2116198 (Refugee)

2116198 (Refugee) [2024] AATA 4430 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simar Hermis (MARN: 1464902)
CASE NUMBER:  2116198
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Sue Zelinka
DATE:1 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 October 2024 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – father a member of cult – after father’s death, cult tried to recruit/initiate or kill applicant – threatening visits and phone calls – sister’s death soon after reported to police – authenticity of police report – passage of time and no recent contact – physical health condition and availability, quality and expense of treatment – misrepresentations in original visa application – inconsistent and implausible claims and evidence – country information – father’s group the oldest and one of the biggest in the country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nigeria applied for the visa on 7 April 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a refugee as defined by s 5H of the Act.
The applicant appeared before the Tribunal on 23 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [Age]-year-old man of the Yoruba tribe and the Christian faith who stated he was a businessman. He has a wife, two daughters and a son in Ibadan. He gave only one address in Ibadan, Oyo State, from [Year] until departure. Information supplied on his protection visa application (PVA) and the departmental copy of his expired passport indicated that he had travelled to other African countries ([Countries 1-5]), to the Middle East ([Countries 6-8]) and to [Country 9] between 2008 and 2016 before coming to Australia in March 2017. He misrepresented himself as [an occupation] coming to [an occupation] conference in order to enter Australia.
Initial claims
The claim in his PVA is that a cult in Nigeria is trying to initiate him or kill him. He expanded on this claim in an accompanying written statement. The PVA and the accompanying letter, entitled “My Experience”, were submitted in April 2017. In the letter, the applicant recounted the funeral of his father [in] October 2016. Beside family and friends, members of the Sea Lodge turned up. The applicant alleges that this lodge practices occultism and has a wide membership “across notable and influential personalities, politicians, business moguls and youths”. These lodge members announced at the funeral that the applicant’s father had been a member and that they had to perform various rituals prior to the burial. The family objected and the Lodge members “vowed to kill his only daughter and coerce his only son [the applicant] into the group via initiation”. This vow to initiate the applicant worried the applicant as “the group is well-known for possessing strange powers” and this is the harm he fears.
Three weeks after the funeral, the applicant’s sister died and the family reported this to the police, believing that the lodge was involved. In the end, the Sea Lodge was exonerated and the sister declared to have died of natural causes. At one of the applicant’s visits to the police station he ran into a ‘bosom friend’ who was very sympathetic to the applicant’s plight (his fear of initiation). This friend organised funds and helped the applicant to go to Australia.
In August 2017 the applicant submitted a statutory declaration to the Department. He reiterated his fear about ‘the occult group’ named the Sea Lodge. The applicant said he was not aware of his father’s membership with the group until the day of the funeral when a group of five men dressed all in white with other adornments and carrying walking sticks approached the applicant. They told him that they had to perform certain rituals and went into the room where the coffin was. Then they went away.
About a week later, while the applicant was at his father’s house in order to receive any friends or visitors who came, three of the five men turned up and explained that the group’s rule was that the place of the deceased man had to be filled by the first son. The applicant refused and said that his religion (Christianity) did not allow him to do so. The applicant thought “it was common knowledge that groups like that used human beings for sacrifice”. The men were angry and threatening, but left. They returned a few days later and invited him again to join the group – pleasantly at first, but then angrily as he refused again. They left. When they came a third time, the applicant’s sister asked them why they were harassing the applicant; she got angry and lashed out at them. One man reacted by beating the sister with his walking stick. The applicant tried to help and was also hit. The men left. The applicant and his sister then went through their late father’s possessions including breaking open a locked cupboard where they found a walking stick similar to those carried by the men in the group. They burnt it and anything else they felt was associated with their father’s membership of the Lodge.
The applicant’s sister fell ill and died in hospital very shortly after this encounter with the Lodge members. The applicant began to receive phone calls from various members of the group who said the applicant had to join them or they would kill him. Even when he changed his phone number he still got calls. Towards the end of 2016, three Lodge members went to the applicant’s house. He was out but his wife recognised the men from the funeral. They were angry he was not there and left. The applicant’s wife and children went to stay with her family and the applicant moved to a unit. He still did not feel safe and still got phone calls. He felt he had no option but to leave Nigeria. He felt ill and was diagnosed as having Type 1 diabetes and given the correct medication. He continued treatment in Australia.
His claim continues to be that he fears harm at the hands of the cult group and that the police cannot protect him. He has already sought their help and there was no outcome to their investigation.
To the Department
In November 2020 the applicant sent an ‘update’ about general crime and violence in Nigeria and in July 2021 a report from a clinical psychologist that the applicant was anxious and depressed about his uncertain future.
The applicant was interviewed by the Department on 18 June 2021. Apart from the claims about his fears of the cult, he added that he feared he would not be able to access adequate treatment for his diabetes in Nigeria; that he feared the northern Fulani herdsmen whom he has heard are coming southwards and killing people; and that his wife had been kidnapped and he had to pay a ransom.
The delegate questioned the applicant about this last point and the applicant said his wife had been kidnapped ‘two months ago’ (ie. April 2021) and that he paid money for her release. The applicant provided no details of the kidnapping nor any evidence that he had transferred any money to pay the ransom. The Department had access to the financial records of the applicant for the relevant period and did not find any evidence of any large sums being paid out. The applicant also provided conflicting answers as to when he talked to his wife and her whereabouts, and those of his children. The delegate dismissed this additional story as not credible.
The delegate also found the main claim of fear of harm at the hands of a cult not to be credible. The applicant’s more general claims of fear of harm from Fulani herdsmen was not supported by country information with regard to the applicant as a Yoruba man form Oyo State; and fears of generalised harm (including medical treatment and supplies) were not ones where the applicant was personally targeted.
To the Tribunal
Prior to the Tribunal hearing, the applicant made a written submission. He stated that he still fears serious harm even though “it has been over eight years since the passing of my father and the subsequent issues that arose from the Sea Lodge cult”. He said that the risk of harm from this lodge has not reduced in that time even though he does “not have any additional evidence to support that they wish to target me or harm me in recent times”.
The applicant also suggested that he was a member of a particular social group constituted by “Adults with Type 2 diabetes in Nigeria” and has serious concerns about the deterioration of his condition if he returned to Nigeria. The applicant provided a number of pathology reports about his diabetes; he also provided an attestation from his parish priest that he was still a practising Catholic.
At hearing, the Tribunal began by asking him about his father and the cult. It noted that he had referred to it at times as the Sea Lodge but in the police report he provided it was called the Sea Dogs. The applicant confirmed that it was one and the same group and during the hearing it was referred to as Sea Dogs. He said that he and his sister had never known that their father was a member of this lodge until the day of his funeral when some fellow lodge members, dressed in white traditional robes and head dress, arrived. They told the applicant that the lodge rule was that the place of a deceased person in the lodge is filled by the oldest son (the applicant was the only son of his father) and that his father had wanted this. The applicant said that he knew this association was bad. The Tribunal asked him how he knew this, given he was unaware of the lodge or his father’s association with it. He replied that he had seen movies about cults and knew that they had human sacrifices and used human blood in their rituals. He told the men he refused to join the lodge. They threatened him, saying that if he did not join the lodge he would have to be sacrificed. However, they did not give him a definite time by which he had to have joined. They left.
They re-visited him twice, on both occasions asking if he would join. He continued to refuse. They continued to phone him with the same request until he changed his phone number. He and his wife and their two children (at that stage) moved out of their own house and relocated to another suburb, but still within the city of Ibadan. After the applicant and his wife moved out of their original house, and the applicant changed his phone number, the lodge members started to call the wife to ask if her husband was still around. After she told them that he had gone overseas, the calls ceased. The Tribunal asked the applicant is he was still working (he had his own business) in the aftermath of the move but he said he could not think about work. He was traumatised by the thought of the cult and wanted to leave Nigeria. A friend assisted him in this.
The Tribunal asked about the applicant’s wife and children. His wife gave birth to their second daughter (third child) in [Month, Year], less than three months after the applicant left Nigeria. At the time of the hearing, the children are all in school and the wife does not work, receiving remittances from the applicant in Australia. They are still in Ibadan in the house to which they moved (see paragraph 26 above).
The Tribunal asked who was in the father’s house at the time of his death. The applicant said he was not – he and his wife had their own place, but his sister lived with their father. The father also had a second wife (the applicant’s own mother having died) and she was also present in the house at the time of the father’s death. The applicant said that she has now moved and he does not know what has become of his father’s house.
The Tribunal put it to the applicant that eight years is a long time and it did not seem plausible that the lodge would still be trying to fill the place of the deceased with his son, or threatening to kill the son (the applicant). The applicant said that he believed they would keep on as tradition dictates that the deceased’s place must be filled by the son or that he be sacrificed. The Tribunal noted that the lodge members had not contacted him or his family who are still in Ibadan and asked how they would know if he simply returned and rejoined his family. He said that the cult is very powerful and widespread and they would know if he were back. They have members everywhere. There may be members at the airport who would see him arrive; or there may be members in government who would have access to records. The Tribunal said it found this very hard to believe.
The Tribunal asked why he could not go elsewhere if he felt uncomfortable in Ibadan: the Tribunal said it recognised the tribal nature of Nigeria but noted that a sizeable section of the country has a majority of Yoruba speakers and Christians, like the applicant. He replied that his life is not safe anywhere in Nigeria and that the best solution was to move away from it altogether. He requested protection from the cult saying that it would kill him and also noted his diabetes.
The Tribunal asked how he obtained the police report that he had submitted to the Tribunal. He said it was the report he had made following his first interaction with the lodge members and he had kept it at home. When he felt he needed it for his refugee status determination, his wife sent it to him. The Tribunal noted that it was dated 25 October 2016 at the top of the page (on the letterhead of the Commissioner of Police) although the report starts with the words: ‘Today being 22^nd October 2016’. The Tribunal asked if he had informed the police of further developments in the case – the additional visits, the phone calls etc. The applicant said he had kept the police informed. The Tribunal put it to the applicant that it was a very strange police report as it simply tells the applicant to “relocate to a distance where they cannot locate his whereabouts for his dear life”: that is, the Tribunal suggested, tantamount to the police saying they were unable to do anything about threats from the Sea Dogs. The Tribunal also put it to him that it was well-documented in reliable country information such as the DFAT reports that a number of documents from Nigeria were bogus and that this document could well be one such. The applicant did not add more.
The Tribunal put it to the applicant that he had not mentioned his sister during the hearing and the applicant replied that it was because he was not asked about her. The Tribunal put it to him that the onus fell on him to make out his case and he had previously emphasised his sister’s death as indicative of the power of the cult. The Tribunal asked whether the sister was involved with the threats made by the cult. The applicant said she saw the cultists at the funeral and was present when they later came to his late father’s house to tell the applicant he had to be initiated into the cult. He said his sister became angry with the men and started grabbing them, leading in turn to her being hit by one with his walking stick. The applicant also got hit when he tried to separate them. A few days later, his stepmother (the father’s second wife) called him to say his sister was ill. He went over to his father’s house and he and the stepmother took his sister to hospital. She fell into a coma and then died. The Tribunal asked what cause of death was given on the death certificate and the applicant replied that it was maybe a heart attack. After the death of his sister, the applicant received a call from one of the lodge members to say that they were responsible for her death.
The applicant said again that he was worried that if he retuned to Nigeria he would not be able to get the drugs for his diabetes. The Tribunal put it to him that medication for diabetes was available in Nigeria: this had been canvassed at the Departmental interview and written up, with references, in the DIAC decision of which the applicant has a copy. He said that he would not be able to afford expensive drugs, and further more, his anxiety will be high.

The Tribunal put it to him that there was information about cults or confraternities available, for example, in DFAT reports. It referred to the entry in Wikipedia about the Sea Dogs, noting that the Sea Dogs was originally a confraternity founded by the Nobel Prize winner Wole Soyinka when he was at the University of Ibadan in the 1950s. Wikipedia sources this material from Soyinka’s own 2005 book called Interventions lll: Cults – a people in denial. The Tribunal said it found it hard to countenance that a confraternity founded and supported by such an illustrious man and his peers would become a cult offering human sacrifices and rituals involving human blood although the article did also say that ‘some sinister confraternities have been formed to copy the Pyrates confraternity’ (noting that the Sea Dogs is popularly known as the Pyrates Confraternity - sourced from the same Soyinka book). The Tribunal put it to the applicant that the ‘sinister’ side of the copy-cat confraternities appeared to be criminal rather than occult, noting the DFAT report that said “many confraternities/cults have become more violent over time and are now essentially criminal gangs”.[1] The applicant said that the cults cannot tell anyone that they use human blood when administering the oath to join.
[1] DFAT, Country Information Report: Nigeria, 3 December 2020, para. 3.128.
The Tribunal also noted that the applicant had claimed that the Sea Dogs were all over Nigeria and hence he would be at risk anywhere in the country. The Tribunal then put it to the applicant that the Wikipedia article from which it was reading also stated that there were branches in other parts of the world including ‘the United Kingdom, Ireland, South Africa, the Netherlands, Japan, Australia, Canada and the United States’.[2] The Tribunal put it to the applicant that if the cult would be able to find him anywhere in Nigeria if he returned, why hadn’t it found him in Australia any time during the past eight years? The applicant replied that the friend who helped him to escape from Nigeria had told him that Australia was a good place and that he would be safe there.
[2] The source for this statement in the Wikipedia article is given as the Wole Soyinka Lectures at retrieved on 2 August 2015.
The Tribunal summarised the applicant’s claims as being fear of serious harm at the hands of members of the Sea Dogs group of which his father had been a member and the traditions of which allegedly dictated that a deceased person’s place must be filled by the eldest son or by sacrifice of that son. His fears extended to the whole of Nigeria and he did not feel that the police were able to protect him, having previously advised him to relocate to a safe place when told of the Sea Dogs’ threats against the applicant. Furthermore, the applicant feared significant harm because of his diabetes: that he would not be able to afford necessary medication in Nigeria.
Representative’s submission
The applicant agreed with this summation and did not wish to add any further claims. Neither did the representative add further claims, although he spoke to the two as they were currently formulated. He dismissed the idea that the police report was a bogus document because the applicant told the Australian authorities about his visit to the police station at an early stage: he had not recently fabricated this and the police document just before the hearing. He also said that no inference about a lack of credibility could be drawn about the applicant on the basis of his fabrications for his visa: the applicant’s friend in Nigeria who had helped him leave Nigeria was a solicitor and the applicant took the solicitor’s advice (to pose as [an occupation] for the purposes of going to a conference in Australia) as legitimate legal advice. It was not a ruse devised by the applicant: he was simply following what he thought was proper legal advice.
The representative noted the Tribunal’s reference to sinister copies of legitimate associations or confraternities (see paragraph 34 above) and agreed that this is what the applicant must be unwittingly caught up in. He agreed that the risk of harm might not be so ‘fierce’ after eight years but nevertheless there was a real chance that the applicant, in re-establishing himself in Nigeria, would be found over time. With regard to police protection, the representative stated that the police would not involve themselves in certain tribal or cult matters. Therefore the police report proffered by the applicant which advised him to relocate was just a sensible response from the police at the time.
He then addressed the matter of the applicant’s diabetes under Complementary Protection. The Tribunal reminded the representative that there is not taken to be a real risk of significant harm if the real risk is faced by the population generally and is not faced by the applicant personally. The representative said that there was a discriminatory approach by the Nigerian government: it actually chooses not to make treatments available. It is a deliberate step taken by the government.
Analysis, findings and reasons
On the evidence of present and past passports, the Tribunal accepts that the applicant is a national of Nigeria and that Nigeria is the receiving country in this case. It also accepts that the applicant is of the Yoruba tribe and speaks Yoruba as his first language and that he is a Catholic.
The Tribunal did not address the assertion that the applicant’s wife was kidnapped and that he paid a ransom in 2021 which arose before the Departmental interview. It did not seem to be a claim as the applicant did not relate it to harm that he feared. In any case, it was thoroughly dealt with at the primary stage and the delegate reached a conclusion with which the Tribunal concurs – that there was no kidnapping. The kidnapping story was not repeated in writing when the applicant sent a new submission to the Tribunal, nor did he raise it at hearing. The Tribunal said to the applicant at the hearing that it was his responsibility to raise any matters which may assist his case (this was in relation to his previous assertions about his sister) but he did not make any mentions of his wife. Even when he made the initial assertion to the delegate he did not say who was responsible for the alleged kidnapping or how it had any bearing on his particular claims. The Tribunal finds that it was simply an assertion made in 2021 and subsequently dropped. It has no bearing on this case.
Equally, the Tribunal has not dealt with the applicant’s earlier assertion that Fulani herdsmen who come from the north of Nigeria would present a risk to him as a Yoruba man living in Oyo State. Again, it was well covered by the delegate and the Tribunal concurs with what was in the delegate’s decision on the topic. The applicant did not mention it to the Tribunal either beforehand in writing nor at the hearing, even when asked if he had any more to say. His representative did not raise the matter either. The Tribunal notes that it was only ever a general claim – not a risk of harm to him personally – and that country information does not support the general notion that Yorubas in Oyo in the south-west of the country are at risk of harm at the hands of the Fulani herdsmen.
The applicant has consistently put forward two claims: that he faces harm at the hands of a cult for refusing to join it; and that he will suffer harm because of the diabetes with which he was diagnosed in 2017 shortly before departing from Nigeria. These are the claims which the Tribunal will address.
The applicant has claimed that he and his sister found out on the day of his father’s funeral that the latter belonged to a lodge called The Sea Dogs (also referred to by the applicant in writing as The Sea Lodge but which he states is the same organisation). The applicant claims that the lodge members told him it was his duty, and his late father’s wish, that he take the father’s place in the lodge and that if he did not, he would be killed. The applicant’s account varies from telling to telling; the details and the time lines are confused. At no point in any recounting is there any actual evidence except the piece of paper purporting to be a report of a complaint filed by the applicant at the police station on 22 October 2016. If this report was made on that day, it was only three days after the funeral which the applicant put in writing as occurring on 19 October 2016. The funeral was the first occasion on which the applicant and his sister had met the Sea Dogs or known who they were. In the statutory declaration, the applicant said that at the funeral, the lodge members privately conducted some ritual and then went away, not speaking to him about his pre-destined initiation into the group until their second visit. At hearing, the applicant was not as precise: they may have mentioned the initiation on the day of the funeral. However, there was no trouble caused. It seems an over-reaction by the applicant to go to the police at this point (three days after the funeral) to make a report of “A Case of Threat to Life/Occultism” as the police report is headed. The Tribunal does not accept that the applicant went to the police station and made the report which he has submitted. The Tribunal does not accept that this is a genuine police report about a complaint filed by the applicant.
The applicant said in the statutory declaration and at hearing that they visited him twice after the funeral at the deceased father’s home where the sister and the father’s second wife were in residence, and where the applicant was coincidentally visiting on each of the two occasions when the Sea Dogs members called. They came to tell him to join the lodge or face the consequences. At the last visit, the sister got angry with the visitors and lashed out: they retaliated and she was struck with walking stick. The applicant claimed at hearing that his stepmother called him (the stepmother had never been mentioned in any testimony before the hearing) and that they took his sister to hospital where she died three days later; and 22 days after her father’s funeral. The applicant has asserted that this death was due to the lodge (or cult) but there is no evidence for this and he admits that the death certificate said ‘heart attack’ and the police said ‘natural causes’. The Tribunal does not accept that the applicant’s sister’s death was a result of some sinister actions knowingly made by the Sea Dogs members.
The applicant claimed that he made further reports or complaints to the police after further threats delivered in person or by phone and reported his sister’s death. If he was provided a copy of the first report (the one dated 22 or 25 October 2016 and he kept this copy at home for all these years, it is surprising that he did not receive copies of the further reports that the police must have made in response to further information from the applicant. The Tribunal does not accept there is a police file with a number of complaints reported by the applicant.
The Tribunal notes that the applicant has always claimed he immediately rejected the lodge members’ invitation for him to join and when asked why he did this, he said he knew they were bad. This seems implausible to the Tribunal: if he had just found out that his father was a lodge member it seems strange that he should assume that his father was in an evil cult, rather than initially assuming that he was a simply a member of a lodge or confraternity, like millions of other men. Quaint or amusing or even incomprehensible, maybe, in terms of their dress and rituals, but not evil (such as human sacrifices and rituals with human blood). Again, the Tribunal asked where he had got his knowledge of lodges in order to jump to this immediate rejection of the request to join and he said he had seen movies about cults.
The Tribunal notes the prevalence of the information about confraternities in Nigeria – for example, on such ubiquitous forums as Wikipedia. Given the pedigree of the Sea Dogs (see paragraphs 34 and 35 above) and the widespread awareness of Wole Soyinka in Nigeria –especially in Ibadan where he founded the Sea Dogs and which is the home of the applicant and his father – it would be surprising if the applicant had not heard the name of the Sea Dogs. Hence it is more surprising that he immediately believed it was an evil cult and that his father had been a willing member.
The Tribunal accepts the country information that there are rogue associations evolved from or formed along the lines of the confraternities which are simply criminal gangs. If this is the case here, then it is difficult to believe that a gang would go to great lengths to force an unwilling person to join – he would not make a good gang member. If the people who approached the applicant were members of a phony Sea Dogs – a criminal cover-version – and it was such a powerful and widespread organisation as the applicant asserts, then it is implausible that they did not manage to carry out their threats against the applicant while he remained in the same city (Ibadan) albeit in a different house from the time of his father’s death in October 2016 until his departure in March 2017, particularly considering they were able to each either him or his wife by phone.
Whether the legitimate or an illegitimate version of the Sea Dogs, the Tribunal finds it implausible that either group will want him as a member, or alternatively, as a sacrifice, more than eight years after the initial offer was made. It notes that the applicant has claimed three instances of personal contact between himself and the Sea Dogs from the time of the funeral on 19 October 2016: the funeral itself and two subsequent visits each about a week apart. Hence the applicant has not seen the Sea Dogs since early November 2016, although he claimed some subsequent phone calls. Despite claiming to fear for his life, the applicant nevertheless stayed in Ibadan (albeit at a different house) until March 2017. This does not indicate a pressing need on the part of the Sea Dogs to find the applicant.
The Tribunal rejects the claim that the applicant will face serious harm at the hands of the Sea Dogs if he were to return to Nigeria. The Tribunal is of the view that the applicant has invented a story with a view to getting refugee status. The story may have an element of truth – that his father belonged to the legitimate Sea Dogs and that he (the applicant) was offered a place after his father’s death. The Tribunal notes that the Sea Dogs is the oldest confraternity, founded in 1952, and the applicant’s father, being an older man now deceased, may have joined many years ago. It is only in more recent times that these lodges have become more violent and essentially turned into criminal gangs[3]. If this is the case, and the applicant’s father was associated with the Sea Dogs in their original format, then he was not in an evil cult engaged in human sacrifice. The applicant is embroidering the claim of the offer of membership with the addition of the claim that the alternative to joining is sacrifice. In this case, the Tribunal is not satisfied that there is a real chance that serious harm will befall the applicant at the hands of the Sea Dogs members for any reason associated with membership of the Sea Dogs.
[3] DFAT, op.cit., para. 3.128 and 3.131
Alternately, the entire story may be fabricated using elements of claims about cults well-known to Nigerians and to others interested in Nigeria, perhaps disseminated through films which is where the applicant said he learned his information about cults. DFAT indicates there is widespread awareness of cults particularly in the south of Nigeria where several states have implemented anti-cultism laws.[4] The Tribunal notes that the fact that there are laws against cults indicates that the authorities recognise the problem and have put into place mechanisms to deal with it. This contradicts the applicant’s view that police will not get involved in any complaints that involve cults. It stands to reason that if the applicant has fabricated his story about being offered initiation or sacrifice, then there is no real chance that serious harm will befall him.
[4] DFAT, op.cit. para. 3.132.
On all the information before it, the Tribunal is not satisfied that there is a real chance of serious harm befalling the applicant in the reasonably foreseeable future for reason of his alleged familial association with the Sea Dogs. Even if there was any chance of harm – and the Tribunal is satisfied that there is no real chance of serious harm – such harm would be for retribution or punishment for not adhering to club rules. This is not one of the reasons set out in s 5J(1)(a) of the Act.
With regard to the applicant’s diabetes, the Tribunal notes his own evidence that he was diagnosed with diabetes in Nigeria and given the correct medication. There is no evidence before the Tribunal that indicates that he will not be able to continue to access monitoring for his condition nor that he will be unable to continue to obtain medication. The Tribunal accepts that the Nigerian health system is not as comprehensive and modern as the Australian one, but there is nothing before the Tribunal that indicates it is deteriorating. If the applicant was able to get a diagnosis, treatment and medication in 2017, there is nothing before the Tribunal to indicate that he will not be able to obtain ongoing monitoring and medication in the reasonably foreseeable future. As noted, the general standard of healthcare in Nigeria may not be as good as it is in Australia, but there is nothing before the Tribunal that indicates that the applicant will be targeted for discriminatory treatment or denied access to whatever is generally available. The Tribunal does not accept the applicant’s construction of a particular social group constituted by ‘Adults with Type 2 Diabetes in Nigeria’. In the Tribunal’s view, this is not a group with innate or immutable characteristics seeing that diabetes is not an inborn characteristic nor one that is unchangeable.
The applicant also mentioned the expense of the medication. Again the Tribunal notes that he was able to purchase it when in Nigeria, even though by that stage – early 2017 – he said he was too anxious to run his business. The Tribunal notes that he was a self-employed businessman for many years in Nigeria, and judging from his travel record (see paragraph 12 above) was clearly successful enough to afford such travel. He has been able to work and remit sufficient funds to keep his family while in Australia. The Tribunal is of the view that the applicant will be able to work and not suffer significant economic hardship that would threaten his capacity to exist. As a Nigerian citizen, the applicant will not be denied access to basic services.
On the totality of evidence before the Tribunal, it is not satisfied that there is a real chance that serious harm will befall the applicant for any of the reasons set out in s 5J(1)(a) or for any other. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution and it follows that it is not satisfied that he meets the definition of refugee in s 5H(1).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion. For the same reasons as set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. Therefore the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm.

The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).]
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sue Zelinka
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.
…

[2024] AATA 4430

1 October 2024

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Immigration

Statutory Interpretation

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Procedural Fairness

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