2007150 (Refugee)

2007150 (Refugee) [2022] AATA 5119 (23 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007150
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Wayne Pennell
DATE:23 December 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 December 2022 at 1:04pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – race – Igbo ethnicity – Biafra – political opinion – Indigenous Peoples of Biafra (IPOB) – religion – Roman Catholic – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 20 March 2020.
The applicant who claims to be a citizen of Nigeria applied for a protection visa.[2] The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person 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 applicant being removed to Nigeria, there was a real risk he would suffer significant harm and he was not a person in respect of whom Australia has protection obligations.[6]
[2]The applicant’s application was received by the Department of Home Affairs on 29 August 2017.
[3]The delegate’s refusal was made on 20 March 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 applicant 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. He was unrepresented in relation to the review and at a subsequent time, he was advised that the Tribunal had considered all the material relating to his 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 16 April 2020.
[8]The Tribunal advised the applicant on 9 November 2022.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing,[9] and he subsequently advised the Tribunal that he would appear at the review hearing and present his evidence and arguments.
[9]The Tribunal’s review hearing was listed for 21 December 2022.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of 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 Applicant’s identity
The applicant claims to be a Nigerian citizen and he provided a copy of his passport to authenticate this claim.[21] The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]The applicant’s passport was issued [in] 2014 .
[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 applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is 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 APPLICANT’S CASE
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nigeria, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person 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 applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reasons claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his 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 applicant.[27]
APPLICANT’S BACKGROUND AND CLAIMS
[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.
Applicant’s background
In regard to the applicant’s original application for a protection visa, the Tribunal is aware that when it was lodged with the Department, the applicant indicated that the claims that he relied upon were enclosed within an attached statutory declaration dated 29 August 2017 (‘2017 statutory declaration’).
On 9 November 2022, the applicant was advised by the Tribunal that the hearing of his application to review the delegate’s decision had been scheduled for 21 December 2022. The Tribunal notes that apart from his earlier 2017 statutory declaration, no other statutory declaration, statement or other evidence was provided by the applicant to support the claims made in his application.
In regard to his personal circumstances, the applicant was born in Nigeria. He is now aged [age]. He identifies as belonging to the Igbo ethnic group and he is a Christian.
In regard to his family, the applicant told the Tribunal that his father had passed away 2018, but his mother still lives in [City 1] in Delta State, Nigeria. He has [number] brothers and one sister, with the applicant being the second youngest of the siblings. Although he has limited contact with his siblings and mother, he has a very good relationship with them. His parents owned and operated a company in [City 1] which manufactured [products]. The company also had an office in Lagos. After he had graduated from university, he worked for his parents’ company for some time prior to travelling to [Country 1] in 2010 where he studied [Discipline 1] at [University 1].
In regard to his education, after finishing high school he attended [University 2], Nigeria where attained a [diploma]. He then studied [Discipline 2], graduating in 2008 with a [Discipline 2] degree. As already indicated above, in 2010 he travelled to [Country 1] to undertake further studies. He stayed in [Country 1] until 2013 and then returned to Nigeria.
When he returned from [Country 1], he found employment with the Delta State government helping the People Democratic Party [in specified task]. From time to time he also worked for his parents.
When discussing his leisure pursuits in Nigeria between when he returned from [Country 1] in 2013 to when he travelled to Australia in 2016, the applicant disclosed that he read books, did a lot of travel inside Nigeria and played [specified sport].
In 2015, the applicant married his wife [Ms A]. They have no children. In 2016, both the applicant and his wife were granted student visas, although she travelled to Australia about three months prior to when he arrived. She arrived in Brisbane, and he arrived in Perth [in] October 2016. Upon his arrival, he travelled to Brisbane to meet his wife. They briefly lived together until he discovered that she was having an affair with someone else, and they separated.
Since 2017, the applicant and his former wife have been divorced. Although there has been sporadic contact between them since that time, he last spoke to her on the telephone a few days prior to the review hearing. He told the Tribunal that he is aware that his former wife was recently granted permanent residency in Australia.
When discussing why he came to Australia, the applicant said that he applied for and was granted a student visa. Notwithstanding he was issued with the student visa, he said that at no time did he enrol in any educational institution to study. He disclosed that his student visa was due to expire on 31 August 2017, and he lodged his application for a protection visa two days prior to the expiration of his student visa.
The Tribunal notes that there was a passing of a significant period of ten months between his arrival in Australia and when he lodged his protection visa application. The issue with respect to his delay in making his application is discussed in greater detail later in these reasons.
