2105131 (Refugee)

[2023] AATA 646

2105131 (Refugee) [2023] AATA 646 (9 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kiska Li

CASE NUMBER:  2105131

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Wayne Pennell

DATE:9 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958.

Statement made on 09 January 2023 at 7:46pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – member of Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) – member of  Indigenous People of Biafra (IPOB) – race – Igbo tribe – detained and tortured – involvement in protests – leadership role within IPOB – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZQEN v Minister for Immigration and Citizenship [2012] FCA 387

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision was provided to the applicant on 8 April 2021.

2. The applicant who claims to be a citizen of Nigeria, applied for a protection visa.[2]  The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[5] The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Nigeria, there would be a real risk of him suffering significant harm and he was not a person in respect of whom Australia has protection obligations as defined in the Act.[6]

   [2]The applicant’s application was received by the Department of Home Affairs on 4 January 2020.

   [3]The delegate’s refusal was made on 8 April 2021.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a).

   [6]Migration Act 1958 (Cth), s 36(2)(aa).

3. The applicant filed an application with the Tribunal for a review of the delegate’s decision.[7]  Accompanying that application was a copy of the delegate’s decision.  At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone.[8]  

   [7]The applicant’s application was filed on 22 April 2021.

   [8]The Tribunal advised the applicants on 23 September 2022.

4. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[9]He subsequently advised the Tribunal that he would appear at the review hearing to give oral evidence and present arguments.

   [9]The Tribunal’s review hearing was listed for 2 December 2022.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10]  That is, the applicant 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.

   [10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]  A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[12]  In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[13]

   [11]Migration Act1958 (Cth), s 36(2)(a).

   [12]Migration Act1958 (Cth), s 5H(1)(a).

   [13]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[14] 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 the Act, which are extracted in the attachment to this decision.[15]

   [14]Migration Act 1958 (Cth), s 5J(1).

   [15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

8. If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]

   [16]Migration Act 1958 (Cth), s 36(2)(a).

   [17]Migration Act 1958 (Cth), s 36(2)(aa).

   [18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

9. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19] Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]

   [19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

   [20]Migration Act 1958 (Cth), s 36(2B).

   COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

10. The applicant claims to be a citizen of Nigeria and he provided a copy of his passport to authenticate this claim.  The applicant’s passport had been issued in Nigeria and the Tribunal accepts his identity.[21]  Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]

    [21]Passport issued [in] 2019.

    [22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

11. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[23]

    [23]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

12. In accordance with Ministerial Direction No. 84 made under the Act,[24] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [24]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS

13. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nigeria, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[25]

    [25]Migration Act 1958 (Cth), s 36(2).

14. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed.  Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm.  It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

15. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[26]  Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]

    APPLICANT’S CLAIMS AND THE EVIDENCE

    [26]Migration Act 1958 (Cth), s 5AAA.

    [27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169 – 170.

    Applicant’s background

16. The applicant was born in Jos in the Plateau state in Nigeria, and he identifies as being from the Igbo tribe and a Biafran.  His father is deceased; however, his mother is alive and lives in Enugu, Nigeria.  He is the second youngest of [number] siblings.  His mother and siblings are aware of what happened to him in Nigeria and why he has applied for a protection visa.

17. His primary and secondary education took place at the [named] school.  He then attended [University].  He studied [Occupation 1], which was a [number] year degree. He finished his studies in [year] and then gained employment and worked as an [Occupation 1] in Nigeria.

    Claim – actual or imputed political opinion

18. The applicant claims that he has a well-founded fear that if he was to return to Nigeria, he will be persecuted because his is from the Igbo tribe.  The applicant claims his fear is even further heightened because of his association with the outlawed group known as IPOB.

19. When carefully assessing the available evidence, the Tribunal finds that the applicant identifies as a person from the Igbos tribe.  The country information contained within the DFAT report on Nigeria provides that the Igbo tribe originates from south eastern Nigeria, however they also live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo.  Igbo people are predominantly Christian and are the third largest ethnic group in Nigeria, constituting 15 per cent of Nigeria’s population.[28]

    [28]The DFAT Country Information Report, Nigeria, dated 3 December 2020, page 24, paragraphs 3.7 – 3.8.

20. Through his employment, the applicant domiciled in Anambra state and the Tribunal further finds that the applicant’s risk of the feared persecution is characterised to that state.  This view is supported by the court’s determination in respect to the applicants’ home region or home area that:

    ….. the reference in the cases to “home region” or “home area” (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a “home region” or “home area” is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a “home region” or “home area” of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a “home region” or “home area” are matters of fact.[29]

    [29]SZQEN V MINISTER FOR IMMIGRATION AND CITIZENSHIP [2012] FCA 387, [38].

