2214946 (Refugee)
[2023] AATA 4765
•9 November 2023
2214946 (Refugee) [2023] AATA 4765 (9 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Isaiah Okorie (MARN: 1793819)
CASE NUMBER: 2214946
COUNTRY OF REFERENCE: Nigeria
MEMBER:Wendy Banfield
DATE:9 November 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 09 November 2023 at 4:08pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – eldest daughter of yam cult lineage – Ahianjoku – forced to assume mother’s role – persecuted due to Christian religion – credibility issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 7 October 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, applied for the visas on 27 February 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Nigeria, that there was a real risk the applicants would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicants appeared before the Tribunal on 22 May 2023 to give evidence and present arguments. The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
Refugee criteria
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.
Complementary protection criteria
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.
Applicant’s identity and country of reference
[Applicant 1] stated in her application for a protection visa that she was born on [date] in Nigeria. She provided a copy of her Nigerian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts [Applicant 1]’s identity.
The secondary applicant [Applicant 2]was born on [date] in Nigeria. A copy of his Nigerian passport was provided to the Department at the time of application. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts [Applicant 2]’s identity
There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the documents provided by the applicants and accepted by the Department, the Tribunal finds the applicants are citizens of Nigeria and as such their protection claim will be assessed against Nigeria as the country of reference and 'receiving country' respectively.
Claims for protection
[Applicant 1]
The applicants submitted their claims for protection when they made an application to the Department on 28 January 2022. The claims at the time of application were summarised in the Department’s reasons for decision dated 7 October 2022.
·She is from Ngwa people, a subgroup of the Igbo, and was born in [Abia] State, but lived in Lagos with her aunt from the age of [age].
·When her father died in 1978, she learned that she came from a family of Nmaji and Njoku, male and females who were dedicated to the service of Ahianjoku (the God of Yam), a land and fertility deity which her people believe controls farming, especially the yield of yam, which is venerated as more than a food crop by the Ngwa people.
·She returned to the east for her father’s burial and saw the horrors of this secret society during a ceremony in a sacred grove which involved incantations and her mother severing her father’s head with a knife, which was put on a stake, and devotees drank the blood that drained from his head.
·She is an Ada (first daughter born to a Nmaji) and was dedicated to the deity and was to grow up and live like one, and is betrothed to marry a Njoku, and forbidden from marrying any ordinary person.
·She returned to Lagos, because her mother was still alive and in good health and serving the deity, but her mother told her that when she dies, she will become the Nmaji and will be the custodian of good fate for the village, and she must come and take up the mantle whenever she is at death’s door.
·In 1988 she met her husband, [Applicant 2], but when she informed her mother that she had a fiancé who she was intending to marry, she was slapped and told that if she dared to do so the Ahianjoku custodians would chase her and never let her rest.
·After her aunt died of a mysterious illness in 1989 Ahianjoku devotees came to Lagos and informed her that her mother had sent for her because she was required to come for the first rites of passage required for Nmajis.
·She had become a Christian in 1985 and decided she would not be dedicated to an idol, and subject herself to barbaric customs, and her refusal infuriated the Ahianjoku, who hit her in the face.
·She screamed loudly and her neighbours came, and the men left and said they would come back the next day and she better be ready to go to the village. She fled to [Applicant 2]’s and lived with him after being treated in hospital.
·She married [Applicant 2] secretly in 1993, [and] they relocated in Lagos after she was told she was in danger from the [Ahianjoku].
·In 1999 men attempted to abduct her [age]-year-old daughter, saying Ahianjoku incantations, in what she believes was a warning that she needed to come and perform the first rituals. They relocated to the area of Abuja/Niger state, and her daughter was never the same, and has had developmental issues and disability caused by the encounter with the Ahianjoku.
·In 2002 the Ahianjoku came again, pushing their way into their home, but they left when their neighbours came to help. Between 2002 and 2009 she was attacked in spiritual forms, with the Ahianjoku appearing to her at night asking her to follow them for her initial rites, and in daylight trances saying that Ahianjoku was angry, and she will pay with blood if she does not heed the call; and she would mutter gibberish, and became hysterical, believing that her head was burning.
·Her mother was messaging her telling her to do her first rites and cleanse herself, and on the advice of a neighbour she told her mother she was prepared to make amends and come for the first rites, and her mother told her because she had children with a non-Njoku she would have to undergo cleansing rites.
·She kept on assuring her mother that she would come to do the rites, but by 2012 she was told that the Ahianjoku had lost patience and was shocked when she discovered that the cleansing would involve the blood sacrifice of her husband and two of her children.
·She didn’t travel to the village and by 2014 her mother fell ill and the persecution of the Ahianjoku cult significantly intensified, as they were desperate for her to undertake the rituals to succeed her mother as Nmaji.
·She was also facing harm from her husband’s family, who were staunchly opposed to them marrying because she was a priestess who would bring bad luck to them, and they have threatened her to leave her husband and have tried to physically throw her out of the house.
·She came to Australia after obtaining a [temporary] visa in 2016, and it was a joy to make it to Australia with the majority of their children and grandchildren, to escape from the lurking threat in Nigeria.
·She has been brutally assaulted on many occasions and has suffered lifelong physical and psychological injuries, caused by the harm suffered from the adherents of a vicious traditional cult who she has refused to participate with, and she believes she will suffer significant harm and her life would be in danger if she returned.
·She knows that she should have applied for protection earlier but after years of tension and physical and psychological toll she was keen to set up a life in Australia and was juggling her household and caring for her granddaughter in 2017 and then experienced tragedy when her son [died] in 2018.
·She knows she will die or suffer very significant harm, because she travelled to Nigeria in 2018 for her mother’s burial. Her husband did not attend the burial with her, where she experienced some of the gory rituals of her father’s burial.
·The Ahianjoku told her that her husband and children needed to come to the village for the cleansing rituals, and she said they would not attend willingly, and proposed that she should collect them from Abuja. She was accompanied by two trusted Ahianjoku, and called her husband during a toilet stop, and asked him to think of a plan to outsmart the Ahianjoku.
·Her husband arranged for a security company to stage their kidnapping, and on the road after collecting her husband and the kids in Abuja, they were rammed by an SUV, and men with guns grabbed them. They were taken to Lagos and returned to Australia.
·Her husband returned to Nigeria in 2019 and 2021, and in 2021 he visited the family of his friend who was abducted, killed, and mutilated in 2020, after having helped them in their escape in 2018.
·The Nigerian authorities are unable to protect her, having failed to protect her over the years, and prefer to kill and extort citizens.
·It is futile for her to relocate in Nigeria, because her past relocations have not substantially kept the Ahianjoku at bay, and no part of the country is safe due to rising religious and political tensions, and the persecution of Christians.
[Applicant 2]
· He was born in Lagos and is from the Isoko tribe, from Delta state, and is a born-again Christian.
· His family were opposed to him marrying [Applicant 1], and his in laws were staunchly opposed, because his wife was a Nmaji dedicated to the Ahianjoku deity.
· His wife and immediate family have been the subject of lengthy persecution by the Ahianjoku which began about a year after they married, leading him to relocate his family several times.
· His wife has been persecuted and harmed, including being assaulted in 1989, breaking her hips when the Ahianjoku attempted to abduct their child in 1999, being harmed again in 2002, further spiritual attacks and emotional blackmail, with the persecution from the Ahianjoku intensifying when his mother-in-law became ill in 2014.
· He has actively tried to relocate his family [in] 2011 and his efforts to secure [overseas work] came to fruition when he was [sent] to Australia in 2016.
· He delayed seeking protection in Australia because his granddaughter was born in 2016, and in 2017 he was settling in, taking care of his granddaughter, and juggling other things, and then in 2018 his son mysteriously [died].
· He returned to Nigeria in 2018 with his wife for his mother in laws burial, and after going to village his wife had to come and get him from Abuja with two Ahianjokus because the Ahianjoku were demanding her wife and kids come to the village for rituals.
· His wife briefly called him on her way to Abuja and said he should go to the police and get them to intercept them, but police resources were stretched, and he called a security consultant friend, [Friend 1], who put him in touch with a private security company, which hatched a kidnap plan to get the Ahianjoku off their back.
· He welcomed the Ahianjoku when they arrived with his wife and pretended he was happy to see them, and as pre-arranged during their journey back to the village, the security company rammed their car and forced them to stop and armed men grabbed them and they sped off, escaping to Lagos, and then back to Australia.
· The Ahianjoku were furious and started looking for him and his wife and threatened to kill him if they find him.