Applicant’s claims – Igbo ethnicity – Biafra
The applicant claims that he was born in [City 2], Delta State, Nigeria. Other than spending a period of time studying in [Country 1] between 2010 to 2013, for a vast majority of his life he has lived in Delta State from birth until his departure to Australia. Therefore, the Tribunal finds that Delta State is the applicant’s home region. The predominant ethnicity in [City 2] is Igbo, and the Tribunal finds that he belongs to the Igbo ethnicity and is identifiable as Biafra. The Tribunal further finds that the applicant’s claimed risk of the feared persecution is characterised to Delta State, Nigeria. This view is supported by the court’s determination in respect to the applicant’s 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.[28]
[28]SZQEN v Minister for Immigration and Citizenship [2012] FCA 387, [38].
In respect to the applicant’s claim that he identifies as Igbo, 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.[29]
[29]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 caused 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.[30]
[30]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.[31]
[31]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.[32]
The DFAT report went on to provide that while there are a number of Biafran secessionist movements, the two most prominent organisations are the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) and the Indigenous Peoples of Biafra (IPOB). MASSOB was founded in 1999 and is a secessionist movement in Nigeria, associated with Igbo nationalism, which supports the recreation of an independent state of Biafra. IPOB was founded in 2014 and aims to restore the separatist state of Biafra.
[32]The DFAT Country Information Report, Nigeria, dated 03/12/2020, page 30, paragraph 3.47.
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.[33]
[33]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. 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.[34]
[34]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 reported that more than 24,000 persons within Nigeria were registered as missing, 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.[35]
[35]2021 Country Reports on Human Rights Practices: Nigeria, page 5, United States Department of State.
Claim – actual or imputed political opinion
The applicant’s only evidence in regard to his claims are contained within his 2017 statutory declaration where he claimed that he left Nigeria because living in an underdeveloped or developing country can be quite frustrating and fruitless. He also left because of the numerous injustices meted out on the people of southeast parts of Nigeria by what he described as the Northern and Western Alliances.
He described that Nigeria is made up of six geopolitical zones. With the north of the country being in power for a long period of time. This has exposed the people living in the southern regions to deplorable conditions. He outlined that this led to the recent emergence of IPOB agitating for the state of Biafra.
The applicant went on to claim that the political environment made by the government and the political leaders has resulted in clashes between the government and other interest groups. This has led to mass killings, starvation, assassinations and all sorts of crimes against humanity. His fear of going back to Nigeria is that he may be forced to join IPOB of the or government allies. He does not want to associate with this way of life, and he fears that he would be killed if he did not want to join either of those groups.
He went on to claim that most of the members of his tribe belong to IPOB, but because he does not want to join the IPOB, he may be forced to join them or face inhuman degrading treatment. He may even be killed or ostracised.
In describing who may be the perpetrator of the harm to him, the applicant claimed that notwithstanding the IPOB group would harm or mistreat him if he did not join them, on the other hand the government allies would harm him if he did not join them. He claimed that there are two factions, and he would be required to join one of them or he would be seen as a threat or a saboteur.
In his 2017 statutory declaration, the applicant claimed that the Nigerian authorities cannot protect him as the government does not care about the Nigerian citizens and their lives. He claimed that the government is more interested in the wealthy elite, being corrupt and taking bribes. When describing what he thought would happen to him if he returned to Nigeria, he said that he would be maltreated, segregated and discriminated against. When discussing why he could not relocate to another part of Nigeria for protection, he said that it was not reasonable for him to relocate to any part of Nigeria because the same political instability, fear and civil unrest applies to every part of Nigeria.
During the Tribunal’s review hearing of his application, the applicant said that when he was in [Country 1], he discussed with his friend and fellow Nigerian about joining IPOB. When he and his friend returned to Nigeria in 2013, he joined IPOB. He claimed that he remained a member of IPOB until he travelled to Australia in 2016.
In outlining the specifics about his IPOB membership, he told the Tribunal that he went to the town of [Town 1] in Anambra State where he attended a IPOB meeting. His friend nominated him. He claimed that he only attended two or three meeting in the time prior to his departure to Australia and although he was an active member of IPOB, he held no executive position. He was a “field runner” who “spread the word” about IPOB and actively went out into the community and educated the people about the philosophies of IPOB. He also claimed that because he “spread the word” about IPOB, he was a high profile target to the Nigerian government. The Tribunal particularly notes that none of that evidence was disclosed within his 2017 statutory declaration or disclosed to the delegate prior to the delegate making the original decision to refuse his application.
