2212561 (Refugee)

2212561 (Refugee) [2024] AATA 4317 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Isaiah Okorie (MARN: 1793819)
CASE NUMBER: 2212561

COUNTRY OF REFERENCE: Nigeria
MEMBER:Rosa Gagliardi
DATE:5 August 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 05 August 2024 at 2:56pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – race – Igbo – political opinion – Indigenous People of Biafra (IPOB) activist – support for self-determination – military attack on village – physical assault – fear of killing – political activities in Australia – Economic Community of Western African States – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 8 August 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Nigeria (a matter the Tribunal accepts) applied for the visas on 4 November 2021.
The delegate refused to grant the visas on the basis of credibility concerns which led him/her to find that that Australia did not owe protection obligations to the applicants as outlined in s.36(2) of the Act.
The first-named visa applicant appeared before the Tribunal on 27 June 2024 to give evidence and present arguments.
The applicants were 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 applicants have a well-founded fear of persecution for reasons set out in s.5J of the Act, and there is a real chance that if the applicants returned to Nigeria now or in the reasonably foreseeable future, they would be persecuted for one of those reasons and whether they would suffer serious harm. Alternatively, the Tribunal must assess whether the applicants meet the complementary protection criteria.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
NB: The Tribunal uses the terms applicant and first-named visa applicant interchangeably for ease of reference.
Claims at the time of application
The first-named visa applicant in his application wrote that he had left Nigeria because of threats from the authorities and because he was under scrutiny of the Nigerian secret internal security agencies because of his association with the revival of the movement for the restoration of self-determination for the Indigenous People of Biafra (IPOB). The applicant wrote that even though his wife had worked for [Public Agency 1], he still faced threats to his life from the Nigerian security forces, particularly the Department of State Services (DSS). Further, he wrote:
When the Indigenous communities of south easter(n) Nigeria established a new movement for self-determination called the Indigenous People of Biafra (IPOB) in 2012, state harassment, intimidation and persecution against me intensified. To stay out of trouble and be safe from the clutches of Nigeria’s brutal forces of state oppression, I started to spend long periods of time overseas during my business trips. However, this could not guarantee my security.
In August 2016, our village was attacked and burnt to the ground by the Nigerian military who stated that they were on the hunt for separatists in my hometown. When the Nigerian military left my village scores of innocent Biafran were left dead or badly injured. In 2018, I was summoned by officers from the Nigerian Domestic Intelligence called the Department of State Service (DSS). The DSS interrogated me about my family’s insolvent (spelling -involvement??) with the rapidly expanding Indigenous Peoples of Biafra movement that is advocating for the right to self-determination.
Despite telling DSS that my connection with Biafra issue was historical and mostly through my father’s role in the first pro self-determination movement for Biafran people in the 1960s and 70s, they insisted that I was a key supporter and financier of IPOB. They beat me up and threaten to break my right arm into tiny pieces so that it looks the same to the one that was injured during the Biafra civil war. They also forced me to withdraw 2 million Naira and give it to them before they set me free with a warning that they were watching all my moves. When threats to my life by the Nigerian Government increased, I left the country [in] November 2019 and came to Australia to join my wife and kids. My wife was working [in Australia], and I came as her spouse.
The applicant advanced that he had experienced harm in his country as:
I have been under scrutiny by the Nigerian government regarding our association with the revival of the movement for the restoration of self-determination to the Indigenous People of Biafra. Although my wife’s work with [Public Agency 1] with the Nigerian government, I still faced harassment and persecution by the Nigerian Government.
[The applicant here repeated much of what he wrote in terms of his explanation as to why he left Nigeria].
The applicant wrote that he did not seek help in Nigeria because:
I feared approaching the same security forces that are persecuting me and members of my Igbo community. I feared that if I tried to report the threats to my life to the authorities, I would be placing myself and my family even greater danger. Nigerian security forces are brutal. Do not adhere to the rule of law and human rights. They operate with impunity and with no regard for human rights. They security forces and government officials are also very corrupt.