21. Associated with Igbo nationalism in Nigeria are two prominent secessionist movements, the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB).  MASSOB was founded in 1999, and IPOB in 2012.  Both MASSOB and IPOB support the recreation of an independent state of Biafra and draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo.  The differences between the two groups are unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.[30]    

    [30]The DFAT Country Information Report, Nigeria, dated 3 December 2020, page 30, paragraph 3.48.

22. MASSOB has been accused by the Nigerian government of using violence in its endeavours, resulting in the arrest and charging of MASSOB’s leader in 2005 on treason charges.  In 2017, the Nigerian government deemed IPOB to be a terrorist organisation and mounted a security operation, including raiding the home of IPOB’s leader.  Up to 150 IPOB members were killed during the operation.  While the clampdown by security forces appeared to largely curtail IPOB’s public activities, November 2020 saw a new outbreak of open conflict in the southeast of the country. 

23. In September 2019, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary execution received a large number of allegations of killings of IPOB members by the Nigerian military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings.  The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges.[31]

    [31]The DFAT Country Information Report, Nigeria, dated 3 December 2020, pages 30 – 31, paragraph 3.50.

24. The applicant claimed that in 2011, he became an active member of MASSOB.  He later moved to Port Harcourt for work, and it was there that he joined IPOB’s [Location 1] unit.  This was only a newly established unit of IPOB.  Because of his background and his previous membership with MASSOB, within a short time he became the unit’s co-ordinator and was appointed as its leader for that area.  He engaged in educating people about Biafra and organised peaceful rallies and shared fliers and pamphlets as part of that education strategy.  

25. The applicant described that he attended 2015 Biafra’s Remembrance Day celebrations held in  [Location 2] in Anambra state.  He said that thousands attended, as did a large contingent of the Nigerian security forces including the military and the police.  The security forces disrupted the celebrations and the applicant said that he and about [number] other IPOB members were arrested.  He was held in custody for two days; his hands were tied behind his back and his legs were bound.  He was held in that fixated position for a considerable about of time.  He was from time to time sprayed with a water hose and also questioned about his association and activities with IPOB.  His release from custody came about from the advocating on his behalf of IPOB’s lawyer, [Mr A].     

26. On another occasion, in February 2016 the applicant said that thousands of Biafrans attended a prayer gathering at Aba.  This gathering took place in an open area.  A large contingent of security forces consisting of military and police personnel attended and while the people were praying shots were fired into the crowd by members of the security forces.  People were killed and he and his deputy, [named], tried to flee the area.  He claimed that he was struck with the butt of the rifle by a member of the security forces and injured.  Although the applicant managed to escape, he said that his deputy is still missing. 

27. A number of months after that prayer meeting incident, the applicant travelled to Australia.  It was soon after that he left Nigeria that his mother was visited by the police who were looking for him. 

28. Since arriving in Australia, the applicant has returned twice to Nigeria.  The first trip took place in September 2018, and the second took place in October 2019.  He told the Tribunal that when he arrived in Nigeria on the first occasion he was arrested and taken to the security headquarters where he was held for two days.  His cousin contacted the IPOB lawyer,  [Mr A], who attended the headquarters and argued for his release.  The applicant told the Tribunal that during the two days that he was held in custody, he was handcuffed, blindfolded and stripped of all his clothing except his boxer shorts.  He was constantly questioned about his association with IPOB.  He went onto say that in his wallet was his Australian identification, including his [State 1] drivers licence and [University] identity card.  He thinks that the arrival of the lawyer and the location of those items in his wallet saved him from further torture. 

29. On his second trip to Nigeria, the applicant said that when he arrived at the airport he was detained and questioned by security officers about the self-determination movements of Biafra for about an hour.  He provided the security officers his Australian identification such as his [State 1] drivers licence and university identification.  He said that he was released without further incident. 

30. In support of his claims about the times that he was held in custody as he claimed, he provided a letter from [Mr A].[32]  The contents of that letter refer to the occasions claimed by the applicant that he was held in custody.  In the absence to the contrary, the Tribunal accepts that the letter supports the applicant’s evidence about his detention by the security forces in respect to his association with IPOB.             

    [32]Submissions filed with the Tribunal on 13 October 2022, Annexure 2.

31. His involvement with IPOB appears to have gained momentum over the period of time since he first joined in 2012.  In respect to his continued involvement with IPOB in Australia, he is the  [Position 1] of the [State 1] chapter of IPOB.   

1. The Tribunal accepts that he has significant involvement in the activities of the IPOB in  [State 1], and for those reasons, he has generated a noticeable public political [profile].  Provided by the applicant to the Tribunal were a number of documents, including minutes of meetings held[33] and letters to state and federal politicians.[34]  Particularly probative to the applicant’s claims was the evidence he provided that showed he had organised  [a public venue] for IPOB activities;[35] and he had obtained a [police permit] so that IPOB could carry out a street protest.[36]  The applicant went on to claim that because the Nigerian government has declared IPOB a terrorist organisation, he has a well-founded fear that if he returned to Nigeria he will face the threat of being abducted and being subjected to an extra-judicial government killing. 

   [33]Submissions filed with the Tribunal on 13 October 2022, Annexures 4, 5 and 7.

   [34]Submissions filed with the Tribunal on 13 October 2022, Annexures 11, 12 and 18.

   [35]Submissions filed with the Tribunal on 13 October 2022, Annexure 9.

   [36]Submissions filed with the Tribunal on 13 October 2022, Annexure 13.

   Country information – MASSOB and IPOB in Nigeria

2. In Nigeria’s recent history, 1967 saw a period whereby predominantly Igbo separatists attempted to declare an independent state in eastern Nigeria, known as the Republic of Biafra.  This was the catalyst for the Nigerian Civil War (otherwise known as the Biafran War) from 1967 to 1970.  This war came after coups and countercoups around the central government, followed by a pogrom in which an estimated 10,000 to 30,000 Igbo people were killed in the north, and causing over a million people to flee into the east.  While the exact number is unknown, estimates of the number of civilian deaths caused by the conflict is ranged between two to three million people, mostly due to famine.[37] 

   [37]The DFAT Country Information Report, Nigeria, dated 3 December 2020, page 30, paragraph 3.45.

3. Senior Igbo figures have claimed successive Nigerian governments have subsequently excluded Igbo from senior political, military and civil service positions.  A number of political organisations continue to advocate for an independent Biafran state and have occasionally clashed with security authorities.  Igbo people are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria, however like other non-indigenous communities, those Igbo people residing outside of their traditional homeland may face localised discrimination.[38]  When carefully assessing the evidence in this matter, the Tribunal finds that because the applicant is of the Igbo tribe, he would be subjected to a degree of discrimination within Nigeria.

   [38]The DFAT Country Information Report, Nigeria, dated 3 December 2020, page 24, paragraphs 3.9 – 3.10.

4. The country information in the DFAT report identifies that despite those moves to encourage greater national unity, there has been an ongoing feeling of resentment by the Biafrans at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation.  This has resulted in the noticeable resurgence of calls for a greater self-determination in the form of an independent Biafran state.[39]  As already identified in these reasons, the two most prominent secessionist movements are MASSOB and IPOB.  Those members of MASSOB and IPOB, and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces, whereas the members who hold a higher position face a higher risk of arrest.[40]  In respect to the applicant, the Tribunal finds that the evidence places him within the latter category with regard to the position he holds in IPOB. 

   [39]The DFAT Country Information Report, Nigeria, dated 3 December 2020, page 30, paragraph 3.47.

   [40]The DFAT Country Information Report, Nigeria, dated 3 December 2020, page 30, paragraph 3.52.

5. In September 2017, the Nigerian government proscribed IPOB as a terrorist organisation with the Nigerian security forces arresting hundreds of IPOB supporters at different events, including raids undertaken on homes of IPOB leaders.  IPOB has claimed that the security forces have used excessive force, including killing and injuring hundreds of its supporters and clashes have been reported between IPOB and the authorities during 2018 and 2019, with further clashes and violence occurring between the security forces and IPOB in August 2020.  In November 2020, security forces carried out operations against IPOB in the Oyigbo area of Rivers State resulting in the arrests and deaths of IPOB supporters.[41] 

   [41]United Kingdom Home Office Country Policy and Information Note, Nigeria: Separatist groups in the South-East, United Kingdom Home Office, version 3.0, March 2022, page 10.

6. In 2021, the United States of America Department of State undertook a report into Nigeria’s human rights practices (‘US Department of State report’) and commented that the International Committee of the Red Cross (ICRC) reported that more than 24,000 people were registered as missing in Nigeria, with the majority of those missing coming from the conflict area in the North East. There were reports of disappearances by or on behalf of government authorities; and according to Amnesty International, the whereabouts of at least 50 supporters of IPOB who were arrested in Rivers State between October and November 2020 remained unknown.[42]

   [42] United State of America Department of State, Bureau of Democracy, Human Rights, and Labor 2021 Country Reports on Human Rights Practices: Nigeria, page 5.

7. Further to this, the US Department of State reported that after December 2020, violence has surged in the South East following the IPOB’s launch of its military wing, the Eastern Security Network.  Local media reported 54 violent attacks on civilians and security forces and 222 deaths.  Amnesty International issued a statement alleging security forces including the military, the police, and the Department of State Services killed at least 115 people in Nigeria’s southeast between March and June 2021 as part of security operations against IPOB.[43]

   [43] United State of America Department of State, Bureau of Democracy, Human Rights, and Labor 2021 Country Reports on Human Rights Practices: Nigeria, page 22.

8. When carefully assessing the country information, the Tribunal is satisfied that members of IPOB are at substantial risk of persecution within Nigeria.  The issue for the applicant is whether the evidence he provided satisfies the Tribunal to the requisite standard that he is a member of IPOB, and if so, is there a risk which flows from that should he return to Nigeria.    

9. The Tribunal recognises that where a decision maker finds an applicant to be generally credible, they should be given the benefit of any doubt where they are unable to fully substantiate all of their claims.[44]  Notwithstanding that, when carefully considering the facts, circumstances and the evidence of the applicant’s case, the Tribunal was afforded the opportunity to monitor the applicant’s responses to the Tribunal’s analysis of the evidence, and to gauge the genuineness, or the credit of the responses he provided during the review hearing. 

   [44]SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

10. The Tribunal is conclusively satisfied that when balancing an assessment of the evidence and the credibility of the applicant, the evidence establishes a positive finding that the applicant was a member of IPOB in Nigeria, and more recently, he holds a senior position with that same organisation in Australia. 

    Future risk of harm to the applicant

11. The Tribunal accepts and notes that at the time of the Tribunal’s review hearing, the applicant had acquired a far greater body of evidence to support his claims than to which he presented to support his original application.  The Tribunal acknowledges that when the delegate made the original assessment of the applicant’s application, the benefit of that substantial body of probative evidence was not available to the delegate.   

12. Invariably, and as was in this case, considerable time can pass between when the delegate made the original assessment, and the matter being determined by the Tribunal.  Consequently, it is incumbent upon the Tribunal to hear and decide the applicant’s claims by way of a fresh hearing on the merits of his application as at the date of the review hearing.   In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the delegate relied upon to reach the original decision.[45]  

    [45]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.

13. In the absence of evidence to the contrary, the Tribunal accepts that in 2015, the applicant attended the Biafran Remembrance Day celebrations and was arrested and detained by the Nigerian security forces.  The Tribunal accepts his evidence that he was tortured on that occasion.  The Tribunal also accepts that he attended the Biafra prayer meeting in 2016 and was present when the security forces fired bullets into the crowd killing a number of people.  It is also accepts that he was injured by being struck with a rifle butt by a member of the security forces and he managed to escape. 

14. When carefully assessing the applicant’s evidence in respect to his claim that when he returned to Nigeria in 2018, the Tribunal accepts that he was detained at the airport by the Nigerian security forces and taken to another location where he was tortured about his knowledge of IPOB until he was released two days later.     

15. In so far as his claims of having a public political profile in Australia, the Tribunal accepts that he was formerly a member of MASSOB and IPOB in Nigeria, and since he has relocated to [State 1], he has played an instrumental role in the organisation of IPOB in [State 1], including organising meetings and a street protest. 

16. In respect to the applicant’s oral testimony, the Tribunal found his evidence to be spontaneous and consistent, and it was delivered in a forthright manner.  His evidence supported the claims made, and the documents he relied upon corroborated and validated his claims.  When assessing his evidence and weighing that against the available country information in respect to his fears of persecution should he return to Nigeria, the Tribunal finds that the applicant’s evidence was consistent with that country information, and it shows that his fears of persecution in Nigeria are well-founded; and the Tribunal finds he faces a real chance of serious harm by reason of his actual political opinion should he be required to return to Nigeria now or in the reasonably foreseeable future.

17. The Tribunal is satisfied that if the applicant returns to Nigeria, there is a real chance that because of his association and involvement with IPOB, he will be arrested by the Nigerian authorities and persecuted.  The Tribunal accepts that for the indispensable reasons of the applicant’s involvement with IPOB, there will be a real chance that he will face serious harm if he returns to Nigeria, now or in the reasonably foreseeable future.

18. The Tribunal also accepts that the Nigerian government are perpetrators of the harm feared by the applicant and that effective protection measures are not available to him and that the real chance of serious harm extends throughout Nigeria.

19. For those reasons given above, the Tribunal finds that the applicant meets the definition of a refugee as per the criteria set out in the Act.[46]  

    [46]Migration Act 1958 (Cth), s 36(2)(a).

    Conclusion

20. In conclusion, the Tribunal accepts and finds that there are substantial grounds for finding that, as a necessary and foreseeable consequence of the applicant’s removal to Nigeria, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm by being arrested, imprisoned and tortured. 

21. The Tribunal further finds that the applicant meets the definition of a refugee and the criteria set out in the Act in that he is a person in respect to whom Australia has protection obligations as defined in the Act.[47] 

    [47]Migration Act 1958 (Cth), s 36(2)(a).

    DECISION

22. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act 1958.

    Wayne Pennell
    Senior Member

    
    

    Attachment  -  Extract from Migration Act 1958 (Cth)

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

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

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …