2015540 (Refugee)

2015540 (Refugee) [2021] AATA 1022 (17 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2015540
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Jane Marquard
DATE:17 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 17 March 2021 at 8:54am
CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion and ethnicity – member of secessionist political party, now designated terrorist organisation – low-level activity in party in home country – growing interest and involvement in Australia – returned home to take part in protests – cousin detained and beaten by army – mental health – general ethnic discrimination – credibility – no mention of fear of harm in student visa application – applied for protection after imprisonment and cancellation of bridging and student visas – gambling addiction and financial dishonesty – request for voluntary repatriation – real chance of serious harm – no right to reside in third country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 57, 65, 501
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 25
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
MIEA v Guo (1997) 191 CLR 559
MIMAC v SZRHU [2013] FCAFC 91
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Suntharajah v MIMA [2001] FCA 1391
V856/00A v MIMA (2001) 114 FCR 408
WAGH v MIMIA (2003) 131 FCR 269
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THIS REVIEW

The applicant is a [Age]-year-old man from Lagos, Nigeria.
He was granted a [Student visa 1] on 19 November 2014. He arrived in Australia [in] February 2015.
He returned to Nigeria [in] October 2015 and re-entered Australia [in] December 2015.
His [Student visa 1] ceased on 31 November 2016 and the applicant remained in Australia on a bridging visa granted in association with an application for a student visa. He was granted a [Student visa 2] on 9 January 2017, which ceased on 15 March 2019. He was granted a further bridging visa in March 2019 in association with an application for a further student visa.
He was arrested and placed into custody on 17 October 2017. [In] August 2019 he was sentenced to [Number] days’ imprisonment on a number of counts of [Charge]. He pleaded guilty to the offences. On 17 October 2019 his bridging visa was cancelled under s.501 of the Migration Act 1958 (the Act). He applied for revocation of this decision on 13 November 2019. His student visa application was refused on 16 January 2020.
He applied for a protection visa under s.65 of the Act on 7 July 2020. A delegate of the Minister for Home Affairs refused to grant the visa on 14 October 2020.
This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).[1]
[1] s.25, Administrative Appeals Tribunal Act 1975, Cth.
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm. More details of the criteria and other relevant legal principles are set out below.
RELEVANT LAW AND PRINCIPLES
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
Under s.5J(1), 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 is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if 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). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The evidence taken into consideration
In coming to a decision, the Tribunal has taken into consideration evidence provided to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Nigeria.
Summary of evidence before the Department
Evidence of the applicant
The applicant made claims and provided information in his application forms and supporting documents, including a Statutory Declaration dated 7 July 2020. His representative made a submission dated 7 August 2020. The applicant also provided evidence at an interview with the Department on 12 August 2020. Following the hearing the Department sent the applicant two letters pursuant to s.57 of the Act inviting him to comment on adverse information, and a response was received on 17 September 2020. A number of news articles were also provided.
A summary of his evidence follows.
The applicant was born in Lagos in [Year 1] and is of Igbo ethnicity and a Christian. His parents, sister and two brothers reside in Nigeria. His parents separated in 1987. He is the youngest of his siblings.
His family’s hometown is [a] village in Nnewi South District in Anambra state. He lived predominantly in Lagos however from January 2000 to March 2002 he resided in [the village]. From March 2002 to January 2008 he resided in Lagos.
He completed high school in Lagos in 2004. He completed a [Qualification 1] in [Subject 1] at [University 1], Owerri, Imo State from January 2008 to September 2012.
From September 2012 to June 2013 he sold [products] at [Employer 1] in Lagos. From June 2013 to June 2014 he was [an Occupation] at [Employer 2] in Ekiti, Nigeria. From [November] 2013 to [December] 2013 he travelled to [Country 1] for a holiday. From June 2014 to February 2015 he once again worked for [Employer 1] selling [products]. From July 2014 to August 2014 he travelled to [Country 2] for business, and again from October 2014 to December 2014.
In October 2014 he applied for a [Student visa 1] for Australia, which was granted on 19 November 2014 and arrived in Australia [in] February 2015.
In Australia he studied for a [Qualification 2] in [Subject 2] from March to June 2015, and a [Qualification 3] of [Subject 2] from July to October 2015.
He departed Australia and returned to Nigeria [in] October 2015 and then returned to Australia in December 2015.
He claims to fear the authorities in Nigeria – that he will suffer harassment, torture, detention, death or charges of treason. He said that he is a member of the Indigenous People of Biafra (IPOB), a non-violent political movement made up of Igbo youths who continue to push for the secession of Igbo people from Nigeria. He referred to the Biafra/Nigerian Civil War (1967–1970) where millions of people were massacred. He claimed in his application that he ‘always participated in the demonstrations and protest prior to my coming to Australia’. He said that at high school there was MASSOB, the precursor organisation to IPOB. He formed a social unit in case the whole ‘Biafra thing came to fruition’. He said that the only thing he did then was to engage in the [Sport] team. He said that he had no conviction at that time, but the idea of the Igbos being independent resonated with him.
The applicant claimed that while he was in Australia in 2015 the leading activist, Nnamdi Kanu announced a massive demonstration that would continue until the government acceded to the demands of IPOB. At interview he said that he thought this would be a ‘defining moment’ as Nnamdi Kanu was going back to Nigeria and Kanu encouraged those in Biafra to come out en masse. He said that he was studying at [University 2], and departed Australia to participate in this protest. He said that Kanu was arrested straight away in early November 2020 and charged with treason. This intensified demonstrations and protests. The Nigerian military deployed troops and these troops acted brutally. They fired live shots into the crowds and captured those they could.
He said that in one incident he and his cousin were part of the group that protested at the border between Anambra and Delta state. They blocked incoming cars. He said that the military fired into the crowd and captured those that they could, including his cousin. During torture his cousin ‘gave him up’. His cousin was beaten beyond recognition and was hospitalised. He is now ‘mentally abnormal’. The military came to the applicant’s house in early December looking for him and harassed his parents. It was about five days before he left the country. His parents were terrified for him and he was terrified too. He was staying in Asaba. His family advised him to leave the country in December 2015. He departed Nigeria and arrived back in Australia [in] December 2015.
The applicant claimed that since that time the Nigerian government has conducted an operation called ‘Python Dance’ in which many IPOB members were killed or put in prison. There is no safe haven for him if he returns. A person cannot openly identify as an IPOB supporter in Nigeria. He strongly believes that the Fulani Herdsmen are part of the Nigerian government’s strategy to silence IPOB.
Evidence from the Departmental records
Departmental records indicate that the applicant applied for a Temporary Resident Visa for [Country 3] on 9 July 2014.
On 5 September 2014 his application for a study permit for [Country 3] was refused.
[In] August 2019 he was sentenced to [Number] days’ imprisonment for [Charge].
On 2 September 2019 the Department commenced cancellation of his bridging visa on character grounds. On 17 October 2019 his bridging visa was cancelled under s.501 of the Act. He applied for revocation of this decision.
He was refused an application for a second student visa on 16 January 2020 as he was not enrolled.
On 20 February 2020 he sent a letter to the Department requesting voluntary repatriation.
On 7 July 2020 he applied for a protection visa.
Submissions of the representative 7 July 2020
The representative submitted that in addition to claims of persecution on the basis of his political opinion, the applicant claimed to be a member of a particular social group of people with mental illness. She claimed that he has been diagnosed with post-traumatic stress disorder (PTSD), adjustment disorder and anxiety. She claimed he would be unable to access mental health in Nigeria; he would suffer from stigma and his life would be at risk due to the deterioration of his condition. She also claimed that he met the complementary protection criteria due to the heightened risks from COVID-19 because of his mental health.
She claimed that he had considered applying for protection in 2015 upon his return to Australia however he was about to begin his [Qualification 4] and decided to pursue residency this way.
She provided country sources about IPOB, the health system in Nigeria, stigma relating to mental health and the COVID-19 pandemic in Nigeria.
Section 57 letters
On 20 August 2020 the Department wrote to the applicant inviting him to provide further information.
He was asked why he would be of interest to authorities given that he was not a member of any political institution and was not an activist. He submitted that he does not have to be a high-profile activist to be of interest to authorities. He had already raised the interest of the authorities, as after the protests in 2015 his cousin was arrested and gave his name to authorities and they visited his house in 2015. Country sources were provided to support the contention that all pro-Biafran activists are targeted.
He was asked to provide evidence of flight changes to demonstrate that he changed his plans after the army visited his compound in 2015 but was unable to do so. He recalled that he originally planned to return to Australia in early January 2016. He left approximately two weeks after he attended the protests.
He said that his family have not faced harm due to his membership of IPOB as he has not been in Nigeria since 2015. He fears that if he returned, they would be harmed as the authorities often harm family members.
He claimed that he would become involved in Biafran political activity if he returned. He said that he could not be in Nigeria and not express his beliefs.
He said that he did not apply for a protection visa upon his return from Nigeria as he already held a Student visa and had secured enrolment in a [Qualification 4] course. He believed that after his course he would be eligible for permanent residency.
He was asked to comment on an Application for Temporary Resident Visa dated 9 July 2014. In that application he stated that he resided in Asaba with both his parents who were married.
He responded that the address he used in Asaba was his mother’s address and he resided between there and the family compound at the time of application.
He was also asked why both his parents were at the family compound despite them separating.
He responded that his parents separated in about 1997 and his father lives in the family compound. His mother lives nearby. She does sometimes stay at the compound which is the ancestral home. She went there for Christmas 2015 to see her children and prepare for Christmas.
The Department also asked him about a letter from Citizenship and Immigration [Country 3] dated 5 September 2014 which advised him that he was refused an application for a study permit. He said in that application that he resided in Asaba, that his parents were married and resided with him. He said that he moved between his mother’s address and his father’s compound. He said that culturally his parents were still married.
He said that he did not declare his application for a visa in [Country 3] on his protection visa application form, as he had misread the form and did not believe that he needed to do so.
The Department also asked him about a Statement for Genuine Temporary Entrant Requirement submitted to the Department on 9 December 2016 in support of his application for a [Student visa 2]. It was stated there that he considered studying overseas so that he could return to the labour market in Nigeria. There was no mention of fearing harm.
He responded that he still wishes to return one day when it is safe to do so. At the time of submitting his student visa application he believed he had a pathway to residency and could choose when to return. Since 2016 he has seen that the situation for IPOB members has not improved.
The Department also asked him about a letter dated 20 February 2020 to the Department in which he requested voluntary repatriation.
He responded that when writing this letter, he was considering the prospect of indefinite detention in Australia and believed his mental health would suffer.
Report of [Ms A], Consultant Psychologist, dated 9 August 2019 (prepared for the court in his criminal trial)
[Ms A] said that she saw the applicant via video link for two hours on 8 July 2019.
According to [Ms A], the applicant ‘detailed a dysfunctional upbringing’. His youngest brother died when he was [age] years old from illness. His father was violent, and a heavy drinker and the applicant witnessed domestic violence. On one occasion his mother was hospitalised. He and his siblings moved from the city to a village away from their father. His parents separated when he was [Age]. A couple of years later his father tried to get custody, and he was made to live with his father in 1998 along with his brother. He was required to be the home help for his father’s new wife and [child]. On mentioning his removal from school to a pastor, he was returned to his mother. Towards the end of high school, he lived with his brothers. He has had no further contact with his father. He does have a close relationship with his mother.
He reported to the psychologist being a conscientious student and wanting to further his education. He was three years into his [Qualification 4] when arrested.
He reported to the psychologist no previous engagement with mental health services. He said in Nigeria there is stigma involved with mental health. In custody he was engaged with a gambling counsellor.
[Ms A] diagnosed him as having gambling disorder (causing depression and anxiety), adjustment disorder (as a result of offending) and PTSD. She recommended regular and prolonged treatment to address these issues and that he be assessed for medication. She recommended that he re-train or study and obtain full-time employment.
Summary of evidence before the Tribunal
The applicant provided written submissions and gave evidence at a hearing on 14 January 2021. A summary of his evidence follows.
Submissions 23 December 2020
In addition to confirming his evidence to the Department, the applicant claimed that when he left Nigeria, the authorities had not started ‘flagging the travel documents’ of IPOB members. Since then IPOB has been prescribed as a terrorist organisation.
He said that there was no IPOB community when he arrived in [City]. However, the IPOB branch was formed in [Year 2] while he was committed to [Subject 4] studies.
Statement of [Ms B]

[Ms B] in a statement to the Tribunal said that she met the applicant in June 2017, and they developed a strong relationship. She said that he told her about his fears of returning to Nigeria because of his involvement with IPOB. She said that they stopped seeing each other after the applicant was arrested in October 2017, however, they remained in contact by telephone. While they were together the applicant showed signs of stress and anxiety after ‘what happened in Nigeria’ and he fears that he will not be able to live there safely.
Hearing on 14 January 2020
The applicant appeared before the Tribunal on 14 January 2020 by Microsoft Teams video from the immigration detention centre to give evidence and provide arguments in support of his claims. The applicant’s representative was also in attendance by video. As the hearing was conducted via Microsoft Teams video, the applicant confirmed that he could hear and see well.
A summary of the evidence before the Tribunal follows.
Background
The applicant confirmed that his family originated from [a] Village in the Nnewi South district of Anambra. His mother and father were both born in Nnewi but came from different villages. Two uncles and an aunt currently live in Lagos. His father is the only close relative still living in the village. His father lives with some children of relatives who help him with errands. His father had a [products] business but has retired and is the ‘elder of the family culturally’. His mother works in a store, and prior to that she had a restaurant and worked in her father’s business. She lives in Asaba, a different state but close by. She lives with the applicant’s grandfather and other maternal relations. His brothers [Mr C] and [Mr D] live in Lagos and work in a [products] business. [Mr C] is married. His sister, [Ms E], lives in Anambra with her husband and children. He is in regular contact with his family, particularly his mother.
The applicant was born in Lagos in [Year 1] as his parents lived there for about four years and after that he resided in [the village]. He completed high school in Lagos in 2004. He then joined his brothers in the business for four years, after which he studied. From 2008 to 2012 in Owerri he was at Imo State, studying a [Qualification 1] in [Subject 1]. During the holidays he worked in the [products] business. After completion of his degree he again worked in the business, and also completed his compulsory one year’s national service in 2014 which all graduates must do, in a [Workplace] where he [did a job task]. After this he had a holiday in [Country 1]. Then he returned to working in the business with his brothers. He had two trips to [Country 2] to purchase [products] as they were reasonably cheap in [Country 2].
He said that he then applied for a student visa for Australia to ‘avail him more of opportunities in life’.
Ethnicity
The applicant was asked what it meant to him be Igbo. He said that ‘you would know you are an Igbo in every part of Nigeria’. He grew up mainly in Lagos. The predominant language is Yoruba which he speaks well. Many Igbo live in Lagos and do business there. He said that he noticed a different way that Igbo people are regarded, and that Igbos are a people who come from ‘segregation, political oppression and marginalisation’. He claimed that Igbos are different culturally and this drives them to seek a different reality, to be more industrious, progressive, business oriented and more assertive. He said that cultural values and beliefs led to them wanting to separate as their hopes and aspirations are hampered by being in the Nigerian state, particularly in the north. He still feels repressed in Nigeria as an Igbo, in relation to industriousness, cultural values and political philosophy. He said that Lagos is the ‘New York of Nigeria’ and the people who make it like this are the Igbos because of their business acumen. He said that if they became a nation of their own, they could be more powerful. They are often seen as too ambitious and zealous by other tribes, which creates real problems in the way they are treated. He feels oppressed as if their ‘wings are being clipped’. This is why he supports actualisation of an independent nation to move forward. He said that through independence they would do better and be equal.
Asked if he was discriminated against or ostracised in Lagos, he said that in school ‘you would not be recognised for excellence, only Yoruba students would’. In businesses, Yorubas ‘find a way to pull the Igbo man down. Most businesses are owned by Igbos. Even in [City] he said that they find a way to shut down Igbo businesses. They also force businesses out of certain areas. Prices for property for Igbos are higher. He said that students who are Igbo are not on the list first for jobs. Governmental offices discriminate against Igbos. He said that ‘this is very wrong, it is not a people who believe in one nation’. He said that sometimes comments are made to Igbos that they should go back to where they come from. There are also ‘area boys’, who are Yorubas who claim money from businesses for using their land. He said that there is systemic discrimination.
The applicant said that in [City] he is part of the Igbo community and has Igbo friends. But when he first arrived there was no IPOB community to join. There are also Yoruba community events in Nigeria, and an Independence Day celebration on 1 October. In [City] many Nigerian people are trying to establish themselves so there is no room for politics.
Political involvement
The applicant said that his family and siblings are business oriented and do not participate in any political activity.
He said that when he was in high school, he participated in social events and played [Sport] for Movement for the Actualisation of the Sovereign State of Biafra (MASSOB). He said that the plan was that if independence was granted, they would play [Sport] for the nation. They were called the [Team name]. Sometimes MASSOB called for civil disobedience but at the time he was at school.
He said that after school, MASSOB ‘died down’. The leader was in gaol for two years, from around 2005 to 2007. It was not active like it is today. He went to university but ‘there was not much going on’ with the pro-Biafran movement while he was at university or working. IPOB commenced in 2014 and he participated in Biafran gatherings. He heard on Radio Biafra that Nnamdi Kanu was the leader, and ‘everyone was listening’. There was a gathering in Lagos at Surulere and hundreds attended. Somebody spoke but he cannot remember who it was. He was asked if he attended other gatherings or protests. He said that 2014 was busy as he had a year of national service, was working, went to [Country 2] and was preparing to travel to Australia.
He said that at that time, there was no ‘clamping down’ on the pro-Biafran movement. He listened to Kanu and when he arrived in Australia, he followed what was happening.
The applicant said that he returned to Nigeria in 2015 following the call by Kanu to participate in pro-Biafran activities and protests, and to see his family. He left in October but Nnamdi Kanu travelled to Nigeria and got arrested. This made things worse and ‘everything escalated’.
The Tribunal asked the applicant why he would leave the safety of Australia to participate in the protest, when he had not been significantly involved in either Nigeria or Australia prior to this. He said that he followed Kanu, because he was coming out from operating underground. This was his motivation. He said that ‘if you listen to his speeches anyone interested would participate’. He said the call to activism was ‘new and explosive’. A further motivation for him to return for the protest was that he wanted to see his family.
The applicant said that when he returned to Nigeria in late October 2015 he stayed in Lagos for about a week and then went to see his mother, who was in the village preparing for Christmas. He said that all Igbos go home to villages or families for Christmas. He then went to the east where the protests were. His cousin picked him up. His cousin was involved in pro-Biafran activities, but not in a ‘full-on’ way. They attended several protests around Awka and other regions in November. The last one was at the Head Bridge which was in the beginning of December. He thinks that he attended three protests in Awka, another town and then Head Bridge, Onitsha.
He said that at the first two protests there was no disruption although the military drove by. At each of the protests, there were thousands of people. The Head Bridge protest had the most people. They flew the Biafran flag at the protests. They ‘all had them’. Asked if there were photographs, he said that there were, but he does not have the telephone he had at that time. His cousin was taken by the military. He went missing and the applicant was not with him when he disappeared. At Head Bridge, they were trying to cross over to the other state but the military were already there. He said that they did not think that the army would do anything. However, the situation escalated quickly, people were pressing forward, they heard gun sounds and everyone was scattering. He said that his cousin was ‘grabbed’.
The applicant said that his cousin was released about four days later. He had been beaten and was hospitalised. The applicant did not speak to him when he was released. His family blames his cousin for involving the applicant.
The applicant said that the tactic of the army was to coerce detainees to provide names and then they would go and harass other people. He said that his mother told him that the military came to the compound three or four days after the event. He was not home. Asked what they said to his mother, they said that if she does not know how to raise the child, they will do it for her. This was ‘deeply concerning’ for his mother.
He said that he surmised that his cousin gave the army his name as there was no other way he could have been identified. Later his cousin told the applicant’s brothers that he was forced to surrender his name.
The applicant said he no longer had any photographs or pamphlets from the time. He asked his cousin in 2017 if he had any, but he did not. He has not kept in touch with his cousin since then, but he is still in Anambra State. He has also tried to find the co-ordinator of the protests to write an attestation for him but could not find him.
He was asked what the objectives were of the Biafran movement. He said it was ‘Biafran or nothing’. He said that they did not want their ancestors who died in the civil war to die in vain. They did not want to be deterred by the Nigerian authorities. They wanted to have a referendum to see if the Biafran population wanted an independent Biafra.
The applicant said that he had no problems leaving at the airport even though the army had visited his compound. He said that at that time people were not being arrested at the airport.
The applicant said that he does not feel safe returning to Nigeria even though his cousin and other family members are living there safely. He said that anyone identified with IPOB is at risk. He said he is particularly at risk as his cousin gave the army his name. He said that it is highly unsafe for people who have participated in IPOB to return to Nigeria. People go missing without trace. He said that the authorities are more conscious of people coming back from other countries and he would be noticed.
The applicant was asked why he had not been involved with the pro-Biafran movement in Australia if he feels strongly about pro-Biafran independence. He said that in 2014 IPOB was new. From 2015 on, he was trying to find his feet and he started to study [Subject 4] to get stability and have a career. He wanted to have a career with a humanitarian aspect. He was in custody when he learnt that IPOB has a branch in [City]. He said that he has contacted IPOB and has told them that he wants to participate but cannot do this from detention. He said that he still follows Radio Biafra which is broadcast from London. Kanu speaks through Radio Biafra.
He said he has not been told whether he has to swear the Biafran oath to participate in Australia but has been told about making a contribution.
Adverse information put to the applicant for comment at hearing
In the applicant’s Genuine Temporary Entrant Statement as part of his application for a [Student visa 2] lodged on 9 December 2016, he did not mention fleeing Nigeria, instead suggesting studying in Australia would help him launch himself into the labour market in Nigeria. The Tribunal discussed this with the applicant as it indicates that he did not flee Nigeria for political reasons but was rather seeking to develop his skills for the purpose of returning to Nigeria.
The applicant responded that he made an application for a student visa so that he could get a professional career and later apply for a skilled visa which he thought he was entitled to do. He said that he was ‘looking at the longer picture’. He hoped that the situation in Nigeria would improve some day so it would be safer to return. He said that his intention was to return if it was safe to do so. He did not want to complicate things for himself.
The Tribunal also asked the applicant why he put in a voluntary repatriation request on 20 February 2020. He said that ‘there comes a time when you feel there is nothing you can do. You are not governed by reason. People can spend years in detention without coming out.’ He said that he had not finished his degree and had only a short time to go. He said that life ‘had no meaning’ and he felt ‘overwhelmed’. He said that he could not sleep. He did not want to be in indefinite detention, and in ‘that moment; he wrote the letter requesting voluntary repatriation.
The applicant was asked why in the sentencing remarks of the judge in his criminal case there was no comment about the harm he says that he fears in Nigeria. He said that lawyers did not advise him to talk about fears in Nigeria, so he focused on the criminal issues and concerns about the cessation of study. He therefore expressed concerns about study, etc., which had resulted from his offending. It did not occur to him to talk about broader issues.
The Tribunal raised with him concerns that he had committed criminal dishonesty offences which may indicate a propensity to lie. He said that addiction to gambling led to the commission of the offences. He said that in the organisation of the offences, he was not the one who sent the false emails, although he admits that he participated in the scheme. He said the criminality is ‘not the whole truth about him’. He said that he had a vision for himself. He is ashamed of getting himself into the criminality, and he knows that he ‘shot himself in the leg’. He said that but for theses offences he ‘would have flown higher’. He said that a couple of his friends who are international students are now [Occupation] and have gone on to get citizenship. He said that at the time of the offences he was doing well in his studies and almost finished his placements. He claimed that he does not have a propensity for dishonesty. Becoming involved in the criminal scheme was ‘a costly mistake’. He would not consider himself a person with propensity towards falsehood. In custody he has had time to reflect and has taken online courses. He said that his criminality does not define him and he ‘will do better’. He said that he is the only one in his family to go to high school and university and to study abroad. He strives for excellence.
The applicant was referred to the psychologist’s report dated 9 August 2019. The Tribunal noted that the psychologist talked to him for two hours, took his personal history and asked about his future including returning to Nigeria. However, he did not mention to her his fears of returning despite this being relevant to his state of mind.
He responded that he was just asked about his criminal matters, and it did not occur to him that it was an interview about all matters. He said that he just mentioned concerns about his offence. He said it was sequential questioning and he thought the questions were in relation to his studies.
Health concerns
The applicant claimed that he suffers PTSD and anxiety and would like to participate in therapeutic activities once out of detention. He said that these conditions affect his relations. He does ‘not make a show of it’ but he knows that he will not have access to professional consultations in Nigeria. While in Australia, he has not sought out assistance for these conditions. He did seek help while in custody for gambling as he became addicted. He has been advised to seek professional help for the other conditions.
As discussed with the applicant, fear of harm by way of being unable to access medical treatment is not persecution for one of the reasons set out in the legislation. In regard to the complementary protection criteria, there does not appear to be any intention by the government or community to harm persons with mental health conditions. He said that there is stigma and people with mental health conditions are regarded as insane. He said that people with mental health conditions are often taken to psychiatric hospitals and can be chained. He said that in Nigeria ‘you do not want to see a doctor for this’.
The Tribunal put to him that he has not sought treatment in Australia for his mental health conditions and has been able to function well by working and studying. The Tribunal put to him that it appears unlikely he would seek treatment in Nigeria if he has not done so in Australia. The Tribunal also noted that he does not have a serious mental illness such as bipolar or schizophrenia so there does not appear to be a real chance of serious harm or a real risk of significant harm. He said that he would be harmed due to the environment for mental health sufferers in Nigeria.
The Tribunal also discussed with the applicant his fears of returning due to the COVID-19 pandemic. As the Tribunal discussed with the applicant, the harm suffered would not be for one of the reasons set out in the legislation. The Tribunal also said that given the government response to the pandemic, there did not appear to be any intention to harm. The applicant said that he did not have much to say. He said that it is a global issue not isolated to Nigeria.
Evidence of [Ms B] at the Tribunal hearing