The applicant stated he had not tried to move to another part of the country to seek safety as:
Although Nigeria is on paper a civilian government, the military and secret agencies still run the country. For most of its existence, Nigeria has been run by the military and still have a huge influence on how the country is run. Nigeria’s 36 states created by the military and as a result makes it difficult to hide on any other parts of the country. Furthermore, Nigeria’s ethnic-based and religious-based politics particularly the division between North and Christian South makes moving to other parts of the country to hide from the authorities very difficult.
Asked to explain what the applicant thought would happen to him if he returned to Nigeria, the applicant stated:
If I return to Nigeria, I fear that I would be killed by the Nigerian security agents from the Nigerian military secret intelligence and undercover agents from the Department of State Services that are ruthlessly implementing the policy of using the Islam dominated military to subjugate Christian communities in the south of Nigeria particularly people from his Igbo community.
He stated that he thought he would be harmed on return to Nigeria since:
Nigerian authorities regard me a Biafran secessionist, I fear I would be harmed if I go back to Nigeria. I fear that I would be abducted, tortured, and killed by the Nigerian state security agents. I fear that if I return to Nigeria, I could become a victim of enforced disappearance. The organisation that I fear would harm me and my wife include (sic) the Department of State Security (DSS).
The applicant confirmed that he did not think the Nigerian authorities would protect him because they were perpetrating heinous human rights abuses and massacres against members of his Igbo ethnic community.
He stated he could not relocate to other parts of Nigeria because the country is a military state with a veneer of a civilian authority. The military has an iron grip on most parts of the country with the exception of the Sambisa Forest region in the north that is controlled by Boko Haram and the Islamic State of West Africa.
In a supporting statement the applicant wrote that he was [age] years of age when the civil war in Biafra started. The schools were closed, and children were told to stay at home. As the fighting with the Nigerian air force and other units became fierce, the applicant’s father took the family to stay at his [business 1] where many injured civilians and injured Biafran army, including senior officials of the Biafran government, went to stay because they believed at least there they would be protected by Biafran forces.
Even though the applicant was only [age] years of age he recounts that he can recall the day he was aware that the Nigerian Federal Forces had captured Enugu, his home area. The applicant’s father’s [business 1] was targeted by a barrage of artillery by the Nigerian army and was bombed by the air force. He was flung through the air by the immense force of explosions and landed [hard]. The applicant recounts that he was in deep pain and covered in a pool of blood. He could not move his limbs. People were running in different directions, but no one could hear his cries for help because his voice was drowned by others also crying out in agony. The applicant does not know who rescued him as he was unconscious, but he found himself in a [Hospital]. He spent weeks at that hospital recovering and hoping to see someone he knew but saw no one. Afterwards he was discharged and taken to [a named] Church in Enugu where they were running shelter for lost and abandoned children.
The applicant stayed at the Church until the end of the civil war and finally he was reunited with his mother and siblings. In terms of his father, no one seemed to know his whereabouts, but the applicant later learnt that his father was in exile in [Country 1] with [people from] the Biafran self-determination movement. His father was later pardoned in [year] after promising not to get involved in politics or to revive the Biafran self-determination movement. While his [business 1] had been destroyed his father started a business and stayed out of politics until he died.
The applicant continued his father’s legacy and supported [projects] for youths of Biafra, but the government began to be heavy handed against the Indigenous people of Biafra, in particular the Igno ethnic group and those suspected to be supportive of self-determination of the Biafran community. The government drew up a list of prominent Biafran businesses and community leaders accusing them of being separatists. The applicant was shocked to learn his name was on that list because of his father’s overt support for the separatist movement that led to the 1967 Biafra war.
When the Indigenous communities of south-eastern Nigeria established the new movement for self-determination called the Indigenous People of Biafra (IPOB) in 2012, harassment and persecution re-started.
In August 2016 the applicant’s village was burned and attacked by the Nigerian military and the applicant as a result of his [business] spent periods away to avoid the notice of the government.
According to the applicant’s statement in 2018 the applicant was summonsed by the DSS interrogating him about his involvement in the expanding IPOB movement. The applicant continued to argue that his involvement in Biafra was historical only (through his father), but they accused him of being a key support and financier of IPOB. They beat him and threatened to break his arm so that it would look like the one injured as a child during the Biafran war.