The applicant further claimed that although not physically harmed because of his membership of IPOB, he was emotionally harmed. He provided no evidence of any psychological diagnosis to support that claim. The Tribunal finds that his claim that he suffered emotionally because of his association with IPOB is vague, weak and tenuous and it is rejected.
He also disclosed to the Tribunal that his brother [Mr B] had been associated with Biafra since 2008 and has since joined an organisation which he claimed was called The New Black Movement of Africa. The Applicant was unable to provide any evidence or information to the Tribunal in regard to this organisation. The Tribunal notes that no evidence, information or examples were provided by the applicant as to how his brother’s involvement in Biafra or the organisation he referred to as The New Black Movement of Africa has impacted upon the applicant, or that there was a risk of harm to the applicant because of his brother’s association with that organisation. The information he provided was vague, weak and tenuous and the Tribunal does not accept any risk of harm to the applicant exists because of his brother’s membership with that organisation. Nor is the Tribunal satisfied there exists a risk of significant harm to the applicant, or there is a real chance he would suffer serious harm if he returned to Nigeria.
The Tribunal notes that within his 2017 statutory declaration, the applicant outlined what he feared might happen to him if he went back to Nigeria:
I am afraid that if I go back to my country they may force me to belong to either group, IPOB of government allies. Most of the members of my tribe belong to IPPOB. But I don’ (sic) want to join the IPOB but I may be forced to join them or face inhuman degrading treatment. I may even be killed or ostracised.[36]
[36]Applicant’s statutory declaration dated 29 August 2017, page 1.
In comparing that evidence to his oral testimony at the review hearing, both versions clearly contradict each other. In the first place, he deposed in his 2017 statutory declaration that he feared that he might be forced to join IPOB, and if he did not join that organisation, he would be killed or ostracised. He now says that he actually volunteered to join IPOB when he returned from [Country 1] in 2013.
In outlining his current position at the review hearing, the applicant has offered new evidence that was not presented to the delegate prior to the delegate’s primary decision being made. With that in mind, unless the applicant provides a reasonable excuse why the evidence was not presented at that earlier time, the Tribunal is to draw an unfavourable inference as to the credibility of that evidence.[37]
[37]Migration Act 1958 (Cth), s 423A.
The applicant was not able to provide any explanation as to why that evidence was not presented to the delegate, and accordingly the Tribunal draws an unfavourable inference as to the credibility of that evidence. The Tribunal does not accept that evidence and rejects it in its entirety and finds that there is no credibility attached to the evidence in respect to his new claims.
The applicant also told the Tribunal at the review hearing that because Biafra were in opposition to the Nigerian government, and the government knew that he and his family are Biafrans, this placed him at risk of harm by the government. The Tribunal rejects that claim because notwithstanding the lack of any evidence to support it; the applicant was able to enjoy a lawful and uninhibited departure in from Nigeria in 2010, along with his return to that country in 2013. The applicant’s parents owned and operated a company manufacturing [products] in [City 1] with an office in the major centre of Lagos. His parents were Biafra and he also worked for the family’s business. Further to that, for a period of time the applicant worked as a [Occupation 1] for the government of Delta state. The Tribunal also notes that when he travelled to Australia, likewise to his trip to [Country 1], his departure from Nigeria in October 2016 was lawful and uninhibited. Notwithstanding all of those points just identified, he provided no evidence of himself, or any member of his family ever being detained, questioned or harmed for being Biafra; and nor was the applicant able to explain why he, as a high profile IPOB target as he claimed, was able to depart Nigeria and travel to Australia without the Nigerian security forces detaining him at the airport.
In conclusion, the Tribunal finds that significant doubt should be attributed to the veracity of the applicant’s evidence; and further finds that his evidence varied from his 2017 statutory declaration to his oral testimony at the review hearing. The Tribunal finds none of the evidence he has provided with respect to his association with IPOB contains any accuracy.
Religion
The applicant claims that for much of his life, he has been a practising Catholic, including when he has resided in Australia. In support of his application, he provided to the Tribunal references from [Father C] (who is the Parish Priest at [Church 1] in [Suburb 1], Brisbane and [Fr D] who is the Parish Priest at [Church 2] in [Suburb 2], Brisbane. [Fr C] described the applicant’s faithful and regular attendance at Sunday mass over the past two years. [Fr D] described the applicant as a parishioner of the Catholic church and in 2017 he received the Sacrament of Confirmation. Having assessed the information received from both [Fr C] and [Fr D], the Tribunal finds that the applicant’s religious faith is Catholic and that he is a regular parishioner of the Catholic church at both [Church 1] in [Suburb 1] and [Church 2] in [Suburb 2].
The applicant’s evidence was that he belonged to the Igbo tribe. The Igbo is predominately Roman Catholic. Nigeria has a population of over 225 million which is evenly split between the religions of Christians and Muslims, with the largest Christian denomination being the Roman Catholic Church.[38] The majority of Muslims in Nigeria are Sunni with the twelve northernmost states governed by sharia law.[39] Christianity is dominant in the southern states, however significant Christian communities exist in the north of the country as well.
[38] in Nigeria.
The Tribunal notes that even though the applicant, and his family, are Catholics, he did not claim that he or any member of his family had previously been subjected to any harm in Nigeria because of their religion. Nor does the applicant claim that he has a well-founded fear of returning to Nigeria because of his religious faith.
Notwithstanding those features just identified, when assessing whether a real risk exists that he will suffer significant harm or there is a real chance he would suffer serious harm because of his religious faith if he returned to Nigeria, the Tribunal is not satisfied on the evidence that the applicant suffered harm because of his religion, and nor is the Tribunal satisfied that there is any probative or tangible evidence of there being a real chance he will suffer serious harm; or that he faces a real risk of suffering significant harm because of his religion.
Delay in lodging an application for protection
Returning to discuss the applicant’s delay in lodging his protection visa application. It was his evidence that he arrived in Australia [in] June 2016 on a student visa. Notwithstanding the issuing of that visa, the applicant did not at any stage prior to his arrival; or at any point after arriving in Australia, make any attempts to enrol in an educational institution to undertake educational studies. The student visa was due to expire on 31 August 2017, and it was only when that visa was about to expire that he lodged his application for a protection visa on 29 August 2017. That lodgement date was ten months after he arrived in Australia, which in the Tribunal’s view, is a significant delay when weighed against the claims made by the applicant.
When giving careful consideration to the delay of ten months between the applicant’s arrival in Australia and when he lodged his application, the Tribunal is mindful of the guidance provided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Therefore, the significant delay of ten months for the applicant seeking a protection visa can support an adverse credibility finding; as well as a finding that he does not have a well-founded fear of harm; and a significant delay is not behaviour indicative of someone who fears for their physical safety.[40] When asked about the exceptionally long delay in lodging his application, the applicant explained that his friends from his church told him that because of his association with Biafra, the best option for him to remain in Australia was to apply for a protection visa.
[40] Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423; Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370, [22].
The Tribunal has considered the applicant’s delay in applying for protection in Australia and concludes that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Nigeria. The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.
Having regard to the exceptional delay between when the applicant arrived in Australia in October 2016 to when he made his original application for a protection visa in August 2017, the Tribunal finds that an adverse inference is drawn as to the veracity and genuineness of his claim in respect to him having a well-founded fear of returning to Nigeria.
REFUGEE FINDINGS
The Tribunal has carefully considered the applicant’s claims that he has a well-founded fear that if he returned to Nigeria he would suffer harm because he is Biafra and of his association with IPOB. The Tribunal finds that the applicant has provided no probative, tangible or credible evidence to support his claims; his claims are vague, weak and tenuous and they are rejected.
Earlier in these reasons the Tribunal outlined its findings and rejected the applicant’s claims. Having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s evidence, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm because of any of the alleged claims.
The Tribunal also finds that based on the facts, features and circumstances of the applicant’s case, he is not likely to be persecuted or harmed for any of the claims he made; and he does not face a real chance of serious harm.
Complementary protection considerations
The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Nigeria, there is a real risk that he will suffer significant harm.
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[41] the Tribunal has considered the alternative criterion.[42] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Nigeria, there is a real risk that he will suffer significant harm as it is defined in the Act.[43]
[41]Migration Act 1958 (Cth), s 36(2)(a).
[42]Migration Act 1958 (Cth), s 36(2)(aa).
[43]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Nigeria. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[44]
[44]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The Tribunal notes the applicant claims that he has a well-founded fear that if he returned to Nigeria, he would suffer harm because he may be forced to join the organisation known as IPOB; although that evidence changed at the review hearing where he now claims that he is a high profile IPOB target. For the reasons already given, the Tribunal does not accept that he will face a real risk of significant harm in Nigeria for the reasons he claims and finds that his claims are devoid of any credibility.
Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returned to Nigeria now or in the reasonably foreseeable future he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
Conclusion: complementary protection criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, he will be exposed to a real risk of suffering significant harm.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.

decision

The Tribunal affirms the decision not to grant the applicant a protection visa.
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 5119

23 December 2022

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