100. [Ms B] is an [Occupation] currently working in [City].
101. She said that she is a friend and is in an ongoing relationship with the applicant. She met him at the end of June 2017 through online dating.
102. She said that very quickly they began to spend a lot of time together. She noticed that he was not sleeping and had bad dreams. He did not like to go to pubs or restaurants with a lot of people and preferred to be alone.
103. She said that the applicant told her about the protest in Nigeria, that his cousin was arrested and that he fled to Australia. He told her that he feels unsafe returning. She said that the conversation came about prior to his application for protection, after she fell pregnant. She had questions about whether he would stay on in Australia after his studies and this is why he told her about his fears. She said that at that time he had nothing to gain by making up these claims as when he told her, he had not yet applied for protection.
104. [Ms B] said that she was shocked when he was arrested for criminal offences. He was getting high distinctions and had nearly completed his [Qualification 4]. She broke off the relationship for some time as she was upset by his behaviour. Later they got back together.
105. She said that although he committed dishonesty offences, she felt that he had always been honest to her and had never asked anything of her. She said that he had paid his debt in relation to his offences. She said that she did not think he was an inherently dishonest person.

Submissions by the applicant’s representative at the hearing
106. [Mr F] submitted that the applicant has lived experience as an Igbo person in Nigeria, who has articulated his political awakening. [Mr F] submitted that uniquely in his family he had tertiary education, which also informed his political awakening.
107. He submitted that if the applicant returns to Nigeria, he may not have access to mental health services because of an accumulation of factors, including his Igbo ethnicity and the COVID-19 pandemic.
108. It was submitted that the migration history goes some way to explain his GTE Statement and Repatriation letter, which was written when he was in a difficult and vulnerable situation.
109. [Mr F] submitted that little weight should be given to the sentencing comments as the Tribunal has not seen the submissions made.
110. In relation to credibility, it was submitted that the applicant and [Ms B] gave evidence which places the criminal offending in context.
Post-hearing submissions 9 February 2021
111. The representative submitted that the applicant had provided credible evidence regarding his involvement with IPOB.
112. The applicant provided a further statement confirming his cousin’s involvement with him in protests as part of the IPOB movement. He said that his cousin’s name is [Mr G], and he is from [Town] in Orumba North, Anambra State. He said that his cousin was held in custody whilst in Nigeria and had informed the applicant’s brother of his experiences whilst in custody, which were as follows: ‘a. The military tied my cousin’s arms and legs together behind him with rope. The rope was extended and attached to the roof. b. He was left in the position for the entirety of his time in custody. The room he was held in was dark and the military used a torch. c. The military whipped my cousin using a ‘koboko whip’. This is a whip made of horse leather and is often used in Nigeria. d. The military would force my cousin to chant the words ‘one Nigeria’. e. He was also forced to provide the details of anyone who was involved in the protest. He had no other choice but to give them my details. f. The military allowed my cousin to leave after they made him denounce IPOB and promised that he would no longer participate in any pro-Biafra protests.’
113. The applicant said that he confirmed his evidence regarding the IPOB [State] chapter and in particular that it was not present in [State] in 2015 to his knowledge. He said that he had contacted the IPOB [State] chapter and received its support.
114. A letter from [Mr H], the [Official] of IPOB [State], dated 26 January 2021 said that the writer ‘validated’ that the applicant was a Biafran and had ‘made efforts to connect with the community of IPOB in [State]’. He said that the applicant first contacted him in August 2020 and expressed a wish to become part of the community. He said that during the course of their conversations he was informed that the applicant had been involved in IPOB activities and participated in the 2015 IPOB protest in Nigeria. The applicant also told him that he could not find the IPOB community when he arrived in [City]Melbourne. He said that IPOB [State] was officially established [in Year 3] and prior to that there was no official presence. He said the applicant had told him that when he found freedom he would join the IPOB community.
115. [Mr H] said that he had ‘carefully analysed’ the applicant’s account of what transpired in the December 2015 protest and believes that his account is consistent with what occurred. He said that he contacted the state and local coordinators of the IPOB community with whom the applicant was associated, and they have written a letter validating his claims.
116. He said that IPOB is non-violent and advocating for self-determination and that IPOB members are persecuted, killed and incarcerated in Nigeria on a daily basis. He said that the chance of the applicant being tortured and secretly killed for his involvement and participation in the IPOB protest was very high.
117. A letter from the [Officials] of IPOB dated 21 January 2021 stated that the applicant was a participant in IPOB activities in Orumba North. The coordinators said that he was among the protestors that had encounters with the Nigerian military/police at Onitsha on 2 December 2015. They said that they have not seen the applicant since. They said that he had participated in leading protests to the 2 December 2015 protest which ‘claimed many innocent souls. We thought he was among the persons killed and thrown into the river’. They said that they were pleased to learn that he is still alive in Australia and would be pleased ‘should you accede to the request of our beloved brother’.
DECISION OF THE DEPARTMENT
118. The delegate of the Department was not satisfied that the applicant met the refugee or complementary protection criteria. The delegate was not satisfied that the applicant was a member of IPOB, had been involved in any political activity, had fled Nigeria in October 2015 or had come to the attention of the Nigerian authorities. The delegate was not satisfied he had a well-founded fear of persecution or there was a real risk of significant harm, in relation to his political opinion, mental health issues or the COVID-19 pandemic.
FINDINGS AND REASONS OF THIS TRIBUNAL
Nationality
119. The applicant has a Nigerian passport which expired [in] 2018. The Tribunal is satisfied that the applicant is a citizen of Nigeria, and that Nigeria is the receiving country for the purposes of the legislation.
President’s Directions
120. The Tribunal has had regard to the President’s Directions ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:
·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’[2]
[2] At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

121. The Tribunal exercised its discretion to hold the hearing via MS Teams video due to the COVID-19 pandemic. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant, in particular that he was in detention.
122. In making these alternative arrangements, the Tribunal had regard to the objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see well. The Tribunal was able to interact with the applicant and his representative and all parties were able to maintain line of sight and maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.
Findings of fact
123. Central to the findings in this matter is the question of the credibility of the applicant’s evidence about his involvement in, and support of, IPOB. The Tribunal recognises that assessment of credibility is an inherently difficult process and that there are special considerations in relation to asylum seekers. In this regard the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility. 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. As Burchett J counselled 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.

124. The Full Federal Court noted 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.

125. The Tribunal has also taken into consideration psychological research on memory of trauma[3] which indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. The research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[4] Assessment of evidence can be based on imperfect perceptions of truth. There may also be factors that consciously or otherwise influence decisions.[5] Australian research indicates Refugee Review Tribunal members may have relied on assumptions inconsistent with psychological literature.[6]
[3] M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, The nature and significance of memory disturbance in posttraumatic stress disorder (2011) 7 Annual Review of Clinical Psychology 203.
[4] H E Cameron, Refugee Status Determinations and the Limits of Memory (2010) International Journal of Refugee Law 469.
[5] H Bennett and Broe, G, The neurobiology of achieving a comfortable satisfaction (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[6] 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.
126. As credibility assessment is not an exact science great care must be taken to ensure that the approach taken is reasonable, reflective and fair. In this case, the Tribunal has taken into consideration the fact that this applicant has been in immigration detention and prior to that was incarcerated, the first time he had been convicted of a criminal offence. There is no doubt that this would have caused significant stress to him, particularly as at the time he was close to finishing his [Qualification 4], in which he had excelled. The Tribunal has considered the lack of family support and the stress the immigration process itself can cause. The Tribunal has considered that cultural issues may impact on how questions are answered as well as the fact the applicant left Nigeria six years ago such that it may be difficult to recollect details. As suggested by the Tribunal’s Guidelines on Assessment of Credibility,[7] these matters have all been taken into consideration in assessing the evidence. Additionally, the Tribunal has had regard to the Tribunal’s Guidelines on Vulnerable Persons[8] because of the mental health concerns enunciated in the psychologist’s report, in particular that [Ms A], the consultant psychologist diagnosed him as having PTSD.
[7] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Guideline on Vulnerable Persons, available on the AAT Website, Taking these matters into consideration, the findings of fact follow.
128. The Tribunal accepts that the applicant is of Igbo ethnicity. His family comes from Anambra where Igbo make up about 99% of the population[9] and the applicant can speak Igbo. The Tribunal accepts that the applicant was in a MASSOB [Sport] team while at school and that he attended a pro-Biafran rally in 2014 in Lagos and listened to Radio Biafra. Country information indicates that the first rallies in 2014 were tolerated by authorities, and also that Radio Biafra became popular around that time, particularly with young people.[10] The Tribunal accepts that the applicant supports Biafran independence as during the Tribunal hearing he spoke passionately and knowledgeably about the subject.
[9] Wikipedia, Anambra, Amnesty International, Nigeria: bullets were raining everywhere, 2016.
129. The Tribunal had a number of significant concerns about whether the applicant returned to Nigeria in October 2015 for the purpose of attending pro-Biafran demonstrations, whether he did in fact attend these demonstrations, whether his cousin was arrested and provided his name, and whether the military visited his house after the protests.
130. The reasons for these concerns are as follows:
131. Firstly, the report of [Ms A], the psychologist on 9 August 2019 suggests that he did not tell the psychologist that he attended the protest where his cousin was arrested and later badly tortured, nor that the authorities then visited his home, nor that he had to flee the country because he feared the authorities. He also did not tell her that he fears returning to Nigeria for political reasons. In making a diagnosis of PTSD, [Ms A] referred to his dysfunctional and difficult upbringing (domestic violence and father’s alcoholism) as well as ‘jungle justice’ in the streets as causative factors, without any mention of the incidents related to the IPOB protest or fleeing Nigeria. This is very surprising as if the applicant did hold these fears of returning, or had suffered trauma, it would have been expected that he would have told the psychologist. The report dated 9 August 2019 at para 8.6, states:
Regarding questions about deportation and mental health, in my opinion (the applicant) is now well aware of the consequences of his actions. The possibility that he will be deported is a contributing factor to his current anxiety and depression. He stated that should he be returned to Nigeria there is ‘nothing there for him’ and he would ‘really feel hopeless’. He reported that he would essentially be returned with no qualification given he has not completed his [Qualification 4]. Further, his brothers were supporting him in Australia by paying for his education and it is likely that the amount of guilt, shame and embarrassment he would feel at having to return with no qualification in my opinion would worsen his current psychological presentation.

132. This indicates that he was directly asked questions about both the reasons for his anxiety and depression and concerns about deportation. It would have been expected that if he was anxious about returning to Nigeria because he would be arrested or harmed by the authorities he would have told the psychologist about his cousin’s arrest and the interest of authorities in him as it is relevant to his state of mind. Furthermore, it would have been expected that he would have told her that he feared the authorities harming him when he returned instead of only commenting that he would feel guilt, shame and embarrassment at having to return with no qualification. When this was discussed with the applicant at hearing, he did not suggest that he told the psychologist about these matters, even if not discussed in the report. He responded that he was just asked about his criminal matters, and it did not occur to him that it was an interview about all matters. He said that he just mentioned concerns about his offence. He said there was sequential questioning and he thought the questions were in relation to his studies. This is not accurate as the report states that the applicant was specifically asked questions about deportation and mental health. The Tribunal notes that the psychologist stated in her report that she was asked to address his personal history, the impact of his experiences growing up and how the uncertainty as to whether he would be required to uproot himself and return to his country of origin affected him and his mental health.
133. The fact that he did not tell the psychologist about his anxiety and fears in returning to Nigeria, when he discussed other aspects of his concerns about returning, is suggestive that the protest and cousin’s arrest, and visit from the authorities, did not in fact take place.
134. Secondly, the applicant voluntarily requested to return to Nigeria in a letter dated 20 February 2020. This does strongly suggest that in February 2020 at least he did not have a genuine fear of harm upon returning to Nigeria, or that if he did have a fear of harm it was outweighed by a preference to return to Nigeria. He has said that at the time he wrote the letter he was suffering from poor mental health and had considered the prospect of indefinite detention in Australia. He said that ‘there comes a time when you feel there is nothing you can do. You are not governed by reason. People can spend years in detention without coming out.’ He said that he had not finished his degree, which was close to completion. He said that life ‘had no meaning’ and he felt ‘overwhelmed’. He said that he could not sleep. He did not want to be in indefinite detention, and in ‘that moment; he wrote the letter requesting voluntary repatriation. Notwithstanding that the prospect of indefinite detention in Australia may have been very confronting, it is likely that if he genuinely feared imprisonment, torture and possibly death in Nigeria, that he would not have requested repatriation. Furthermore, in the letter dated 14 February 2020 seeking repatriation, he referred to his bridging visa which was cancelled under s.501(3A) of the Act. He said that he sought revocation of this decision for the ‘primary reason’ that he wanted to complete his [Qualification 4]. He said that he could not apply to an education provider as he did not have a valid visa. He also understood it took a long time for a decision on the revocation to be made. He said that ‘hence, in the interim time I am requesting to be voluntarily repatriated to my home country’. This suggests that the reason he had sought revocation was to continue his degree rather than because he feared returning to Nigeria and when he realised difficulties of the revocation process, he decided he wished to return. There was no mention of the fear of returning to Nigeria. The Tribunal finds that indicates that he did not in fact hold such fear.
135. Thirdly, the applicant did not raise these issues of fear of returning to Nigeria at any earlier stage. For example, a year after the protests, in December 2016 in an application for a [Student visa 2] he said that he wanted to study to help launch himself into the labour market in his home country. No mention was made of the protests or his fear of return. He has told the Department and Tribunal that when applying for this visa, he did wish to return to Nigeria when safe to do so and had a possible pathway to permanent residency through a student visa.
136. Fourthly, the applicant did not apply for protection for four-and-a-half years after returning to Australia in 2015, even though he claimed that the army had visited his house just prior to departure from Nigeria. He only applied for protection after other visa avenues appear to have been exhausted. He said at the Department interview that he thought about applying for protection when he arrived back in Australia in 2015 but decided not to as he had a student visa and was studying for a [Qualification 4] so thought that he could pursue permanent residence this way.