When the threats to his life increased the applicant departed Nigeria. The applicant fears being killed because of the intensification of the targeting of those perceived as supporters of self-determination due to the establishment of the Eastern Security Network (a pro-self-determination group) which is militant.
In a statutory declaration dated 14 July 2022, the applicant explained that his father was an Igbo [leader] from the [Clan 1] in [Town 1] in present day Enugu state, Nigeria.
The applicant also explained that 2018 was not the only instance of being questioned and detained and that his former “migration agent” had not captured his claims in their entirety.
For example, the applicant claims he was:
·Questioned twice in 2012 (January and February)
·Questioned twice in 2015 (January and November)
·Questioned twice and slapped in 2016 (March and November)
·Questioned once in August 2017
·Detained beaten and tortured in custody twice in 2018. First in April for 24 hours and in November 2018 for [number] days, which was the longest time spent in DSS custody.
The applicant also gave specific information about each of these instances of detention.
Evidence at Tribunal hearing
The applicant at hearing appeared to be in much pain and the Tribunal considered that in the interests of his comfort, exchange of information should be in writing, although the applicant did give persuasive evidence at hearing despite his pain.
The evidence given largely mirrored that provided by the applicant to the Department. The Tribunal raised the issue of his wife working for a government agency and why his wife would not have been directly targeted given his profile. The applicant stated that his wife worked in a low position as [an occupation 1] who would not be perceived as a threat to the state, and in any event was no longer working and was forced to take early retirement without a pension.
The Tribunal expressed surprise at hearing that the applicant in view of the harms he claims he suffered had not sought psychological assistance. The migration agent stated that neither the applicant nor his wife are working and it was difficult to access such assistance for the applicant. The Tribunal noted that it would have been helpful to have the benefit of an expert opinion to make an assessment about how the claimed trauma had affected the applicant. After the hearing the applicant has sent, through his migration agent, a copy of an appointment with a psychologist to have been held in November 2024. In view of the credible evidence submitted more recently, the Tribunal no longer requires such a report although obviously it is open to the applicant to seek assistance if can afford to do so.
At hearing the Tribunal highlighted that there were gaps in the evidence, which were the applicant able to obtain, would strengthen his claims. This information included whether his spouse was receiving a pension from the state of Nigeria as if she continued to do so it would undermine the applicant’s claims that the pension had been suspended due to the applicant’s political beliefs. The Tribunal also noted that the medical evidence submitted was general and did not point to any causation of the evident difficulties in mobility and chronic pain the applicant was managing.
The applicant was granted a month to provide all relevant supporting documentation which the Tribunal considered was crucial and which unfortunately delayed the finalisation of this matter.
·Submission by the applicant’s current migration agent stating, among other things, that the reason for the delay in lodging a protection visa after the applicant arrived in Australia, was due to the COVID lockdowns and because he was debilitated and unable to seek appropriate advice.
·Extensive country information on the plight of those perceived to be Biafran separatists at the hands of the Nigerian government.
·Evidence of the applicant having made regular payments to [Community Organisation 1] in Australia.
·Communication between the applicant and other Biafrans in Australia.
·Evidence of the applicant listening to Radio Biafra April 2021.
·Evidence of the establishment of a Biafran television station in Australia.
·Evidence of the applicant being invited to Biafra meetings via skype in Australia.
·Letter from the [Official 1] of [Community Organisation 1], dated [in] November 2021 stating, the applicant is a Biafra member and part of the leadership of [this organisation] in [Australia]. They confirm that the applicant is the community’s [position] who has demonstrated absolute consistency in championing the Biafra freedom case through a non-violent approach. The letter reflects that IPOB members in Nigeria are persecuted and killed almost daily. The letter also emphasises that even being a member in Australia of [Community Organisation 1] maximises the risk that the applicant will be tortured and assassinated in Nigeria.
·Evidence of the applicant’s spouse’s pension card which is not a debit or credit card – simply a membership card.
·Evidence of the applicant’s spouse (the second-named vias applicant) no longer receiving a pension as punishment for the applicant’s Biafra activities.
·Letter from [Agency 2], signed by a medical practitioner, Nigeria dated 30 July 2024 who states the applicant had been his patient in Abuja prior to the doctor moving to another clinic. The doctor states he treated the applicant at an Abuja hospital fully on two occasions in 2016 and 2018 and partially in late 2018, due to injuries he purportedly sustained while in detention:
On the first occasion, [the applicant] sustained bruises and a sprain [specified] in a bid to escape when the army invaded his hometown of [Town 1] in November 2016. He was first treated by a community nurse…and only a few days later did he visit City Hospital xxx facility due to the terrible pains he was feeling.
We discovered he had a [specified injuries] and out of the bruises he sustained were oozing pus. He was admitted and treated for a few days before being discharged.
The second occasion we treated [the applicant] was in April 2018. [the applicant] presented with [specified injuries]. We were informed he had been tortured during detention. [The applicant] was having difficulties [specified], he was also quite nervous and often incoherent, repeating that he needs to be discharged as some people were after him. He presented with an [symptoms], particularly in his lower extremities. We managed [the applicant’s] condition for a few days and he was discharged. The final occasion we treated [the applicant] was for a few hours [in] November 2018. [The applicant] presented with [further symptoms]. We commenced treatment but before I as the doctor in charge of his treatment could show up the next day, [the applicant] was gone.
I was told he insisted he did not want to spend the night at the hospital and had left despite all attempts to convince him otherwise.
[The applicant’s] ordeals have left him carrying pain and injuries some of which in my opinion are long term.
·Letter from [name], the [manager of] [Law Firm 1] (on letterhead) who were the solicitors (Abuja) to the applicant, “during the time of his ordeal in the hands of the Department of State Security in Nigeria:
Nigeria is made up of mainly three ethnic groups namely the Hausa/Fulani, the Yorubas and the Igbos. These groups are situate to the North, the South West and the South East respectively. The Igbos who occupy the South East are known as Biafrans.
It is universal knowledge that the Igbos went to war against the rest of Nigeria between 1967 and 1970. This war known in world history as the Biafran war led to the killing of about five million Igbos…
Our client was interrogated by the DSS about six times between 2012 and 2018. These “interrogations” lasted between a day and five days as the case may be. It should be explained that these “interrogations” are accompanied by physical, emotional and psychological tortures.
These interrogations centered primarily on his activities as a member of IPOB. It is noteworthy that neither the relevant authorities nor the DSS at any time charged our client to Court, rather they were more interested in breaking him so as cause him to denounce and renounce IPOB and reveal to them the modus operandi of the groups and its leaders. They therefore resorted to blackmail, indiscriminate arrests, arbitrary detentions and torture. Indeed they tried and were at the verge of falsely framing him for crimes he did not commit when we “arranged” his bail and eventual escape from Nigeria.
I would like to add that I am personally relieved he left the shores of Nigeria as his life was endangered. I am aware that he developed some dangerous and life threatening health conditions as a result of his experiences in the hands of the DSS. I am not praying he comes back soon. He will face persecution and endanger his life if he does.
While hoping that his application will be granted, may I assure you that we are willing and ready to assist your office in any way possible and within our power as far as this case is concerned.
FINDINGS AND REASONS

In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must at first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant’s credibility
The applicant at time of application referred to having a “migration agent” and that his claims were not reflected as fulsomely as the applicant would have liked. The delegate had concerns that the applicant was being untruthful about ever having had a migration agent as he had never provided the details of one, and considered this matter went to the applicant’s credibility.
It is an unfortunate fact that persons who purport to be able to help applicants will write claims in an application which do not accurately reflect an applicant’s circumstances, and possibly for a fee. A person who wishes to remain in Australia whether their claims are genuine or not is vulnerable to suggestion, manipulation and promises of a migration outcome. The Tribunal does not consider, however, that such misrepresentations should be visited upon an applicant. The applicant simply asked someone (who may have been misrepresenting themselves as a lawyer) for assistance, but the applicant should not be held accountable for the quality or lack thereof of such assistance provided. In the case of the applicant whose application the Tribunal is currently reviewing, the Tribunal does not place adverse weight on the fact the applicant’s claims were not fully and convincingly set out at the time of application and the Tribunal does not make an adverse credibility finding on the fact that the applicant claimed to have a migration agent, given it accepts that the applicant genuinely believed at the time of application, he had engaged the services of someone who was qualified to help him.
In terms of the delay in lodging the application, the Tribunal is also prepared to accept that on arrival in Australia the applicant was confronted with debilitating illness because of his injuries, and that with the spread of COVID 19 and subsequent lock downs, the applicant would have been classed as a vulnerable person in terms of accessing resources to assist him. The lock downs impeded his ability to seek assistance even further.
Having had regard to the information submitted by the applicant which the Tribunal finds convincing, the Tribunal accepts he has been harmed in Nigeria in the past as claimed. The Tribunal has placed significant weight on his lawyer’s statement as well as that of his doctor in Nigeria who had both had contemporaneous dealings as professionals with the applicant. It is evident also that the applicant in Australia has been a longstanding and active member of the Australian Biafran community and is considered to be a genuine one by the Biafran diaspora here. The Tribunal also places significant weight as probative evidence on this letter by the applicant’s community.
The Tribunal notes that the Department held concerns that the applicant’s wife was working [with a] Nigerian [public agency] and it was considered that had the applicant been of real interest to the authorities, they would not have permitted the applicant to work with an arm of the government.
The Tribunal considers it judicious in assuming that because the applicant’s wife (the second named visa applicant) worked for the [public agency] in Nigeria, that the applicant’s claims should be dismissed; the assumption being that the applicant’s wife would have been in the direct line of fire from the authorities also. At hearing the applicant explained that his wife had to take early retirement and provided credible evidence that she does not receive a pension as a result of the applicant’s past in Nigeria.
Furthermore, the applicant emphasised that it was his father’s lineage that meant that he was specifically targeted and his family’s history that placed him at risk. Furthermore, the applicant’s wife was not working in a [leadership] position or in a position where she had influence in terms of administering government policy, or that she presented as a threat in anyway to the government. She was merely undertaking [occupation 1] duties.
While the applicant’s wife’s occupation did initially present an obstacle in terms of the applicant’s credibility, the Tribunal considers that in light of the preponderance of evidence submitted to the Tribunal, any concerns held are outweighed by the evidence that points to the applicant having been perceived as a separatist in Nigeria and who would continue to be seen as such in the future.
The Tribunal therefore accepts:
·The applicant is of Igbo ethnicity and of the Christian religion.
·The applicant’s father was an Igbo [leader] in his local area.
·The applicant’s father had a profile as an active participant in Biafra serving at some point as [details deleted] when war broke out.
·His father [had a business 1 and] had harboured Biafran senior officials as well Biafran soldiers.
·The applicant was injured during the time of the Biafran war between 1967 – 1970.
·The applicant’s house was burnt down by the military in 2016 and much probative evidence of the applicant’s father’s involvement in the Biafran movement was destroyed.
·The applicant’s name is on a list because of his father’s involvement in the establishment of IPOB.
·Because of the applicant’s father’s profile and his legacy, the applicant continued to be of interest to the Nigerian authorities and was threatened, interrogated, detained, and tortured even though he was not an actual political figure and had a minor profile as a Biafran over the years. The applicant was also forced to pay money to a government agency to avoid further persecution.
·The applicant will be recognised as a Biafran activists on return to Nigeria on account of his activities in Australia which the Tribunal finds have not been engaged in for the purposes of strengthening his claims to be a refugee (s.5J(6)).
Country information and the real chance test
The persecution test is, however, future-focussed and the Tribunal is required to make an assessment about whether there is a real chance that in the future the applicant would suffer serious harm on account of his political profile. The country information corroborating the degree to which the government considers the peaceful movement as a national security threat, is plentiful.
There are many historical references to the Biafran war which affected the applicant and his family between 1967 and 1970. After the war the Biafran cause became marginalised, however, as there were other potent threats to Nigeria’s unity that emerged in the aftermath such as the oil crisis in the oil-producing Niger Delta region.[1] The two largest neo-Biafran organizations are the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) and IPOB. MASSOB organised support for Biafran war veterans, alongside strikes and protests but was avowedly peaceful.[2] IPOB was founded in 2012 and its leaders took a more combative tone.[3] While these and other smaller organisations have changed over time, they converge around two central objectives: protecting Igbos and securing political independence for eastern Nigeria.[4]
[1] ‘Unfinished Business: Biafran Activism in Nigeria Today’, 7 April 2021, Georgetown Journal of International Affairs, Unfinished Business: Biafran Activism in Nigeria Today - Georgetown Journal of International Affairs,
[2] Ibid.
[3] ibid.
[4] Ibid.
The Human Rights Watch World Report 2022 for Nigeria notes the worsening divisions and tensions in the country, to which the authorities sometimes responded with excessive force. IPOB leader Nnamdi Kanu was arrested abroad and brought to trial in Nigeria for charges including treason and terrorism.[5] The authorities have not revealed where and how he was arrested, amid questions about the legitimacy of his arrest, as his representatives claimed he was abducted in Kenya. Kanu was previously arrested and charged in 2015 and fled the country in 2017 after he was released on bail.[6]
[5] ‘Nigeria Events of 2021’, World Report 2022, World Report 2022: Nigeria | Human Rights Watch (hrw.org).
[6] Ibid.
In 2017 the Nigerian government became so concerned about IPOB and its aim that it was proscribed as a terrorist organisation in 2017, leading to extra-judicial killings of its members by the Nigerian security forces.[7] The author of the article cited states that the military engagement under the pretence of counter-terrorism operations, has resulted in the destruction and killings of innocent citizens who believe in the principle of self-determination.[8]
[7]
[8] Ibid.
A state high court sitting in Enugu has nullified the 2017 proscription of IPOB as a terrorist organisation as it was considered a violation of human rights in 2023.[9]
[9] ‘Court nullifies declaration of IPOB as terrorist group, awards N8bn damages to Namdi Kanu’, the Cable, Ayodele Oluwafemi, 26 October 2023, Court nullifies declaration of IPOB as terrorist group, awards N8bn damages to Nnamdi Kanu | TheCable.
The forment created by marginalisation of the Igbo people by the Nigerian government led to the new phase of a Biafran secessionist movement:
Some of the cases of Nigeria’s repressive character against separatists manifested in 2017. The Indigenous People of Biafra (IPOB) was proscribed using the existing provisions of the anti-terror law. Unlike Boko Haram, which engages in jihadist terrorism, IPOB separatist movement is based on long-overdue genuine grievances, particularly regarding marginalization and discrimination, they claim to have suffered after the Nigerian Civil War. Such a genuine and nonviolent mission was framed as terrorism by the Nigerian state through Terrorism Prevention Act. The proscription and labeling of IPOB, have since generated both local and international condemnation. This is because the activities of IPOB have been peaceful in the past since its inauguration by Nnamdi Kanu.
It is crucial to explain why an informal security outfit was created by the IPOB. The rationale for creating ESN can be considered. First, the human rights abuses and extra-judicial killings of IPOB members by Nigerian security operatives triggered the formation of the armed wing of the IPOB. For instance, in January 2013, fifty dead bodies suspected to be neo-Biafra secessionists were found in the Ezu River in Anambra state. According to Amnesty International, there were cases of the shooting of unarmed IPOB members and supporters by the Nigerian military forces, which resulted in the deaths of many people. Moreover, in 2016, during the Biafra Commemoration Day, which marked the 49th anniversary of the Biafra declaration that led to the Nigeria-Biafra Civil War, Nigeria’s military shot several people in various locations, including Onitsha, Nkpor, and Asaba. Amnesty International asserted that Nigerian security operatives had engaged in unlawful arrests, abductions, illegal detentions, harassment, disappearances, and torture of pro-Biafra separatist members and their supporters. These human rights abuses often resulted in peace demonstrations, protests, and rallies. These human rights abuses reached a tipping point when they could not be contained by the IPOB.
Second, the invasion and killings of farmers in the Biafran region by the Fulani militants further reinforced the urgent formation of the armed wing of the IPOB. It is believed that such an armed group would be able to confront the excesses of Fulani herdsmen militants who have been terrorizing the farmers in the area. The Fulani herders have been alleged to perpetrate heinous crimes, including indiscriminate killings and raping women, particularly in the remote villages. It is crucial to note that when a state fails to guarantee the security of the lives and properties of its citizens, the emergence of non-state actors is conceivable. On this, the IPOB leader Nnamdi Kanu stressed that:
For years, our mothers have not been able to go to the farms. Our daughters are being raped and cut into pieces. Everybody is aware of what transpired at Nimbo, at Ozokwani, and what’s happening right now in Delta, what is happening in Ebonyi State and what’s happening in some parts of Abia. We cannot allow it to continue. This present generation of IPOB won’t tolerate it; we will rather die than to allow the ‘janjaweed’ terrorists take over our lands.[10]
[10]
With the removal of President Buhari’s presidency, President Tinubu’s resolve to stop the escalating violence against the IPOB by security forces is yet untested creating further social and economic insecurity.[11] In terms of the legacy of President Buhari:
The Hausa-Fulani Muslim strongman is currently orchestrating genocide as defined by the Genocide Convention against Nigeria’s 50 million Igbo people because of their ethnicity and unwavering devotion to Christianity. Buhari’s genocide marks the culmination of a long train of Biafran subjugation by radical Hausa-Fulani Islamic terrorists…
…

During the past few years in northern Nigeria, Hausa-Fulani terrorists have destroyed thousands of churches and religious schools and displaced millions of Christian Biafrans…
Hundreds of innocent civilians have died and more have been injured or terrorized by Nigeria’s military acting under Buhari’s direction in the last week alone.[12]
[11] ‘Can dialogue resolve Nigeria’s ‘IPOB Proflem’, Mimi Mefo Takambou, 14 July 2023, DW, Can dialogue resolve Nigeria's 'IPOB problem'? – DW – 07/14/2023.
[12] Washington Times, UN lends megaphone to Nigerian Genocide, 20 September 2017, U.N. Lends Megaphone To Nigerian Genocide - Washington Times - Politics - Nigeria (nairaland.com).
The information available shows that Tinubu is of the Yoruba ethnic group and a Muslim.[13] However, he has made promising statements and gestures in terms of reconciliation with Christians, calling for unity and compassion.[14] While the future is uncertain in terms of targeted attacks against the Igbo and IPOB in particular, the Tribunal notes that the applicant is now together with his profile as a Christian Igbo who has a family tradition involving IPOB, is also a significantly physically and possibly emotionally debilitated man. As an older person returning to Nigeria, it is not fanciful that the applicant would experience significant economic hardship that threatens the applicant’s and his wife’s capacity to subsist and that diminished access to the specialised services he needs, would mean that denial of access to basic services would entrench his and his wife’s capacity to subsist (s.5J(5)).
[13] Bola Tinubu, Britannica, 4 August 2024, Bola Tinubu | Biography, Wife, Chicago, & Facts | Britannica.
[14] ‘Easter: Nigeria’ll overcome its challenges, says Tinubu, 29 March 2024, Easter: Nigeria’ll overcome its challenges, says Tinubu (punchng.com).
The Tribunal is satisfied that relocation within Nigeria because of the applicant’s characteristics would be unreasonable and not practicable.
The Tribunal also accepts that the applicant’s wife (the second-named visa applicant) has a well-founded fear of persecution on account of being the spouse of a Biafran supporter who has been detained and tortured and who herself was forced to take early retirement.
Having had regard to the information before it the Tribunal finds there is a real chance that both applicants will face serious harm on return to Nigeria on account of the first-named applicant’s dealings with the Nigerian government due to his ethnicity and imputed political and actual political opinion, given the first-named visa applicant. This is particularly so as the applicant has lifted his profile even further since coming to Australia (but not for the purposes of strengthening his claims).
The Tribunal finds that there is a real chance that the applicant’s spouse would also suffer the same fate and not just because she is a member of the first-named applicant’s family. She in her own right has been deprived a pension in Nigeria after many years of working in the public sector and would also face serious harm in that it is not fanciful that as someone who is no longer working at her age, would experience significant economic hardship that threatens her’s and the first-named visa applicant’s capacity to subsist.
s.36(3) of the Act – do the applicants have the right to enter and reside in a third country
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Nigeria is a member of the European Community of Western African States (ECOWAS) established in 1975 to promote regional economic integration and comprises 15 member countries in Africa.[15] The ECOWAS treaties and protocols guarantees, theoretically, right of free movement and residency between these countries for member countries. Persons have the right to work and reside in other ECOWAS countries for 90 days provided they have valid travel documents, an international health certificate and are not inadmissible, although Benin, Burkina Faso, Cote d’Ivoire, The Gambia and Nigeria are the only member states that grant a specific residence permit to ECOWAS citizens. These countries have ratified: the Supplementary Protocol relating to the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment; the Supplementary Protocol relating to the second phase (Right of Residence); the Supplementary Protocol relating to amending and complementing the provisions of Article 7 of the Protocol on the Free Movement Rights of Residence and Establishment; and the Supplementary Protocol relating to the Implementation of the third phase (Right to Establishment).[16]
[15] Economic Community of West African States (ECOWAS), Office of the United States Trade Representative, Economic Community of West African States (ECOWAS) | United States Trade Representative (ustr.gov).
[16] Australian Government Department of Foreign Affairs and Trade (DFAT) Thematic Report – Economic Community of West African States. December 2020,

Implementation overall has raised its challenges however at the practical level. DFAT for example has identified that a key challenge is inconsistency between ECOWAS Protocols and national laws and policies and that full freedom of movement and rights to reside are limited by independent laws and restrictions, administrative harassment and extortion.[17]
[17] Ibid.
The Tribunal has had regard to a decision by a fellow member (Decision: 2015540) who has taken considerable care to research the effects and consequences of ECOWAS, which refers to reports arguing that until States agree to restrict determinations of admissibility of the ECOWAS recommended groups of public order, public health and public security, the entitlements of the protocols are undermined by States’ recourse to overly broad or arbitrary inadmissibility.[18] As the decision-maker in Decision 2015540 has pointed out, the courts have found that a right under s.36(3) must be presently existing and not a potential right.[19]
[18] Decision 2015540, 17 March 2021, Member Jane Marquard, Nigeria.
[19] Ibid.
Even if the Tribunal had no reservations that the applicant could avail himself of protection via ECOWAS (and the Tribunal is not convinced this is the case on the material before it), the Tribunal finds that given the applicant’s injuries and his age that there would be few, if any places he could live in Africa without a source of income. This would mean that the applicant would face a real chance of suffering serious harm in other ECOWAS countries because the applicant and his wife would not be able to earn a living of any kind to subsist in such hypothetical countries. In any event, the Tribunal finds that the uncertainties around whether the applicants would be authorised to stay on after 90 days in another ECOWAS country and without income means the Tribunal is not satisfied that the applicants have an existing right (a liberty, permission or privilege) to enter and reside in ECOWAS countries.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Rosa Gagliardi
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.
…

‘Transforming Pacifists into Warmongers? Separatist Movement, State Repression, and the Politics of Framing Terrorism in Nigeria: Evidence from IPOB and Yoruba Nation’s Freedom Frontiers’,
16 March 2023, Journal of Applied Security Research, Volume 19, 2024, Issue 3. Full article: Transforming Pacifists into Warmongers? Separatist Movement, State Repression, and the Politics of Framing Terrorism in Nigeria: Evidence from IPOB and Yoruba Nation’s Freedom Frontiers (tandfonline.com).

Transforming Pacifists into Warmongers? Separatist Movement, State Repression, and the Politics of Framing Terrorism in Nigeria: Evidence from IPOB and Yoruba Nation’s Freedom Frontiers’,
16 March 2023, Journal of Applied Security Research, Volume 19, 2024, Issue 3. Full article: Transforming Pacifists into Warmongers? Separatist Movement, State Repression, and the Politics of Framing Terrorism in Nigeria: Evidence from IPOB and Yoruba Nation’s Freedom Frontiers (tandfonline.com).

[2024] AATA 4317

5 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice