2010932 (Refugee)

2010932 (Refugee) [2023] AATA 3527 (1 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Erskine Rodan OAM
CASE NUMBER:  2010932
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Brendan Darcy
DATE:1 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 01 August 2023 at 4:19pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – ethnicity – Igbo tribe – particular social group – executive member of MASSOB and IPOB – activist for independence of Igbo people – received oral threats and suffered mental and physical injuries – credibility concerns – significant weight on other more reliable evidence – expired passport – Nigerian influence in ECOWAS states – no existing right to enter and reside in other ECOWAS states – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong
Nagalingam v MILGEA (1992) 38 FCR 191
Pan Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
V856/00A v MIMA (2001) 114 FCR 408
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 23 June 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 the Federal Republic of Nigeria (Nigeria), applied for the visa on 21 March 2017. The delegate refused to grant the visa on the basis that the applicant’s claims for protection lacked overall credibility.
The applicant appeared before the Tribunal on 10 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother-in-law.
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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant was born on [date] [in] the Enugu State of Nigeria.
The applicant attended primary and high school in Enugu. Upon graduation, he attended [University 1] and attained a bachelor’s degree [between] [year range].
The applicant indicates that he can speak, read and write in the English and Igbo languages and that he is a Christian. He also claims to be a member of the Igbo tribe, and of the Igbo (or Biafran) ethnicity.
The applicant has [sisters] and [a] brother who is an Australian citizen, currently residing in Australia.
In the departmental file [is] a certified copy of the applicant’s now expired Nigerian passport, and a copy of the applicant’s Certificate of State of Origin. The applicant’s passport indicated the applicant travelled to [Country 1] between [March] 2015 and [April] 2015 and to [Country 2] between [July] 2015 and [July] 2015.
Claims for protection
The applicant’s claims for protection are summarised below:
·     The applicant is of the Igbo tribe.
·     In 2012, the applicant opened a successful [business] (called ‘[name]) with his sister in [City 1], which grew to employ [number] people. The applicant remains a director of this company.
·     The applicant claims that he decided to make a difference against the discrimination facing the Igbo people from Nigeria’s other major ethnicities, the Hausa and the Yoruba, and from the Nigerian authorities more generally, by taking an active role in fighting for the independence of the Igbo people.
·     In 2013, he joined the Igbo Youth Forum and became the [Position 1].
·     In the same year, the Youth Forum merged with the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB).
·     He participated in ‘meetings, rallies and activities moving from one state to another’.
·     [In] July 2015, he joined Indigenous People of Biafra (IPOB) and was elected as the [Position 2], and claimed that he became ‘one [of] the prime targets of the government killer squad’.
·     [In] July 2015, the applicant’s house in [City 1] had been ransacked by the police from [the] police station. They did not have a warrant and did not introduce themselves.
·     The applicant reported the incident to the commissioner of police ‘but till now they continue to claim that they have been unable to find the culprits’.
·     [In] May 2016, ‘after our regional executive meeting at Onitsha, we are approached by one of our executive who was first to leave the venue that the police was heading to our way and she should run. As we are about turning from the venue the police has already surrounded the area. The started hitting and kicking everyone. When I approached the leader of the team from the [named] police division, Onitsha, Anambra State, I was slapped and bitten until I passed out. I was then left on my own to die. I was very lucky that I was rescued by good Samaritans after the police left the scene and was rushed to the hospital’.
·     On 30 May 2016, the applicant led a demonstration, where the police opened fired – killing 30 people and arresting 50 others.
·     [In] June 2016, the applicant was on the way to see his parents when he was arrested, blindfolded and tortured by the assailants. The assailants wanted the applicant to denounce his IPOB membership and drop all the legal cases.
·     The applicant claims that ‘it took the intervention of the civil liberty organisation to secure my release’.
·     [In] June 2016, the applicant was among ‘the 18 executives of MASSOB that signed a petition against the torture, harm and genocide that the government of Nigeria was committing’.
·     The applicant phoned an executive member of MASSOB to inform them that he had arrived safely to [City 1] bus terminal. The executive member advised the applicant that he should go into hiding as there is an order or warrant to arrest him ‘dead or alive’.
·     [In] January 2017, in [Location 1], the applicant mobilised and led an anti-government demonstration to celebrate the newly elected President Donald Trump when ‘soldiers and government agents’ opened fire killing [number] people and arresting [number] people.
The applicant attended an interview with the Department on 12 December 2019.
On the day of the hearing, the following claims were added:
·     The applicant is a member of the particular social group ‘an executive member of MASSOB and IPOB’.
·     The applicant received oral threats and suffered mental and physical injuries.
·     In around 2015, the applicant decided to join IPOB and was elected as the [Position 2]. Being an active member of these groups the applicant often received threats and faced persecution by the authorities.
·     [In] July 2015, the applicant’s house in [City 1] was ransacked by three uniformed men from the authorities without a warrant. When the applicant asked them who they were, one of them assaulted him and told him not to ask. The applicant reported the incident to the Commissioner of Police but no arrests were made.
·     [In] May 2016, the applicant was at a meeting at Onitsha and was informed the police were on their way and he was advised to escape. When the applicant was just about to step out of the venue to flee the area, approximately 15 uniformed police arrived and started attacking everyone.
·     The applicant was beaten and left unconscious on the road and had sustained two deep cuts on his [Body Part 1]. Scarification on the applicant’s [Body Part 1] remains visible.
·     On 30 May 2016, the applicant was involved in a peaceful procession from upper Iweka to Niger Bridge Head area to commemorate the 49th anniversary of the declaration of the independent state of Biafra as the [Position 2] of IPOB. The police opened fire on the procession and killed 30 members of their association. Fifty people were arrested and were taken to an unknown location. Many were seriously injured. The seriously wounded members were rejected by the Nkpor hospital because the government ordered them to not take members of their group as patients.
·     During this heinous event, [the] assistant mobilisation officer in Anambra State and friend of the applicant was in attendance. [He] was shot while trying to run away and the applicant tried to help but the chaos in the area made it difficult. The dying activist pleaded to the applicant to not let him die, but he was unable to help and needed to escape.
·     To this day, the applicant is disturbed by recalling this incident.
·     [In] June 2016, the applicant was arrested with several colleagues, by five men in a [van] who were believed to be working with the Federal Special Anti-Robbery Squad (SARS). He was on his way to visit his parents in Enugu and was travelling on public transport. They were arriving in [location], Kogi State which was two hours into the journey when they were flagged down by the police to stop. The applicant had his Biafra ID on him which was found by the police.
·     The applicant was blindfolded, handcuffed and relocated to an unknown destination which he found out later was the Department of State security service Kogi State office. He was tortured through various means including through feeding him once a day, keeping him handcuffed, allowing him to defecate on himself for days and was guarded for 24 hours. He also lost a [tooth] during a beating with the butt of an AK47.
·     He was asked to publicly denounce the membership of IPOB and drop all the legal cases against them. They were also demanding information about the whereabouts of the key members of the group. The applicant believes someone in the bus raised the alarm after he was arrested and contacted the civil liberty group. The Civil Liberty Organisation wrote many petitions and spoke publicly on how IPOB members have been harassed, tortured and persecuted on live television and asked about his whereabouts which led to his release after 4 days of torture. He has scars on his hand from this event.
·     [In] June 2016, the applicant was among 18 executive members of MASSOB who signed a petition against the torture, harm and genocide that the government of Nigeria is committing. He was advised by [an] Officer of MASSOB, to go into hiding because there was a standing order to arrest him dead or alive.
·     The applicant went into hiding for months and waited patiently while operating from a close friend’s [house]. During this time, the applicant lived in fear of persecution by the authorities.
·     On 20 January 2017, the applicant was leading a celebration for the newly elected president of the United States of America, Donald Trump, as a mobilised member at Port Harcourt-Enugu express road, which over 1,000 IPOB/MASSOB members attended. The government agents started shooting at those in attendance. Around 11 people were killed, 27 people wounded while 57 people were arrested.
The applicant’s representative also submitted the following documents to the Tribunal:
·     United States of Biafra Card containing the applicant’s portrait photograph;
·     Copies of the articles ‘[title]’ ([Newspaper 1]) and ‘[title]’ ([Newspaper 2]);
·     A copy of an undated online article from [Source 1];
·     A copy of an online article from, [Source 1], ‘[title]’; and
·     An updated list of family members.
On 31 January 2020, the applicant’s representative submitted a letter from a registered psychologist attesting to the applicant’s completion of a Depression Anxiety Stress Scale (DASS).
The applicant’s scores were in the extremely severe category across all three scales. The psychologist noted, ‘this score corresponded with the symptoms that [the applicant] had been reporting over the past 6 to 12 months; experiencing flashbacks, feeling more irritable, isolating self from the community, grieving the loss/distance of friends and family. Due to these symptoms [the applicant] has started anti-depressant medication to coincide with counselling’.
A delegate of the Minister for Home Affairs refused to grant the applicant a protection visa on 23 June 2020.
The applicant validly applied to have the decision reviewed by the Tribunal on 1 July 2020. A copy of the delegate’s decision record was attached.
On 24 May 2023, the Tribunal received a ‘priority request’ for the applicant. This was granted.
On 3 July 2023, the Tribunal received a legal submission prepared by the applicant’s representative. Attached were a number of documents including six witness statements about the applicant’s activities within IPOB and MASSOB both in Nigeria and Australia, country information from the 2018 and 2020 DFAT reports on Nigeria and the European Asylum Support Office from 2021, evidence of membership fees to IPOB, an earlier but related AAT decision and evidence of the applicant’s mental health conditions and treatments.
The applicant appeared before the Tribunal on 10 July 2023 to give evidence and present arguments. The applicant was represented in relation to the review. At the end of this hearing, no post-hearing submissions were required.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
Country information: Nigeria
DFAT’s most recent country information report on Nigeria (updated 3 December 2020) stated the following about the Igbo population in Nigeria between paragraphs 3.8 and 3.10:
Despite … moves to encourage greater national unity, there has never been a national reckoning or dialogue in relation to the issues that led to the Biafra conflict, which is not officially commemorated. According to observers, many in the southeast report feeling ongoing resentment at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation in national life. Such feelings have reportedly grown stronger in the years since President Buhari came to power, with many of his major political and military appointments tending to favour individuals from the north. As a result, in recent years there has been a noticeable resurgence of calls from the southeast for greater self-determination in the form of an independent Biafran state.
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… DFAT is not aware of any other significant cases in which Igbo have been specifically targeted for violence or exclusion due to their ethnicity.
…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.
… 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.
With regards IPOB and other separatist groups, the DFAT report noted between paragraphs 3.48 and 3.51:
While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.
3.49 While the two groups (and other Biafran secessionist movements) have called for independence to occur through peaceful means, such as via referendum, central authorities have strongly rejected such calls, stating the country’s unity is ‘not negotiable’. In October 2015, security forces arrested IPOB’s UK-based leader Nnamdi Kanu on his return to Nigeria, charging him with treason and sedition. Kanu’s arrest sparked nationwide protests among his followers, leading to serious clashes with security forces. Amnesty International reported in November 2016 that, on a number of occasions across the southeast, the military had fired live ammunition with little or no warning to disperse crowds, causing multiple fatalities; while security forces also shot at least 60 people dead in the space of two days in connection with events to mark Biafra Remembrance Day in Onitsha, Ananambra state.
3.50 After Kanu’s release from detention in April 2017 failed to end the demonstrations, security forces launched a military operation, Operation Python Dance, to quell the agitation in the southeast. According to international observers, a September 2017 security operation against IPOB supporters at Kanu’s home resulted in up to 150 deaths. Authorities subsequently designated IPOB a terrorist organisation., While the clampdown by security forces appeared to largely curtail IPOB’s public activities, November 2020 saw a new outbreak of open conflict in the southeast of the country. Rivers state Governor Nyesom Wike has reportedly ‘declared war’ on the group following an attack on security forces which killed six soldiers and four police officers. In her September 2019 post-visit report, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution noted she had received a large number of allegations of killings of IPOB members by military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings. The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges; and there had not been any convictions of IPOB members since 2015 due to the discontinuance or dismissal of charges.
3.51 DFAT understands that, although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to conduct public activities. There have also been recent reports of deaths, injuries and mass arrests of MASSOB members in the context of clashes with security forces during pro-Biafra demonstrations. In May 2019, two MASSOB members were reportedly killed and 15 wounded following clashes with police at a MASSOB anniversary event in Onitsha, Anambra state, while in the same period a MASSOB member was reportedly arrested and tortured at a police station in Mgbidi, Imo state. In September 2018, 125 MASSOB members were reportedly arrested, with some sustaining injuries, during a rally in Anambra state.

DFAT assesses in paragraph 3.52:
as members of a proscribed organisation, IPOB members face a risk of arrest that is likely to be higher for those in leadership positions. Ordinary members of IPOB, MASSOB and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
On the basis of the copy of the applicant’s expired Nigerian passport and birth certificate and with no evidence to the contrary, the Tribunal is also satisfied that the applicant is a citizen of the Federal Republic of Nigeria. The Tribunal finds that Nigeria is his receiving country for the purpose of assessing his claims under ss 36(2)(a) and 36(2)(aa).
Matters arising from s 36(3) and third country protection are addressed below.
Credibility concerns
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Notably, the applicant’s answers to the Tribunal’s questions seeking detail came without hesitation and had, to the Tribunal’s mind, the quality of spontaneous recollection which was consistent with the written claims. Generally, the Tribunal considers that the applicant provided a consistent account of his personal and professional circumstances, but it did identify a few claims that invited credibility concerns. The delegate made a range of adverse findings. These issues are addressed below.
However, these concerns do not distract the Tribunal in finding the thrust of the credibility of the applicant’s dispositive or critical claims for protection where they are corroborated.
Accepted personal characteristics
The Tribunal accepts the following personal aspects of the applicant’s background to be credible and reliably put, corroborated by submitted documentary evidence:
·     The applicant was born in [year] in Nigeria’s predominantly Igbo Enugu State;
·     The applicant’s parents were educated middle class Nigerians and they continue to reside in Nigeria;
·     The applicant has [sisters] and one brother;
·     The applicant belongs to a Christian family who is Igbo or Biafran by ethnicity;
·     The applicant was educated and raised in Enugu. He can speak, read and write in English and Igbo.
·     On gradation from secondary college, the applicant attended [University 1] where he obtained bachelor degrees, as claimed;
·     After university, the applicant established a [business] with his sister[who] continues to run the business in Nigeria;
·     The applicant has previously travelled internationally to ECOWAS countries, [Country 1] and [Country 2] in 2015; and
·     The applicant has never been married, engaged to be married or in a de facto relationship, and does not have any children or dependants.
Credibility findings about critical claims for protection
An assessment about the credibility of the applicant’s claim for protection is central to this decision.
The Tribunal is mindful of the ease with which a claim to support a certain cause can be fabricated. In this matter, the Tribunal has in the forefront of its mind that should it be satisfied the applicant is a bona fide supporter of Biafran independence generally, and a notable member of the IPOB specifically, and that he had experienced many or all of the claimed harm incidents in the past, the Tribunal would be invited to seriously consider the applicant has a real chance of serious harm based on his political opinion should he be returned to Nigeria.
The delegate, however, made a number of adverse credibility findings about the applicant’s claims for protection. These included:
·     The lack of country information on the Igbo Youth Forum/Ohanesi Ndigbo Youth Forum or that it was of adverse interest to the authorities;
·     The inability of the applicant to demonstrate he held a prominent role in MASSOB since 2013 or that he played a role in mobilisation of supporters in protests or prepared media engagements on behalf of MASSOB;
·     The lack of knowledge of the differences between MASSOB and IPOB and their internal structures and leadership positions, which was not compatible with his claimed role in both movements.
·     While the applicant’s name appears in published newspapers and identifies him as spokesperson on behalf of MASSOB/IPOB, it was not necessarily the same person as the applicant’s identity.
·     The applicant was not convincing during his interview with the Department on 12 December 2019.
·     When asked if IPOB had any state governing chapters, the applicant said to the delegate that there were none. However, when country information about the IPOB chapters governed by coordinators was put to him, he changed his previous response agreeing with the country information.
·     Whilst country information reports about the IPOB executives are available, no information was located that the applicant was the IPOB’s [Position 2].
·     The delegate found it difficult to understand that the applicant had been interviewed and quoted by newspapers with the same quotes. In the context of country information reports that ‘fake’ or ‘fabricated’ news is a widespread problem in Nigeria, the delegate could not locate any corroborating country information that the applicant played a role in an IPOB-led demonstration [in] January 2017 as reported by the newspaper.
Like the delegate, the Tribunal has also considered the lack of reporting or independent verification that the applicant was a Biafran youth leader or [Position 2] or an office bearer of any Biafran secessionist movement while in Nigeria. The evidence of his membership is limited to a membership card and the reportage of him as a spokesperson in 2017. The Tribunal, too, could not locate any independent information about the Biafran youth movement at [University 1]. However, it is plausible that organisation was never formally incorporated and/or large or significant enough to garner such press coverage. The Tribunal has received a copy of a letter from [a named person] who claimed to be a witness of the applicant’s youth forum activities for Igbo peoples. [Position 2] typically do not attract media attention or are not necessarily attached to office bearing positions. In this regard, the Tribunal suspects the applicant to have exaggerated his role in the MASSOB and IPOB, including as a [Position 2] or being someone with seniority.
The Tribunal also shares some credibility concerns about the applicant being in attendance or having direct knowledge of the death of a fellow protester during a 2016 Biafran independence protest in Iweka following an attack by the authorities. The applicant also claimed to be tortured and to have a warrant out for his arrest. Had the applicant attended this protest, the Tribunal would have anticipated that he would have departed Nigeria around this time and not later. There are also credibility concerns arising from the applicant being able to evade the authorities when he departed soon after the January 2017 Trump rally due to the implausible claim that sympathisers assisted him as he exited through an international airport – a claim that was not originally advanced – or to have taken a cross-border escape – even though there has apparently been an outstanding warrant for his arrest since mid-2016.
The Tribunal put those adverse credibility concerns to the applicant during the scheduled hearing. The Tribunal notes the applicant otherwise provided an oral account that was faithful and consistent with his written claims, and that he was able to provide much detail about the internal structures of MASSOB and IPOB.
Nonetheless, before moving onto making a number of favourable findings about the reliability of submitted evidence, the Tribunal makes specific adverse findings before considering other claims and evidence relevant to the applicant being harmed on return. Those findings are in relation to a warrant being issued to apprehend the applicant for his open support for a proscribed organisation in Nigeria. The Tribunal does not accept the applicant ever held a profile whereby he was a person of interest arising from political activities in 2016, whereby there was a warrant issued against him or that he was tortured. Those implausible claims were fundamentally undermined by the applicant not seeking to depart Nigeria at an earlier point in time.
However, in this matter, the Tribunal has placed significant weight on other more reliable evidence, in particular, the Tribunal has been able to overcome its credibility concerns when considering corroborative evidence about the applicant’s name appearing in daily newspapers as a spokesperson in early 2017.
In this regard, the Tribunal notes the delegate had suggested either the applicant shared the by-name with someone with the same name or that it was fake news published in marginal publications. The Tribunal finds that it would be a possible but far-fetched scenario. It does not accept that Nigeria’s [Newspaper 1] and [Newspaper 2] are marginal media outlets but rather accepts them to be independent daily newspapers with significant circulation and advertising bases. Not to be confused with the [non-Nigerian Newspaper 3], Nigeria’s [Newspaper 1], for example, was described by [a reputable source] as “Nigeria’s most respected newspaper”.[1] [Newspaper 2] is also regarded as a well-respected daily political broadsheet.[2] The delegate relied on the sameness of the reporting to indicate a degree of fabrication, but did not consider that consistency in messaging is one of the major features for effective spokespersons of any movement.
[1] [Source deleted].
[2] [Source deleted]
The delegate referred to the prevalence of fake news in Nigeria and referred to a January 2019 discussion on African Arguments,[3] an article from Agence France Press (AFP) from April 2019,[4] and a short research paper prepared by the University of Cape Town News from November 2018.[5] The nature of the fake news covered in the country information included the IPOB leader claiming that the then President of Nigeria, Muhammadu Buhari, had been replaced by a lookalike ‘clone’ or body double in 2017. Another example of fake news had been spread by Biafra separatists in 2017; in attempting to disrupt the Anambra governorship vote they claimed the army was injecting school students with monkey pox to depopulate the South East, leading some schools to close and parents to withdraw their children in panic. Such fabrications spread through social media platforms are designed to have an impact on elections or to pit Nigeria’s mostly Muslim north against the predominantly Christian south or other fault lines for political advantage or by those who are proponents of breaking up the Federal Republic of Nigeria. The articles did not have in mind, inserting names of individuals as fake spokespersons of political movements or that individuals could retrofit their names into past events, as the delegate has implied.
[3] ‘How fake news spreads, sowing distrust ahead of Nigeria’s elections’, African Arguments, 31 January 2019, 20191230140831
[4] ‘“Fake news” driving ethno-religious crisis in Nigeria’, Agence France Press (AFP), 14 April 2019, 20191230140333
[5] ‘“Fake news” damaging media trust in Africa’, University of Cape Town News, 22 November 2018, 20191230135943
In short, the Tribunal assesses that the delegate’s adverse credibility conclusions were overly strident. Accordingly, the Tribunal found the applicant’s evidence from reliable media sources, and along with a copy of his membership card, as a spokesperson for IPOB in January 2017 to be credible, and that his membership of that proscribed organisation is publicly known.
The Tribunal received oral evidence that the applicant was motivated to join such movements because of the marginalisation of Biafran educated elites wishing to participate in Nigeria’s major national institutions and because of the history of atrocities experienced by Biafrans during the 1960s civil war. In the context of the general credibility of the media reports from 2017, the Tribunal found this convincing as to the applicant’s political opinion in favour of MASSOB, IPOB and for secessionism of the Biafran or Igbo populations of Nigeria in general.
Sur place activities
The Tribunal notes that the applicant has been active in the [City 2] chapters of IPOB and MASSOB. This was supported by submitted references by [a named official] for MASSOB, [a named official] for IPOB and [a] local member for IPOB in Australia. There is also a letter from a Nigerian lawyer[stating] that the applicant’s work in favour of Biafran independence is recognised in Nigeria.
In the context of the Tribunal’s other findings, it accepts this, and places some weight on these sur place activities in favour of Biafran causes as genuinely reflecting the applicant’s political opinion and that he has not engaged in these activities solely for the purpose of augmenting his claims for protection.
Noting that there is credible country information that the Nigerian authorities monitor the activities of expatriates who are members of proscribed organisations, it reasonably follows that the Tribunal accepts as credible the applicant’s claim that his father had been the subject of a house raid and interrogation in 2019 due to the applicant’s accepted political opinion and membership of a proscribed Biafran secessionist movement.
Is the applicant a refugee?
Bearing these considerations in mind, the Tribunal is satisfied from the available evidence that the applicant is a Nigerian national of Igbo ethnicity. The Tribunal is also satisfied that the applicant has a keen understanding of the history of Biafran separatism both in the 20th Century and more recently. From the nature of his evidence, and, moreover, the manner of its expression, the Tribunal is also satisfied that the applicant has been an ongoing and active supporter of Biafran independence and has been and is a member of the IPOB in both Nigeria and Australia.
The Tribunal also places weight on the observations of the five United Nations Special Rapporteurs presented to the United Nations Human Rights Commission on 1 October 2020, in particular the following comments:
we are deeply concerned by what appear to be disproportionate violations of fundamental rights and freedoms against supporters of “Biafran” independence and some members of the Igbo minority. In particular, we express our most serious alarm about allegations of severe violations to the right to life by Nigerian security forces in the context of the numerous demonstrations and public events organised or attended by “pro-Biafran” organisations or supporters since 2015, as well as instances of arrests and detentions of several individuals who allegedly organised, attended, or reported on these public gatherings.[6]
[6] See also: DFAT Report, section 3.52
Accordingly, the Tribunal cannot discount the plausibility of the claimed attacks occurring against the applicant in the manner he has described and for the purpose that he claims, namely, to suppress the IPOB and its members in their aim of Biafran secession. It also accepts the strong likelihood that the authorities have become aware of his identity through his role as a spokesperson for IPOB or his IPOB membership records in Nigeria and that those authorities searched for his business and the homes of family members as claimed. Contemporaneously with the proscription of the IPOB as a terrorist organisation, the Tribunal is also unable to discount the plausible claim that his political activities in Australia have been monitored by members of Nigeria’s diplomatic missions in Australia. Finally, the Tribunal accepts there is a real and substantial chance that, given the applicant’s history of activism with the IPOB and his actual or perceived political opinions, should he return to Nigeria now or in the reasonably foreseeable future, he may be perceived as intending to re-engage with the IPOB in Nigeria in circumstances where the Nigerian authorities “consider IPOB’s activism as a threat to the national security”.[7]
[7] See: UKHO report, sections 9.3.1–9.3.4
Overall, in light of the cumulative effect of these possibilities, the Tribunal considers that if the applicant is returned to Nigeria now or in the reasonably foreseeable future, there is a real chance that he will experience similar acts of violence or intimidation to those he has credibly experienced and witnessed, and, given the political motive of those acts, he is unlikely to receive protection from the authorities there.
The Tribunal is, therefore, satisfied that there is a real chance that the applicant will face serious harm, and therefore persecution, in Nigeria. The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his actual or perceived political opinions as a publicly acknowledged member of the IPOB, which has been heightened by his reported role of spokesperson for that proscribed organisation.
Furthermore, the Tribunal is not satisfied that state protection is available to the applicant in Nigeria as outlined above from the DFAT report extract. The Tribunal is not satisfied that the applicant would be able to avoid the harm referred to by internally relocating within Nigeria. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Nigeria for the reasons stated.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s 5J. In considering whether he comes within the definition of a refugee contained in s 5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s 5H(1).

There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant.
The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.
Third country protection
Sections 36(2)(a) and (aa) are qualified by ss 36(3) to (5A) which set out circumstances in which Australia is taken not to have protection obligations. The qualification in s 36(3) provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia.
As the applicant is a citizen of Nigeria, he was provided with an opportunity to outline the reasons he could not enter and reside, either temporarily or permanently, in one of the Economic Community of West African States (ECOWAS) countries during the scheduled hearing.
The ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted.[8] The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[9]
[8] DFAT Thematic Report – Economic Community of West African States (ECOWAS), dated 3 December 2020, p.6.
[9] Ibid, p.14.
Having found that the applicant meets the criteria under s 36(2)(a), the Tribunal is required to consider whether ss 36(3), (4), (5) and (5A) are applicable.
The applicant raised concerns that the Nigerian authorities’ influence with the authorities of other ECOWAS members was sufficiently significant whereby he faced the prospect of being returned from one of those third countries on the basis of his membership of a proscribed organisation in Nigeria, pursuant to s 36(5A).
As discussed in the hearing, the Tribunal’s more immediate concern was with the operation of s 36(3) and whether the applicant has the right to enter and reside, either temporarily or permanently, in a third country.
The courts have found that a right under s 36(3) must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise (V856/00A v MIMA (2001) 114 FCR 408).
While DFAT suggests that Nigerians can freely move into other ECOWAS countries, it indicates that the security situation is unstable in many parts of the ECOWAS region, with armed conflict and other security threats triggering large migration flows between ECOWAS countries. Armed groups continue to perpetuate serious human rights abuses and attacks against civilians in countries including Nigeria, Mali, Niger and Burkina Faso, both within and between ECOWAS member states, in some cases resulting in protracted displacement and humanitarian crises. International observers report that corruption is prevalent across ECOWAS states and freedom of expression is limited in many states, with some states introducing laws restricting the activities of human rights defenders.
The DFAT ECOWAS Thematic Report contains the following information which may be relevant to persons fearing persecution on political grounds:
4.22 Some member states may have differing views on which groups of interest are considered terrorists or political activists, and thus who is considered a national security threat (or not). Member states have demonstrated reluctance to be bound by global legal instruments relating to collaboration on migration, and most prefer to maintain full authority (protection of refugees is an exception).
4.23 DFAT assesses options for relocation within ECOWAS are dependent on the nature of the claim, the relevant member states’ national security interests, and the relationship between the member states in question. For example, relocation of a victim of gender-based violence to another member state offering requisite protections may be possible. However, relocation of a person accused of acting against state interests across member state borders may not be possible (as it may not afford any protection from those pursuing the individual).
The Tribunal is also concerned that the applicant may not have an existing right to enter and reside in a third country because the applicant’s Nigerian passport expired in 2019 and has not been replaced.
Given the abovementioned barriers to entry, in particular the difficulties the applicant faces without a valid passport, and the uncertainty as to whether he would be authorised to remain in other member states after 90 days, the Tribunal is not satisfied that he has an existing right to enter and reside in other ECOWAS states.
The Tribunal is satisfied therefore that the applicant does not have a right to temporarily or permanently enter and reside in any country, other than Nigeria, and that s 36(3) does not apply in the applicant’s case.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the applicant does not have a current right to enter and reside in a third country under s 36(3), the Tribunal is not required to consider whether ss 36(4), (5) and (5A) are applicable.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Brendan Darcy
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 3527

1 August 2023

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