2012798 (Refugee)

2012798 (Refugee) [2023] AATA 974 (8 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul O’Connor (MARN: 0854511)
CASE NUMBER:  2012798
COUNTRY OF REFERENCE:                   Nigeria
MEMBERS:Peter Vlahos (Presiding)
Brendan Darcy
DATE:8 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 8^th February 2023 at 12.09PM
CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – Biafran secessionism – Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) – Indigenous People of Biafra (IPOB) – race – Igbo ethnicity – degree of official and social discrimination – general security situation – Boko Haram – Fulani graziers – right to enter and reside in a third country – Economic Community of West African States (ECOWAS) – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 August 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 19 June 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant faced a real chance of serious harm or a real risk of significant harm on the basis of his claimed political profile and Igbo ethnicity.
The applicant appeared before the Tribunal on 10 October 2022 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.
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 issue in this case is whether the applicant is a person to who Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [date] in Nsukka in the Nigerian state of Enugu.
A copy of the applciant’s bio-data page of his Nigerian passport and Nigerian birth certificate as evidence of his identity to the Department can be found on the Department File [number].
Prior to arriving in Australia [in] June 2017, the applicant travelled to and resided in [Country 1] for study purposes from February 2013 to July 2016 before returning to Nigeria.
The applicant was granted a Class FA Subclass 600 Tourist visa on 17 May 2017 and arrived in Australia on this visa. The applicant has not departed Australia since his arrival.
The applicant applied for a Class XA Subclass 866 Protection visa on 19 June 2017, prior to the expiry of his Tourist visa on 30 June 2017.
The applicant provided a document titled ‘My Statement’ which was submitted with his protection application form. In summary, the applicant’s claims were:
·     The applicant is from the Igbo ethnic group and the Igbo have been continuously marginalised by the Hausa and Yoruba ethnic groups.
·     The continuous marginalisation of the Igbo people forced the applicant to take an active role in fighting for the independence of the Igbo.
·     The applicant was the [Position 1] of the Indigenous People of Biafra (IPOB). IPOB seeks to achieve freedom of the Biafra people via road shows and civil disobedience.
·     [In] August 2016, the applicant was among 22 executive members of IPOB that signed a petition against the torture, harm and genocide that the government of Nigeria is committing. The applicant was advised on his arrival to the airport, when travelling to Australia, that there was a standing order to arrest him dead or alive. The applicant realised that he was putting his life and his family’s lives at risk by continuing his political activities and fighting for the independence of Biafra.
·     The applicant’s shop [was] raided on the morning of November 15 of the same year. The applicant was on his way to work when he received a call that security officials had broken into the shop and were scattering whatever they could lay their hands on. This was part of Operation Python Dance, which the Nigerian Army claimed was to curb crimes and criminal activity in Igbo land. The applicant claimed instead that they were a hit squad moving from house to house, office and shops to raid places targeting members of IPOB, MASSOB and other agitators.
·     On November 30, members of Operation Python Dance attended the market and shot sporadically in the air to scare people away. When shopkeepers ran for safety, their shops were looted. The applicant lost more than four hundred thousand Naira in the incident.
·     The applicant had issues with a soldier at the market that told him that he was the kind of person they were looking for – those who would challenge and confront them and are related with IPOB and MASSOB. The applicant stated that he was nearly arrested on this day but was protected by a ‘human shield’ mounted by the other traders and was let off the hook.
·     The applicant stated that he was told that this soldier briefed his colleagues to do whatever possible to ensure his arrest. The applicant stated he was not scared of being arrested, but of it being done in such a manner that it will appear the applicant had committed a capital offence.
·     On 30 January 2017, after the applicant participated in celebrating the election of Donald Trump, government officials stormed the applicant’s house in Lagos seeking his whereabouts. The applicant was not at home as he was at an emergency meeting for IPOB.
·     [In] May 2017, the applicant and [Mr A] ([Position 2] for MASSOB) were arrested. However, the timely intervention of an international media team and a Civil Liberty organisation prevented them from being whisked away to an unknown destination.
·     The applicant has been advised that there is a standing order for his arrest dead or alive. The applicant is married and believes his wife’s life is also in danger. If he returns to Nigeria, he will be killed.
In his application, the applicant stated that he was a Christian, of the Igbo ethnicity and had completed up to tertiary level education in [Discipline 1] whilst studying in [Country 1]. The applicant stated that he could speak, read, and write in the Igbo and English languages.
The applicant stated that his family was composed of his wife, mother and brother who all reside in Nigeria. His father is deceased.
The applicant was not initially represented when making his application but appointed a migration agent on 1 May 2020. The migration agent submitted to the Tribunal that the applicant had previously engaged a person to assist with the application, but they did not have a MARA listing and that he believed this alleged agent had breached his duty of care and responsibility as a migration agent who had taken a lot of money from the applicant but had not provided transparency to the applicant. The newly appointed migration agent stated that the evidence submitted in the application was not provided by the applicant and that the alleged agent had created it. This included the above ‘My Statement’ document.
The applicant’s migration agent provided the Department with the following documents to support the application:
·     A statutory declaration from the applicant’s representative regarding his and his client’s interaction with the applicant’s previous agent.
·     A collage of photographs containing graphic images of dead people and soldiers.
·     A copy of an internet-based article dated 18 December 2017, “How DSS Disobeyed Court Order And Continued To Keep Nnamdi Kanu’s Assistant in Detention” from Saharareporters.com.
·     A copy of an internet-based article dated 18 September 2017, “59 arrested IPOB members will be charged for murder” from Gidtupafrica.com.
·     A copy of an internet-based article dated 21 February 2020, “Should Nigeria have released Boko Haram suspects?” from the conversation.com.
·     A copy of an internet-based article dated 19 January 2020, “Court affirms IPOB’s proscription, designation as terrorist group” from punchng.com.
·     A copy of an internet-based article dated 26 January 2020, “FG vows to arrest IPOB leader, Nnamdi Kanu”.
·     DFAT Country Information Report – Nigeria, dated 9 March 2018.
·     The applicant’s tax returns from the financial years ending 2018 and 2019.
In a statutory declaration made on 9 June 2020, the applicant stated that the statement of claims provided initially with the application was incorrect and not factual and that he did not see the document until his current representative had sought a copy. The updated claims advanced in this statutory declaration are as follows:
·     The applicant grew up in the south-eastern part of Nigeria with Biafran (Igbo) parents. From childhood, his parents and granddad narrated the events of the Nigerian Biafran war. As the applicant grew up, he began to understand their painful emotions, as he lived the realities of the Igbo people still wanting independence and their marginalisation ranging from government appointments to allocation of funds for infrastructure development.
·     Fulani herdsmen and the Boko Haram terrorist group target mainly Igbo settlements. The Fulani herdsmen go to people’s farms and let their cows feed on people’s crops, hence destroying their farms. When the farm owners ask them to leave they get butchered. Boko Haram bomb churches and settlements, and the government supported these organisations, with the President calling them “our Misguided brothers”.
·     Many people known by the applicant’s family were killed by Fulani herdsmen and the Boko Haram terrorist group. The applicant and his family have all experienced harm from the government, denied rights and health care. The applicant felt angry at his experiences and felt a growing responsibility to ‘fix this’.
·     The applicant was introduced to MASSOB by friends he met in university, with the group having an agenda to achieve an independent state for the Igbo people (Biafra) and was very active in protests and rallies. Between 2005 and 2009, the applicant would attend rallies at least once a week, with MASSOB running two rallies a week.
·     After completing his one year of compulsory community service post his university studies in 2010, the applicant resumed his involvement with MASSOB until late 2011 when rumours emerged of some executives of the movement being bought off by the government. The applicant decided to step back from the group.
·     In 2012, IPOB was established by Mazi Nnamdi Kanu and his approach appealed to the application. The applicant became a registered member in 2012, and after completing his studies and returning from [Country 1] in July 2016 the applicant was appointed as [Position 1] [in] August 2016. The applicant kept in touch with the organisation and the current state of affairs and persecution of the Igbo people whilst in [Country 1].
·     The leader of IPOB was Nnamdi Kanu who ran a radio station called “Radio Biafra” which commenced in 2012 and grew in popularity and influence in 2015. The radio program discussed the problems of the Igbo people and exposed their treatment by the police and army. He was arrested on 14 October 2015 for creating unrest and organising rallies and protests but was released for health reasons in April 2017.
·     The arrest of Nnamdi Kanu lead to unrest and the organisation of more rallies and protests. The applicant would speak at these rallies and use a handheld megaphone. In the bigger rallies in November 2016 and February to March 2017, the police would use tear gas, beat people with batons and shoot people with live ammunition. Many people were injured, and the applicant’s brother was shot in the leg and still carries the wound.
·     The rallies were peaceful but the police, army or both would come and disrupt the rallies. The applicant’s friend [Ms B] was killed during a rally, and hundreds of Igbo people have been killed protesting or holding rallies or imprisoned.
·     The government of Nigeria has engaged in serious persecution and killing of the Igbo people and targeted the applicant and other leaders of IPOB. The applicant applied for a Visitor visa to Australia in April 2017, and it was granted in May 2017. The applicant was seeking to leave the country after attempts to arrest him and destruction of his shop twice by authorities.
·     The applicant’s duties for IPOB were to organise rallies, protests and peaceful demonstrations, communicated with the Igbo people so they understood what IPOB was doing, keep records of the events and number of people attending, talk to the people when possible (this was shared between the organisers), address the protest or gathering as a presenter on the day, attend meetings to determine what to do next for protests, print flyers for distribution to people, talk to people about their concerns and troubles and provide guidance and reassurance.
·     On 20 September 2017, the Nigerian government proscribed IPOB as a terrorist group. If the applicant was to return to Nigeria, he will be arrested as a terrorist.
·     The government of Nigeria has an arrest warrant issued for the applicant and if he does return, he will not be seen again. He is certain he will be tortured and killed.
·     It is not safe for Igbo people in Nigeria and if they have any association with IPOB they are hunted down and killed or arrest and never to be seen again.
·     On 30 May 2016, many Biafrans were shot and killed by the Nigerian army because they gathered to celebrate Biafra day. IPOB made a decision to tone down their protests to avoid the increasing bloodshed which mostly went unreported.
·     On 18 September 2016, IPOB held a meeting to discuss the events that occurred on 30 May 2016. There was 280 people recorded to be in attendance. At around 3:00pm, the nearby market area was covered in smoke due to nearby shops in the market being set ablaze by army soldiers. Everyone started running and the army were shooting at them with live ammunition. The applicant’s friend [Ms B] died during the attack and the applicant saw people with clothes covered in blood stains from bullet wounds. People were running everywhere and trampling each other. The applicant ended up at a public motor park where he hid in the designated urinary area until about 7:00pm. When he felt it was safe to come out, he found a chemist shop and found a public pay phone near the entrance. He called his elder brother who came and picked him up and took him to his grandmother’s place.
·     The applicant was traumatised by the events, and later found out that 17 members of IPOB lost their lives in that attack, and the government proscribed IPOB as a terrorist group just days after that.
·     On 20 January 2017, the IPOB Porthacourt branch held a peaceful demonstration and the applicant attended as representative from [specified state]. It was a street procession where they marched and sang songs. The Nigerian armed forces employed the use of tear gas, live ammunition, and guns to disrupt and prevent the procession conducted by unarmed people. As more trucks arrived, the applicant had flashbacks from his previous experience and ran towards the university hostels. He rang his uncle-in-law who came and picked him up. His uncle advised him to quit IPOB as it was a hopeless cause. IPOB lost 11 members that day, shot by the army.
·     The army started making secret visits to people’s places and business premises to make arrests. After the army and the police made a visit to the applicant’s shop when he was not there, he knew it was time to ‘stay off the scene’ and take action to protect himself. He could not run his business anymore and left it in the hands of his apprentice. This was the first time he considered the idea of leaving the country for his safety.
·     Being associated with IPOB in Nigeria is akin to being a terrorist.
The applicant was invited to a Protection interview before the Department on 18 June 2020 via telephone without the assistance of an interpreter. The applicant was assisted by their authorised representative at the interview.
The delegate proceeded to make a decision to refuse to grant the applicant a protection visa on 19 June 2017.
Evidence before the Tribunal

The applicant applied for review of the delegate’s decision with the Tribunal on 13 August 2020 and provided a copy of the delegate’s decision record with his application.
Prior to the scheduled hearing, the Tribunal received a legal submission prepared by the applicant’s representative with the 35 attachments of media reports, the 2020 DFAT country information report for Nigerial and reports by human rights organisations include Amnesty International report from 2016 entitled ‘Nigeria: ‘Bullets were raining Everywhere’: Deadly repression of pro-Biafra activists.
As mentioned above the applicant appeared before the Tribunal to give evidence and present arguments on 10 October 2022. At the end of the scheduled hearing, the applicant with the assistance of his representative undertook to provide a number of corroborative documents in a post heading submission, and to do so by 17 October 2022.
On 18 October 2022, the applicant’s representative submitted a copy of the applicant’s Certificate of National service indicating the applciant undertook compulsory national service between November 2009 and November 2010 in Nigeria; and a letter by [Pastor C] indicating the applicant is a member of the IPOB and has been registered since 2012.
There are no non-disclosure certificates attached to the applicant’s Departmental and Tribunal files.
Country information: Nigeria
Nigeria borders Niger in the north, Chad in the northeast, Cameroon in the east, and Benin in the west. Nigeria is a federal republic comprising 36 states and the Federal Capital Territory, where the capital, Abuja, is located. The largest city in Nigeria is Lagos, one of the largest metropolitan areas in the world and the second-largest in Africa.[1]
The DFAT Country Information Report – Nigeria, dated 3 December 2020 states the following about the demography of Nigeria:
DEMOGRAPHY
2.6 Nigeria is Africa’s most populous nation. It has an estimated population of 206 million, growing at an annual rate of 2.6 per cent.Nigeria’s population is young, with a median age of 18.6 years. Sixty-two per cent of the population is aged 24 years or below, and 41.7 per cent is aged 14 years or below.
2.7 Significant population clusters are scattered throughout the country, with the highest density areas in the south and southwest. Nigeria’s largest population centre is the former capital of Lagos, located in the southwest (14.4 million), followed by the northern city of Kano (4 million), the southwest city of Ibadan (3.6 million), the capital Abuja in the central region (3.3 million), and the southern cities of Port Harcourt (3 million) and Benin City (1.7 million). Nigeria has an estimated urbanisation rate of 4.23 per cent per annum, and a current urban population of around 52 per cent.

2.8 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 populous nation. It has an estimated population of 206 million, growing at an annual rate of 2.6 per cent. Nigeria’s population is young, with a median age of 18.6 years. Sixty-two per cent of the population is aged 24 years or below, and 41.7 per cent is aged 14 years or below. Significant population clusters are scattered throughout the country, with the highest density areas in the south and southwest. Nigeria’s largest population centre is the former capital of Lagos, located in the southwest (14.4 million), followed by the northern city of Kano (4 million), the southwest city of Ibadan (3.6 million), the capital Abuja in the central region (3.3 million), and the southern cities of Port Harcourt (3 million) and Benin City (1.7 million). Nigeria has an estimated urbanisation rate of 4.23 per cent per annum, and a current urban population 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.

2.9 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).

2.10 Nigeria has a significant population of conflict-related internally displaced persons (IDP). According to the Office of the United Nations High Commissioner for Refugees (UNHCR), as of August 2019 there were approximately two million persons displaced in the Lake Chad Basin region, primarily as a result of the Boko Haram insurgency (see Security Situation). According to the International Organization for Migration, children younger than age 18 constituted 56 per cent of that IDP population, with 23 per cent of them younger than age six.
The same DFAT Country Information report states the following about the Igbo people:
Igbo
3.7 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.
3.8 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.
3.9 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 (see Biafra Secessionists).
3.10 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.
The same DFAT country information report stated the following on Biafran separatists
Biafran separatists
3.48 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.

3.52 DFAT assesses that, 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 FINDING
Country of reference
On the basis of the copy of the applicant’s 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 to be assessed under sections 36(2)(a) and 36(2)(aa).
Third country information
Sections 36(2)(a) and (aa) are qualified by subsections (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, the applicant 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 countries during the scheduled hearing.
The Economic Community of West African States or 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.[2] 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.[3]
[2] DFAT Thematic Report – Economic Community of West African States (ECOWAS), dated 3 December 2020, p.6.
[3] Ibid, p.14.
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).
However, as the Tribunal has made findings in this decision that the applcaint’s does not meet the criteria under sections 36(2)(a) and 36(2)(a), it is not required to consider whether the applicant section 36(3), (4), (5) and (5A) are applicable.
Applicant’s political claims: credibility and other findings
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is considered in these findings.
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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. 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; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
With regards to the credibility of the applicant’s claims, the Tribunal notes that the applciant made a number of claims in his June 2016 statements; however he abandoned this statement, which included a claim of being arrested with a high profiled Biafran separatist just prior to leaving for Australia in 2017 .In the applicant’s June 2020 statement which was submitted just prior to his 18 July 2020 interview with the Department the applciant explained that an unregistered agent submitted a statement without full knowledge. In the decision record, the delegate did place considerable on this 2017 statement and little on the reasons given about the submitted updated claims for protection. At the scheduled hearing, the Tribunal explained to the applicant that it would proceed in this matter without relying on that earlier statement and it would not place adverse credibility weight on it. This was on the basis that it is not implausible that unscrupulous unregistered agents deceive vulnerable asylum seekers, as claimed.
Nonetheless, and putting aside any credibility concerns arsing from the 2017 statement, the Tribunal identified a number of inconsistencies about his whereabouts, unpersuasive arguments and unsupportive third-party statements and other concerns which, when considered cumulatively, undermined the Tribunal’s confidence that the applciant’s dispositive claims for protection based on political opinion and membership were reliable and credible.
Accepted personal circumstances
Notwithstanding the Tribunal’s adverse credibility findings below, it accepts the following personal attributes of the applicant to be credible:
·     The applicant was born at Nkusska in Nigeria’s Enugu State in [year], as claimed;
·     The applciant belongs to Biafran or Ibo family and that his ethnicity is Ibo; and that he can speak, read and write in Igbo, Nigerian Pidgin (Naija) and English languages;
·     The applcaint’s father is a retired [Occupation 1] and that his mother is a [Occupation 2];
·     That his parents remain in Nigeria; and that he has two siblings: a brother who is currently in Australia and with whom the appclaint resides; a brother residing in Nigeria who is a [Occupation 2] in a [workplace] in Enugu state;
·     The appclaint and his family belongs to the Roman Catholic faith, as claimed;
·     The applicant travelled to [Country 1] as a student in 2013 and remained there until his return in 2016; and that his educational attainment includes a bachelor’s degree in [Discipline 2] at [University 1] and a Master of [Discipline 1] from [Country 1];
·     The applcaint formally married to a fellow Nigerian national in 2017 and his wife is a graduated in a [Discipline 3] degree; and
·     The appclaint and his wife adopted a dependent child from a relative and that they do not have any biological children of their own.
For the purposes of making findings under sections 36(2)(a) and (aa), the Tribunal makes the findings that should the applcaint return to Nigeria, Enugu State is the applicant’s home area. This is based on his family mostly residing in Enugu State where the applcaint was born, educated, and resided for most of his life while living in Nigeria.
Political opinion claims based on Biafran secessionism
The applicant presented himself to the Tribunal in his evidence as a campaigner and supporter of the Biafran independence and an advocate for the rights of the Igbo people. The applicant in his written and oral evidence includes periods of anti-government activities between 2005-2009 and between 2010-2011, and that he was activity involved with the separatist Movement for the Actualisation of the Sovereign State of Biafra (‘MASSOB’), mainly by attending rallies. Otherwise, the applicant was involved in Nigeria’s compulsory youth services programme between 2009 and 2010. The applicant further claimed that at some time in 2011, he decided to move away from his involvement in MASSOB and in 2012, he joined another separatist organisation known as the Indigenous People of Biafra (‘IPOB’). IPOB was also and remains outlawed in Nigeria.
Having completed his studies at university in Nigeria, the applicant decided to pursue further studies in [Discipline 1] in [Country 1] between 2013 and 2016. The applicant claimed that while in [Country 1], he did not involve himself in any political activities concerning Biafran secessionism because he was concentrating on his studies. The applicant did not claim that he had any adverse experiences with the Nigerian authorities because of his involvement in MASSOB.

Given the applicant’s overall claims to holding a sustained interest in Biafran separatism prior to his studies in [Country 1], it was raised with the applicant that it is a credibility concern for the Tribunal that he was not involved in such activities where it was safe for him to do so. Furthermore, given his claimed involvement in MASSOB – a prescribed organisation in Nigeria, it would have been reasonable for him to apply for asylum in that country. The Tribunal notes that the delegate also raised the issue that the applicant provided no supportive evidence of this specific claim to be a member of MASSOB and that he was able to leave Nigeria for [Country 1] without being apprehended as a person of interest, indicating his claimed involvement was not credible. Although it is not implausible that he was a member of this organisation and that he was not subject of any adverse interest, the Tribunal is invited to hold the same credibility concerns.
The applicant recalled that while in [Country 1], the leader of IPOB, Nnamdi Kanu was arrested by the Nigerian authorities because of his public incitement in support of the Biafran separatist cause. It was around this time, in 2016, that the applicant claimed he became ‘active in IPOB as an ‘[Position 1].’
The Tribunal was told that that the applicant, on return to home state of Enugu, was ‘appointed’ as a ‘[Position 1]’ of the [specified] branch of IPOB. In the applicant’s statutory declaration dated 11 June 2020 the applicant described his duties in IPOB as follows:[4]
·Organise rallies, protests, and peaceful demonstrations;
·Communicate with the Biafran (Igbo) people so they understood what [IPOB] was doing and what was happening to them;
·Keep records of the events and number of people attending;
·Talk to the people when possible as this was shared between the organisers;
·Address the protest or gathering as one of the presenters on the day [of the meeting];
·Arrange the printing of flyers for distribution to the general public; and
·Talk to people about their concerns and troubles and provide them with guidance and reassurance.
[4] see, AAT File, Applicant’s statutory declaration dated 11.06.2020.
The Tribunal further notes the applicant claimed that he did not seek protection in UK based on his support of IPOB because, at the time, he was not an official of IPOB and he did not intend to become one. The applicant explained that he had no grounds to seek protection in [Country 1] on this basis. However, had the applicant been strongly motivated to support the MASSOB prior to his departure, it remains reasonable that he would have participated in activities or with members of IPOB or with Biafran separatists active in [Country 1] or that he would have applied for protection in that country.
At the scheduled hearing, the Tribunal sought an elaboration of his role as an ‘[Position 1]’ of IPOB. The applicant described his role in vague and ill-defined terms. For example, the applicant spoke of “sensitising people” to the Biafran cause in the local “markets”, the “arranging of meetings for the leaders of the movement,” the “arranging of peaceful protests and processions where they (the members) would march in the streets to increase public awareness of the Biafran cause,” and “keeping reports of attendances at meetings.” The lack of descriptive detail of his role and responsibilities were very limited for one who claimed to be the organisation’s [Position 1].
When asked by the Tribunal to describe in detail how the applicant, as an office holder of the [specified] branch of IPOB, sensitised the local population about the plight of the Biafrans, the applicant provided very little specific detail of his efforts at achieving the ‘sensitisation’ of the general population as he claimed to be a key instigator of. As an ‘[Position 1]’ – an important office holder, it stands to reason that the applicant’s description of his roles and responsibilities should have been provided with more detail and with specific references to particular instances where the applicant actually did the role of [Position 1] would have been described to the Tribunal. Instead, the applicant provided very little detail or specific examples as to how he communicated with the organisation’s leadership or how he brought to their attention the issues which concerned branch members.
In further questioning the applicant about his role as a ‘[Position 1]’, the applicant was able to tell the Tribunal of an incident that occurred on 30 May 2016 in Nigeria where 60 Biafrans were killed by the authorities when a public protest became uncontrollable, but the applicant was not in Nigeria at that time. The applicant did not relate that incident as being one which he had organised or assisted in organising. This particularly invited credibility concerns about the applicant’s overall political opinion claims.
The Tribunal accepts that on 30 May 2016 that a series of protests were held to commemorate the 1967 declaration of the independence of the Biafran region from Nigeria. It also accepts that there are credible reports that Nigerian security forces clashed with pro-Biafra groups and as many as 40 people were killed and arrests of pro-Biafrans ensured.[5] It also accepts these protesters were mainly members of IPOB and MASSOB.[6]
[5] Dozens Killed, Several Injured as Biafra Day Rallies Turn Bloody, This Day, 1 December >
The applicant further claimed that another incident occurred on 17 or 18 September 2016 in Onicha where he was at this event as an organiser and a speaker. The applicant told the Department at interview that 17 people were killed by the authorities in Nigeria, including a close friend, and that he narrowly evaded serious harm. Onicha is in Nigeria’s Ebonyi State. The Tribunal is unable to find any media reports about a protests or meeting on 17 September 2016. It has been able to locate media reports that in Onitsha in Anambra State that where 17 supporters of Biafran independence were killed in May 2016.[7] There are also reports that indicate that the Directorate of State of IPOB had declared 23 September 2016 as the day for Biafrans worldwide to protest against the continued detention of its leader Nnamdi Kanu and for the freedom of Biafra people. This is obviously later than the specific date the applicant has provided. It is possible that the applicant has confused places and dates. However, in the context of the applicant’s being in [Country 1] when had claimed to have been a witness to massacre in Nigeria, the Tribunal has been invited to consider that the applicant has clumsily contrived events and dates to augment his otherwise weak political opinion claims, and in turn, has invited any further invited credibility concerns about the applciant’s overall claims.
[7] Nigeria army ‘killed Biafra protesters; BBC News, 10 June 2016 >
The applicant’s recollections of that event were that of this public meeting of approximately 280 people in attendance and held in ‘football field’ and addressed by the movement’s ‘chairman.’ Few other details were provided to the Tribunal. The applicant did not say in his evidence that he had helped organise the public meeting or that he played any role at the venue. He then went on to recall that there were ‘noises’ originating from the local market area (near the public meeting place) and he described these disturbances as being ‘gunshots’ and the ‘remnants of tear gas’. The applicant recalled that the meeting was disturbed by elements of the Nigerian army and police. The applicant recalled that the security forces entered the football field and began to ‘fire shots’ on to the assembled crowd. The applicant claimed that ‘many died’ including a ‘personal friend.’ The applicant recalled observing ‘people on the ground’ either wounded or dead. The Tribunal pressed the applicant to describe in detail how as he claimed many died at this public event and yet he was able to escape the area. The applicant’s response was that he had ‘difficulty recalling’ those events, indicating his memory had been adverse affected by the traumatising incident.
The Tribunal had a number of difficulties in accepting the credibility of the applicant’s participation in this event. First, if there was the intervention of the security forces, there would have been a large amount of people held in detention including the applicant. The applicant seemed from his recollection to have escaped the security forces’ intervention. Second, one would expect the security forces intervening in such circumstances to have considerable knowledge of the ‘ring-leaders’ who had organised the public protest and would have made some attempt to restrain and detain them. This further indicated the applicant was not a holder of office of this political movement as claimed. Neither was there any photographic evidence to support the applicant’s participation in this event. Instead, the applicant has presented the far-fetched scenario whereby both helped organise and attended the event with a leadership role without being harmed and whereby he implausibly left the scene of the alleged protest where and evaded the wrath of the authorities.
The applicant made other recollections of similar public disturbances having occurred in January 2017 but provided very little detail of what occurred. Indeed, the applicant’s evidence to the Tribunal was that he had come to the conclusion that following these public protests, the local police and the Nigerian military would as a reprisal come to the homes and businesses of the ‘Igbo people’ and ‘conduct mass arrests.’ It was in these circumstances that that the applicant feared that he was under a threat of being arbitrarily detained by the Nigerian authorities. The applicant provided no explanation as to what activities he had committed to which made him a ‘person of interest’ for the Nigerian local authorities or military. The Tribunal noted in the applicant’s written statement dated 23 October 2022, the applicant stated
After this Rally in January 2017, the police would come to the homes and businesses of the Igbo people and arrest them. No offences had been committed but they were arrested and detained. There were no warrants, so no records of arrest s were available.[8]
[8] see Applicant’s written statement dated 23 October 2022 in AAT document file.
In the same written statement, the applicant stated that[9]
People were protesting police brutality and they would send the army after the protestors and shooting people. This was posted on Instagram:
[9] Ibid, AAT File, Applicant’s written statement.
Again, the applicant provided no evidence to the Tribunal as to how these events which occurred in January 2017 had a direct impact on him because of his position in the organisation he claimed to be executive member or because of his political opinion concerning the rights of the Igbo people or the issue of an ‘independent Biafran state.’ The Tribunal noted that in the applicant’s statement dated 9 June 2020, the applicant stated that:
After the army and police made a visit to my shop which I wasn’t in at the time, I knew it was time to staff off the scene and take action to protect myself. I could not run my business myself anymore. I had to leave the business in the hands of my apprentice
From the country information the Tribunal has accessed and incorporated within this decision, there is no doubt that the present Nigerian government takes very seriously any and all public disturbances concerning religious issues or ethnic matters and it has been documented that if the threat is felt to those in power, maximum and lethal force can be and is applied on organisations and individuals. However, in the applicant’s case from the evidence he provided to the Tribunal, the applicant fell short of providing a convincing or persuasive argument that he decided that it was not safe for him to leave Nigeria.[10] From his own evidence, to the Tribunal – there was no rushed escape from Nigeria, even though the applicant claimed that the authorities were ‘on to him’ and that he had to abandon his business and shop. The applicant applied and was granted by the Nigerian authorities his Nigerian passport and was later granted a visa to travel to Australia. The applicant was not inhibited from leaving Nigeria. Had the applicant been a political activist and office-bearer for a proscribed terrorist organisation, it would be reasonable for the authorities to have apprehended him on his departure to Australia. However, it is the applicant’s claims that he was not only not intercepted, but he also openly organised public protests against the Nigerian government and publicly addressed matters against the Nigerian government. The available country information describes a very different set of circumstances that would await a publicly known and active political dissident in Nigeria.
[10] Ibid, AAT, see written statement.
Put simply, the applicant would have been prevented from leaving Nigeria. More on point, the applicant would have faced indefinite detention. It is the opinion of the Tribunal that though the applicant may have sympathies for the ‘Biafran independence cause’ and has strong opinions about the plight of his particular ethnicity – the ‘Igbo people’ and politics in general in his country of origin – Nigeria, these characteristics did not in any way cause him to fear any harm or persecution from the Nigerian state or its various security and defence instrumentalities or attached to him any notoriety as a ‘person of interest’ for the Nigerian government.
The applicant claimed, as the Tribunal noted above that he was a member of, at first MASSOB and later, IPOB. The applicant provided no documents to attach to his person ‘membership’ of MASSOB. The applicant did provide membership forms recording his brother as a registered member of MASSOB.[11] On perusal of the applicant’s file, the Tribunal did note, a letter of introduction in the name (and signed) by a ‘[Pastor C]’, the ‘regional-coordinator of Biafra – IPOB’ who states that the applicant was a ‘registered member of IPOB since 2012’ and goes on to state that the applicant was an ‘[Position 1]’ of IPOB ‘since 2016’. The Tribunal has concerns about this evidence as submitted. The writer of the letter states that the applicant was ‘a registered member’ of IPOB but makes no reference to the applicant’s actual registration number details. One would expect a ‘regional-coordinator’ to have been more forthcoming with proper membership records concerning the applicant who was also (as was claimed) a member of the IPOB’s local executive in the applicant’s region. Also, very little detail was provided by [Pastor C] of the applicant’s actual role in the local IPOB organisation. It is reasonable to expect that a regional coordinator would have provided detailed information about one of his associate secretaries – sadly that is not present in this document. Indeed, having expressed concerns about this evidence as provided, the Tribunal is very mindful of the prevalence of fraud in Nigeria. According to DFAT,[12] Nigeria experiences high rates of document fraud. DFAT maintains that ‘most documents’, from birth certificates to diplomas, can be falsified and procured.[13] The Tribunal attaches to this document very little weight.
[11] Ibid, see AAT File Applicant’s submission of documents 12 October 2022.
[12] DFAT Country Report – Nigeria dated 9 March 2018 at paragraph [5.37] at p. 34
[13] Ibid, see paragraph [5.37] at p. 34.
Nevertheless, having said this, that does not mean, as the Tribunal stated previously, that the applicant did not hold sympathies about the issue of Biafran secessionism or had concerns about his ethnicity – being a member of the Igbo tribe. What is key here for the Tribunal to assess and find is that the applicant on the evidence before the Tribunal was not a member as he claimed of the political organisations ‘MASSOB’ and ‘IPOB’ though he may have attended their organisational meetings or become familiar with their activities or even attended some of their public meetings and protests. However, the applicant provided no credible evidence of formally being a member of these organisations or having any actual position of responsibility (as he claimed) in the organisation – IPOB.
Also, the applicant claimed that while in Australia he kept his links and membership with IPOB and posted articles and comments on the internet.[14] The applicant provided a plethora of news articles focussing on the political situation in Nigeria and in particular, concerning the political struggle of Igbo people and Biafran independence but none appeared to be penned by the applicant and the applicant provided no evidence to the Tribunal of his writings on the internet. More on point, the applicant claimed to have been involved in ‘sensitising’ the community while in Australia on the plight of the Igbo people and the cause of Biafran independence but again, the applicant provided no credible evidence to the Tribunal when asked to do so, of such anti-Nigerian government activities he had undertaken while in Australia. Again, the Tribunal considers these claims of the applicant about his political activity while in Australia as not credible and lacking any substance and were introduced by the applicant in order to enhance his possibilities of attracting Australia’s obligations to protect him. The Tribunal concludes and finds that there is nothing substantial that the applicant has done while in Australia which would cause him to fear harm or persecution because of anything he had written and allowed to be published on the internet or because of any activities he had committed to while in Australia in support of his ethnicity (the Igbo people) or the cause of independence for the defunct state (region) of Biafra.
[14] see, AAT File, Applicant’s written statement, dated 23 October 2022 (unsigned).
Another credibility concern arose from the claimed circumstances of his wife and adopted child in Nigeria. The Tribunal enquired into the reasons he left his family behind in Nigeria. He explained that, at the time of his urgent departure, he could not afform to bring his wife. His wife relocated outside of Enugu state to avoid harm as law enforcement had targeted his shop in his home state in January 2017 and that he had a plan for her to depart to [another country] and come to Australia on student visa. The Tribunal enquired into the reasons his wife and/or child did not move to one of the ECOWAS jurisdictions to avoid persecution. The applicant admitted that that had been an option. Had the applciant’s wife had an urgent fear of persecution based on the applicant’s political opinion the Nigerian authorities as claimed, it would have been usual for her to move to a third country in which she had the right to enter and reside. This further undermined the Tribunal’s confidence that this set of political opinion claims were credible.
Finally, the applicant claimed that he had a clear understanding that there was an arrest warrant issued in his name.[15] The applicant feared that if he was to return to Nigeria, he would face immediate detention and possibly be killed by the Nigerian security forces. Again, the applicant provided no arrest warrants to the Tribunal, although close family members reside in Nigeria. Having considered the applicant’s evidence above as far as it concerned his political opinion and alleged involvement in MASSOB and IPOB, the Tribunal does conclude and find that there are no reasons why the applicant would have an arrest warrant in his name waiting for him in Nigeria. From the evidence (and lack of), the applicant has not satisfied the Tribunal in any way that he is a person of interest to both the civil or military authorities in Nigeria, either on arrival or in the community, and therefore, the claim of outstanding arrests warrants subsisting in his name or that his name is on watchlist are not credible.
[15] Ibid AAT File.

Having assessed the applicant’s political opinion claims against the Tribunal’s adverse credibility findings, cumulatively considered, the Tribunal finds that he does not face a real chance of serious harm based on his political opinion claims as a supporter of Igbo or Biafran secessionism or any movement pursing those goals, proscribed or otherwise, if he were to return to his home area of Enugu State or Nigeria more generally, either now or into the reasonably foreseeable future. The applicant’s fears of persecution are accordingly not well-founded based on these political opinion claims, or any other related reasons mentioned in s 5J(1)(a), if he is returned to Nigeria.
In this regard, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
Based on the adverse credibility findings above and the Tribunal’s assessment of the country information, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his home state in the Federal Republic of Nigeria, he will suffer a real risk of the kinds of significant harm listed under s 36(2A) arising from his political opinion claims.
In this regard, the applciant does not meet the criteria under s 36(2)(aa).
Official and social discrimination towards as Ibo or Biafran Nigerians
In the applicant’s statutory declaration 9 June 2020 and during the Tribunal’s hearing, the applicant raised concerns about the ill-treatment of his ethnicity group – the Igbo by the Nigerian authorities. The applicant recalled that from his childhood, his grandparents and later his parents, had ‘narrated’ to him the ‘events of the Nigeria/Biafra war’ and that he grew up with ‘the painful emotions’ about that conflict. The applicant told the Tribunal that as he ‘grew up’ he began to understand his grandparents and parents had endured a degree of suffering during the war. It was during the time of his development as a child – attending school and listening to stories about the Biafran conflict that the applicant claimed he arrived at the understanding as to ‘why the Igbo people wanted independence.’ The applicant claimed to have reached the general feeling and conviction about the marginalisation of the Igbo through the discriminatory allocation of funds for infrastructure development and the bias in government appointment were biased against the Igbo.
The applicant identified to the Tribunal that in south-eastern Nigeria, ‘one could see the government (run) hospitals in a very poor state’. Schools, on the other hand, receive very limited government funding, and generally infrastructure, such as roads, were in a ‘very poor state’. The applicant stated that one travelled to certain parts populated by the Igbo and one ‘would not be able to access ‘very’ basic healthcare’. This, the applicant claimed, was because he was ethnically part of the Igbo tribe.
According to the country information, [16] the Igbo people constitute 18 percent of Nigeria’s total population and are one of Nigeria’s most politically influential groups. The Igbo originate in the south-eastern Nigeria and live-in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. Many Igbo have migrated to other areas of Nigeria including the northern states. The Igbo speak a number of dialects. They are predominately Christian.
[16] Department of Foreign Affairs & Trade Country Information Report – Nigeria, 9 March 2018 at 15, see in particular, paragraphs [3.2] to [3.6] et.al.
There are no legal provisions directed towards the Igbo population in Nigeria. The Igbo are able to participate in political, social and cultural life in Nigeria without interference. The Igbo, like all Nigerians, are able to move freely within Nigeria.
The Tribunal noted that the Igbo have faced attacks from the Boko Haram in the middle belt and northern states of Nigeria.[17] However, there are no recent reports of Igbo specifically targeted due to their ethnicity. Past attacks have been opportunistic, isolated, and infrequent according to DFAT. DFAT assesses the Igbo people do not face societal violence on day-to-day basis in Nigeria.
[17] Ibid, Country Report – Nigeria (DFAT) at paragraph [3.5]
The Tribunal accepts the applicant holds some genuine feelings of unease about discrimination and harm as historically experienced by Biafrans, should he return to Nigeria. However, the applicant’s home state of Enugu State has a substantial Biafran population. The Tribunal accepts that there is a degree of bias against Igbo or Biafran Nigerians which occurs among Nigerian officials when decisions about allocation of funds for infrastructure, social and health programmes, and in employment and appointments with government and that it exits at all levels of government.
The applicant in his evidence did not provide any specific instances in which his Igbo ethnicity had created or caused him personal concern or any harm, including direct or indirect discriminatory harm, and persecution. Indeed, though the history of the Biafran conflict bears heavily on his thoughts as with others from his region and ethnic group, the applicant was able to gain primary, secondary and tertiary education while in Nigeria and was able to sustain himself (as he claimed) by establishing and running his own business. The applicant was also not inhibited due to his ethnicity to travel to and from [Country 1] to further his education. Furthermore, by the applicant’s own claims, his ethnicity, in and of itself, did not cause him to depart his country. Based on the evidence provided to the Tribunal and placing notable weight on him returning to Nigeria in 2016 before his departure to Australia, the applicant has not presented as an individual who had been seriously or significantly marginalised or had faced some type of societal violence or severe discrimination while in Nigeria because of his ethnicity as the essential and significant reason for his claimed fears.
Moreover, as discussed above in this decision, the Tribunal does not accept as credible any of the applicant’s claims of his being persecuted because of his political opinion and there is nothing in the applicant’s claims to suggest that he has attracted to himself an adverse interest from the Nigerian authorities because of his Igbo ethnicity/race.
Nevertheless, the Tribunal accepts the degree of official and social discrimination in the applciant’s home state of Enugu and throughout Nigeria amounts to a real chance of harm for a reason mentioned under s 5J(1)((a), namely race or ethnicity. However, that foreseeable harm does not amount to serious harm, including significant physical harassment, significant economic hardship that threatens the applicant’s capacity to subsist, or the denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens the applciant’s capacity to subsist or any other serious harm non-exhaustively mentioned in s 5J(5) or that satisfied s 5J(4)(b).
Neither does the Tribunal accept that the applicant will face a real chance of serious harm or a real risk of significant harm of being imputed with pro-Biafran associations with secessionist movements or other anti-government political opinion, should he return to Nigeria.
Overall, based on the above country information, the Tribunal is satisfied there is not a real chance the applicant will face serious harm either is Nigeria for reasons of his Igbo ethnicity or race or for the related reason of imputed political opinion. The Tribunal finds from the evidence before it that is not satisfied the applicant’s fear of persecution on grounds of his Igbo ethnicity/race is well-founded and does not satisfy s 36(2)(a) in this regard.
With regards to Act’s complementary protection provisions and the findings above, the Tribunal accepts the degree of official and social discrimination in the applciant’s home state of Enugu and throughout Nigeria amounts to a real risk of harm based on the applicant’s race or ethnicity or imputed political opinion. However, there are no substantial grounds for the Tribunal to believe that the applciant, as a necessary and foreseeable consequences of being removed to Australia for his home area of Enugu, will suffer a real risk of any of the kinds of significant harm listed under s 36(2A). In his regard, the applciant does not meet the criteria under s 36((2)(aa), if returned to Nigeria.
Residual claims: Boko Haram, Fulani graziers and the general security situation in Nigeria
In the applicant’s 6 June 2020 statement and during the hearing, the applicant raised the inability of the Nigerian authorities to curb violence by movements such as Boko Haram and the Fulani herders towards Biafran communities and individuals throughout Nigeria meant that he had a real chance of serious harm or a real risk of significant harm, should he return to Nigeria.
The Tribunal accepts that Nigeria has a number of security challenges. The European Asylum Support Office (EASO) in their June 2021 report on the security situation in Nigeria (EASO June 2021 security situation report)[18], and using a range of sources stated:
‘Nigeria’s long-standing security challenges continued in 2019 and 2020 and have been described as stemming from militant Islamists predominantly active in the North-East Region moving into north western states; violence related to armed bandits and criminal violence in the North-West and North Central Regions and street gangs in the South-West Region; conflict between farmers and herders mainly in the Middle Belt but increasingly moving to southern states; communal and ethnic clashes in the North-Central Region and increasingly in the southern states; Biafra separatists in the South-East Region and oil militants in southern Nigeria, particularly the Niger Delta… Election-related violence mainly occurred throughout January to March 2019 …
[18] European Asylum Support Office, ‘Nigeria - Security situation’ (pages 21 to 23), June 2021
The Tribunal accepts that Fulani herdsmen have made incursions into settlements and farms owned and operated by Biafran and other Nigerians. The United States State Department (USSD) 2020 Report on International Religious Freedom: Nigeria, covering events in 2020, noted:
‘There were incidents of violence involving predominantly Muslim Fulani herders and settled farmers, predominantly Christian but also Muslim, in the North Central and North West regions. The government continued ongoing security operations and launched additional operations that it stated were meant to stem insecurity created by armed criminal gangs and violent conflict over land and water resources that frequently involved rival ethnic groups. Various sources said the government did not take significant measures to combat insecurity throughout the country; the International Crisis Group said that state governments relied heavily on armed vigilante groups to help quell the violence, which it said was counterproductive. Some said this lack of government response exacerbated insecurity and failed to address underlying causes.’
The Tribunal notes that in April 2015, 500 armed Fulani herdsmen in the Ukpabi-Nimbo care in Enugu State raided farms, occupied homes, burned down houses and a church and massacred 40 people. There is a growing perception down the south and north-central regions of Nigeria, that the federal government's silence to the incessant killing of natives and farmers in their farm lands, continued open grazing of cattle by herdsmen known for their violence, and the rumoured bill to introduce grazing routes to encourage further roaming of herdsmen across Nigeria, are signs of failure, imperialism and favouritism by the President, Muhammadu Buhari to his tribesmen, the Fulani,. As discussed in the hearing, the Government appeared to condone or legitimise land grabs by herdsmen by proposing the Rural Grazing Area (RUGA) scheme.
The Tribunal also notes that the UN Security Council Report by the UN Secretary-General on developments in West Africa and Sahel between 15 December 2020 to 17 June 2021 stated following, indicating the Boko Haram’s criminal and terrorist activities are not confined to the country’s north and norther eastern states:
‘The situation in Nigeria continued to pose multidimensional security challenges. Boko Haram factions, bandits and unidentified armed groups increased their attacks against security forces and humanitarian agencies, but mostly against civilians. In the previously calm south-eastern region, there were numerous attacks by unidentified shooters targeting security personnel and installations. During the reporting period, the frequency of kidnappings for ransom increased exponentially, affecting more than 1,570 people, including 800 secondary school students, predominantly in Kaduna, Katsina, Zamfara and Niger States. In late April, the Governor of Niger State announced that Boko Haram factions had taken control of some territories in the state, marking an extension of their operations beyond north-eastern Nigeria. Security challenges in the country have triggered knock-on effects on public safety, food security and social cohesion, with separatist voices growing louder.’[19]
[19] United Nations Security Council, ‘Report by UN Secretary-General…’, (paragraph 26), 28 June 2021
The Tribunal notes that the applicant did not claim to have any specific fears of being personally targeted by Fulani herdsmen or Boko Haram acting criminally, but that the current President and the authorities in general do not provide sufficient protection to Biafrans and Christian Nigerians as they favour Muslim Nigerians, Fulani herdsmen, and even Boko Haram.
In this regard, the Tribunal has considered the country information about the capacity of the authorities as outlined in UK Home Office country policy and information note published October 2021: Nigeria: Actors of protection:
The EASO June 2021 security situation report noted:
‘The Nigerian Armed Forces comprise the army, navy (including the coast guard), and the air force. Sources estimate the 2021 size of the armed forces active military personnel between 120 000 and 135 000, including 100 000 in the army, 20 000 navy/coast guard, and 15 000 Air Force. Paramilitary personnel (like the Nigeria Security and Civil Defence Corps (NSCDC), which is an agency of the Ministry of the Interior, but assists the military) is estimated around 80 000. In 2021 Nigeria was the 35th most powerful military power in the world… Reportedly, Nigeria has been the largest arms importer in sub-Saharan Africa since 2014… The army, navy and air force are administered and coordinated by a Defence Headquarters, which is headed by a Chief of Defence Staff. The Nigerian Army is the land branch of the armed forces and by far the largest of the three branches, facing the brunt of the country’s security challenges, notably the Boko Haram insurgency.’
The same EASO report provided details of the Nigeria Security and Civil Defence Corps (NSCDC) ‘The Nigeria Security and Civil Defence Corps (NSCDC)is described as a paramilitary agency commissioned to assist the military in the management of threats to internal security, including attacks and natural disasters… Established in 1967 by the federal government it was initially known as the Lagos Civil Defence Committee and in 2003 statutorily empowered by law… 2019-2021 sources indicate that the NSCDC has 80 000 active personnel… The NSCDC consists of a Directorate of Administration, Disaster and Crisis Management, Intelligence and Investigation, Operations, Technical Service, and Critical Infrastructure and National Assets… In April 2017, the Ministry of Interior announced that personnel drawn from the NSCDC would be trained to become ‘Agro Rangers’ with the aim to protect farmers and their investments from attacks by criminals, as well as mediate local farmer-herders disputes… The NSCDC has also been deployed to protect the Internally Displaced Persons’ (IDPs) camps… and inform IDPs about COVID-19.’
EASO also reported:
‘Reportedly the police and military “struggled to meet the multiple security missions across the country, including participating in the Multinational Joint Task Force, countering terrorism, enforcing maritime security, countering narcotics trafficking and other criminal networks, and peacekeeping. Police forces are viewed as oppressive and ineffective, thus putting more burden on the military to assume internal security missions.”… This crisis in federal security has led to the proliferation of state-level and local self-defence groups (militias) mobilisation to provide protection or security to local communities in the absence of state protection, sometimes organised by state governors… Concerns have been raised by several sources that this trend could lead to the emergence of ‘ethno-regional’ security arrangements and the erosion of national cohesion… Several community militias have been amalgamated into the Civilian Joint Task Force (CJTF), particularly present in the North-East Region…, which now performs a range of security functions, often alongside the military. Some have received state funding and other support, although civilian authorities do not have full control over their operations. Some CJTF forces have been implicated in civilian harm and human rights abuses, in a context where they are not held accountable. They are reported to have become part of the local war economy, participating in criminal networks, while acting as a local police force.’
It is the Tribunal’s assessment that the Nigerian authorities have multiple security crises which limit its capacity to provide protection to civilians and underperforms in tackling the scourges of terrorism, violent raids, land grabbing, kidnapping, human trafficking, and conflicted related internal displacement. It accepts that much of this violence by Fulani herdsmen, Boko Haram and related criminal outfits is often directed towards Biafrans and Christians Nigerians. However, Nigeria’s population has over 200 million with Christians make up 46 or more per cent of the population. Those of Igbo or Biafran ethnicity consist of about 15 per cent. The applicant and his family are well-educated, urbanised and relatively well-off residents of Nkusska. In this regard, the Tribunal accepts that the applicant and his family have relatives who work as farmers in Enugu who have a real chance of encountering Fulani violence. Nevertheless, the applicant is not a not farmer; neither are members of his immediate family, indicating that his chances of encountering Fulani herdsmen is remote, if he were to return to his home area of Enugu State. Furthermore, there is no suggestion that the applicant has reasons to settle in volatile areas of Nigeria where he has a real chance or a real risk of being abducted or killed by Boko Haram.
The Tribunal also notes that the Global Terrorism Index 2022 stated that counter insurgency has significantly decreased Boko Haram’s activities, with the organisation recording only 64 attacks in 2021. Deaths dropped by 92% from 2,131 in 2015 to 178 in 2021. The decline of Boko Haram contributed to Nigeria recording the second largest reduction in deaths from terrorism in 2021, with the number falling by 47% to 448.[20]
[20] Global Terrorism Index 2022 - World | ReliefWeb
Should the applicant return to his home state of Enugu, population 3.2 million, the Tribunal accepts that the applicant has a chance or a risk of specifically targeted for the essential and significant reasons based on his ethnicity and his religion and this targeting amounts to serious harm and significant through being killed or maimed by terrorist outrages, abductions and conflict related internal displacement. However, the Tribunal finds that the chance of serious harm based on his religion and ethnicity amounts to only a remote or far-fetched chance – but, not a real or substantial chance, should the applicant return to his home state within Nigeria, as required by s 5J(1)(b). This is based on the sustained decline of Boko Haram attacks by Nigeria’s terror measures and because the applcaint’s does not have a heightened risk arising from his urban background.

Neither the Tribunal nor the applicant and his representative located any country information that states that the applicant will be denied protection by the authorities on his ethnicity as Igbo or Biafran, his religion as a Christian or a combination of these factors, if returned to his home state. In this way the applcaint does not have a well-founded fear of persecution, pursuant by s 5J(2). Similarly, the Tribunal finds that there is taken not to be a real risk that the applcaint will suffer significant harm in his home state as he could obtain, from an authority of the country, protection: s 36(2B)(b).
Therefore, taking all the above findings and country information into account, the Tribunal finds that the applicant has only a remote, insubstantial or far-fetched chance – but not a real or substantial chance of harm, based on his race or his religion or a combination of these nexus reasons or any other reason mentioned under s 5J(1)(a) arising from the generally poor security situation in Nigeria, should he return to his home state of Enugu, now and into the reasonably foreseeable future. In this regard, the applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1)(a) if he is returned to the applciant’s home state in Nigeria.
As the ‘real chance’ standard for the refugee criterion is the same as the ‘real risk’ test under the complementary protection provisions and given the ‘real chance’ immediately outlined above, then it follows that the applicant only has a remote, insubstantial and far-fetched risk – and not a real and substantial risk – of significant harm, if returned to his home state in Nigeria, based on assessment of the country information, and does not satisfy s 36(2)(aa) based on the same considerations about the security situation in Nigeria.
Cumulative findings
There are no more residual claims to consider in this matter.

100. Having cumulatively assessed all the applicant’s claims and accepted circumstances, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, should he return to his home state of Enugu in Nigeria. As the real chances of serious harm do not relate to all areas of the applicant’s receiving country, the applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1)(a), (b) or (c) if he is returned to Nigeria.
101. Therefore, the Tribunal is also not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) and s 5H(1) of the Act.
102. Based on the applicant’s accepted circumstances, both individually and cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federal Republic of Nigeria, he will suffer a real risk of the kinds of significant harm listed under s 36(2A).
103. Accordingly, the applicant does not satisfy s 36(2)(aa).
Conclusion
104. 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).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

107. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
Member

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.
…

[1] Nigeria - Wikipedia

[2023] AATA 974

8 February 2023

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