2008120 (Refugee)

2008120 (Refugee) [2023] AATA 1784 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Dharampreet Kaur (MARN: 1576492)
CASE NUMBER:  2008120
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:David James
DATE:16 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 February 2023 at 3:16pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – ethnicity and member of particular social group – Igbo and son of cult member – father killed by Biafran mob and applicant and family threatened, or father killed by mystery illness caused by cult and applicant and brother threatened with forced recruitment – delay in applying for protection – applied after student visa cancelled – no protection claims raised in that review hearing – inconsistent claims and evidence and non-responsive or evasive explanations – no treatment sought for claimed mental health conditions – no harm or threats to sisters in home country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 411(1)(c), 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559 at 596
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nigeria, applied for the visa on 4 October 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nigeria, that there was a real risk the applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 11 May 2020. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 7 February 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Nigeria he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The applicant in the visa application identified himself as Nigerian and being of Igbo ethnicity and a Christian. He states that he is a married man and has two daughters presently aged [Age] and [Age] years. He claims to have left Nigeria on a student (Australian) visa and that was a way out for him as his family and he had experienced some persecution due to his father who was killed for being part of a cult and being Biafran. The applicant made the following claims in the visa application:
·His father (deceased) belonged to the ‘Ogboni’ cult (cult).
·His father was being forced to join forces with the Biafra group and was chased, threatened and killed by a Biafran mob.
·The cult after some years tried to manipulate the applicant and has waged war against the applicant’s family and threatened to kill him if he did not join the cult. When they approached him, he was constantly harassed to the point of being pushed around and subjected to constant threats.
·The applicant’s family reported the harm to the police however, the police could not do anything as these people are powerful and have people within the government.
·The cult has waged war against his family and the government has declared the Biafran people a terrorist group.
·His family secretly took him out of the country to save his life.
·Biafrans are experiencing persecution all over the country especially the very active Biafrans who want an independent state and because of his father’s past he could easily be located by the cult who are very powerful.
·He can not get protection from the government because of his family’s past.
·If he returns to Nigeria, he will be targeted by the cult because he did not wish to be involved or join it.
The applicant in support of his claims provided the following material to the Department:
(i)A Nigerian Police Station Diary Extract purporting to certify that the applicant had attended upon police on 18 July 2011 in relation to a complaint regarding a threat to his life and some letters and a physical attack from members of a cult group.
(ii)A Nigerian Police Station Diary Extract containing a typed statement signed by the applicant and dated 18 July 2011 in which the applicant states:
In March 2011, I lost my father to a terrible illness which was unknown to the doctors. We took him everywhere and to no avail. Unknown to us my father belongs to a secret cult called Ogboni Cult. They were the people who orchestrated the death of my father, the cult kept demanding blood from him which he used my elder brother [Mr A] in 2001 that led to his untimely death. My father confessed before he died that I am next for the sacrificial lamp but he couldn’t go through with it and they attacked him. During the burial, his cult members came and threatened every one of us including me, we shoved it off and continued with the mourning of my father. I kept on receiving threats letter from the Ogboni cult group with blood as the signature each time and that’s why my mother fled the village with us. There is a particular man by the name [Mr B] who is the one they send to me. I am coming to report to the police that my life is in danger and threatening me because I have a future for myself. Please I need help from the police.
(iii)A series of media articles and photographs relating to Nigerian military operations codenamed Operation Python Dance which were described as training exercises aimed at combatting criminal activities across Nigeria.
Department interview
The applicant was interviewed by the Department on 19 February 2020.
Delegate’s decision
The delegate’s decision of 24 April 2020 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant was a Nigerian national of Igbo ethnicity and a Christian whose home region was the city of Lagos. The delegate did not accept that the applicant’s father was a member of the Ogboni secret cult and that the cult had been responsible for his father’s death in 2011. The delegate also did not accept that the cult had aggressively pursued the applicant in an effort to forcibly recruit him and that his father had been an active supporter of the Biafran cause or that the Nigerian authorities would target the applicant due to his purported father’s claimed political profile (Biafran supporter). As such the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act and was therefore not a refugee. The applicant was found not to be a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Nigeria, there was a real risk that the applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Invitation to attend hearing
On 13 December 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 7 February 2023. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
The applicant’s representative, Ms Dharampreet Kaur from Aurum Migration, on Thursday 2 February 2023 emailed the Response to hearing form to the Tribunal which indicated that the applicant and his representative would be participating in the scheduled hearing of 7 February 2023 before the Tribunal and reporting that a Statutory declaration of the applicant and his spouse together with statements from [Ms C] and [Mr D] and a medical examination by a doctor in Australia as to the applicant’s injuries would be relied upon by the applicant at the hearing. Additionally, the Response form identified that four additional witnesses would be giving evidence either in person or via videolink:
·[Ms C], [an Occupation 1] and the applicant’s sister;
·[Mr E], a Nigerian police officer;
·[Ms F], a purported witness to the applicant’s persecution in Nigeria; and
·[Mr D], another purported witness to the applicant’s persecution in Nigeria.
Pre-hearing submissions to the Tribunal – 6 February 2023
On Monday 6 February 2023 at 2:30 pm (Australian Eastern Standard Time (AEST) – Brisbane) the day prior to the scheduled hearing the applicant’s representative forwarded by email the following material:
·Applicant’s Statutory declaration, sworn on 6 February 2023, in which he in part states that:
I was born and raised in Largos state and a native of Abia State. As a child from any Eastern State in Nigeria, the orientation is you are not Nigerian; you are Biafran with the philosophy of having a free state for the Igbo and Yoruba tribes. My father happened to be one of those who believed in that philosophy and was a member of the Ogboni Cult Group. He was one of the soldiers that fought the 1966-169 civil war …
In 2001, [Mr A] my immediate elder brother, mysteriously died of a strange illness … Before his demise, I observed some traditional healers frequenting our house and dispensing “treatment” for his recovery and well-being. It took everyone by shock because we never saw it coming.
After some years, towards 2009, my father [became] ill too. After a while, the family discovered that his sickness looks similar to my brothers … Before his demise in 2011, my father called all of us and told us that he belonged to a cult group called the Ogboni confraternity. He said he joined them needing protection and success and that all the wealth he gathered was through their support. He said the bond between them would continue to be strong as long as he paid his dues, which was sacrificing human blood. He said the cult group could give and take lives and had been protecting him since the Civil War days.
Dad said this group killed my late elder brother and they are behind his sickness. He said he knew about his death because he was already revealing their secrets and the “treatment” they were asking to bring me as his next sacrifice. However, he had blatantly refuse their call, so he told his wife which is my mum to do everything possible to keep me far away because they are coming for me.
The two options I had at that point on 18 July 2011 was were either I replace my father in the Ogboni group, or they kill me. After saying these, dad started gasping, and right in front, he died. Shortly during his burial, it was entirely another scene. The burial was to take place by 11 am, so the corpse was brought home by 7:30 am.
Different groups, I mean cult groups, started coming to the house to pay their last respect to one of their own. I think the last of this group was the one to which he belonged. They gave my mother a considerable sum of money which she rejected and they demanded to see me. They kept mentioning my name. My mum was fearless; she created a big scene in the neighbourhood and asked them to leave me alone. She said they can go with the corpse of their member and do whatever they like with it, but they should leave her son out of their matter.
We immediately went to the police station [location] Police Station, Umuahia, Abia State to report the incident, but nothing was done about it. My father was buried at the front of his building in our compound. It became eminent to me that I had to run for my life.
Ogboni Cult Group (Nigeria): Based on my experience, interactions and enquiries, here is the status of the bone team members.
The Ogboni Cult Group is politico-religious and financial group predominates among the Yoruba and Igbo tribes. It’s primary occupation is civil, judicial, and economic power. Purportedly, Ogboni Cult Group is a registered entity that abides by the laws of the land to promote positive values, truth, justice, and cultural heritage. However, to the contrary, internal local people and its fraternity members are secretive and sinister. They usually meet in forests or remote locations to perform rituals, singing, and chant spells and invocations. The cult members resort to breaking law and order with impunity resulting in premature deaths of innocent victims, female genital mutilation of girls and grievous persecution of youths who are cult members in case of non-compliance.
Although the fraternity was started both by and for the Christian elite, it has since grown in scope, and today its membership includes aristocratic followers of different faiths …
… Ogboni members are members of Nigeria’s financial elite, and Ogboni membership is often used as a networking tool to contact persons who can improve one’s financial position and power…
The Ogboni still have “quite significant” influence and power over the nation’s affairs. Nevertheless, the political integrity of both the Ogboni society and the Reformed Ogboni Fraternity has been called into question given their strong links with Freemasonry, the Rotary club, or the Rosicrucian Brotherhood …
… To continue by narrative of fleeing from the dangerous Ogboni, I fled back to Lagos after the burial believing all would be well, but to my anguish and disbelief, I was being stalked. On 5 October 2012, when a car parked inside my compound, and to hefty guys came out demanding to see me. I was scared because I haven’t seen these men before and they looked really shanty. They question my neighbours about what room I live in, before my neighbours could tell them my room, I ran through the back door and jumped the fence to the other side of the street. They ran after me but could not jump the fence because of its height. While jumping, I fell on my right hand and I had a fracture. I broke my hand but somehow managed to escape. My neighbour rushed me to the hospital, and I spent weeks trying to put my hand in order. After I was discharged from the [hospital] lagos, I left Lagos and went to Ogun State I had to survive, so I started working in a factory as a casual worker to at least be able to feed myself and pay my rent.
I was in Lagos state for barely 4 weeks. After six months, my mum [asked] me to return to Lagos, believing it should be over by then. On 11 May, 2013, two guys met me on the way and asked if I had finished running or still wanted to run. I felt terrified and asked them to calm down, before I could say anything, one brought a knife and stab me in my belly. That is all I could remember before I passed out. Those that help me said they had to [help me] and I was dying by the roadside when I regained myself.
I was faced with adversities, including physical and mental trauma. However, I continue to study online from various locations while in hiding and, due to my academic acumen, managed to study online and pass [Units of study]. It was only on 20 June 2014 that I physically appeared at the [Institute] in Lagos to clear a written examination as a minimised exposure. I called my mother, and she decided to send me out of the country. She preferred Australia because I would also have the opportunity to study and at the same time be safe from those running after my life.
[Ms F], my wife, through close friends of my immediate family. She is [an Occupation 2] and kept supporting me professionally and emotionally. Today we have three adorable daughters. All three are born outside Nigeria being vulnerable to female genital mutilation, which is vehemently carried on regardless of the trauma and complications associated with the lifelong victims. The eldest daughter was born in [Country 1], and the younger two in Australia. [Ms F] is on her way to permanent residency along with our daughters. I cannot imagine being without my family in case of refusal for a grant of these are on shore.
As a choice and plan, my siblings and their daughters were born overseas, much away from Nigeria, due to force female genital mutilation. In my extended family of my siblings my younger brother has fled Nigeria due to the continued threat and violence and lives in [Country 2]. [Ms C], my immediate sister, [an Occupation 1], and my second sister, [an Occupation 3], have the right to be in [Country 1] regardless of their high-profile jobs and, so, escape coming into the limelight.
In recent times, the rate of insecurity in Nigeria has been alarming due to a lack of good governance. The most feared fear is the killing of most people from the Igbo tribe because of the Biafra issue still on the ground …
More importantly, my profession is [Work sector] which are innately owned by Ogboni cult members. They believe in pulling the Igbos out of Nigeria even when they know it is against the Constitution. But the federal government resisted them with all its might. After their defeat in the war, they agreed to join Nigerians again, but underground, they are making moves to fulfil their long-term wish by sending out the youth to cause unrest in the country. These people carried out kidnapping, killing and all sorts of abuse against women and children.
I respectfully submit that my claims are genuine and continue to remain in a distressful situation due to the uncertainty of being accosted and annihilated on return to Nigeria. Thus, I plead for permanent residency visa.
·Statutory declaration of the applicant’s wife, [Ms F], sworn on 6 February 2023, in which she states:
I am the legally wedded wife of [the applicant].
That [the applicant] is unable to go back to Nigeria at this stage due to what has happened to him in the past with the Ogboni confraternity and Biafra IPOB. There are many ill things going on back in Nigeria that cannot be over emphasised with the fact that it is not a safe place, especially for women. Women have been victimised for centuries with genital mutilation, we are subjected to the fact that it is an ongoing process from generations to generations. I am also a living proof of being victimised and I must say it is not something I want my daughters to experience. We have three lovely daughters with [the applicant]. Nigeria is not a safe place for them to go to and stay that was why they were all born outside of Nigeria, [Country 1] and Australia.
These issues have been affecting [the applicant] mentally and that was why we never had a stable relationship together that led to our separation for almost 2 years whilst in Australia because I just could not deal with the constant thinking as he was always very unhappy with his state. Our separation affected my elder daughter as she was not doing well in school, always very aggressive because she misses her daddy figure, this is something I don’t want any of my children to experience, they need their daddy around them, and I have never seen them more happier ever since.
My daughters and I are already on a pathway for permanent residency in Australia. [the applicant]’s situation is genuine and compelling for grant of permanent stay on shore because his life is at stake.
·Correspondence from [Dr I] of [Medical Centre], [Suburb], which reports that the applicant had been examined by the writer who observed a series of scars on the applicant including one [measuring] 18 cm x 2 cm. The report states that the applicant reported that he had been attacked by a mob with sharp weapons in Nigeria in 2012.
·Affidavit under the hand of [Ms C], in which she states in part that:
My father is from Abia state born and raised there, my father fought the Biafran civil war in Nigeria years ago and he is also a core member of Biafra. My older brother died in 2001 followed by an un-known illness which we all know nothing about. Years later my father became very sick and was diagnosed with nothing but he kept on deteriorating, on his sickbed he made known to us that he was a member of a cult group called Ogboni fraternity, they gave him protection and connections but at the expense of sacrificing blood, he also stated that the cult group were behind the death of my brother years ago. He said [the applicant] is next in line and his refusal brought upon him this sickness. During his burial, different groups came and then followed death threats to me and my family. It was reported to the police station but nothing was done.
It became eminent and had to flee back to Lagos, but realising that [the applicant] wasn’t safe at all. [The applicant] was spiritually and physically attacked and escaped death. [The applicant] was bleeding profusely due to the physical injury [the applicant] had, with a broken bone on my left hand. The threat became much to my family and then my mum decided to send me to Australia to so study so [the applicant] can be safe from these people who won’t leave me alone.
My father was also a core Biafran as he believes in its reign and wanting to divide the country and have its own government. Biafra as you can see then and now is a group that is causing chaos and unrest in Nigeria at large. I have been devastated and scared for my life and that is why [the applicant] am seeking protection here in Australia.
In recent times the high rate of killings has increased in Nigeria due to this insurgence ranging from kidnapping, unlawful arrest of Igbo tribes all because of this Biafran clan.
·Affidavit under the hand of [Mr D], in which he explains his understanding of the Biafra Nationalist Separatist Group and further explains why the applicant cannot return to Nigeria by stating that:
[The applicant] should not be allowed to come back to Nigeria. My reasons are as follows:
a.     [The applicant] is now a father. When the situation was still very intense some 10-12 years back, [the applicant] was a young boy running from one state in Nigeria to the other toying to save his life and only his life. Now he is a father with three kids. He cannot be running from state to state anymore because of his family. His children will make him more vulnerable to attack this time around because he is too difficult to catch, they would go for his kids.
b.     Also the last time I asked questions about the modus operandi’s of these people, (Ogboni confraternity) I was told that if their target is still alive, then his position cannot be replaced until he is confirmed dead. Those trying to occupy [the applicant] position also would be after his life because they need him dead to make sure that the post his father left for him is replaced.
c.     [The applicant] being out of their reach all these years made the noise. About him taking over his father’s position in their world would die down, I am very sure that the moment he sets his feet inside the country again, the forgotten case would be remembered and they will start looking for him immediately.
·Copies of identity pages of two [Country 1] passports for children purported to be the nieces of the applicant.

On Tuesday 7 February 2023 the day of the hearing at 1:27 am (Australian Eastern Standard Time (AEST) – Brisbane) the applicant’s representative forwarded by email the following material:
·Written submissions which outlined the delegate’s decision, discussed the criteria for a protection visa, outlined the applicant’s background, provided information as to the Ogboni cult, chronology of purported violence against the applicant in Nigeria, and final submissions to the effect that there is a real chance in the reasonably foreseeable future that the applicant would be persecuted for reasons of his non-conformance to the cult perspective and being a devout Christian. Earlier in the submission it was also advanced that the applicant is entitled to complementary protection.
·Applicant’s Statutory declaration dated 6 February 2023, a copy of which had the day before been received by the Tribunal, refer paragraph 20 above.
·Statutory declaration of the applicant’s wife, a copy of which had been forwarded to the Tribunal the day before, see paragraph 20 above.
·Medical report of [Dr I], a copy of which had been forwarded to the Tribunal the day before, see paragraph 20 above.
·Affidavit under the hand of [Ms C], a copy of which had been forwarded to the Tribunal the day before, see paragraph 20 above.
·Affidavit under the hand of [Mr D], a copy of which had been forwarded to the Tribunal the day before, see paragraph 20 above.
·Copies of identity pages of two [Country 1] passports for children purported to be the nieces of the applicant, a copy of which had been forwarded to the Tribunal the day before, see paragraph 20 above.
·Copy of Nigerian Police Identity Card in name of [Mr E].
·Applicant’s father’s Nigerian death certificate identifying the primary cause of death to be cerebral vascular accident and the secondary cause to be respiratory arrest.
·Police reports which had been provided to the Department with the applicant’s visa application, refer paragraph 15 above.
Country information
The Tribunal has taken into account the DFAT Country Information Report Nigeria, 3 December 2020, as relevant, including: the introductory ‘Map’ which identifies Lagos City as being within Lagos State and part of the South-West Zone of Nigeria.
‘Demography’ at 2.6 to 2.10 where at 2.8 and 2.9 it provides that:
Nigeria is composed of over 250 ethnic groups (see also Race and Nationality). The Hausa, based predominantly in the north, is the largest, comprising 30 per cent of the population, followed by the Yoruba in the southwest (15.5 per cent), the Igbo in the southeast (15.2 per cent) and the Fulani in the north (6 per cent). English is the official language, although various constitutional articles also provide for the use of other national languages in official settings, including parliamentary business.
Nigerians predominantly practise Islam and Christianity, with 51.6 per cent of the population identified as Muslim (majority Sunni) and 46.9 per cent identified as Christian. The population is broadly divided between a Muslim north and a Christian south, although there are communities of each located nationwide (see also Religion).
‘Security Situation’ at 2.54 to 2.58 noting that at 2.54 and 2.58 it is reported that:
While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.
Long-standing tribal, religious, political and community disputes often lead to serious violence and unrest. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic or social grievances in 2019. The majority of these (2,758) occurred in northeastern Borno state, followed by Zamfara state (1,274) and Kaduna state (487), also in the north. Over half of these deaths were related to the Boko Haram insurgency, although deaths have occurred in all parts of the country. According to human rights observers, security forces have often responded to civil unrest with disproportionate force, causing fatalities.
‘Race/Nationality’ at 3.1 to 3.6 where it is reported at 3.4 and 3.6 that:
There is a long history of tension between some ethnic groups, which occasionally results in cases of localised violence. The government’s efforts to address tensions among ethnic groups typically involves heavily concentrated security actions, incorporating police, military and other security services, often in the form of a joint task force.
DFAT assesses members of ethnic groups who are not indigenous or who are in the minority in the geographic area in which they reside face a moderate risk of official and societal discrimination based on ethnicity. This discrimination may include the denial of access to employment or housing but is unlikely in most cases to include targeted violence on the grounds of ethnicity alone.
‘Igbo’ at 3.7 to 3.10 provides that:
The Igbo people are the third largest ethnic group in Nigeria, constituting 15 per cent of the population. They originate from southeastern Nigeria and live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. The Igbo speak a number of Igbo dialects. They are predominantly Christian.
There are no legal provisions targeting the Igbo population in Nigeria and the Igbo, like all Nigerians, are able to move freely within Nigeria. Many Igbo have migrated to other areas of Nigeria, including northern states. Like other non-indigenous communities, Igbo residing in these areas have occasionally faced discrimination from locals: in June 2017, for example, activists in the northern city of Kaduna called for the eviction of Igbo residing in the state. DFAT is not aware of any other significant cases in which Igbo have been specifically targeted for violence or exclusion due to their ethnicity.
As noted in recent history, in 1967 predominantly Igbo separatists attempted to declare an independent state in eastern Nigeria, known as the Republic of Biafra. This was the catalyst for the Nigerian Civil War (otherwise known as the Biafran War) of 1967-70, which resulted in the separatists’ defeat. Senior Igbo figures have claimed successive Nigerian governments, including the Buhari administration, have subsequently excluded Igbo from senior political, military and civil service positions. A number of political organisations continue to advocate for an independent Biafran state and have occasionally clashed with security authorities.
DFAT assesses Igbo are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria. Like other non-indigenous communities, Igbo residing outside of their traditional homeland may face localised discrimination.
And ‘Religion’ at 3.11 to 3.23 noting that at 3.12 it is reported that:
While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians.
‘Members of Confraternities/Cults’ provides at 3.128 to 3.133 that:
Confraternities/cults are mostly concentrated in the southern states of Nigeria, particularly Rivers, Bayelsa, Delta and Edo states. Some reportedly have an overseas presence through diaspora communities, although DFAT is not aware of any operating in Australia. Initially introduced by Nigerian scholars returning from the United States in the 1950s as a variation of student confraternities, many confraternities/cults have become more violent over time and are now essentially criminal gangs. There have been reports linking confraternities/cults with political violence, with some politicians reportedly co-opting them to support their political rallies and disrupt those of opposition groups.
In-country sources report that, in addition to operating on university campuses, several confraternities/cults also have a presence in high schools and thrive in poor urban areas. Many young men (and some women) voluntarily join confraternities/cults, motivated by the opportunity to earn money and gain power, but some reportedly join through peer pressure, under threat of reprisal or to gain protection. Inter-cult violence reportedly occasionally results in the death of cult members, and cult members have assaulted individuals who attempt to leave.
DFAT understands many confraternities/cults operate more like gangs than religious cults. Young men in particular are targeted to join confraternities for protection and through peer pressure. Many young men and women also voluntarily join, as confraternity membership offers opportunities to earn money and gain power. The process of gaining membership can include violent initiation, in some cases reportedly including beatings and/or rape. According to Amnesty International, over 60 people were killed in 2019 in Rivers state alone through cult-related violence.
Some of the more prominent confraternities/cults are the Pyrates confraternity, created at the University of Ibadan campus in 1952 and Nigeria’s oldest; the Buccaneers Confraternity, the Family Confraternity and the Black Axe Movement. The latter emerged from the University of Benin in the southern state of Edo. From its origins as an idealistic confraternity, the group has reportedly grown into a sophisticated criminal organisation, with international chapters established outside Nigeria. The Black Axe Movement, like other confraternities/cults, targets students for membership, and students who refuse to join may face intimidation and violence.
The Rivers state government signed an anti-cultism bill into law in March 2018. The bill prescribes the death penalty for any cultist who kills during a cult activity and life imprisonment for any cultist apprehended. This follows similar laws implemented by the southern Edo, Ebonyi, Kwara, Enugu and Akwa Ibom state governments.
DFAT assesses members of confraternities/ cults face a high risk of legal sanction if they reside in states in which their organisations are proscribed. They also face a high risk of experiencing violence from other organisations or from their own group should they attempt to leave.
‘Exit and Entry Procedures’ at 5.38 to 5.40 where at 5.38 and 5.39 the report states that:
The Immigration Act (2015) provides the legal and regulatory framework for the entry and exit of persons into or out of Nigeria. The Nigerian Immigration Service (NIS), an agency under the Federal Ministry of Interior, is charged with the responsibility of regulating and approving immigration, emigration, and the granting of visas and entry permits into Nigeria.
Section 17 of the Act requires every passenger who arrives or departs Nigeria from any recognised port to produce a landing or embarkation card, and to satisfy an immigration oﬃcer that he or she is the holder of a valid travel document. According to Section 39 of the Act, the Comptroller-General of Immigration may at any time revoke any entry permit under the Act, if he/she deems it to be in the public interest. Under Section 31 of the Act, the Minister of Interior also has the power to prohibit the departure of any person from Nigeria on public interest grounds, which can include insufficient funds, invalid visas or passports, no return airfare or a ‘doubtful mission’. In July 2020, the Minister invoked the section while preventing 58 medical doctors from departing the country on the grounds that they did not have entry visas for the United Kingdom.
‘Conditions for Returnees’ at 5.41 to 5.44 where at 5.41 and 5.42 it is reported that:
Thousands of Nigerians enter and leave the country every day. According to the National Commission for Refugees, Migrants and Internally Displaced Persons, Nigeria received a total of 11,494 returnees in 2018, of which 10,180 were from Libya. There is no evidence of any stigma attaching to such returnees.
Nigerian nationals may return voluntarily to any region of Nigeria at any time by way of the Voluntary Assisted Return and Reintegration Programme, run by the International Organization for Migration (IOM) and co-funded by the European Refugee Fund. The Programme provides assistance with obtaining travel documents, booking flights, and organising re‑integration assistance in Nigeria, and is open to those awaiting an asylum decision or the outcome of an appeal, as well as failed asylum seekers. Upon arrival, returnees can receive immediate assistance such as food, medical screening, overnight accommodation and money (up to 100 Euros) for basic needs and transportation. Returnees can also receive in-kind re‑integration assistance and skills training.
And ‘Prevalence of Fraud’ at 5.56 to 5.60 where at 5.60 DFAT states:
DFAT assesses that, notwithstanding Nigeria’s efforts to improve controls against fraud, document fraud remains a significant issue in Nigeria, including in the process for re-issuing lost documents.
The Ogboni society or cult is reported to have been a political organisation that existed in the 19^th century as a group that maintained law and order in Yorubaland communities. In Nigeria today the Yoruba live predominately in the modern states of Oyo, Ogun, Ondo, Lagos, Kwara, Osun, Ekiti, Edo and parts of Kogi.[1] In a 2009 paper written by a lecturer in the Department of Religion at the University of Ilorin, the author[2] discussed another writer’s comments as to the cult and noted that:
[1] Yoruba Traditional Adjudicatory Systems, Onadeko T, African Study monographs Vol 29, 1, p 16.
[2] The theory and practice of secrecy in Ikonko and Ogbono Societies, Nwosu, P U. 2009, p. 11.
… Okonko and Ogboni are organised in lodges, branches, and do have representative government with a hierarchy of elected officers and a special rituals for the election and initiation of new members. They are not societies of evil or darkness even though they carry a burden of secrecy. They are essentially ancestral organisations that emphasise good fellowship, coexistence, mutual aid and philanthropy. Many presidents, senators, governors and Supreme Court justices are members. By their very nature, Okonko and Ogboni tend to draw their members from the more privileged groups of citizens, in which the young are well provided with the advantages that lead them toward success. However, in recent times, the influence of Okonko in community affairs is deemed diminishing. And Awolalu and Dopamu (2005:250) also observed that “the Ogboni Society has lost much of its earlier powers … the Ogboni functions are limited to ceremonies like title taking, funerals, and sacrifices”.[3]
[3] The theory and practice of secrecy in Ikonko and Ogbono Societies, Nwosu, P U. 2009, p. 11‑12.
Other sources report that the society (Ogboni) is more like a social club rather than a cult or a secret society. Modern members have links to Freemasonry and the Rotary Club. The society has representation within Nigeria’s elite, including the police, judiciary, government and traditional institutions.[4] Its influence is reported to have been in decline since the 1990s.[5]
A 2009 report by the UK Home Office on the subject of Nigerian cults and secret societies states that:
Secret societies or cult exist in Nigeria but, by their nature, very little is known about them. The most widely reported and studied is the Ogboni cult, though many Ogboni members reportedly self-identify the group as a social club rather than a cult or a secret society.[6]
In a 2002 report on Nigeria, the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD) states that it is unlikely that an individual would be pressured to join the Ogboni, including through threats of physical harm:
It is also unlikely that there is a rule of automatic succession in a position (i.e. the son replacing the father) but more likely that those families who traditionally have had the authority to invite new members would choose the most suitable candidate. If this person should for some reason – because of his or her Christian belief – not want to join and if there is no other candidate from this particular family he or she might be ostracised and might also lose property or an inheritance but would not have to fear for his or her life.[7]
The Canadian Immigration and Refugee Board in 2005 stated the following as to the question of being forced to join the Ogboni:
The anthropology professor also described the only instance she could think of when the society might actively pursue a person who did not want to join. If that person’s parents had “dedicated” their child to the society, sometimes before birth, then the society could go after the person and force him or her to join to ensure the fulfilment of the parents promise. She said that the person who had been dedicated might be raised unaware of their parents were Ogboni members. As such, they might not be appraised by the society until they were thought ready to join, which could be when the individual was 30 or 40 years old. She added that she was fairly sure that the person she lived within Nigeria who were of Ogboni did not join until they were in their late thirties.[8]
[4] Nigeria: Ogboni society, including its history, structure, rituals and ceremonies; information on membership and the consequences of refusing to join [NGA104213.E], Immigration and Refugee Board of Canada, 14 November 2012.
[5] Country Focus Nigeria EASO 2 June 2017, p. 57.
[6] Home Office UK Border Agency 2009, Operational Guidance Note Nigeria, 14^th April Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Nigeria: 8^th European Country of origin Information Seminar Final report Vienna, 28-29 June 2002’, Refworld website, 28 November, Nigeria: Ogboni society, including its history, structure, rituals and ceremonies; information on membership and the consequences of refusing to join [NGA104213.E], Immigration and Refugee Board of Canada, 14 November 2012
Review hearing – 7 February 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language with the applicant and his wife appearing in person. The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal confirmed that he understood the relevant statutory framework and concepts as to the refugee and complementary protection criterion and this was confirmed by his representative.
Applicant’s evidence
The applicant adopted his Statutory declaration of 6 February 2023 and the pre‑hearing submission of 7 February 2022 as being his evidence and the submissions to the Tribunal as to his claims for protection.
The applicant’s evidence as relevant (in summary) was that he had arrived in Australia on a student visa [in] August 2014 and had come to Australia primarily because he was being attacked by cult members, and his treating doctor in relation to a stabbing incident had advised him to travel and leave the country. He explained in accordance with his Statutory declaration and submissions to the Tribunal that in around 2009 his father had fallen ill from a mystery disease which presented similar to the illness that had caused the death of his immediate elder brother in 2001. He said that prior to his father’s death in 2011 his father had spoken to all the family and informed them that he belonged to the Ogboni cult. His father had explained that he had joined the cult to obtain protection and wealth. His father said that the cult had killed his brother and was the cause of his father’s illness. His father told his family that he was next for sacrifice to provide blood for their consumption. The applicant also said that he had been expected to take his father’s place in the cult. He explained that cult members attended his father’s funeral and tried to speak with him and that he had received a number of threat letters written in blood. In response to the Tribunal’s questioning the applicant said he no longer had the threat letters but that they were at his mother’s home in Nigeria. He was unable to explain why he had not sought to have the letters forwarded to him here in Australia after he had made his application for the visa.

He explained that he and his mother had made a complaint to the police about the Ogboni members attending his father’s funeral and making threats to all of his family but that the police did not take any action. He described in accordance with his Statutory declaration that he believed the Ogboni to be powerful and influential in the government of Nigeria. Further he described being chased by two hefty men from his housing compound on 10 October 2012 which resulted in an injury to his hand and an incident on 11 May 2013 when he was confronted by two men, one of whom stabbed him [resulting] in his hospitalisation. He explained that these two incidents were the Ogboni seeking him out because he had failed to join the cult and replace his father.
He stated that after discussions with his mother and family he left Nigeria to escape violence and seek protection in Australia and also to study in Australia.
He stated that since arriving in Australia he has completed studies in [Subject] and his wife has been working as [an Occupation 2]. He and his wife have three daughters, aged [Ages range]. The eldest of his daughters was born in [Country 1] and his two youngest daughters were born in Australia.
When asked why he had not immediately made an application for a protection visa after arriving in Australia but rather waited until 4 October 2019 (a delay of 5 years and 2 months) he explained that he had not been mentally okay and thought he would manage the situation and his fears on his own. He further stated as to his delay in making his application that he had been going through mental dramas about what had happened at home, and as he had become depressed, he could not remember things. In reply to further questioning, he stated he had not sought any mental health assessment, treatment and/or counselling since arriving in Australia and experiencing what he had described as depression. He further explained that although his wife has and is still working as [an Occupation 2] and supports their family, it had been too expensive for him get medical treatment in Australia as he does not have access to Medicare.
As to his siblings from Nigeria, he told the Tribunal that his eldest brother had died from a mystery illness in 2001. His other brother now lives in [Country 2] and had fled Nigeria fearing the Ogboni cult. Two of his sisters live in [Country 1]. Another sister is [an Occupation 3] in Nigeria and often travels throughout the country for her work and his other sister is [an Occupation 1] and resides in Nigeria but also often travels to [Country 1]. When questioned as to whether his two sisters who remain in Nigeria had been the subject of any threats and/or actual violence from members or purported members of the Ogboni cult, he was evasive and continued to provide evidence about his fears and to state that the Ogboni would harm him and that they are very powerful. After repeated requests from the Tribunal for the applicant to answer this question, the Tribunal explained to him that his failure to respond to the Tribunal may be a reason to affirm the decision under review and this was conveyed to the applicant in accordance with the procedure outlined in s 424AA of the Act. The applicant then conceded that his sisters in Nigeria had to his knowledge not been the subject of any threats and/or actual violence from members or purported members of the Ogboni cult since his father’s death and funeral in 2011.
The applicant was then taken through his claims as outlined in his application for the visa and requested to explain same. He provided the following responses:
·Claim – that his father belonged to the ‘Ogboni’ cult. He explained that that was true as his father became ill in 2009 from a similar illness that killed his elder brother and his father had called the family together. His father told his family that he was a Ogboni member and that their deceased brother had been sacrificed to the cult as the Ogboni drink blood and suck blood. His father told them that the cult was also responsible for his sickness.
·Claim – that his fathers had been forced to join forces with the Biafra group and was chased, threatened and killed by a Biafran mob. Initially the applicant was unable to explain this claim and in response to the Tribunal distinguishing this explanation as to his father’s death and having died from a mystery illness, the applicant became evasive and was unable to explain the different descriptions of his father’s death. After some delay and following repeated requests to reply to the questions of the Tribunal which were framed in accordance with the procedure prescribed by s 424AA of the Act, the applicant replied that he had used that language as his father had been in the war and a member of the Biafran resistance and had since joined the Ogboni, and as his father had been killed by the Ogboni through a mystery illness he used the term mob.
·Claim – the cult after some years tried to manipulate the applicant and has waged war against the applicant’s family and threatened to kill him if he did not join the cult. When they approached him, he was constantly harassed to the point of being pushed around and subjected to constant threats. Under questioning about this claim the applicant conceded that no other family members in Nigeria had to his knowledge been the subject of threats and/or actual violence from members or purported members of the Ogboni cult. The applicant was further questioned as to why he had not included in this claim his allegations that he had been stabbed by members of the Ogboni. His reply was that the term being ‘pushed around’ was his words and that they encompassed him being stabbed. He further explained that as he had been mentally unwell at the time of making his application, he had not provided further details of him being ‘pushed around’ and had failed to explain that this included being chased and later stabbed.
·Claim – the applicant’s family reported harm to the police, however, the police could not do anything as these people are powerful and have people within government. The applicant explained that many Ogboni members have government roles, and they could use his Biafran family affiliation to excuse taking no action.
·Claim – his family secretly took him out of the country to save his life. As to this claim, the applicant explained that the family supported him to leave and travel to Australia on a student visa.
·Claim – Biafrans are experiencing persecution all over the country especially the very active Biafrans who want an independent state and because of his father’s past he could easily be located by the cult who are very powerful. The applicant, although he stated he was not involved in the independence movement, stated his fear in this regard was that Ogboni members in government could use his family connections (his father having fought in the civil war) to persecute him for not joining the cult by accusing him of being associated with the independence movement.
·Claim – he cannot get protection from the government because of his family’s past. The applicant explained that as he believed Ogboni members were entrenched throughout the government, he would not be able to get assistance or protection from the government.
·Claim – if he returns to Nigeria, he will be targeted by the cult because he did not wish to be involved or join it. The applicant, in regards to this claim, relied upon his earlier responses, see above.
In response to the Tribunal raising in accordance with the procedure prescribed in s 424AA of the Act the applicant’s earlier appearance before this Tribunal on 12 March 2019 (refer Decision Record of the Tribunal dated 26 March 2019 Case [Number]) in relation to a review of his student visa cancellation, and his recorded response to that Tribunal that he confirmed that he had no intention of applying for a further visa apart from a student visa, the Tribunal queried the applicant as to this statement and why he had not taken the opportunity at that time to raise his protection claims. The applicant after being given some time to consult his representative explained that he had raised his present claims with his then representative who had advised him not to raise the new claims (protection claims) at that hearing. At this time the applicant was further questioned as to his delay in making his protection claims on 4 October 2019 after apparently fleeing harm in Nigeria and arriving in Australia [in] August 2014 and having appeared before the Tribunal at his student visa cancellation review on 12 March 2019. After some delay the applicant explained that he had been mentally unwell during those periods, and he could not otherwise explain his delay except for saying he was mentally unwell because of his treatment in Nigeria.
In response to the Tribunal providing to the applicant a copy of the country information and providing him with a break in the proceedings to review same, he then in response to the Tribunal discussing such information stated that he had no comment as to the demography information. As to the security situation information he stated he agreed with it, and as to the race/nationality information he commented that he agreed but that there were still tensions throughout the country. He made no comment as to the Igbo, religion and exit and entry information. In relation to the cults information and the further information at paragraph 21 as to the Ogboni cult, he commented that the cults are everywhere and that they are evil because they meet in secret in the bush and drink blood. He said they were barbaric. As to the conditions for returnees’ information, he stated that there can be different situations, and that his situation was different because his father had been a member of a cult and he is still wanted by the cult.
Evidence of [Dr I]
[Dr I] appeared by telephone and explained that he was a medical practitioner who practised in general practice and had an interest in [an Area of medicine]. He confirmed that in accordance with his letter of 27 October 2022 he had examined the applicant on that date and noted a series of scars that were visible on the applicant’s body. He conceded as to the 18 cm scar on the [applicant] that he did not have the relevant expertise to comment on whether the scar was consistent with the applicant’s description of him having been stabbed and the manner of that injury. The doctor explained that all he could say was that the scar was older than 12 months.
Evidence of [Mr E]
[Mr E] appeared by telephone after being unable to connect to the Microsoft Teams system (videolink) and stated that he was a police officer with the Nigerian police and had been a police officer for the past 24 years. He explained that he had been at the [location] Police Station on 18 July 2011 when the applicant and his mother had attended and made a complaint about the Ogboni cult having attended his father’s funeral and having made threats to the applicant. He recalled the applicant’s mother being outside the police station and screaming about the Ogboni and the safety of her son, the applicant. He stated that nothing had been done about the complaint and he suspected that this was because the Ogboni were powerful people. However, under questioning, he conceded that he had not been involved in the investigation of the applicant’s complaint and did not actually know why no action had apparently not been taken in response to the complaint. Further he conceded he was not involved in the taking of the applicant’s complaint and he had not at that time spoken with the applicant or the applicant’s mother but rather had been present at the station and overheard some of the applicant’s mother’s comments. Under further questioning as to what he had heard and when asked whether he had heard complaints about the Ogboni attending the applicant’s father’s funeral and/or any attacks or stabbings, he stated he had heard the applicant complain about the Ogboni members attending the funeral (2011) and threatening his family and that he had also been stabbed at some time.
At the completion of [Mr E]’s evidence, the Tribunal in discussions with the applicant and his representative agreed that the evidence of the police officer supported that the Nigerian Station Diary Extract containing the applicant’s statement to police was not a forgery. However, the Tribunal noted that [Mr E]’s evidence of a report of the applicant having been stabbed was contrary to the applicant’s evidence which had been to the effect that his stabbing by purported Ogboni members had occurred on 11 May 2013, several years after his complaint to police in 2011.
Evidence of [Ms C] (applicant’s sister)
[Ms C]’s evidence was by both videolink and telephone due to connectivity issues. She adopted her sworn affidavit as her evidence and her further oral evidence was in accordance with her affidavit. Additionally she explained that as [an Occupation 1], she tried not to become involved in cult‑related and spiritual issues in Nigeria, but she recounted her father’s discussions prior to his death to her and other family members in which he said he had been a member of the Ogboni cult and that her elder brother had died at the hands of the cult through a mystery illness in 2001 and that her father believed he was also dying as a result of him not providing the applicant to the cult for sacrifice or membership. When questioned as to the cause of her father’s death she said she had been unable to obtain his death certificate and she appeared surprised to learn that the Tribunal had been provided with a copy of that certificate. She was further surprised to be told by the Tribunal that the certificate reported that her father’s primary cause of death was cerebral vascular accident and that the secondary cause was reported as respiratory arrest. She said she was not present when the applicant had been chased from his compound on 5 October 2012 or when he had reported being stabbed on 11 May 2013, but she had visited him in hospital after the reported stabbing and noted that his injuries at that time were consistent with his description of same including that [detail about treatment] by medical staff.
[Ms C] in response to the questioning by the Tribunal stated that she had not been the subject of any actual violence from members or purported members of the Ogboni cult but she had received some threatening telephone calls from a person she believed was connected to that cult. She explained the last such call had been 12 months ago and that the person calling her had asked where her brother (the applicant) was but that they did not say who they were. She further explained that earlier calls were to the effect of the caller complaining about her brothers not presenting themselves and the caller saying they were from the Ogboni cult. She stated that her brother would be in danger if he returned to Nigeria because of the violence and kidnapping that occurs in Nigeria and because of all the terrible ritual killings. She said the security situation in Nigeria is unsafe and that the Ogboni will come for the applicant. She further conceded that she had also been threatened by the Ogboni members at her father’s funeral but that except for the telephone calls she had not been further threatened or harmed in any way and that she had not taken or made any special security measures for her and/or her family.
Evidence of [Mr D]
[Mr D] initially appeared by videolink, but the bulk of his oral evidence was by way of telephone due to connectivity issues. He explained he was a local government councillor and politician and had known the applicant for many years as they had grown up living in the same compound and were friends. His evidence was in accordance with his affidavit that had been provided to the Tribunal prior to the hearing. He explained that he had not attended the applicant’s father’s funeral but that he remembers his mother had told him about the drama at the funeral where the cult members had attended and had made threats to the applicant’s family as the cult members had wanted to see the corpse, and as the applicant’s father was a senior member of the cult, the cult members had requested the applicant replace his father in the cult. He said that people were then asking about the applicant, and before they knew it, he was stabbed. Although he did not see the attack on the applicant, he saw the scars from the stabbing attack on the applicant after the applicant returned home from the hospital. He explained that he had told the applicant at that time that he was very vulnerable and that he should not come home.
Evidence of the applicant’s wife
The applicant’s wife gave oral evidence in accordance with her Statutory declaration. She explained she was aware of the assault of her husband (stabbing) in Nigeria on 11 May 2013 and the trouble he had had with the Ogboni cult arising from his father’s membership and refusal to present the applicant for sacrifice and/or membership. However, she conceded under questioning that although she had seen his wound, she had not been present at the attack and she had been informed about the attack by friends who had attended upon the applicant in hospital and been told the details of the incident by the applicant’s mother. She did explain that as to the earlier incident on 5 October 2012 when the applicant had been chased by two men after he fled his house, she informed the Tribunal she was at the applicant’s house on that day and saw him flee from the house because of the presence of two men supposedly asking questions of the neighbours about him. She also stressed to the Tribunal in accordance with the contents of her Statutory declaration that her daughters faced the risk of genital mutilation if she was to return to Nigeria with them to be with her husband, their father, in circumstances where he was not granted protection.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application the applicant claims to be a citizen of Nigeria and provided copies of his passport, and based on this material the Tribunal finds that the applicant is who he says he is and a national of Nigeria. Nigeria is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[9] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[10] This is consistent with the established proposition that it is for the applicant to make his or her own case.[11]
[9] Section 5AAA of the Act.
[10] Ibid (with effect from 14 April 2015).
[11] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

The Tribunal has found the evidence of the applicant overall to be unreliable as to his fears and claims in relation to the cult.
Additionally, the Tribunal notes that the applicant claims his family secretly took him out of the country to save his life and in evidence at the review hearing he stated he had come to Australia [in] August 2014 primarily because he was being attacked by cult members. However, the applicant did not make his application for a protection visa until 4 October 2019, a delay of 5 years and 2 months. Given the only explanation that has been provided to the Tribunal as to this delay is that he was suffering from mental issues due to his treatment in Nigeria but had never sought or received any psychological, psychiatric or other medical assessment, treatment and/or counselling, the Tribunal finds that this delay is inconsistent with his claims. In that regard, the Tribunal has noted that in Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in the lodgement of a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Therefore, on the basis of the findings above, the Tribunal although, accepting that the applicant’s father was a cult member, rejects all of the other evidence and the claims made by the applicant in their entirety. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of being a member of a particular social group, that being a son of a cult member who refuses to join the cult, having been imputed with an anti-government and pro-Biafran independence political view and/or profile, or for any other reason. The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Refugee criterion – s 36(2)(a) of the Act
Based on the information before it, the Tribunal, having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the applicant’s claims, finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection – s 36(2)(aa)
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36 (2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complementary criteria and does not satisfy the criterion in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Nigeria.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1784

16 February 2023

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Immigration

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