” or “home area” of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a “home region” or “home area” are matters of fact.[31]
[31]SZQEN v Minister for Immigration and Citizenship [2012] FCA 387, [38].
In respect to the applicants’ claim that they identify as Igbo people, the country information contained within the DFAT report provides that the Igbo tribe originates from south eastern Nigeria, however they also live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. Igbo people are predominantly Christian and are the third largest ethnic group in Nigeria, constituting 15 per cent of Nigeria’s population.[32]
[32]The DFAT Country Information Report, Nigeria, dated 03/12/2020, page 24, paragraphs 3.7 – 3.8.
In Nigeria’s recent history, 1967 saw a period whereby 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) from 1967 to 1970. This war came after coups and countercoups around the central government, followed by a pogrom in which an estimated 10,000 to 30,000 Igbo people were killed in the north, and causing over a million people to flee into the east. While the exact number is unknown, estimates of the number of civilian deaths caused by the conflict is ranged between two to three million people, mostly due to famine.[33]
[33]The DFAT Country Information Report, Nigeria, dated 03/12/2020, page 30, paragraph 3.45.
Senior Igbo figures have claimed successive Nigerian governments 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. Igbo people are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria, however like other non-indigenous communities, those Igbo people residing outside of their traditional homeland may face localised discrimination.[34] When carefully assessing the evidence in this matter, the Tribunal finds that because the applicants are Igbo people, they would be subjected to a degree of discrimination within Nigeria.
[34]The DFAT Country Information Report, Nigeria, dated 03/12/2020, page 24, paragraphs 3.9 – 3.10.
The country information in the DFAT report identifies that despite those moves to encourage greater national unity, there has been an ongoing feeling of resentment by the Biafrans at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation. This has resulted in the noticeable resurgence of calls for a greater self-determination in the form of an independent Biafran state.[35] The DFAT report went on to provide that while there are a number of Biafran secessionist movements, the two most prominent organisations are MASSOB and IPOB. Those members of MASSOB and IPOB, 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, whereas the members who hold a higher position face a higher risk of arrest.[36] In respect to the primary applicant, the Tribunal finds that the evidence places him within the latter category with regard to the position he held in IPOB.
[35]The DFAT Country Information Report, Nigeria, dated 03/12/2020, page 30, paragraph 3.47.
[36]The DFAT Country Information Report, Nigeria, dated 03/12/2020, page 30, paragraph 3.52.
In September 2017, the Nigerian government proscribed IPOB as a terrorist organisation with the Nigerian security forces arresting hundreds of IPOB supporters at different events, including raids undertaken on homes of IPOB leaders. IPOB has claimed that the security forces have used excessive force, including killing and injuring hundreds of its supporters and clashes have been reported between IPOB and the authorities during 2018 and 2019, with further clashes and violence occurring between the security forces and IPOB in August 2020. In November 2020, security forces carried out operations against IPOB in the Oyigbo area of Rivers State resulting in the arrests and deaths of IPOB supporters.[37]
[37]United Kingdom Home Office Country Policy and Information Note, Nigeria: Separatist groups in the South-East, United Kingdom Home Office, version 3.0, March 2022, page 10.
Other country information within the 2021 human rights report published by the United States of America Department of State suggests that the International Committee of the Red Cross (ICRC) reported that more than 24,000 persons within Nigeria were registered as missing in the country, with the majority from the conflict area in the North East. There were reports of disappearances by or on behalf of government authorities. According to Amnesty International, the whereabouts of at least 50 supporters of IPOB arrested in Rivers State between October and November 2020 remained unknown.[38]
[38]2021 Country Reports on Human Rights Practices: Nigeria, page 5, United States Department of State.
When carefully assessing the country information, the Tribunal is satisfied that members of IPOB are at substantial risk of persecution within Nigeria. The issue for the applicants is whether the evidence they provided satisfies to the Tribunal to the requisite standard that the primary applicant is a member of IPOB, and if so, is there a risk which flows to the secondary applicant.
When balancing an assessment of the evidence and the credibility of the applicants, the Tribunal had the opportunity to observe and monitor their responses to the Tribunal’s analysis of the evidence. One of the fundamental issues in this matter is whether the Tribunal accepts that the primary applicant was a member of IPOB, and because the secondary applicant is his wife, does his membership impact upon her.
The country information provides that to be a member of IPOB, members have to be registered with that organisation and be issued with a membership card. When earlier interviewed by the delegate, the primary applicant was not in possession of an IPOB membership card, and his explanations about the card were not convincing. At the review hearing, the applicant produced a photograph of an IPOB identity card and explained that he arranged for his brother (now deceased) to go to the applicants’ former residence in Lagos and retrieve a photograph of the primary applicant, and then take that photograph and have an identity card manufactured. This was a poor attempt to convince the Tribunal of the card’s authenticity, and the Tribunal rejects it accordingly. To his credit, the primary applicant made that disclosure during the review hearing.
In explaining the reason for him not having possession of his IPOB membership card, the primary applicant said that when he and the secondary applicant left through the Nigerian airport, they knew that it was risky to have in their possession anything by way of documentation of other identifying material which would point to them being connected in any way with IPOB. Because their business had been attacked twice by arsonists who they suspect were connected to the government, they (the applicants) knew that they would encounter difficulties in passing through the airport security. With that in mind, they enlisted the help of a friend who was a member of the Nigerian military to walk with them and guide them through the security area. Having their friend walk with them who was a member of the military provided a scene that portrayed the applicants as having a sense of sincerity and credibility within the community. To support their evidence about their military friend, they provided the Tribunal with a photograph of them with their friend at the Nigerian airport.
The Tribunal accepts that for those reasons just explained, it is plausible that the primary applicant did not retain his IPOB identity card in his possession or control and bring that card with him through the security measures at the Nigerian airport. When considering the country information relating to IPOB and its involvement in Nigerian, the Tribunal also accepts the primary applicant’s argument that because the Nigerian government has declared IPOB to be a terrorist organisation, IPOB has become an ‘underground’ movement. Therefore, the Tribunal finds it to be an acceptable and plausible explanation that the primary applicant experienced difficulties in sourcing the actual certified copies of documents from IPOB to validate his membership status. The Tribunal also recognises that where a decision maker finds an applicant to be generally credible, they should give the applicant the benefit of the doubt where they are unable to fully substantiate all of their claims.[39] In that regard, the benefit is given to the applicants.
[39]SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].
When carefully considering the facts, circumstances and the evidence of the applicants’ case, the Tribunal was afforded the opportunity to gauge the genuineness, or the credit of the responses provided by the applicants during the review hearing. The Tribunal is conclusively satisfied that the evidence shows that the primary applicant was a member of IPOB, and to safely exit Nigeria, the applicants employed a diversionary tactic at the airport by enlisting their help of the friend who was a member of the Nigerian military.
Religion
The applicants claim that because they are practising Catholics, the have a well-founded fear of persecution if they returned to Nigeria.
The country information reports that Nigeria has a population of over 225 million. The population is almost evenly split between the religions of Christians and Muslims with the largest Christian denomination being the Roman Catholic Church. The majority of Muslims in Nigeria are Sunni with the twelve northernmost states governed by sharia law. Christianity is dominant in the southern states, however significant Christian communities exist in the north of the country as well.
The applicants’ evidence was that they belong to the Igbo tribe, which is predominately Roman Catholic, and because there had been bombings of catholic churches, they had a well-founded fear of persecution, particularly from those Nigerians who identify as Muslims. The claims made by the applicants lacked specificity with respect to details of those incidents, or how any of those incidents impacts upon them personally.
Although the Tribunal finds that the applicants are Christians and are practising Catholics, the Tribunal is not satisfied that they have suffered harm because of their religion, and nor is the Tribunal satisfied that there is any probative or tangible evidence of there being a real chance they will suffer serious harm; or they face a real risk of suffering significant harm because of their religion. Therefore, the Tribunal finds their claim in respect to the applicants being persecuted because of their religion as vague, weak and tenuous and it is rejected.
ANALYSIS OF THE APPLICANTS’ CLAIMS
The Tribunal accepts and notes that at the time of the Tribunal review hearing, the applicants had acquired a far greater body of evidence to support their claims than to which they presented to support their original application. The Tribunal acknowledges that when the delegate made the original assessment of the applicants’ application, the benefit of that substantial body of probative evidence was not available to the delegate.
Invariably, and as was in this case, considerable time can pass between when the delegate made the original assessment, and the matter being determined by the Tribunal. Consequently, it is incumbent upon the Tribunal to hear and decide the applicants’ claims by way of a fresh hearing on the merits of their application as at the date of the review hearing. In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the delegate relied upon to reach the original decision.[40]
[40]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.
In respect to the oral testimony of the applicants, the Tribunal finds that their evidence was delivered in a spontaneous, consistent and forthright manner and their evidence supported the claims they made; and it was corroborated by the photographic image of the applicants and their friend in military uniform at the Nigerian airport. The Tribunal is satisfied that this photograph, and the documents presented adds weight to the validity of their claims.
Although the Tribunal does not accept that the applicants will be persecuted because of their religion if they return to Nigeria, the Tribunal does accept that the primary applicant participated in, and was a member of IPOB, and the Nigerian government has declared IPOB as a terrorist organisation. In making that assessment, the Tribunal observes that the applicants resided in Lagos and operated a [business] which was targeted and destroyed twice by arsonists.
The Tribunal accepts that because the primary applicant was a member of IPOB, both applicants have a well-founded fear of persecution by the Nigerian authorities should they return to Nigeria.
Future risk of harm to the applicants
In assessing the applicants’ claim that they possess a well-founded fear of returning to Nigeria, the Tribunal must consider whether they face either a real chance of serious harm or a real risk of significant harm should they return to Nigeria in the foreseeable future. The test to be applied is a forward-looking one.
The Tribunal accepts that the primary applicant held a significant position within a local branch of the IPOB and was an organiser and agitator for that organisation. Because of his association with an organisation which has been outlawed by the Nigerian government, the business belonging to both applicants was destroyed twice. Having carefully considered the applicants’ claims, the Tribunal finds that the primary applicant’s involvement with, and participation in IPOB will continue to be known within his home area of Lagos. Therefore, because the secondary applicant is his wife, she too will be known in her home area.
The Tribunal is satisfied that if the applicants return to Nigeria, there is a real chance that because of the primary applicant’s association with IPOB, and the secondary applicant is his wife, they will both be arrested by the Nigerian authorities and prosecuted. The Tribunal accepts that for the indispensable reasons of the primary applicant’s involvement with IPOD, and the secondary applicant is his wife, there will be a real chance that both applicants will face serious harm if they return to Nigeria, now or in the reasonably foreseeable future.
The Tribunal also accepts that the Nigerian government are perpetrators of the harm feared by the applicants. The Tribunal also accepts that effective protection measures are not available to them and that the real chance of serious harm extends throughout Nigeria.
For those reasons given above, the Tribunal finds that the applicants meet the definition of refugees as per the criteria set out in the Act.[41]
[41]Migration Act 1958 (Cth), s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Act.
Wayne Pennell
Senior Member

Attachment - Extract from Migration Act 1958 (Cth)
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.
…

[2022] AATA 4882

29 November 2022

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