137. Fifthly, if he was so deeply committed to the Biafran cause that he returned to Nigeria especially for a protest, then it would have been expected that he would have kept significantly connected to Biafran affairs in the six years after he returned in 2015. The only connection he has had with IPOB has been since August 2020. The [Official] of IPOB in [State] has verified that IPOB [State] was officially established [in Year 3] such that it may have been difficult for him to contact them prior to that. However, he first contacted them in August 2020, rather than trying to locate them between [Year 3] and 2020, although he was studying and incarcerated for some of that time. While he told the Department he attended [an Igbo Festival] in [Suburb], this does not in itself indicate a strong interest in Biafran politics. He has said that he continued to read and educate himself and the Tribunal accepts that this is the case, however if he was a devotee of IPOB it would have been expected that he would have contacted IPOB earlier or become more involved even if studying. He told the Tribunal that he did not get involved in Biafran affairs in Australia partly because from 2015 on, he was trying to find his feet and he started to study [Subject 4] to get stability and have a career. If he was trying to concentrate on settling in and study, it seems inconsistent with these aspirations to leave the country so soon after for the purpose of a political rally in Nigeria.
138. Sixthly, the applicant has said that he was not stopped at the airport when leaving in 2015. He has said that at the time there were no difficulties leaving. As referred to in the delegate’s decision, there was a border control system which allowed checks of arriving and departing passengers against watch lists.[11] While not definitive, in that the information about him may not have reached the border posts as the army had allegedly only just started looking for him at the time he left, the fact that he was not stopped at the airport could indicate that he was not of significant interest to the authorities at the time.
[11] Immigration and Refugee Board of Canada, Nigeria: Information on a national police computer network for information sharing: nature and extent of communication between police offices across the country: whether police offices in different states are obligated to report to each other, 21 November 2017.
139. Finally, the Tribunal was concerned that the applicant had been convicted of dishonesty offences and therefore could have a propensity for dishonesty. The sentencing judge, [Judge F], in Sentencing Comments [in] August 2019 said that his offences occurred as part of a continuum of ‘protracted, sophisticated and fairly devious offending in which you have played a vital role’. When discussed with the applicant he insisted that these crimes did not define him and emanated from a gambling problem which he had, and he had otherwise been honest. The Sentencing Comments also refer to references from his [study/work] placements, where referees spoke ‘very highly of you’. His partner also vouched for his honesty.
140. The Tribunal also had concerns that [Judge F] in sentencing remarks for the applicant’s conviction [in] August 2019 did not mention the applicant’s fears for returning to Nigeria if deported, although he did refer to deportation generally. Submissions were made to this Tribunal that it should not rely on the omission in the sentencing remarks, as the Tribunal had not seen the submissions made by the defence to that court.
141. The Tribunal, taking all these matters into consideration, had strong reservations about the evidence of the protests. On balance however, the Tribunal accepts that the applicant did attend the protests in 2015, that his cousin was arrested and tortured, that the military visited his home, and that he genuinely fears returning due to his support of IPOB, for the following reasons.
142. Firstly, the applicant had experiences with the pro-Biafran movement while living in Nigeria, which may well have laid the foundation for his later attendance at the 2015 protest. The Tribunal has accepted that the applicant had exposure to Biafran issues through MASSOB when he was at school and attending a protest in 2014, a time when he said that the authorities were allowing protests, which provides context for his later participation in the 2015 protest. Country sources do indicate that at the time he was growing up, Biafran youths were taking an interest in the Biafran struggle, particularly by listening to Radio Biafra and that there was little government repression at that time. [12]
[12] Amnesty International, Nigeria: bullets were raining everywhere, 2016.
143. Secondly, the Tribunal found his written and oral evidence about why he returned to Nigeria in 2015 persuasive. He said that it was a unique time in history as the IPOB leader was returning to Nigeria, and that the call to activism was ‘new and explosive’ and a ‘defining moment’, and that for this reason he decided to return himself. This does appear to be a credible explanation, particularly in the context of his earlier interest in Biafran issues. He told the Department, ‘when I went back in October 2015 I travelled onto Nigeria specifically for the whole movement of IPOB, because I thought it was going to be a defining moment because Nnamdi Kanu was coming back to Nigeria so he encouraged those who vote in Biafra and Nigeria to come out en masse.. so I travelled for that reason in October.’
144. Thirdly, the applicant’s evidence to the Department and Tribunal has been consistent, often reflecting veracity. He was able to describe his experiences at the 2015 protest in a way that reflects country sources which describe the protest, although it perhaps would have been expected that more detail would have been provided. He did refer to the deployment of the army at the rally and how cars were blocked. An Amnesty Report which refers to that protest, does discuss the use of the army rather than police at these events and how the protest blockaded the roads.[13] The applicant also provided detailed descriptions of the torture his cousin underwent after being arrested at the rally in 2015. Amnesty International in its report in 2016 referred to numerous arbitrary arrests and the use of torture.[14]
[13] Amnesty International, Nigeria: bullets were raining everywhere, 2016.
[14] Amnesty International, Nigeria: bullets were raining everywhere, 2016.
145. Fourthly, it was somewhat persuasive that the applicant did not stay for Christmas with his family in 2015, instead returning to Australia. He has said that Christmas was a festive time in his village and his mother had returned there for preparations. Presumably this would have been a time when he would want to be with his family, but instead he returned to Australia which does suggest that he left earlier than expected as he needed to do so. Sources suggest that Christmas celebrations are significant in the south of Nigeria, with many towns and cities emptied as most Nigerians who have moved to the cities returning to their ancestral villages to be with family.[15]
[15] In All Things, Christmas in Nigeria, 22 December 2015.
146. Fifthly, even though the applicant did not apply for protection when he returned to Australia in December 2015, he said that he thought about applying for protection, which does indicate that at that time he did have fears of returning. He said that the only reason he did not apply was that he researched and found out that if he completed his [Subject 4 qualification] he could apply for protection.
147. Sixthly, [Ms B] has said that she was told about the protest some time ago. [Ms B] is an [Occupation] who is the partner of the applicant and has testified that the applicant told her about the protest and fleeing Nigeria prior to his protection visa application, which indicates that he was not telling her simply to bolster his claim through her evidence. [Ms B] appears to be an upstanding citizen who was ‘shocked’ at her partner’s crimes and broke off the relationship for some time. She said that prior to his criminal activity he was getting high distinctions and was close to completing his degree indicating that she is a person who is impressed with achievement and effort. Her evidence therefore is given some weight notwithstanding that she is invested in an outcome in which the applicant remains in Australia. She said that when she became pregnant during the early months of their relationship, she asked the applicant what his future plans were, as she knew he was a student and thought that he may want to return to Nigeria. It does seem reasonable that the couple would discuss future plans at that time. As part of that discussion, [Ms B] said that the applicant told her about the fears he had for returning to Nigeria, including that he had attended the protest with his cousin and left the country for his own safety. He also told her about the history of IPOB’s struggle and showed her YouTube clips which does suggest that he had a strong passion for the movement.
148. Seventhly, there is some corroboration from IPOB [State] which has been given some, if not significant weight. The [Official] of IPOB [State] has said in his statement dated 26 January 2021 that he ‘carefully analysed’ the applicant’s account of what transpired in the December 2015 protest and he ‘believed that his account was consistent with the ordeal that occurred’. While the Tribunal has not had the benefit of hearing from the [Official] to explore how he reached this conclusion, it would be expected that he would not blindly make this statement without checking some of the details.
149. Eighthly, the applicant’s attendance at the protest has been confirmed by an IPOB Branch in Nigeria. The [Official] of IPOB [State] said that he contacted both the state and local coordinators of the IPOB community in Nigeria that the applicant was associated with and they have written a letter validating his concerns. The Tribunal was provided with a letter from the [Officials] of IPOB dated 21 January 2021. This letter stated that the applicant was at the protests at Onitsha on 2 December 2015 and that they had not seen him since.
150. The authors do not state that they knew the applicant personally or that they actually saw him at the event. It is not clear whether the authors knew the applicant or know with certainty that he was at the event, or whether they are reporting he was at the event because they have been told that he was. However the fact that the local branch of IPOB contacted them and obtained the letter does give the document some credibility. While document fraud is a significant problem in Nigeria[16] it would be expected that the local IPOB branch would not provide fraudulent documents if they wanted to be regarded as a professional organisation complying with Australian laws.
[16] Department of Foreign Affairs and Trade, Country Information Report Nigeria, 3 December 2020.
151. Finally, the applicant did speak reflectively and with insight into the concerns of the Igbo people and the Biafran cause. For example, in relation to the Igbo people, he said that they come from ‘segregation, political oppression and marginalisation’. He said that at school Igbos were not recognised for excellence and in Lagos he had the feeling of not really belonging, in the neighbourhood and in marketplaces. He said that graduates were discriminated against by employers in the private and public sectors and that Igbos are subject to ostracism. He claimed that in business the Yorubas tried to find ways to destroy their successes. He also spoke with passion and fervour about the Biafran cause, stating that Igbos have business acumen, industriousness and cultural values and currently their ‘wings are clipped’, but this could change with political actualisation. He was able to talk about MASSOB, saying it was the ‘continuation of the same issue that Igbos face and the need for us to become a self-governed nation’. He said that ‘I had no conviction at that time but the idea of Igbos being independent from the rest of the nation resonated with me’.
152. His comments about the history of the Biafran movement correlate with country sources about the civil war and its aftermath. He commented on the civil war, ongoing moves for secession and lack of resolution of issues which arose in the civil war and the resurgence of the movement. The most recent DFAT Report provides an overview which details these matters:
Nigeria fought a civil war from 1967 to 1970 against a secessionist movement in the southeast that titled itself the Republic of Biafra. The war came after coups and countercoups around the central government, followed by a pogrom in which an estimated 30,000 Igbo were killed in the north, causing over a million people to flee into the east. While the exact number is unknown, most estimate the number of civilian deaths caused by the conflict to be 2-3 million, mostly due to famine.
Targeted re-engineering of the country occurred in the immediate aftermath of the Biafra conflict, aimed at preventing any further attempts at secession and encouraging national unity and peaceful coexistence among Nigeria’s more than 250 ethnic identities. These moves included greater federalisation, including through the creation of additional states, and the introduction of constitutional diversity requirements to prevent both monopolisation of leadership, and economic and political exclusion. Informal ethnic quotas and arrangements continue to seek to maintain ethnic and religious harmony.
Despite these moves to encourage greater national unity, there has never been a national reckoning or dialogue in relation to the issues that led to the Biafra conflict, which is not officially commemorated. According to observers, many in the southeast report feeling ongoing resentment at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation in national life. Such feelings have reportedly grown stronger in the years since President Buhari came to power, with many of his major political and military appointments tending to favour individuals from the north. As a result, in recent years there has been a noticeable resurgence of calls from the southeast for greater self-determination in the form of an independent Biafran state. While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. In October 2015, security forces arrested IPOB’s UK based leader Nnamdi Kanu on his return to Nigeria, charging him with treason and sedition. Kanu’s arrest sparked nationwide protests among his followers, leading to serious clashes with security forces. [17]
[17] Department of Foreign Affairs and Trade, Country Information Report Nigeria, 3 December 2020.

153. The applicant also had some knowledge of IPOB locations, saying that in addition to the UK, IPOB has offices in the US, Germany and Malaysia. The applicant also said that the leader Nnamdi Kanu uses Radio Biafra to disseminate his information, and that people can listen to Radio Biafra on various platforms and there is a new application for it. This is accurate information. IPOB spokesperson, Powerful announced that the ‘world administrative headquarters’ of IPOB was open in Langenfield, Germany in December 2017 with IPOB’s regional liaison offices, which serve as ‘regional points of contact’ continuing to operate in London, Tel Aviv, Ankara, New Delhi and Los Angeles.[18] Kanu has said that the ‘world administrative headquarters’ are located in the UK and Germany and that Radio Biafra London has satellite stations in South Africa, Malaysia and Germany and is ‘soon to be opened’ in the US. According to Kanu, these are the official channels of communication for IPOB. Radio Biafra is now widely available online as indicated by the applicant. He said correctly that Kanu is leader and Uche Mefor is deputy leader[19] and was able to provide information about the attacks on Kanu’s family, and development of the Eastern Security Network, which accords with country sources.[20]
[18] Independent, IPOB gets new headquarters in Germany, 30 November 2017.
[19] Immigration and Refugee Board of Canada, NGA106308.E Nigeria: The Indigenous People of Biafra (IPOB), including objectives, structure, activities, relations with other Biafran independence groups and treatment by authorities (2017–May 2019), June 2019.
[20] UK Home Office, Country Police and Information Nigeria: Biafran separatists, Version 1.0, April 2020.
154. Courts have often reiterated that the Tribunal must consider evidence in its entirety and not in isolated parts, see for example, Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).On balance therefore and taking into account these factors cumulatively and the evidence in its totality, the Tribunal accepts that the applicant attended the protest in 2015, that his cousin was arrested and that the military visited his home, leading to him leaving the country earlier than planned. The Tribunal notes that the fact that he did not mention these events to the psychologist is difficult to understand and may well indicate his fear is not as significant as he suggests it is, however the psychologist did only speak to the applicant for two hours with focus on why he committed the criminal offences. There is a possibility, albeit slight, that he omitted this information due to the manner of questioning. In relation to the voluntary repatriation letter, while this again may indicate his fear is not as significant as he suggests it is, he may have written it while feeling overwhelmed and desperate as claimed. In this regard, the Tribunal has considered the evidence of mental health issues and the fact that he had been in prison and detention. The Tribunal accepts that he may have not mentioned his fears of returning or applied for protection earlier because he believed he had a valid pathway to residency and also may have genuinely wanted to return if Nigeria became safer. While he has not had much contact with pro-Biafran issues in Australia, it may have been because he was concentrating on his studies and he has eventually contacted IPOB [State] in August 2020, as corroborated by [Mr H], the [Official] of IPOB [State]. The Tribunal accepts the submission that it should not rely on the sentencing remarks without evidence of submissions made to the court and has not given this factor any weight. The Tribunal also accepts that the criminal offences were the first for this applicant and do not necessarily therefore represent a propensity for dishonesty. Indeed, the applicant was doing well in his studies and had received accolades from supervisors in his placements and from his partner. He himself said that he had a vision for himself and was ashamed of getting himself into the criminality, resulting partly from gambling addiction.
155. While the Tribunal is satisfied that the applicant supports IPOB, the Tribunal is not satisfied that the applicant officially became an IPOB member. He has only recently contacted the Australian branch of IPOB and there is no suggestion that he has become a member and he said he had not taken the oath. According to sources there is a process through which all people must pass in order to become IPOB members. IPOB also maintains an active ledger of all members.[21]
[21] Indigenous People of Biafra USA, FAQ - Indigenous People of Biafra USA, undated.
Does the applicant have a well-founded fear of persecution for reasons of his political opinion?

185. There are three pillars of ECOWAS, entry, residence and establishment, as enshrined in the ‘Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence And Establishment’ signed in May 1979.[38] Since the signing of this protocol, ECOWAS has gradually implemented a number of protocols over three phases that have outlined the legal requirements of member nations.
[38] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
186. The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[39] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries for 90 days provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[40]
[39] IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.23 ACP Observatory on Migration, Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Liberia country report, 1 January 2014, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, CIS22697, p.42, A 2014 ACP Observatory on Migration/IOM report [41] stated in part that:
[41] ACP, Across Artificial Borders: An assessment of labour migration in the ECOWAS region, Research 2014, p.66, [
In relation to the first phase (Right of Entry), all the 15 Member States have abolished visa and entry requirements for those staying up to 90 days. This means that Community citizens in possession of valid travel documents and international health certificate can stay in any ECOWAS member State for up to 90 days without any prior administrative or police formality linked to their stay.

188. The ECOWAS protocols have made considerable legal headway in establishing freedom of movement between ECOWAS member states in practice.[42] According to the most recent DFAT Report on Nigeria:
[42] Integrate Africa website, can freely enter the fourteen member states covered by the ECOWAS Treaty with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS. Nigerians can apply for an ECOWAS Travel Certificate from an NIS office. Applicants require less documentation to obtain the Certificate than to obtain a Nigerian passport. An applicant must provide photographs, a birth certificate or statutory declaration of age, a letter of introduction from an employer and a letter of confirmation of Nigerian citizenship from the applicant's local government chairman.
DFAT understands that movement within ECOWAS is generally free. While some countries have rules relating to residence permits, authorities rarely implement them. Porous borders, tribal links (people of the same ethnic background living in different ECOWAS countries), circular and cyclical migration, especially in the field of agriculture, and lack of knowledge of border laws allow the regular movement of Nigerians to and from other ECOWAS countries. [43]
[43] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018.

189. Notwithstanding that all states have ratified the Free Movement Protocol, and there are gradual efforts to progress implementation, there have been a number of implementation challenges.[44] A key challenge is inconsistency between ECOWAS Protocols and national laws and policies.[45] Some sources suggest that full freedom of movement and rights to reside are limited by independent laws and restrictions, administrative harassment and extortion.[46] Reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws[47] particularly as each State determines the admissibility of non-citizens. Commentators have suggested that until States agree to restrict determinations of admissibility to the ECOWAS recommended grounds of public order, public health and public security, the entitlements of the protocols are undermined by States’ recourse to overly broad or arbitrary grounds of inadmissibility.[48] A now somewhat outdated report commissioned by the UNHCR detailed inadmissibility provisions in ECOWAS countries.[49] According to the report, ‘the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would‑be migrants seemingly without need of explanation or process’. The report suggests that most countries require some form of medical or health certificate. Some require evidence of a return ticket and means of support. Some countries simply maintain an open discretion to refuse admission.[50] Further, a non-citizen’s right to entry may be limited because of a limited understanding and application by member states of the obligations under the Treaty.[51]
[44] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[45] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[46] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[47] ACP Observatory on Migration, Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Ghana country report , 1 January 2014, pp.46 & 47, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.27, United Nations High Commissioner for Refugees, New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol, 1 December 2007, pp.9 &11 Katy Long and Jeff Crisp, Migration, mobility and solutions: an evolving perspective, Forced Migration Review, vol. 35, pp.56-57,
[49] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.
[50] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.
[51] UN High Commission for Refugees (UNHCR), UNHCR and IOM, Nationality, Migration and Statelessness in West Africa, June 2015, p.86, The Ghana News Agency, in a report appearing on the Government of Ghana Official Website, refers to a meeting between ‘Representatives of civil society, the private sector and the media from the ECOWAS member-states’ held in Accra, Ghana, that attempted ‘to fashion out practical ways to stem harassment on the highways and borders within the region’. The report commented on restrictions to ‘free movement’ between ECOWAS member states, such as ‘illegal barriers and roadblocks’, ‘the extortion of money from travellers’, ‘systematic racketeering’, and some ‘immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document’.[52] While this report was in 2008, these kinds of impediments are still commented on and recognised by ECOWAS itself. An article in 2017 refers to the ECOWAS Commission President stating that harassment comprised a major handicap to free movement of persons.[53]
[52] Ghana News Agency, Ghana Hosts ECOWAS Meeting On Border Harassment, 3 April 2008, ECOWAS website, A UNHCR report in 2015 provides the following information on the implementation of the ECOWAS Treaty and protocols in practice:
Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[54]
[54] UN High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, p.86, The UNHCR report continues:
At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds” … The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[55]
[55] Ibid, p.87.
193. More recently, the report of the Special Rapporteur on Migration in Niger in 2019 found that there are restrictions on entry which violated ECOWAS principles.[56]
[56] UN Human Rights Council, Report of Special Rapporteur on the human rights of migrants – Niger, 16 May 2019, Article 3 of the Protocol gives the right of all ECOWAS members to travel to any state for up to 90 days without a visa, provided that they carry valid travel documents and health certificates. If however they decide to extend the stay, an authorisation beyond the 90 days is required. Member states reserve the right to refuse admission to any citizen they consider to be an inadmissible citizen under their law. The phases relating to right of residence and right of establishment have not been fully implemented. Once the 90 days is finished, according to the Protocol, applicants must apply for residence permits, a process which is dependent on national laws and arbitrarily applied by officials. They must apply and obtain a residence and work permit just like non-ECOWAS residents, and obtaining documentation is difficult.[57] The right to residence is not guaranteed.[58] Refusal is possible on the grounds of public order, public security or public health.[59]
[57] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[58] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[59] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
195. The courts have found that a right under s.36(3) must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise (V856/00A v MIMA (2001) 114 FCR 408). The Tribunal notes that Article 3 of the Protocol Relating to Free Movement of Persons makes it a requirement of entry to any ECOWAS State that the applicant possess a valid travel document and international health certificate.[60] The applicant’s passport expired in [2018]. The Nigerian Immigration Service (NIS) issues ECOWAS Travel Certificates, which are valid for two years and renewable for a further two years. Applicants must provide a completed application form, three recent coloured passport photographs, evidence of age (a birth certificate or statutory declaration), a letter of introduction from an employer (for salaried workers) and a letter of confirmation of Nigerian citizenship from the applicant’s local government chairman.[61] The DFAT Report indicates that it is quicker, cheaper and easier to pay a bribe to enter another ECOWAS country rather than to obtain the ECOWAS Travel Certificate,[62] indicating that it is not a straightforward process. The applicant does not have an ECOWAS Travel Certificate currently or a National Identity Card issued by ECOWAS.[63] At this stage he does not have an employer’s letter although it is possible that this could be obtained later.
[60] Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, ECOWAS, 29 May 1979, Department of Foreign Affairs and Trade, Country Information Report Nigeria,3 December 2020.
[62] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
[63] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.
196. The applicant does not therefore currently have a valid travel document to enter another ECOWAS country which would comprise a presently existing right. Further, there may be difficulties obtaining a health certificate, considering his health issues. It is possible he may be able to obtain such a document on arrival in Nigeria.
197. However even if he were to obtain an ECOWAS Travel Certificate, most ECOWAS countries closed their borders in April 2020 due to the COVID-19 pandemic.[64] Aljazeera reported on the closure of airspace and lockdowns in a number of states.[65] An academic article in the American Journal of International Law in 2020 states:
[64] OECD, When a global virus meets local realities: Coronavirus (COVID-19) in West Africa (oecd.org), 11 May 2020
[65] AlJazeera, after the first signs of COVID-19 in West Africa in March-April 2020, twelve countries officially closed their borders. Other countries, such as Benin, Ivory Coast and Senegal, adopted a more pragmatic approach by merely limiting to essential crossings any arrivals or departures over land, and by adopting human[1]itarian corridors. Many of these measures are based on Article 4 of the 1979 Dakar Protocol of the Economic Community of West African States (ECOWAS) and Article 91 of the amended Treaty of the West African Economic and Monetary Union (known under its French acronym UEMOA), which authorize states to limit the freedom of movement and residence for reasons of public order, public security, or public health. The measures, however, have heavily impacted the legal regime of free movement of persons throughout the ECOWAS area. In the following analysis, I will show that the measures have (1) contributed to the disintegration of the legal regime of free movement of persons in ECOWAS and (2) instrumentalized COVID-19 for political ends in ways that are counterproductive for the region.[66]
[66] American Journal of International Law, Free Movement of Persons in West Africa Under the Strain of COVID-19, Cambridge Core, November 2020

198. Articles have suggested that this has practically led to the ‘suspension’ of the ECOWAS free movement protocol. Many land borders remain closed.[67]
[67] Open Democracy, What will international migration in West Africa look like after COVID-19? 16 December 2020; MEDAM_PolicyBrief_ECOWAS.pdf (ecdpm.org) June 2020
199. Given the barriers to entry mentioned above, most specifically the fact that the applicant does not have a passport or currently an ECOWAS Travel Certificate and there is no certainty of obtaining one, the closure of borders due to the COVID-19 pandemic and continued uncertainty about how the pandemic will continue to impact border restrictions, local laws restricting entry, and the uncertainty as to whether the applicant would be authorised to stay on after 90 days, the Tribunal is not satisfied that the applicant has an existing right (a liberty, permission or privilege) to enter and reside in ECOWAS countries.
200. The Tribunal is satisfied therefore that the applicant does not have a right to temporarily or permanently enter and reside in any country other than Nigeria and that s.36(3) does not apply in the applicant’s case.
CONCLUDING PARAGRAPHS
201. For the reasons given earlier, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of political opinion. As the Tribunal has found that the applicant has a well-founded fear of persecution for reasons of political opinion, it has not been necessary for the Tribunal to make findings in relation to the claims of fearing return due to mental health issues or the COVID-19 pandemic.
202. The Tribunal is satisfied therefore that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
203. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Jane Marquard

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 1022

17 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Remedies

Statutory Construction