· He returned to Nigeria in 2019 and 2021 and went to great lengths to conceal his whereabouts, as he was sure he would be harmed if the Ahianjoku knew of his location.
· In 2021 he visited the family of [Friend 1], who had paid with his life for helping him escape, having been abducted, killed and mutilated in 2020, and he discovered that Ahianjoku paraphernalia had been found near his body.
· If he returns to Nigeria he will be assaulted, tortured, significantly harmed or killed, because he is not ready to sacrifice family to cleanse claimed transgressions against this cult and end his marriage so his wife can become part of the Ahianjoku as a Nmaji.
· The Nigerian authorities are unable to protect him, having failed to protect him and his family over the years, and they are agents of oppression.
· It is futile for him to relocate in Nigeria, because their past relocations have never kept the Ahianjoku at bay, and there are security challenges all over the country, with parts of the country under the siege of Islamic fundamentalists and Fulani herdsmen, and Christians killed daily.
Written submissions to the Tribunal
· Department of Home Affairs (the Department) notification and decision record dated 7 October 2022.
· Passport biometric information for the applicants.
· Written statement of the applicants dated 17 May 2023 (with annexures).
· Statutory declaration of [Applicant 1] dated 16 May 2023 including statutory declarations sworn earlier on 5 July 2023
· Migration Act 1958 Extracts
· Sale of the family’s property located close to Abuja in Suleja Niger state in August 2015
· Historical medical report issued by [a hospital]
· UNHCR Guidance Note on refugee claims relating to FGM
· Secondary applicant’s [letter] to [Agency 1] dated 30 June 2011
· Secondary applicant’s [letter] to the Nigerian High Commission in Canberra, Australia dated [2016]
· Death Certificate and police extract of [Friend 1]
· Primary applicant’s employment with [Organisation 1]
· Primary applicant’s Education - First School Leaving Certificate
· Primary applicant’s education at [educational institute] –[Certificates] – Elementary, Intermediate and Advanced
· Birth Certificates
· Death Certificate [name deleted] - Loss of Child in Australia
· Marriage Certificate - The [applicant]'s
· Primary applicant’s Retirement Letter
· List of relocation addresses – Nigeria
· Funds transfer staged kidnap bank transfer
· Witness statement - Sworn Affidavit - Primary Applicant's cousin
· Witness statement - Sworn Affidavit - Secondary Applicant's brother
· Canadian Immigration Board Report - Nigeria Ogboni society, including its history, structure, rituals, and ceremonies; information on membership and the consequences of refusing to join
The applicants submitted evidence to the Department and attended an interview with a Departmental officer. The Tribunal has had regard to the evidence provided at the time of application in assessing the applicants’ claims for protection in Australia.
Evidence the primary applicant
[Applicant 1] advised she feared returning to Nigeria because of a religious cult from her village community. She said she left her village aged f[age range] when she moved to Lagos to live with an aunt. She was sent to live with her aunt because that relative could assist her in life. [Applicant 1] remained living in Lagos from a young age. [Applicant 1] said her mother was a key figure in the religious cult (the Ahianjoku) and after her mother’s death, she is next in line. However, [Applicant 1] claimed she has refused to join them as she does not have the same beliefs and because of this, people have plotted to kill her, her husband, and their children. It was claimed attempts have been made in various ways.
The Tribunal asked why the Ahianjoku would want someone to join against their wishes. [Applicant 1] repeated that it was expected after a person in her mother’s position passes away. She was asked why in that case she would have been sent away to grow up in Lagos. [Applicant 1] claimed it was because her mother was still alive at the time, and she was not required to play a role then. The Tribunal questioned why she would have been allowed to grow up away from the influence of the village if she was expected to return. [Applicant 1] said her aunt was trusted to look after her with the traditions.
[Applicant 1] claimed she and her family have suffered lifelong harm because the religion’s adherents want to kill her. She said when her daughter was four years old, there was an attempt to abduct her. It was also claimed that she had a third child and was visited by the Ahianjoku when she was at home with the baby. [Applicant 1] claimed there was an attempt to enter the house and she fell to the floor with the baby while her husband tried to shut the door. [Applicant 1] claimed her baby died in hospital at [age]. The Tribunal put to the applicant that the fact she had experienced tragedy in her life did not mean it was due to actions of a cult. [Applicant 1] claimed that what she suffered was because she had rejected the cult.
Regarding coming to Australia, [Applicant 1] said she begged her husband to apply for a [job] to get them out of the country. The Tribunal asked why, given her evidence, she had returned to Nigeria in 2018. [Applicant 1] said she and her mother loved each other and she had gone for her mother’s burial. She then said her son had died in Australia and she had not been herself. However, it was claimed that when it is your mother, you must pay respects. She said she was asked about her family and children during the visit but only her herself and her husband had travelled. [Applicant 1] said she again refused to take part in rituals but since her mother had died, the cult wanted to use the opportunity to force her. [Applicant 1] then described events when she said cult members wanted to kill her, and she pretended to be bringing her family to the village. It was claimed her husband, the secondary applicant arranged a staged kidnapping to rescue her.
The Tribunal asked why the applicants had not applied for protection in Australia until 2022. [Applicant 1] claimed that due to the trauma, she had not been able to. She submitted additional reasons why she had not claimed protection in Australia earlier including: she was focussed on enrolling her children in school; her daughter gave birth to a baby in 2016 and she was helping to look after the child, she needed a hip operation due to a fall caused by the Ahianjoku and she was going through rehabilitation, her husband had [surgery] in 2018, then her son who was [age] years old passed away. [Applicant 1] said there was also COVID in 2020. She claimed that because her husband still had a visa, there was no one to ask about making a protection claim.
The Tribunal asked about the possibility of relocating within Nigeria. It was claimed the applicants frequently moved around in the country when they lived there, and because of their issues, they cannot return. [Applicant 1] claimed cult members are looking for the family to kill them since the death of her mother. [Applicant 1] said as a child of God, she had to refuse to be involved with the cult. It was put to the applicant that there is no evidence the Ahianjoku have been violent. The representative claimed [Applicant 1] will be persecuted because she has refused what is expected of her as a Ahianjoku priestess due to her Christian faith. He said the cult has tried to persuade her. The Tribunal was referred to a submission published by the Immigration and Refugee Board of Canada about non-adherence to the Ogboni faith. It was conceded that due to the secretive nature of the issue and the level of proof required, the claims are difficult to substantiate.
[Applicant 1] was asked about a friend of her husband that was said to have been killed in Nigeria. She claimed the man was trying to save them. She also said her husband’s family did not want [Applicant 1] to marry her husband, and they believe she will bring a bad name to their son. Through my marriage, I never knew my husband’s family and was rejected. It was put to her that the family did live in Nigeria without being harmed by her husband’s family. It was claimed they did not allow her to marry their son, they came to where they lived and threw her things away, and if not for her husband, the family would have dealt with her.
Evidence of the secondary applicant
[Applicant 2] claimed there had been significant harm done to his family because his wife had denied her fate which required her to serve the cult. He said if his wife denied her faith and undergoes cleansing, he cannot allow it. He was asked why he had returned to Nigeria since arriving in Australia. He said he had done so twice, in [a work] capacity as he was the only one with [that] role and he had to [attend]. He agreed he had travelled to Nigeria in 2019 with his wife. It was put to him that the Departmental delegate had doubts about his claims because he had returned to Nigeria. He said in 2018 his son had passed away and then his mother-in-law died. His wife was mentally distressed and had not been able to see her mother when she was alive which is why they decided to return.
[Applicant 2] said for the Ahianjoku to accept his wife, she would have to undergo cleansing. The applicants decided they would leave their children in Australia, and on their visit to Nigeria only [Applicant 1] would return to the village. He said he told his wife to say that she would bring her family, but in fact they would find a way of escape. He claimed the events as relayed in written submissions were exactly what happened. [Applicant 2] was asked why he had not applied for protection earlier. [Applicant 2] said when they came back to Australia in 2018, he began to think about it due to his [age]. He said going back to Nigeria as a family was a risk, then in 2020 he had [surgery]. According to [Applicant 2], they did not know anything about refugee laws and at the time they had safety because he was still on a [temporary] visa.
The Tribunal asked if the family were planning to return to Nigeria when they first came to Australia in 2016. He replied that they were because they hoped the passage of time would give them a safety net. Also, his mother-in-law was still alive, and they hoped the pressure from the Ahianjoku would fade. But from 2018 when they travelled back to Nigeria, that was when they started considering applying for protection.
[Applicant 2] asked the Tribunal to look at the application with compassion. He said he has worked for [an organisation] of his country and if it was like Australia, he would not be doing this. It was claimed his wife has suffered panic attacks and he has stopped her from driving as a result. [Applicant 2] stated that since they came to Australia, they have been law abiding and have taken care of themselves. They are in a very difficult situation and if the decision of the Department is affirmed, they will die due to what they have been through. It was claimed that as a [age]-year-old, seeking protection is not something done lightly.
Representative’s submission at the hearing
It was submitted the decision is clear and straightforward and the question whether the primary applicant belonged to a cult is settled. He said the Department found that since the persecution happened a while ago, the chance of harm is now low. He said the applicants thought they were safe when they came to Australia, and they believed everything was in the past. However, when they returned to Nigeria for [Applicant 1]’s mother’s funeral, it was far from over and they suffered harm.
The Tribunal was told the terms used because of English being a second language meant the correct meaning was not conveyed. For example, it was submitted that what transpired in 2018 was an extraction from the situation, not a kidnapping and the applicants avoided harm by not returning to the village. Regarding visits to Nigeria, it was stated the secondary applicant went back three times, but they were brief visits to protect his wife, and for [business] during which time he had some measure of support from [his workplace]. It was claimed the applicants do not have a home to go back to and would be forced to rely on relatives or be destitute. The representative said Nigeria’s security is almost non-existent, the country barely respects the rule of law and there is minimal police protection. He said when the applicants called the police in 2018, there were no resources for them to attend. The police would not be able to protect them in future and they could not afford their own protection.
The representative referred to the applicants’ granddaughter and asked whether we are going to send a child who was born in Australia back to being in harms way. He said [Applicant 1]’s connection with the Ahianjoku is hereditary and affects her daughter and granddaughter. It was claimed that when she grew up in Nigeria, it was not necessary for her to be in the village because she was still subject to the cult’s demands. The Tribunal was told the cult is faced with a crisis due to their religion and the continuity of their practices. The Tribunal put to the representative that the villagers must have taken other measures in the absence of [Applicant 1]. He said what occurred in 2018 showed they had not. Since 2018, it was claimed they still had not because of what happened to [Applicant 2]’s friend who was killed in the area where the Ahianjoku operate. It was claimed the applicant and her family will still be in harm’s way, even if a replacement for her has been found because it is hereditary and cultural. The representative referred to the Ogboni society that was prominent before the British arrived. The Tribunal indicated it did not doubt there were continuing traditions and rituals in Nigeria.
It was claimed that Lagos would be the worst place for the applicants to return to because that is where they experienced harm in the past, despite it being a big city. The representative said this is because there is a village presence in Lagos, and they would get to know [Applicant 1] is there. It was claimed that even in other African countries there is xenophobia, and it would not work either.
Written submissions
The representative provided a written submission to the Tribunal prior to the hearing described as “a statement of facts, issues, and contentions”. It includes what is claimed to be the facts of the case, the applicable law, and issues for determination. The issues for determination are said to be whether there is a real chance of serious harm due to the applicants’ Christian faith and rejection of the Ahianjoku cult. It is submitted the issue of membership of a particular social group is important to the Tribunal’s assessment. The representative addresses the delegate’s decision and describes what is said to be established facts. These include the existence of cults in Nigeria, the worship of a yam deity, and dedication to the service of Ahianjoku. The submission states the delegate accepted there were no bogus claims or documents.
The representative claims there is sufficient evidence adherents of the Ahianjoku cult are members of a particular social group and the applicants have established “their hereditary and irrevocable membership of the Ahianjoku.” The submission sets out rituals and practices said to be carried out by the cult and witnessed by [Applicant 1]. It includes disagreement with the delegate’s reasoning and the assessment that the Ahianjoku do not engage in violence. It is claimed that most Ahianjoku accept their position but those that do not are persecuted. The submission states the applicants are Christians and includes details about persecution of that religion. The Tribunal is referred to reports of a Christian in Nigeria allegedly being sought by a cult to take over from his father and threatened. The representative argues that because the Ahianjoku cult is secretive and due to the passage of time, the applicants’ claims are difficult to substantiate.
