2013426 (Refugee)
[2024] AATA 2410
•13 February 2024
2013426 (Refugee) [2024] AATA 2410 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Albert Kalouche (MARN: 0101940)
CASE NUMBER: 2013426
COUNTRY OF REFERENCE: Nigeria
MEMBER:Jane Marquard
DATE:13 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 February 2024 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Nigeria – ethnicity – Igbo – religion – Christian – fears violence from husband’s family – accused of killing own husband – ill-treatment during the widowhood rituals and initiation rituals of voodoo practices – mental health issues – stigma as a widow – discrimination against working women – false information – no real chance of serious harm if she were to return – referral to the Minister as the applicant may suffer because of her mental health – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5 (1), 5H, 5J, 5K-LA, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AIB v Minister for Immigration and Border Protection [2017] FCAFC 163
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Randhawa v MILGEA (1994) 52 FCR 437Any 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 26 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a [age]woman from Aba, Nigeria.
She first arrived in Australia [in] June 2017 on an FA 600 Visitor visa.
She applied for the visa the subject of this review [in] July 2017. She claimed that she fears returning to Nigeria because her husband’s family accused her of killing her husband by food poisoning. She also claimed to fear harm as a Christian. The delegate of the Department of Home Affairs (the Department) did not accept that she left Nigeria after being accused by her husband’s family of food poisoning or that his family harmed her in any way. The Department did not accept that she faced a real chance of serious harm or a real risk of significant harm in Nigeria on the basis of the alleged poisoning or for reasons of her religion.
The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.[1]
[1] Section 25, Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal has jurisdiction pursuant to Division 2 of Part 7 of the Migration Act 1958 (Cth).
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[2] See Migration Regulations 1994 (Cth), Sch 1, item 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]
[3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[6] or
b.qualify for complementary protection (the complementary protection criterion’;[7] or
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[8]
[6] Section 36(2)(a) of the Migration Act 1958 (Cth), s 36(2)(a).
[7] Section 36(2)(aa) of the Migration Act 1958 (Cth).
[8] Sections 36(2)(b), (c) of the Migration Act 1958 (Cth).
Refugee criterion
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J (3)).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
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; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has considered the evidence before the Department and this Tribunal.
A list of documents provided to the Department is set out in Attachment A.
The applicant provided written submissions to the Tribunal as well as a Statutory Declaration dated 11 September 2023, media articles about the killing of Christians in Nigeria, Smart Traveller advice on travelling to Nigeria, and a reference from a pastor. The applicant appeared before the Tribunal on 18 September 2023 to give evidence and present arguments in relation to the issues arising in the review. The applicant was represented in relation to the review, and her representative, Albert Kalouche, was present at the hearing. After the Tribunal hearing, further submissions and a psychological report were provided.
The Tribunal has also considered independent information about Nigeria.
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9]
[9] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·Whether the incidents described by the applicant took place in Nigeria.
·Whether there is a real chance of serious harm if she were to return to Nigeria in the reasonably foreseeable future or a real risk of significant harm if she were removed to Nigeria.
These issues and other threshold issues are discussed below.
FINDINGS AND REASONS
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from Nigeria, last issued in Canberra in 2019. The Tribunal is satisfied on the basis of her passport and testimony that the applicant is a national of Nigeria, and that Nigeria is the receiving country for the purposes of the legislation.
Personal particulars and background
The Tribunal accepts the personal particulars and background information provided by the applicant as these details have been consistently provided and there is no reason to doubt the information.
The Tribunal accepts that the applicant was born in Aba City, Abia State, Nigeria. She went to primary school in Aba until [year]. She completed high school in Lagos in [year]. From 1996 to 1998 she completed a [degree 1] at[College 1]. From February 2000 to November 2005, she completed a Bachelor of [degree 2]at the [University 1]. She worked as a [profession 1]at [organisation 1]from February 2006 to February 2007. From September 2009 to November 2012, she completed a [course 1] at[university 2]. She said at the Tribunal hearing that when they had children, her husband told her to stay home and look after the children, which she did, and sometimes she helped her husband in his work. From November 2013 to November 2016, she was self-employed, selling items such as [goods] from her car.
The applicant is of Igbo ethnicity and is a Christian. She followed Catholicism when growing up until she married when she started following her husband’s denomination, the Church of Jesus Christ of Latter Day Saints. She attended church every Sunday from birth (Statutory Declaration dated 11 September 2023). She currently practises Catholicism and attends church every Sunday at[Church 1].
The applicant’s father was an ‘educationalist’, and his family came from[City 1]. Her father passed away in [year].
The applicant’s mother has lived in the [Country 1] since 2017. Her family also came from [City 1], and she worked in [job].
The applicant’s brother, [Mr A], works in the [Country 1] as a[professional]. He has lived there since 2001. Another brother, [Mr B], also lives in the [Country 1] but he is unemployed. A third brother, [Mr c],also lives in the [Country 1]and is studying [a course]. She has three sisters. Two live in the [Country 1], one working as a [manager], and another as [a]professional and the other, [Ms A] is a [occupation]and lives in Nigeria.
The applicant married in [year]. A marriage certificate was provided. The applicant and her husband lived in Aba. She has two children who live in Nigeria. After the applicant left the country, the children lived with her mother. After her mother left the country the children lived with [Ms A] who home schooled them. They are currently residing with a friend.
The family members who are living in [Country 1]travelled there on family migration visas. [Ms A] did not accompany them as she did not want to raise the children there due to ‘[issues in county 1]’.
The applicant has previously applied for visas to the [Country 1], [Country 2] and [Country 3] but was unsuccessful. She applied for a visa to the [Country 1] in 2006 when she graduated and did not complete her application. She applied on a group visa for [Country 3] on a Rotary trip but then her father was diagnosed with [a condition] so she did not pursue it. She applied to the [Country 2] for a holiday visa, but they had insufficient funds.
The applicant attends [Church 1] in Sydney. A Letter of Attestation dated 10 September 2023 was provided from Reverend[Mr D]. He said that he had known the applicant for over five years, and she was a dedicated member of the Nigerian community in the Catholic diocese. He said that she helped with young people. He said that she suffered significant trauma being separated from her children.
The Tribunal accepts that the applicant saw a psychologist in 2017 and 2018 who reported that she had symptoms consistent with post-traumatic stress disorder (PTSD), mixed anxiety and depressive disorder. Her last appointment was in 2018. Asked by the Tribunal about her mental health, she said that she takes medication and sees her general practitioner for ‘scripts’ but is otherwise not getting medical treatment. The Tribunal accepts her evidence at the Tribunal hearing that she has heart palpitations and insomnia. After the hearing the Tribunal invited the applicant to provide an updated psychological report. A letter from [Mr E], registered psychologist, dated 15 January 2024 was provided. He said that the report was an update of a report in 2020. He said that as previously diagnosed the applicant had PTSD, adjustment disorder with features of anxiety and depressed mood.
Mr [E]said that the applicant had actively participated in therapy sessions on two occasions in 2017 and eight occasions in 2018. She has also attended two sessions in 2023. He said that she continued to experience significant concerns about the safety of her children who had been relocated. She also had persistent fears for her own safety should she return to Nigeria. He provided a number of websites about rituals for widows in Nigeria, which he said she had provided to him. He said that he ‘strongly advocated’ for the granting of a protection visa for her. The Tribunal notes that advocacy is not a role that a psychologist should take on for reasons of professional objectivity.[10] However, notwithstanding this, the Tribunal accepts that the applicant has the mental health issues identified.
Evidence about the applicant’s husband’s death and claims about his family and harm inflicted on the applicant in Nigeria
Applicant’s evidence about her husband and his family
[10] AAT, ‘Guideline on Persons Giving Expert and Opinion Evidence’, available on the AAT Website, >
The applicant’s parents-in-law live in [Village 1], [City 1] with her husband’s sister. The applicant told the Tribunal that she met her husband’s family one month after she met her husband. Her first impressions were ‘of fear’ because the family ‘do voodoos and traditional practices’. She said that she knew that they followed traditional beliefs because in the house there was a shrine and many signs of practising voodoo, such as statues covered with blood, and signs of ‘sacrifices which they had engaged in’. Her husband had told her about their practices but he had converted to Christianity a year before they met. The applicant said that he told her that his conversion ‘caused problems in the family’, and his mother believed that he would ‘come back’. She said that his family ‘believe in oracles and shrines and do rituals with animals and human beings’.
Her father-in-law worked as a ‘traditional practitioner’. He specialised in voodoo and in helping people who were poisoned and also ‘getting people to fortify themselves’. Her mother-in-law assisted him. Her brother-in-law sells [goods]in Aba.
She said that she and her husband only went to his family’s house once, as her husband knew their practices were against her Christian beliefs.
She also claimed in her Statutory Declaration dated 11 September 2023 that when she married her husband in [year] his family wanted to initiate her into the family according to their traditions. She said that they are ‘native doctors’, also known as ‘voodoo with doctors’. She said that ‘the initiation process was going to involve cutting her body with a razor blade and inserting a mixture of powder – supposedly a healing and soul cleansing powder-into the wounds, eating parts of uncooked meat and small alive crawly animals. My late husband and I were opposed to it and that created some frictions with the family from the beginning’.
Asked to elaborate at the Tribunal hearing, she said that when they were planning to marry, his family wanted to initiate her as a member. The initiation involved giving her a mark on her skin and giving her blood of an animal. They would also put powder on her skin and make her swallow a baby chicken. They also wanted her to eat raw meat. She said that she refused as it was against her beliefs.
According to her Department application she was married in [year] in her husband’s church. His brother and friends attended but not the rest of the family. Her husband told her that his family were traditionalists, and do not believe in Christ. He said that he had left his childhood traditions by believing in Christ. Her brother-in-law was engaged in traditional practices, but he came because ‘he loved his brother so much’.
The applicant said in her Statutory Declaration dated 11 February 2023 that after her marriage she and her husband lived in Aba city, but his parents lived in the village although his siblings lived in Aba. She studied [Course 1] from 2009 to 2011.
She told the Tribunal that she and her husband spent time with her mother and siblings after they were married. Asked if her mother met her husband’s family, she said that her mother was worried that ‘she married into this family’, but her husband promised them that they would ‘never be part of that life’. She said that her mother did not meet his family.
She said that when she was pregnant his family asked her to go to their house to engage in rituals, but they did not comply. When she was about to give birth, his family asked her to go to a traditional midwife, but she refused. In her Statutory Declaration dated 11 February 2023 she confirmed that she had her children at hospital, but this was against her in-laws’ wishes as they wanted her to give birth at the village shrine with a traditional midwife in attendance.
She said that his family wanted to initiate the children. However when her husband was alive, they kept away from his family so no initiation could take place. Her husband was protective and did not allow them to get close to her.
The applicant said that she travelled to Australia in 2016 for a vacation. She said that she travelled without her husband and children as their funds were insufficient and they agreed for her to visit as she was sad after the death of her father.
Husband’s death
The applicant claimed in her application and interview with the Department that her husband died of food poisoning on 3 November 2016 after her return from Australia.
She said at the Tribunal hearing that her husband got sick when she returned from Australia. He looked unwell and at first he did not tell her as he did not want her to get scared. He told her that he was coughing up and excreting blood. His mother had brought medication, but he did not take it. She telephoned his mother to tell her that he was going to hospital, but his mother opposed this course of action, and said that he should take the medication she had provided. However, he went to hospital where he remained between September and November 2016. Doctors said he had food poisoning. [In] November 2016 he passed away. At the Tribunal hearing she said that he died at [time] . She said that she did not want to tell his family as she did not want to believe he had passed away. On the morning of 4 November 2016, she told them by telephone. They came to the hospital and the doctor told them what happened and that he had eaten something poisonous, but he did not know what that was.
Asked at the Tribunal hearing about providing hospital reports, she said that she did not have medical reports from the hospital as her husband’s family took them.
She provided a death certificate issued by the National Population Commission and registered [in]January 2017. The certificate confirmed that the applicant died on [in] November 2016 at age][ at [Hospital].
After her husband’s death – 4 November 2016
The applicant claimed at the Department interview that her husband’s family accused her of killing her husband and that after his death they abused her physically with ‘torture, beating and traumatic physical harm’. At the Tribunal hearing she said that they told her that the cause of death was ‘a lie’, even though he had been sick prior to her arrival in Australia and doctors told them the cause of death. She said that the doctor released his corpse to them and ‘she forced herself and her children to go with them to the village’. The applicant said that her brother-in-law changed immediately after her husband passed away and he accused her as well.
She claimed in her application that his family forced her to sleep with her husband’s corpse for three weeks, tying her to a tree for two days, forcibly cutting her hair, wearing charcoal-blackened clothes, beating her up and seizing her assets and trying to take away her children.
In the Statutory Declaration dated 11 February 2023 she claimed that [in] November 2016, the day after her husband’s death, her in-laws took her and her children to the village, [Village 1]. She said that they insisted on her performing traditional rituals to ‘prove her innocence’. She said that she had to stay for three weeks with the corpse in black clothes with her body covered in charcoal. They regularly washed her husband’s body and kept the water for her to drink at the second stage ritual which happens after the burial. She said that after leaving the room she was brought before the ‘umuada’, a feminist group that assists women in need, and she was verbally abused, spat on and expelled from the group. She said that as she left the room some women carried out sweeping motions with brooms as they hummed ‘bad luck go away’.
At the Tribunal hearing she elaborated, saying that when she arrived in the village her husband’s family accused her of killing him. She protested and said that she had not killed him, and that they had heard the doctor explain what happened. They said that she must ‘come before the gods’ and swear her innocence to show that her ‘hands were clean’. They released the children to her mother. There was a room where they kept the corpse and they told her that she must sleep there. Asked at the Tribunal hearing why she did not leave, she said that she was in shock and ‘not thinking’ and so she ‘just stayed’. She said that they placed black cloth and put charcoal over her body. They provided her with a bucket for the toilet. They washed his body regularly. Once when washing his body, they said that they would use the water for ‘a ritual’. She said that his family released her on 27 November 2016. The women were ‘waiting’ and they warned her not to come to the family again until she proved that she did not kill her husband. ‘Most were spitting’ at her and making fun of her. They made sweeping motions with a broom and told her to leave. Her family took her away and said ‘do not go back’. Members of her family said she could not attend the funeral.
Burial
The applicant said in the Statutory Declaration dated 11 February 2023 that she was not allowed to go to the burial [in] December 2016. She went to her home in Aba city. She said that his family organised the funeral and put posters up.
She submitted that she was meant to return for the ‘second stage ritual’ which was to cut open her body with a razor and fill the wound with a powder mixture, drink the body water and eat uncooked dead animal meat. She said that she did not return. She claimed that on 24 December 2016 cousins of her husband came to her house and tried to force her back to her husband’s village, but she resisted and was able to run away.
Her kidnapping
The applicant claimed in her application that in April 2017 she was kidnapped from outside her house and ‘tortured’. At the Tribunal hearing she said that she had thought that by this time, in April 2017, ‘everything had resolved’. In the Department interview she said that she was drugged with a handkerchief and when she awoke she was tied to a tree. She said that she was told she had been there for two days. Her body had been cut in preparation for the ritual. They wanted her to undergo female circumcision and drink her husband’s water. She claimed that she found a way to escape. She ran to the next village and was covered with clothes by a woman who called a ‘[name]’ and then she took a bus to Aba.
She told the Tribunal that her maid had taken her children to her mother’s house when she was taken. After 24 hours they called the police.
In her Statutory Declaration dated 11 February 2023 she elaborated on this incident. She said that she was doing her laundry outside when she was kidnapped and taken back to the village. She had a cloth placed over her nose and became unconscious. She said that when she came to, she realised she was tied to a tree next to the shrine in the middle of the village and had razor cuts on her chest, shoulders, thighs and back. There was a guard there and she asked him what was happening. She was told that the next day the ritual would continue, and she would have to drink the body water, and animal blood. She became very frightened. She used a moment when ‘guarded by one person’ to ask to go to the toilet and was taken to the woods to relieve herself and she ran away. She said at the Tribunal hearing that in a nearby village she spoke to a woman who wanted to take her back to the village. She begged for help, and this woman took her to a pastor who then found her transport. She went back to her family house and told them what had happened. They reported it to the police, and the police said that they ‘could not do much’ to protect her, and she should ‘look for a way to leave the country’. At the time she had a visa to Australia planned. She took her children to her mother’s house in Aba and left for Lagos and with her sister’s help got some money together to leave the country.
The Tribunal questioned the applicant about why his family would let her escape so easily if they had taken the trouble to kidnap her. She answered that the guard did not know she would try to escape.
Children’s kidnapping
The applicant claimed in her Department interview that her children were kidnapped and after a few weeks she was told they were at her in-laws’ place and safe. She said in the Statutory Declaration dated 11 February 2023 that ‘two weeks later they arranged for my kids to be kidnapped and taken back to the village as a way to lure me back there as well. I involved the police and they brought my children back to me’. At the Tribunal hearing she said that the school contacted her after they could not find her children and after 24 hours, she called the police. The police found the children and brought them back, but no arrests were made.
Police
The applicant said in the Department interview that she reported her husband’s family to the police in relation to the incidents in the village and the kidnapping of her children but they were not prosecuted as it was a ‘tribal issue’.
She told the Tribunal that she was not given police reports. She said that her in-laws went to the police to get the reports removed. She knows that they did this because no-one was arrested and the police suggested that she leave the country as they could not protect her.
She claimed that she ‘escaped’, left the village and moved to Lagos to get away from her husband’s family but continued to fear them and she believes that they could find her anywhere.
Situation for her children
The applicant gave evidence that when she left Nigeria, her children lived with her mother two and a half hours’ drive away from the village and were ‘in hiding’. She was asked why the children did not go to the [Country 1] with the family. She said that ‘there are many evils in the [Country 1] such [as] violence’. She was also concerned that such a move would ‘alert the in-laws’. She was asked if she would not prefer them to go to the [Country 1]and live openly rather than live in hiding as she claimed they were in Nigeria. She said that she would not want them to live separately from her for a long period. The Tribunal put to her that she had already been separated from them for a long period, and she agreed with this. She said that the children then went to live with her sister, [Ms A], who is a [Profession]in Aba, who engages her children in home schooling. They lived in her father’s house and ‘did not have to go outside’.
The applicant claimed that her sister noticed people following the children. She claimed that her in-laws are searching for her, and if they found the children they would take them to the village. She was asked if they could have found the children with [Ms A]if they really wanted to do so. She said that they did not know that her children lived with [Ms A]and her children do not go outside. She also claimed that they thought the children left with her. She said that she left in June and her mother left in August 2017.
The applicant claimed that she speaks to [Ms A]often. She said that her friend, [Ms B], has promised to look after the children and not let anyone know where they reside. The applicant said that she speaks to this friend often via WhatsApp. They speak in dialect. Asked if she could show the Tribunal the WhatsApp messages, she said that she deletes them because she is being careful. She then said that they use voice calls.
Adverse information put to the applicant at the Tribunal hearing
At the Tribunal hearing the applicant was asked about a letter dated 31 January 2017 located in the Departmental records relating to her visitor visa application. This letter was also discussed in the Department interview and referred to in the Department decision. In the letter her husband purportedly consented to her travelling. At the Tribunal hearing, it was put to her that she had claimed in her protection visa application that he had died in November 2016 so it would have been impossible for him to write such a letter, which caused the Tribunal to question whether his death had taken place.
She was also asked about statements made in her visitor visa application that she was married in January 2017, when she had claimed that her husband died in November 2016. As part of the visa application, she also provided photographs of the family, including her husband.
According to the Department decision in this matter, when asked by the delegate about the visitor visa applications, her response was as follows:
The first one I did with my husband’s signature. My husband was late by that time I couldn’t write that I was a widow I needed to go out of my country I needed to survive and be safe. My husband has a lot of letter headed letters which he signs for me it’s always in his office so I had access to it that is why I used it.
When further prompted by the Department delegate and asked if she had anything further to add, the applicant stated, ‘I am just so sorry because that was my only option to leave’.
At the Tribunal hearing, the applicant responded to this adverse information as well. She said that when she applied for her first visa for Australia her husband prepared her application (when he was still alive). She said that at the time of preparing her second visa application he had passed away and she was ‘running for her life’ so she included the details prepared by her husband from the first application. She said that she was ‘doing everything she could to leave the country’. She was asked if she did not think it was important to tell the truth about her circumstances to the Australian government authorities. She said she ‘only saw death’. She was asked why she did not tell the truth that her husband had passed away and state that her children were staying in Nigeria, which would have indicated to the Australian authorities that she had a genuine intention to return to Nigeria at the end of her visit. She said that she initially lodged an application for her children to accompany her to Australia, but she was told that she ‘did not have the right birth certificate’. Consequently, she thought that she should ‘just look after my own safety’ and her objective was to ‘run for my dear life’.
It was also put to the applicant by the Tribunal that Departmental records indicated that as part of the visitor visa application she provided a letter dated 11 January 2017 from the children’s School Head, which stated that the ‘parents of the above-named pupils’ (she names the applicant and her husband) ‘have duly notified the school management of their children’s intention to travel with their mother’. She was asked why a third party, the School Head, would say that her husband had notified the school if her husband had passed away. She said that she ‘needed the application’, and it may have been a typing error as the school knew about his death.
At the Tribunal hearing it was put to the applicant that the copy of the funeral notice she had provided to the Tribunal stated that the ‘body leaves [a hospital] for his father’s compound at [Village 1] [City 1] 7.30am’. However, she had told the Tribunal that his family had taken his body to the village after his death, and she had lain next to it.
She responded that the hospital mortuary was used by all villages, including [City 1]. She said that after three weeks his family had returned his corpse to the mortuary. He passed away at [a different hospital] but the mortuary was at a different hospital. She said that the corpse was taken there, as they had completed the rituals.
It was also put to the applicant at the Tribunal hearing that the funeral notice contained Christian quotes, although she had told the Tribunal that her husband’s family were traditionalists and opposed Christianity, and that when their son converted this caused conflict.
She said that traditionalists always say ‘God in Heaven’ and if it had been written in Ibo, it would have said ‘ise’ instead of ‘amen’. She said that the notice was written in English as there were English people who wanted to come from Aba for the funeral.
In regard to all the documents provided by her, the Tribunal put to the applicant that there is extensive document fraud in Nigeria[11] which, in light of the issues mentioned above, caused the Tribunal to question whether the documents were authentic. She said that the death certificate was obtained by her from the local government and was registered. She registered the death by getting a letter from the doctor at the hospital. She does not have a copy of this letter anymore.
[11] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Nigeria’, 3 December 2020.
Findings of the Tribunal in relation to the incidents in Nigeria
The Tribunal has had a number of concerns about the credibility of the applicant’s evidence, including the issues relating to the documents referred to above. However, on balance the Tribunal accepts the applicant’s account of the incidents which took place in Nigeria, taking into consideration the particular difficulties faced by asylum seekers in presentation of evidence, her particular vulnerabilities[12], corroborative material, country sources and the consistency and detail of the account.
Concerns of the Tribunal in relation to the credibility of the applicant’s claims about her husband’s death and accusations made by her family
[12] AGA16 v MIBP [2018] FCA 628.
The Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). Credibility was a key issue in the Department’s finding that the applicant did not meet the criteria for the visa. The Tribunal also has had concerns about the credibility of her claims.
One of the concerns the Tribunal had with the applicant’s evidence was information in some of the features of the documents provided, particularly as sources suggest document fraud is prevalent in Nigeria.[13] In particular, as set out above, she provided a letter purportedly from her husband as part of her visitor visa application at a time when he was supposedly deceased. She also provided family photographs and a letter from the school principal stating that she had been notified by the parents of the travel plans for the children. The Tribunal was concerned about why she would imply on a number of occasions in her visitor visa application that her husband was alive. She explained it on the basis that she was desperate to travel to escape her husband’s family so she used the visitor visa application she had used the first time she travelled to Australia. The fact that she was prepared to provide false information to the Australian government does call into question her overall credibility.
[13] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Nigeria’, 3 December 2020.
The applicant’s representative submitted that her explanation for providing these documents in her visitor visa application was reasonable, referring to AIB v Minister for Immigration and Border Protection [2017] FCAFC 163 in which the court said that there must be a reasonable explanation for (in that case) provision of a bogus document. The Tribunal notes that she applied for the visitor visa in January 2017 which was prior to the kidnapping incident although after the incident involving the rituals in the village. It does appear that she was not in immediate danger at that time. Further after being granted the visa in April 2017 she did not leave until July 2017 although she claimed she was desperate to ‘escape’. It is also somewhat difficult to accept why the School Head said that the parents had spoken to her, at a time when the father was allegedly dead. The applicant has explained this as a typographical error, by which she presumably means that the School Head meant to say that she was contacted by the children’s mother only, but this does not fully explain the statement.
The Tribunal also has concerns about the notice of death provided by the applicant which stated ‘with total submission to the will of God’ and ‘may your gentle soul rest in peace, amen’. These are Christian statements in a notice produced by the husband’s family, however the applicant has claimed that they were not Christian and followed traditional practices.
Further, the funeral notice she had provided to the Tribunal stated that the ‘body leaves [a hospital]for his father’s compound at [Village 1] [City 1][in the morning]’. However, she had told the Tribunal that his family had taken his body to the village after his death, and she had lain next to it.
The Tribunal found some of the applicant’s answers to questions raised at hearing somewhat evasive. For example when asked if she had copies of her WhatsApp messages with the friend caring for her children, she said that she had deleted them and she then said she called this friend, however earlier she had said that she messaged on WhatsApp. The Tribunal finds it unusual that she could not provide communications between herself and the woman caring for her children.
However, notwithstanding these concerns the Tribunal has accepted the applicant’s evidence that she was forced into widowhood riturals, when considering difficulties in presenting evidence, country sources and corroborative evidence. The Tribunal has disregarded its concerns expressed above when considering the evidence in its totality.[14]
Particular difficulties asylum seekers face and the applicant’s vulnerabilities
[14] Chan v MIEA (1989) 169 CLR 379.
It is well recognised that asylum seekers may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
These experiences may lead to nervousness and anxiety in presenting evidence and applicants may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family.
The Tribunal is also conscious and mindful that there may be factors that consciously or otherwise influence decisions.[15] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[16] in regard to the process of credibility assessment. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[15] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[16] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The Tribunal has also taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[17] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[18] A similar approach is taken in the Department’s Refugee Law Guidelines[19] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’),[20] which provides useful guidance for this Tribunal.
[17] AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, SZLVZ v MIAC [2008] FCA 1816 at [25].
[19] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017.
[20] UNHCR, re-issued February 2019 at 203-204.
Additionally the Tribunal has taken into consideration the applicant’s vulnerability, as she has a number of mental health issues. The Tribunal’s Guidelines on Vulnerable Persons[21] state that vulnerable persons may have an impaired or undeveloped ability to understand and effectively present their case.[22]
Country sources which support the applicant’s claims
[21] AAT, Guidelines on Vulnerable Persons, July 2015, available on the AAT Website, AAT, Guidelines on Vulnerable Persons, July 2015, available on the AAT Website, >
The Tribunal has been careful not to allow cultural assumptions to interfere with the decision-making process. Assumptions of all kinds, including cultural assumptions, can impact on assessment and be inconsistent with psychological literature.[23] The Tribunal is persuaded by various independent reports which indicate that death is a highly ritualised event in Igbo culture and a number of rituals apply to widows.
[23] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting, however, that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented’.
It is clear from these sources that rites may vary between different Igbo villages and towns.[24] However it appears to be a common feature in death rituals among the Igbo that the burial process for a deceased member of the community involves two separate funerals which are aimed at safely escorting the deceased to the spirit world.[25] The burial practices can be summarised as follows:
· Upon the death of the individual the body is prepared and cleaned according to relevant customs;
· a wake is held with prayers and libations and lasts all night;
· the body is subject to the first burial; and
· several months, or up to a year later, a second funeral is held accompanied by feasting and celebrations.[26]
[24] Ndukwe Udochukwu Emmanuel, Ihechu Innocent Paschal and Ralph-Nwachukwu Onyinye, ‘Modernity and Burial Rituals In Igbo Land: A Paranormal Communication Approach’, British Journal of Mass Communication and Media Research Volume 1, Issue 1, 2021 (pp. 28-38).
[25] Classroom website, < Burial Rites of the Igbo Culture - Synonym>, undated; Seven Ponds, 8 January 2015, <Mourning and Celebration of Life in the Burial Rites of Igbo Culture - SevenPonds BlogSevenPonds Blog>.
[26] Classroom website, < Burial Rites of the Igbo Culture - Synonym>, undated; Seven Ponds, 8 January 2015, <Mourning and Celebration of Life in the Burial Rites of Igbo Culture - SevenPonds BlogSevenPonds Blog>.
In the 2022 Report on Human Rights Practices in Nigeria, the United States Department of State (USDOS) stated that widows were subject to a practice called ‘confinement’ following the death of their spouse.[27] According to this practice, widows are subject to social restrictions for up to one year, must shave their heads, and dress in black as part of the culturally mandated mourning period.[28] In some traditional southern communities, women are forced to drink the water used to clean the body of their deceased husband to demonstrate they are not responsible for his death.[29]
[27] US Department of State, < ‘Country Reports on Human Rights Practices for 2022 - Nigeria’>, 20 March 2023, page 27.
[28] US Department of State, < ‘Country Reports on Human Rights Practices for 2022 - Nigeria’>, 20 March 2023, page 27.
[29] US Department of State, < ‘Country Reports on Human Rights Practices for 2022 - Nigeria’>, 20 March 2023, page 27.
The information from the USDOS finds support in three separate academic research papers into widowhood among the Igbo undertaken between 2014 and 2022.[30] Each of these papers confirms the practice of confinement and that these practices condone maltreatment of the women, alienating them from society and restricting their participation in social activities for up to a year following the death of their husband. Additional information is provided as follows:
[30] Dr Ifemeje Sylvia Chika and Umejiaku Nneka, ‘Discriminatory Cultural Practices and Women’s Rights among the Igbos of South-East Nigeria: A Critique’, Journal of Law, Policy and Globalization, Vol. 25 2014; Paula Ugochukwu Ude and Okechukwu Camillus Njoku, ‘Review of the Obnoxious Widowhood Practices in Nigeria: Anambra State in Perspective’, International Social Work, 201, Vol 60(6), pp 1512-1522; and Patricia Chinwe Iloka, Review of the Obnoxious Widowhood Practices in Nigeria: Anambra State in Perspective*, Nnamdi Azikiwe University Journal of International Law and Jurisprudence, 13(1) 2022, 48-57.
Among both the Igbo of Nigeria and the Akan of Ghana, it is believed that the spirit of the dead husband hovers around to possibly have coital relations with the widow. For this reason, a typical Igbo widow has to symbolically carry a kitchen knife all the time as a defense tool to ward off the spirit of the dead husband (Chidili, 2005; Korieh, 1996). Usually a widow would be compelled to perform obnoxious purification rituals as a way of severing coital relations with the spirit of her dead husband. During the period before and after the burial of the deceased husband, the widow is secluded from interaction with other people (Edemikpong, 2005). Typically, as noted by Edemikpong (2005), during the period of seclusion the widow does not take a bath, sits only on a mat on the ground, and has her hair shaved. After the burial, during the mourning period - Ighankpe - which typically lasts for a year or less depending on the region, the widow wears only black cloth.[31]
[31] Paula Ugochukwu Ude and Okechukwu Camillus Njoku, ‘Review of the Obnoxious Widowhood Practices in Nigeria: Anambra State in Perspective’, International Social Work, 201, Vol 60(6), pp 1512-1522, at 1515.
Information also indicates that widows may be forced to wear dirty and ragged cloths (without changing), and to cook and eat with broken pots and plates.[32] Academic research cited an example of a woman who was locked in the same room with her deceased husband for three hours to prove she was not responsible for his death.[33] Widows may also be forced to cry out at regular intervals, and be subject to false imprisonment, usually within the house.[34]
[32] Paula Ugochukwu Ude and Okechukwu Camillus Njoku, ‘Review of the Obnoxious Widowhood Practices in Nigeria: Anambra State in Perspective’, International Social Work, 201, Vol 60(6), pp 1512-1522, at 1515.
[33] Paula Ugochukwu Ude and Okechukwu Camillus Njoku, ‘Review of the Obnoxious Widowhood Practices in Nigeria: Anambra State in Perspective’, International Social Work, 201, Vol 60(6), pp 1512-1522, at 1515.
[34] Dr Ifemeje Sylvia Chika and Umejiaku Nneka, ‘Discriminatory Cultural Practices and Women’s Rights among the Igbos of South-East Nigeria: A Critique’, Journal of Law, Policy and Globalization, Vol. 25 2014, page 20.
100. A Canadian Immigration and Refugee Board report in 2018 collated a number of sources which confirmed that amongst widowhood rituals, some widows are forced to drink water used to clean their husband’s corpse.[35]
[35] Canadian Immigration and Refugee Board, ‘Nigeria: Ritual in which a widow must drink the water used to clean her late husband’s corpse; consequences for refusal to drink this water; whether a widow’s refusal is interpreted as responsibility for her husband’s death; state protection available’ (2016-November 2018) [NGA106184.FE].
101. Men in the Igbo community are not subjected to this treatment and commentators have noted that these widowhood practices compound the psychological trauma already experienced by women following the death of their husbands and are highly discriminatory.[36]
[36] Dr Ifemeje Sylvia Chika and Umejiaku Nneka, ‘Discriminatory Cultural Practices and Women’s Rights among the Igbos of South-East Nigeria: A Critique’, Journal of Law, Policy and Globalization, Vol. 25 2014, page 20.
102. Oxfam has also condemned the dehumanisation and brutalisation of widows in these circumstances. In an article in 2023, Oxfam suggested that widows can be accused of being witches that caused their husband’s death, get their hair cut, forced to drink the dirty water, wear black clothes and sleep on floors.[37]
[37] Oxfam, ‘Oxfam condemns the dehumanisation and brutalization of Mrs Amarachi Okechi and demands justice’, 29 August 2023.
103. Clearly information in these sources is consistent with the applicant’s descriptions of the rituals she described, including holding two funerals, wearing black clothes, being locked in the room with the corpse, drinking the body water and being accused of death and having to prove innocence.
Corroborative statements
104. The applicant has also provided some corroborative statements from her family members about her experiences. While family members because of love and loyalty are not as reliable as third-party witnesses, the Tribunal has accepted their evidence as it accords with her evidence and there is country information to support her claims.
105. The applicant’s brother, [Mr B], in a letter dated 18 September 2023 confirmed that the applicant became a widow at a ‘tender age’ and went through ‘a lot with her late husband’s family’. He said that he was informed that she was kidnapped on 28 February 2017, which occurred after her children’s kidnapping on 9 January 2017 from school. He said that he had to rush from the family house to ascertain what was going on. He ensured that the children were safe with their mother. They reported the matter to the police after 24 hours. He said that at about 7 pm on 1 March 2017 she returned with bruises which he said most likely were from razor cuts, insect bites, swollen eyes and looking ‘extremely pale’. He said that she narrated how she had been forced to complete her husband’s family’s ‘serious life-threatening rituals’. He said that he went with the applicant to the police on 2 March 2017. The police took statements and said that they would investigate. Two days later they were invited by the Divisional Police Officer to the station and she was advised to leave the country as they could not protect her. He said that she lived with a type of fear they could not comprehend.
106. He said that the children stayed with the applicant’s mother when the applicant left the country, and then moved in with her sister[Ms A], who has now moved them to be safe in a friend’s house.
107. Another brother also provided a corroborative statement dated 19 September 2023. He said that their family had grown up with a comfortable lifestyle. He said that his sister’s husband stood up for the applicant until he passed away. When they got married her husband’s family wanted to initiate her into their traditions as they were ‘voodoo witchdoctors’. The initiation process involved cutting her body with a razor blade and inserting a mixture of powder into the wounds, eating uncooked meat and ‘alive crawly animals’. He said that the applicant and her husband were opposed, which created friction with the family. He said that after the applicant’s husband’s death, his family sought revenge. He said he saw scars on the applicant’s body after she was tortured. He said that she could not attend her husband’s funeral and had to run away. He said that they had kept the whereabouts of the children hidden from the husband’s family. He said that the children are recluses who cannot go out. He said that most of their family left the country due to kidnapping, robberies, rituals and persecution as Christians from Islamic terrorists.
108. A third corroborative letter was provided from the applicant’s sister, [Ms A], dated 20 September 2023. She said that she and the applicant were close, and she is the only family left in Nigeria. She had been caring and nurturing the applicant’s children who were ‘handed to her’ by their mother who left for the [Country 1] in August 2017. She said that it had not been easy shielding the children from the ‘prying eyes of neighbours and potential hazards to their health and security because of strange movements observed sometimes around the house’. She confirmed that she was a teacher and taught the children at home. They had moved the children to a sister’s friend’s house ‘which is still not safe’.
109. Also provided by the applicant was a letter from [a] Medical Centre dated 27 September 2023. The letter stated that the applicant’s husband ‘was brought into the clinic on 8t September 2016 and presented with severe abdominal cramps/pain, bloody diarrhea and vomiting. Investigations showed he ingested food poisoning, which had affected and damaged his abdominal organ [condition]. He was transferred to the intensive care unit, he passed away [in] November 2016 at approximately 10.00pm. His body was released to his family on [in] November 2016 at approximately 12.00pm. All medical records related to ..diagnoses were released to his family’.
110. A photograph was provided by the applicant to the Tribunal, purportedly of the applicant’s arm with a number of small incision marks on it.
111. The applicant also provided a certificate of death for her husband, for the relevant date from the National Population Commission. The Tribunal has no reason to doubt its authenticity, despite the fact that fraudulent documents are prevalent in Nigeria.
112. This corroborative material supports the applicant’s claims that her husband was ill and died as claimed, that her husband’s family caused difficulties for her during the marriage, and that they coerced her into sleeping by the corpse after the death, and kidnapped her and the children.
Consistency and detail
113. The Tribunal has accepted that the incidents in Nigeria took place as claimed, not only on the basis of country sources and corroboration, but as overall her evidence has been consistent to the Department and Tribunal. Furthermore, she was able to describe in some detail the incidents which occurred. For example she described how, when she was at her in-laws’ residence, local women made a ‘sweeping motion’ as if holding brooms and hummed ‘bad luck go away’. This kind of consistency and detail is often reflective of veracity.
Summary of findings in relation to the incidents in Nigeria
114. Notwithstanding the concerns expressed earlier in this decision about the credibility of aspects of the applicant’s evidence, when considering the evidence in its totality[38] the Tribunal accepts that the applicant was ill-treated during widowhood rituals following her husband’s death as described by her.
[38] Chan v MIEA (1989) 169 CLR 379.
115. In making this finding the Tribunal has taken into consideration the medical reports which indicate that the applicant has PTSD, adjustment disorder with features of anxiety and depressed mood. The Tribunal’s Guidelines on Vulnerable Persons[39] state that vulnerable persons may have an impaired or undeveloped ability to understand and effectively present their case.[40] As discussed earlier, the Tribunal has also taken a reasonable approach to fact-finding, which accepts that asylum seekers may face particular difficulties in presenting evidence.
[39] AAT, Guidelines on Vulnerable Persons, July 2015, available on the AAT Website, AAT, Guidelines on Vulnerable Persons, July 2015, available on the AAT Website, In accepting the credibility of the applicant’s evidence, the Tribunal has given weight to the numerous country sources referred to earlier which indicate that widowhood rituals are common among the Igbo and these can, in some communities, include the type of treatment which the applicant claimed she suffered, confinement, wearing black clothes and drinking body water. Oxfam has described this type of experience as involving dehumanisation and brutalisation.[41]
[41] Oxfam, ‘Oxfam condemns the dehumanisation and brutalization of Mrs Amarachi Okechi and demands justice’, 29 August 2023.
117. There has also been extensive corroborative material provided, as set out above. A certificate of death for the applicant’s husband has been provided, along with a report from the Medical Centre which confirmed details about the husband’s admission, diagnosis and death. One of her brothers confirmed her evidence that her husband’s family had tried to initiate her after marriage, and of the friction in the family, not being able to attend the funeral and the fact that she had to run away. Another brother gave evidence of her kidnapping, the children’s abduction and the contacts with police.
118. The Tribunal accepts, when considering the evidence in its totality that there is sufficient evidence to indicate that the applicant’s account of her experiences of widowhood rituals is credible. In light of this finding the Tribunal is satisfied that she falsified her visitor visa application to strengthen it because she wanted to leave the country. The Tribunal accepts with some reservation that the husband’s family took the body back to the morgue after holding it at their home, although this does not accord with the descriptions of them not wanting their son to go to the hospital. The Tribunal also accepts that Christian statements may have been included in the funeral notice because this was standard practice, although as discussed later in this decision, because the family did tolerate some Christianity as is common among traditionalist practice in Nigeria.
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
119. 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.[42]
[42] Section 5H(1) of the Migration Act 1958 (Cth).
120. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
121. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if they fear persecution, there is a real chance of serious harm for one of the reasons set out in the legislation, and the persecution relates to all areas of the country.
Is there a real chance of serious harm if the applicant were to return to Nigeria from her husband’s family?
122. The applicant’s representative has submitted that the applicant is a member of the particular social group of ‘Nigerian women at risk of being subjected to old rituals against their will’. The applicant claims that her husband’s family will hurt or kill her if she returns to Nigeria and she ‘will not survive’. Specifically, the applicant has claimed that her husband’s family will try and force her to undergo female circumcision, to drink the water of her late husband’s washed body and the blood of an animal and that she will refuse and be killed. She said in her Statutory Declaration dated 11 February 2023 that the family would want to take revenge on her, using the services of gunmen ‘who are known to go to them as voodoo doctors for the supply of purification blood’. At the Tribunal hearing she said that she still has fears that her husband’s family would force her to undergo female genital mutilation (FGM) even though she is ‘older now’.
123. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Refugees Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[43] not only must a person fear persecution, there must also be a prospect of that fear being realised.
[43] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, < The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[44]
[44] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
125. The Tribunal is not satisfied that there is a real chance of serious harm from the applicant’s husband’s family were the applicant to return to Nigeria in the reasonably foreseeable future for the reasons set out below, considered cumulatively.
126. Firstly, the Tribunal is not persuaded that photographs provided by the applicant demonstrate that she would suffer serious harm. The applicant has provided copies of photographs which she said were sent by her sister who in turn got them from a friend. They were purportedly taken in 2019. They show a victim who is ‘known to the applicant’. According to the representative this woman was from the community where the applicant’s family lived and is ten minutes away from the area where her in-laws reside. She said that the woman in the photographs was accused of murdering her husband and ran away. She was captured, tortured, then burned to death. The Tribunal accepts that murders take place in Nigeria which may relate to family matters or accusation of causing a husband’s death. Without further information about this particular case, the Tribunal is not satisfied that it indicates that the applicant would be killed by her applicant’s husband’s family if she returned to Nigeria on the basis of these photographs.
127. Secondly, the applicant has given evidence that from the date of marriage in 2009 until the incidents in 2016 the applicant was not seriously harmed by her husband’s family despite not agreeing to the initiation rituals they planned for her and not participating in voodoo practices. She claimed that they wished to make incisions with razor blades, drink animal blood and other rituals, but she refused to participate. She also avoided traditional rituals they had planned for her when pregnant, and refused to have the baby in a traditional way in the village. She and her husband also managed to avoid initiation of the children, without repercussion from the family. Her husband had also rejected the traditional practices prior to meeting her, without repercussion. When it was put to the applicant that she avoided having going through the rituals when married without repercussion (Statutory Declaration 11 February 2023), such that it appeared unlikely that they would force her if she returned to Nigeria in the reasonably foreseeable future or harm her if she refused, she said that before her husband passed away, he protected her and ‘calmed the situation’. She said that now they strongly believe that she poisoned him and absconded before she proved her innocence.
128. The Tribunal is of the view that if the applicant’s husband’s family had the propensity for violence towards her, they would have inflicted it during her marriage notwithstanding the fact that her husband’s presence may have calmed them. Furthermore, they had not harmed her husband, despite the fact that he had converted to Christianity a year prior. Although the couple did not follow the traditional rituals this did not lead to violence from his family in the past, with the exception of the ill-treatment during the widowhood rituals.
129. Thirdly, although the applicant’s husband’s family members inflicted violence and harsh treatment on her over the period of her husband’s death, she was not harmed again from April 2017 to June 2017 when she left the country. She has claimed that she left for Lagos, but if they were motivated to harm her as she did not perform rituals, or because they blamed her for her husband’s death it is likely they would have located her and done so.
130. Fourthly, the applicant’s children have not been harmed or taken by his family, despite the fact that they have lived with her mother and then her sister so could easily have been located had her husband’s family been motivated to harm her through her children or take the children. Her husband’s family have had a long time to locate them had they wished to do so − from 2017 until 2023. Although the applicant’s sister said that there had been ‘prying eyes’, and she hid the children, in the Tribunal’s view this does not establish that there is a real chance of serious harm for the children, as the family could have located her and taken or harmed them over the last six years were they minded to do so.
131. Fifthly, there is no evidence that the applicant’s sister, [Ms A], who lives in Aba has suffered any harm from her husband’s family, nor other family members when they lived there, although they were associated with the applicant.
132. Sixthly, the Tribunal does not accept that the family would force her to undergo FGM if they did not do so when she was living in the country and based on country sources about the incidence of FGM in Nigeria. DFAT reported in 2020 that about 29 per cent of Igbo women had undergone FGM.[45] DFAT also noted that FGM is in decline. A 2018 report quoted in the DFAT report suggested that 18 per cent of women had undergone FGM, however, 82 per cent of these were before the age of five.[46] A report of the European Asylum Support Office in 2021 also noted that the general prevalence showed a downward trend.[47] Importantly, the UK Home Office report states that in Nigeria although ages can vary, the majority of women undergo FGM before the age of 5. Of the 20 per cent of women estimated to have undergone FGM, 86 per cent of women aged 15-49 experienced FGM before the age of 5.[48] Other trigger points for FGM can be first periods/signs of puberty, prior to marriage and during pregnancy/childbirth.[49] The FGM of women and girls is traditional practice believed to promote chastity and increase prosects of marriage.[50] The applicant is aged 47 and is not at the point of marriage or pregnancy. The Tribunal is not satisfied that she would be coerced into FGM, given that these sources indicate that FGM is predominantly inflicted on girls under 5, or later at marriage or pregnancy, and is overall in decline.
[45] Department of Foreign Affairs and Trade, 03 December 2020, <DFAT Country Information Report - Nigeria>; see also UK Home Office, ‘Country Policy and Information Note: Nigeria: Female genital mutilation (FGM)’, July 2022.
[46] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[47] European Asylum Support Office (EASO), < ‘Country Guidance: Nigeria’ >, 01 October 2021.
[48] UK Home Office, ‘Country Policy and information note: female genital mutilation (FGM)’, Nigeria, July 2022, updated 12 August 2022.
[49] UK Home Office, ‘Country Policy and Information Note: Nigeria: Female genital mutilation (FGM)’, July 2022.
[50] Department of Foreign Affairs and Trade, <DFAT Thematic Report - Economic Community of West African States (ECOWAS)>, 03 December 2020, at [2.16]
133. Furthermore, sources suggest that while women of all faiths are subject to FGM, FGM was most prevalent amongst Catholics with 24.8 per cent having been subject to FGM in 2018, and those holding traditional beliefs lowest at 11.9 per cent.[51] The applicant was asked to comment on the fact that FGM is less popular with traditionalists. She agreed it depended on culture, noting that her mother did not subject her to it. The fact that traditionalists practise FGM at lower rates also lessens the chance that she would be forced to undertake the procedure.
[51] UK Home Office, ‘Country Policy and information note: female genital mutilation (FGM)’, Nigeria, July 2022, updated 12 August 2022.
134. Seventhly, the death of the applicant’s husband was in 2016 and over seven years have passed since then such that it is likely that the immediate emotion around her husband’s death has dissipated. Additionally, the harm was associated with widowhood rituals, which are a feature of Igbo life, rather than general violence. Sources refer to rituals which follow death, rather than later.[52] The second funeral is usually held within a year.[53] When this was put to the applicant by the Tribunal, she said that his family thought that she was responsible, and this is why she took her children away. She said that her sister said that people were all checking on her. She was asked who these people were. She said it was the neighbours who asked, and they may have been paid by the in-laws. She said that ‘these people would force themselves into the house’. She was asked why the in-laws would contact her children if they had not done so previously. She said that they are yet to avenge the death of the son. The Tribunal does not accept that his family would intimidate her children so long after the event, given the lack of harm in the past. The Tribunal does not accept that the husband’s family have been checking on the sister, as they have had seven years to harm or take the children had they wished to do so.
[52] Canadian Immigration and Refugee Board, ‘Nigeria: Ritual in which a widow must drink the water used to clean her late husband’s corpse; consequences for refusal to drink this water; whether a widow’s refusal is interpreted as responsibility for her husband’s death; state protection available’ (2016-November 2018) [NGA106184.FE].
[53] Classroom website, < Burial Rites of the Igbo Culture - Synonym>, undated; Seven Ponds, 8 January 2015, <Mourning and Celebration of Life in the Burial Rites of Igbo Culture - SevenPonds BlogSevenPonds Blog>.
135. The Tribunal notes also that her husband’s brother attended their wedding which does indicate that he at least was not so vehemently opposed to his brother’s Christianity that he did not attend. His behaviour indicates a more tolerant approach rather than a person who would inflict violence on the applicant because she did not complete widowhood rituals. Further, as discussed with the applicant at hearing, it is unlikely that his family blame her for the death when her husband got sick when she was out of the country and the applicant’s family had access to the medical reports and were told the cause of death by the hospital. The death notice provided by the hospital indicated ‘ingested food poisoning’ as the cause and also stated that his family had the medical records. In post-hearing submissions, the applicant’s representative said that the family are concerned that she caused his death by taking him to hospital against their wishes. However, at times in her evidence, the applicant said that they accused her of poisoning him, which does appear unlikely. Even if they accused her of causing his death by taking him to hospital, that they knew he was sick prior to the applicant’s arrival in the country, and they also had the medical reports which indicated the death was poisoning.
136. Eighthly, the Tribunal has taken into consideration the references to Christianity in the death notice for the applicant’s husband, which was provided to the Tribunal, which suggest some tolerance for Christianity. The applicant suggested, when the Tribunal asked why traditionalists would include Christian references in the notice, that traditionalists always say ‘God in Heaven’ and if it had been written in Igbo, it would have said ‘ise’ instead of ‘amen’, she said that it was written in English as there were English people who wanted to come from Aba for the funeral.
137. As discussed with the applicant at hearing, the fact that there were Christian phrases on the death notice implies that the husband’s family were not strongly anti-Christian as they produced the death notice, according to her. The Tribunal notes that DFAT reports that many individuals in Nigeria syncretise animism with Christianity.[54] A 2018 journal article also reports that amongst the predominantly Christian Igbo population, it has become both common and possible for people to regard themselves as Christians while respecting and celebrating aspects of Igbo traditional religion as cultural heritage.[55] The Tribunal is of the view that it is more likely that the applicant’s family fell into this category, given the funeral notice, and this also suggests they are less likely to be hostile to the applicant in the future because of her differing beliefs.
[54] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[55] Outros Tempos, ‘Religion as a heritage in Nigeria: Igbo Christians and African traditional religion’, 01 June 2018.
138. A ninth, and important reason for concluding that the applicant does not face a real chance of serious harm if she were to return to Nigeria, is that the majority of independent sources consulted, while referring to rituals associated with widowhood, do not refer to instances of follow-up murders or harm if widows do not comply.[56] One Igbo woman interviewed regarding her experiences stated that when she refused to undergo the traditional rites following her husband’s death, she was ostracised by the community and lost her children in mysterious circumstances.[57] Only one other reference was found, and this was one source in 2018, quoted in the Canadian Immigration and Research Board report stating that widows may face stigma if they refuse, and would be at risk of ‘being assaulted, disinherited, chased off, abandoned, deprived of her children, regarded as witch’.[58] However, in this and other sources there is no indication that there is a pattern of serious harm against widows who refuse to participate.[59] A Netherlands country of origin information report found no evidence of blood feuds or honour killings.[60] The report also indicated that confidential sources stated that it is possible to refuse FGM, but it can lead to rejection, and there is a lack of financial and other forms of support and shelter options in such cases. According to confidential sources, adult women who absolutely do not want to be circumcised cannot be forced to be circumcised.[61] Sources also refer to the rituals ‘dying out’[62] and that there have been protests about the practice.[63]
161. In the applicant’s region in the south, Christianity is the majority religion amongst the Igbo and Yoruba people. There are also many Christians in other parts of the country, including the Middle Belt, and major cities have a mix of religions and ethnicities.[94] There is no evidence of discrimination of Christians in the south.[95]
[94] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[95] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
162. While there have been serious violent attacks on Christians, this is predominantly in the north and north east of the country. The most recent presidential election in Nigeria was in 2019 resulting in a second term for Muhammadu Buhari. DFAT states that:
despite the return to civilian rule, Nigeria has continued to face significant challenges on a number of fronts. Ongoing ethno-religious tensions have occasionally led to deadly violence across the country, generally sparked by localised factors. Tension over the adoption of sharia (Islamic law) by several northern states in 2000 resulted in hundreds of deaths in clashes between Christians and Muslims and continues to be a point of friction. Militant activities in the Niger Delta region targeting the oil industry have impacted upon the economy and national security more generally. An enduring campaign of violence in the northeast by the Boko Haram Islamist group has killed tens of thousands and displaced millions.[96]
163. The Tribunal has also considered more recent reports. In its ‘2023 Annual Report’, the United States Commission on International Religious Freedom (USCIRF) has ‘recommended that the U.S. State Department designate Nigeria as a Country of Particular Concern for engaging in and tolerating systematic, ongoing, and egregious religious freedom violations’.[97] In its key findings, the USCIRF reports on both state and nonstate actors committing particularly severe violations of religious freedom. While some officials worked to address drivers of religious freedom violations, others actively infringed on the religious freedom rights of Nigerians, including by enforcing blasphemy laws. The report stated:
A Shari’a court sentenced Sheikh Abduljabar Kabara to death for blasphemy. Judicial authorities sentenced humanist leader Mubarak Bala to 24 years in prison for blasphemy and other charges. A high court ruled that blasphemy laws in Shari’a penal codes are constitutional and remanded the blasphemy case against Yahaya Sharif Aminu back to Shari’a courts for retrial. In September, armed officers conducted a surprise raid on the residence of the presiding judge of the Kano Court of Appeal, who was the only judge who dissented the ruling. Kabara, Bala, and Sharif Aminu remained incarcerated at year’s end, along with several other individuals accused of blasphemy.[98]
164. The report referred to incidents impacting religious freedom by religious groups which it said had worsened. This included mob violence and militant Islamist violence primarily in the north.[99] It also included criminal groups committing crimes of opportunity in the south east, some of which targeted mosques and churches, with targeting of clergy on some occasions.[100]
165. A Christian non-governmental organisation, Open Doors, has included Nigeria in its list of top 10 countries in which Christians face persecution.[101] Nigeria features at number 6, having entered the list for the first time in 2021 at number 9. Open Doors states that:
The persecution facing Christians in Nigeria is extreme and often brutally violent, as Islamic militants and armed bandits attack with increasing impunity. This mostly affects believers living in the Muslim-majority north and Middle Belt, but it’s also spreading to the south. Although all civilians are subject to threats and violence, Christians are often specifically targeted because of their faith. Boko Haram and the Islamic State West Africa Province (ISWAP), for example, want to eliminate the presence of Christianity in Nigeria. More Christians are killed for their faith in Nigeria than in the rest of the world combined - 14 every day, on average. Men and boys are often specifically targeted by extremist groups, with the aim of destroying livelihoods and stifling Christian population growth. Christian women and girls in northern Nigeria, and increasingly further south, are vulnerable to persecution for their faith and gender – they are frequently targeted for abduction, sexual assault and forced marriage by armed groups. Christians are dispossessed of their land and their means of livelihood, and many live as internally displaced people or refugees. In northern states that operate under Sharia (Islamic law), Christians can be treated as secondclass citizens, whilst Christians who convert from Islam are also at risk of pressure and persecution. Christians from a Muslim background also face rejection from their own families, pressure to give up their faith, and often physical violence. … Nigeria has moved up one place on the World Watch List this year, reflecting the increasing jihadist violence across the country. Christians continue to be attacked indiscriminately and brutally in northern Nigeria, and the violence has now spread to southern Nigeria. As the government persists in its official position of denial of religious persecution, Christians' rights continue to be violated with impunity.[102]
[96] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[97] United States Commission on International Religious Freedom, ‘2023 Annual Report – Nigeria’, 2023.
[98] United States Commission on International Religious Freedom, ‘2023 Annual Report – Nigeria’, 2023.
[99] United States Commission on International Religious Freedom, ‘2023 Annual Report – Nigeria’, 2023.
[100] United States Commission on International Religious Freedom, ‘2023 Annual Report – Nigeria’, 2023.
[101] Open Doors, ‘Open Doors Watch List 2023: The persecution of Christians’, 2023.
[102] Open Doors, ‘Open Doors Watch List 2023: The persecution of Christians’, 2023.
166. In an article provided by the applicant, reference was made to at least 450 Christians who have died in a series of attacks in north central Nigeria.[103] Tens of thousands were displaced, and dozens of church buildings and homes destroyed. Attacks were blamed on Fulani herdsmen wanting to occupy the areas.
[103] Christianity Today, ‘Hundreds of Nigerian Christians killed in recent attacks’, 22 June 2023.
167. In an article provided by the applicant from Persecution.Org,[104] it was reported that Fulani militants and other allied jihadist groups slaughtered 2,500 Christians in the first six months of 2023. Another report referenced 50,000 Christians being killed by extremists since 2009.[105] An article in the Spectator asked ‘when will the world wake up to the persecution of Nigerian Christians’?[106] claiming that more Christians are killed in Nigeria for their faith than anywhere else in the world. In an article provided by the applicant reference was made to armed groups in central Nigeria killing at least 160 people. Bandits launched attacks on 20 communities. Reference was made to competition for natural resources between herders and farmers.[107]
[104] Persecution.org, ‘Islamic Extremist Groups killed 2,500 Christians in Nigeria in first half of 2023’, 9 April 2023.
[105] La Croix, ‘Nigeria: a thousand Christians killed in first 100 days of 2023’, 18 April 2023.
[106] The Spectator, 4 July 2023.
[107] Agence France Presse, ‘At least 160 dead and 300 wounded after attacks by armed gangs in Nigeria’, 26 December 2023.
168. The attacks by the Islamist group Boko Haram and other Islamic groups and discrimination and violence against Christian women referred to in these reports and in the DFAT report take place predominantly in the north.[108] This conflict affected Muslims and Christians.[109] Conflict between herdsmen and farmers has also impacted both Muslims and Christians but this primarily takes place in the Middle Belt.[110] Middle Belt violence is focused on conflict between farmers and migratory herdsmen in the Plateau, Nasarawa and Taraba States.[111] The recent International Religious Freedom Report refers to criminal attacks impacting the south, as well as other areas. Although there are some attacks on Christians in other areas than the north and Middle Belt, with Open Doors suggest it is ‘spreading’ to the south, the country sources do not suggest that they are of such frequency and seriousness[112] to comprise a real chance of serious harm. Aba is a predominantly Christian area with many branches of Christianity.[113] The representative has argued that the chance of harm can be less than 50 per cent such that where there are isolated incidents, this comprises serious harm. In the case of Chan v MIEA (1989) 169 CLR 379 the High Court found that ‘real chance’ must involve ‘substantial’ and ‘non-random’ harm notwithstanding that the harm could be less than 50 per cent. As the attacks on Christians thus far are not frequent the Tribunal is not satisfied that there is a real chance of serious harm, in the sense of a substantial or non-random chance, in the applicant’s home region for reasons of Christianity.
[108] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[109] United States Commission on International Religious Freedom, ‘2023 Annual Report – Nigeria’, 2023.
[110] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[111] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[112] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[113] Wikipedia, <Aba, Nigeria - Wikipedia>.
169. The Tribunal is not satisfied therefore that there is a real chance of serious harm for the applicant if she were to return to her home region of Aba in the reasonably foreseeable future.
Is there a real chance of serious harm if the applicant were to return to Nigeria for reasons of her mental health?
170. The Tribunal has accepted that the applicant has suffered from PTSD, depression, anxiety and adjustment disorder as referred to in the psychologist’s reports. She is currently taking antidepressant medication. While not claimed specifically as a reason for fearing harm, although the applicant was represented, the Tribunal has considered the situation for returnees to Nigeria with mental health issues.
171. The UK Home Office reported on medical and health care issues in Nigeria in August 2018.[114] The report collated information from a variety of sources, with focus on MedCOI an Asylum and Migration Integration Fund. The report referred to eight neuropsychiatry hospitals throughout the country, six state owned medical hospitals and the fact that all medical schools have psychiatry departments. The UK Home Office concluded that there was no form of mental illness for which treatment was not available in Nigeria, although there was a shortage in resources. One source suggested that there were less than 300 psychiatrists for the population of 180 million, with health care workers being trained to diagnose common mental health illnesses. The south of the country has better resources than in the north.[115] The report noted that most medication was available particularly in urban areas.[116] DFAT has also referred to a report of the World Health Organisation,[117] that there were significant gaps in mental health services, and also to some stigma associated with mental illness.[118] There are a number of organisations working to improve awareness of mental health issues.[119]
[114] UK Home Office, ‘Nigeria: Medical and Healthcare issues’, 28 August 2018.
[115] UK Home Office, ‘Nigeria: Medical and Healthcare issues’, 28 August 2018.
[116] UK Home Office, ‘Nigeria: Medical and Healthcare issues’, 28 August 2018.
[117] World Health Organisation, ‘AIMS Report on the mental health system in Nigeria’ 2006.
[118] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[119] Devex, ‘Nonprofits take on Nigeria’s struggles with mental health’, 4 September 2018, < Journal of Clinical Case Reports A Review of Stigma and Mental Illness in Nigeria; 16 October 2014< 7920.1000488.php?aid=40679>.
172. As the applicant is likely to return to Aba, it will be a better resourced area than rural areas or in the north according to sources referred to above. Common antidepressants such as those taken by her are likely to be available in this area.[120] The Tribunal notes that the applicant has not had significant engagement with medical practitioners in Australia since 2018, only seeing a general practitioner for her scripts. The sources suggest that although there are issues with resources in Nigeria, common drugs are available.[121] The Tribunal is not satisfied therefore that she will suffer serious harm through unavailability of medical care. Furthermore, persecution must involve systematic and discriminatory conduct.[122] Difficulty accessing health care due to lack of resources does not amount to persecution of that individual as there is no systematic and discriminatory conduct.
[120] UK Home Office, ‘Nigeria: Medical and Healthcare issues’, 28 August 2018; Insights 10, <Nigeria Depression Therapeutics Market Report 2022 to 2030 (insights10.com)>.
[121] UK Home Office, ‘Nigeria: Medical and Healthcare issues’, 28 August 2018; Insights 10, <Nigeria Depression Therapeutics Market Report 2022 to 2030 (insights10.com)>.
[122] Section 5J(4) of the Migration Act 1958 (Cth).
173. The Tribunal has also considered whether the applicant would suffer serious harm through ostracism, as mental illness can be stigmatised in Nigeria.[123] There is a strong societal belief that mental illness is caused by evil spirits or supernatural forces.[124] The applicant suffers from PTSD, anxiety and depression, which are more common types of mental illness, with at least seven million people in Nigeria suffering from depression.[125] The sources indicate that illnesses where the mental illness is visible such as delusional illnesses are stigmatised more than depression and similar illnesses.[126] Sources also suggest that there has been a shift towards more recognition of the need to treat mental health in Nigeria.[127] Notwithstanding this, the Tribunal accepts that the applicant may suffer some stigma as a person with some mental health issues.
[123] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[124] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[125] ScienceDirect, Psychiatry Research, Vol 294, December 2020, <Predicting the risk of future depression among school-attending adolescents in Nigeria using a model developed in Brazil. - ScienceDirect>.
[126] Ethos, 24 June 2022, < Struggling Along in Nigeria: Depression, Treatment, and Morality - Otto - 2022 - Ethos - Wiley Online Library>.
[127] Ethos, 24 June 2022, < Struggling Along in Nigeria: Depression, Treatment, and Morality - Otto - 2022 - Ethos - Wiley Online Library>.
174. The Tribunal does not accept that any stigma suffered by the applicant for reasons of her mental illness would reach the level of serious harm, based on the indicative examples of serious harm set out in s 5J(5) of the Act. She will have support of her sister and will be re-connected with her children. Being separated from them has caused her significant trauma according to her pastor and psychologist. She is educated with employment experience which should assist her in settling in Aba.
Complementary protection
175. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
176. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
177. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that there is a real chance of serious harm from the applicant’s husband’s family or associates for reasons set out earlier. The Tribunal has found that the applicant does not face a real chance of serious harm for reasons of her religion or mental health, for reasons set out earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation, based on the decision in MIAC v SZQRB [2013] FCAFC 33.
Ministerial intervention
178. Under s 417(1) of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister is of the view that it is in the public interest to do so.
179. The Minister has issued Ministerial Guidelines[128] explaining the circumstances in which he or she may wish to consider exercising his or her public interest powers under s 417, how a person may request consideration of the exercise of these powers, and informing officers of the Department when to refer a case to the Minister for consideration.
180. Having regard to the applicant’s circumstances and the Ministerial Guidelines the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
181. The Ministerial Guidelines state that principles which underpin the discretion include a general expectation that a person who has not been granted a visa will depart Australia and that the intervention process is at the Minister’s discretion and is not an extension of the visa process. The Tribunal notes that the powers under s 417 can only be exercised by the Minister personally.
182. The Ministerial Guidelines indicate that the Minister will generally only exercise the discretion in cases which exhibit one or more unique or exceptional circumstances.[129] The Tribunal refers the case to the Minister on the basis of unique or exceptional circumstances, discussed more below.
183. Pursuant to the Ministerial Guidelines, cases may be unique or exceptional where a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa.
184. The Tribunal refers this matter to the Minister on this basis. The applicant is a [age] widow. The Tribunal is satisfied that the applicant may suffer some stigma as a widow[130] and because of her mental health[131] which may comprise a significant threat to her human dignity. A report of the applicant’s psychologist, Mr [E], dated 15 January 2024 said that he had diagnosed the applicant with PTSD, adjustment disorder, anxiety and depressed mood. She was on a treatment plan including an antidepressant to manage her symptoms. The Tribunal notes that the applicant has been in Australia since 2017 such that it will be difficult for her to re-establish her life in Nigeria. She is now presumably very familiar with life in Australia. While her children and sister are in Nigeria, the rest of her family are living in the [Country 1]. Unemployment rates are high in Nigeria, and women are discriminated in the workforce.[132] Her age may also make it difficult to find a job. This would compound difficulties she would face as a widow and person with mental health issues, although she does not meet the criteria for a protection visa.
[128] Section 417 Policy – Migration Act – Ministerial Powers – Minister’s Guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016).
[129] Section 417 Policy – Migration Act – Ministerial Powers – Minister’s Guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016).
[130] Al Jazeera, 23 June 2021, <‘Watching my world collapse’: The plight of Nigeria’s widows | Features | Al Jazeera.
[131] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
[132] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 3 December 2020.
CONCLUDING PARAGRAPHS
185. 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 criteria in s 36(2).
DECISION
188. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
MemberATTACHMENT A - 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.
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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.
…
Attachment B
List of documents provided to the Department
• Copy of the applicant’s passport – Federal Republic of Nigeria.
• Copy of photograph of the applicant and her family.
• Copy of certificate of Death issued by the Federal Republic of Nigeria [in] July 2023 in the name of (applicant’s husband).
• Copy of attestation of Birth Letter issued by the National Population Commission in the
name of the applicant [in] June 2016.
• Copy of funeral notice for (applicant’s husband).
• Copies of three photographs of the applicant depicting bruises.
• Copy of the applicant’s National Drivers Licence – Nigeria.
• Psychology report dated 6 July 2017 by Mr[E], registered
psychologist.
• Medical Certificate issued by [a doctor][in] July 2017.
• United Nations High Commissioner for Refugees – Guidance Note on the
Psychologically Vulnerable Applicant in the Protection Visa Assessment Process.
• Six photographs provided by the applicant of unnamed persons in Nigeria.
• Psychology report dated 8 May 2020 by Mr [E], Registered
Psychologist.
• Legal submissions dated 26 May 2020.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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Remedies
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