The representative claims [Applicant 1] provided evidence of injuries and the loss of her baby “from the activities of Ahianjoku” and disagrees with the delegate’s assessment that her past hardships were tragic accidents. It is claimed [Applicant 1]’s mental distress is due to the stress of persecution and the representative then expands on issues with the delegate’s findings. This includes significant analysis of the delegate’s findings about [Applicant 1]’s return to Nigeria in 2018 for her mother’s funeral, and the events that were said to have occurred with reference to other protection visa cases. The representative discusses the assessment of credibility and insists the applicants’ claims are plausible and legitimate. He addresses the secondary applicant’s travel to Nigeria and his fears about returning to Nigeria permanently, the delay in claiming protection, the issues of state protection, relocation and document fraud and the complementary protection criteria.
[Applicant 1] submitted copies of her statutory declarations including those provided to the Department. It includes the account of her claims as set out by the Department in its decision record and as summarised in this decision. The applicants submitted statements by [Applicant 1]’s cousin and [Applicant 2]’s brother attesting to their knowledge of the applicants’ circumstances regarding the cult and opposition to their marriage. The Tribunal also received evidence of both applicants’ past employment with the Nigerian government and research documents.
Country information
The Tribunal has had regard to the DFAT Country Information Report Nigeria, 3 December 2020, as relevant:
Demography
Nigeria is composed of over 250 ethnic groups. The Hausa, based predominantly in the north, is the largest, comprising 30 per cent of the population, followed by the Yoruba in the southwest (15.5 per cent), the Igbo in the southeast (15.2 per cent) and the Fulani in the north (6 per cent). English is the official language, although various constitutional articles also provide for the use of other national languages in official settings, including parliamentary business.
Nigerians predominantly practise Islam and Christianity, with 51.6 per cent of the population identified as Muslim (majority Sunni) and 46.9 per cent identified as Christian. The population is broadly divided between a Muslim north and a Christian south, although there are communities of each located nationwide.
Security situation
While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.
Long-standing tribal, religious, political and community disputes often lead to serious violence and unrest. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic or social grievances in 2019. The majority of these (2,758) occurred in northeastern Borno state, followed by Zamfara state (1,274) and Kaduna state (487), also in the north. Over half of these deaths were related to the Boko Haram insurgency, although deaths have occurred in all parts of the country. According to human rights observers, security forces have often responded to civil unrest with disproportionate force, causing fatalities.
Igbo
The Igbo people are the third largest ethnic group in Nigeria, constituting 15 per cent of the population. They originate from southeastern Nigeria and live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. The Igbo speak a number of Igbo dialects. They are predominantly Christian.
There are no legal provisions targeting the Igbo population in Nigeria and the Igbo, like all Nigerians, are able to move freely within Nigeria. Many Igbo have migrated to other areas of Nigeria, including northern states. Like other non-indigenous communities, Igbo residing in these areas have occasionally faced discrimination from locals: in June 2017, for example, activists in the northern city of Kaduna called for the eviction of Igbo residing in the state. DFAT is not aware of any other significant cases in which Igbo have been specifically targeted for violence or exclusion due to their ethnicity.
As noted in recent history, in 1967 predominantly Igbo separatists attempted to declare an independent state in eastern Nigeria, known as the Republic of Biafra. This was the catalyst for the Nigerian Civil War (otherwise known as the Biafran War) of 1967-70, which resulted in the separatists’ defeat. Senior Igbo figures have claimed successive Nigerian governments, including the Buhari administration, have subsequently excluded Igbo from senior political, military and civil service positions. A number of political organisations continue to advocate for an independent Biafran state and have occasionally clashed with security authorities.
DFAT assesses Igbo are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria. Like other non-indigenous communities, Igbo residing outside of their traditional homeland may face localised discrimination.
Members of Confraternities/Cults
Confraternities/cults are mostly concentrated in the southern states of Nigeria, particularly Rivers, Bayelsa, Delta and Edo states. Some reportedly have an overseas presence through diaspora communities, although DFAT is not aware of any operating in Australia. Initially introduced by Nigerian scholars returning from the United States in the 1950s as a variation of student confraternities, many confraternities/cults have become more violent over time and are now essentially criminal gangs. There have been reports linking confraternities/cults with political violence, with some politicians reportedly co-opting them to support their political rallies and disrupt those of opposition groups.
In-country sources report that, in addition to operating on university campuses, several confraternities/cults also have a presence in high schools and thrive in poor urban areas. Many young men (and some women) voluntarily join confraternities/cults, motivated by the opportunity to earn money and gain power, but some reportedly join through peer pressure, under threat of reprisal or to gain protection. Inter-cult violence reportedly occasionally results in the death of cult members, and cult members have assaulted individuals who attempt to leave.
DFAT understands many confraternities/cults operate more like gangs than religious cults. Young men in particular are targeted to join confraternities for protection and through peer pressure. Many young men and women also voluntarily join, as confraternity membership offers opportunities to earn money and gain power. The process of gaining membership can include violent initiation, in some cases reportedly including beatings and/or rape. According to Amnesty International, over 60 people were killed in 2019 in Rivers state alone through cult-related violence.
Some of the more prominent confraternities/cults are the Pyrates confraternity, created at the University of Ibadan campus in 1952 and Nigeria’s oldest; the Buccaneers Confraternity, the Family Confraternity and the Black Axe Movement. The latter emerged from the University of Benin in the southern state of Edo. From its origins as an idealistic confraternity, the group has reportedly grown into a sophisticated criminal organisation, with international chapters established outside Nigeria. The Black Axe Movement, like other confraternities/cults, targets students for membership, and students who refuse to join may face intimidation and violence.
The Rivers state government signed an anti-cultism bill into law in March 2018. The bill prescribes the death penalty for any cultist who kills during a cult activity and life imprisonment for any cultist apprehended. This follows similar laws implemented by the southern Edo, Ebonyi, Kwara, Enugu and Akwa Ibom state governments.
DFAT assesses members of confraternities/ cults face a high risk of legal sanction if they reside in states in which their organisations are proscribed. They also face a high risk of experiencing violence from other organisations or from their own group should they attempt to leave.
Religion
While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians.
Ahia Njoku
No information was found specifically stating members of the Igbo community are required to serve Ahia Njoku. General information was found in relation to customs and practices for the worship of Ahia Njoku within the indigenous religious system of the Igbo.
Indigenous religious practices regarding worship of Ahia Njoku[1] vary from tribe to tribe.[2]
Yam is a staple food of Igbo-land that is highly revered, consequently occupying a sacred position within Igbo communities.[3] Some Igbo tribes dedicated children to the service of Ahia Njoku and these children were known as Njoku.[4] As adults, these children were expected to become prosperous yam farmers and the Igbo community held them in high revere, considering them as ‘nobility’.[5] Sources did not mention how these children were selected to take up the mantle of Njoku/Nmaji.[1] Ahia Njoku also known as Ahiajoku, Ifejioku, Uhianjoku, Aha Njoku, Ahia-ji Oku and Njoku Ji, is a God/Goddess of agriculture, and in particular the yam. The Igbo Pantheon: A Hermeneutic of Selected Igbo African Deities', Prof. Kanu Ikechukwu Anthony, O.S.A., Department of Philosophy and Religious Studies Tansian University, August 2018, pp. 9-10, 20220707142957; and 'Towards an Understanding of Igbo Traditional Religious Life and Philosophy', Emmanuel Nlenanya Onwu, 1 January 2002, CIS0F8D958461 'Nigerian History: The Forgotten Gods of Igbo Culture', Isaac Ogbodo, Medium, 29 November 2019, 20220708150102.
[2] The Igbo community are located predominantly in the south-eastern part of Nigeria and consists of five states that are known as core Igbo-speaking states: Imo, Enugu, Ebonyi, Anambra and Abia. Igbo people are also located in the Nigerian states of: Delta, Rivers, Bayelsa and Akwa Ibom. Conflicts Between African Traditional Religion and Christianity in Eastern Nigeria: The Igbo Example, Vol. 7, Iss. 2, SAGE Open Publications, 31 March 2017, p. 1, 20220708091955.
[3] 'Cultural Reconstruction of Iwa Ji Festival in Igbo-Ukwu, and Fractured Igbo Identity', Francesca C. Ukpokolo, Obiageli C. Okoye, and Olatunde B. Lawuyi, University of Ibadan, 10 May 2018, p. 152, 20220711145647
[4] 'Njoku Ji; The Guardian Deity Of Yams And One Of The Forgotten Deities Of Igbo Land', N Opera News (Nigeria), January 2022, 20220707150351 and 'The myth of Ahiajoku – originator of the New yam festival', Woke Nation TV, 30 September 2021, 20220707151902.
[5] 'Njoku Ji; The Guardian Deity Of Yams And One Of The Forgotten Deities Of Igbo Land', N Opera News (Nigeria), January 2022, 20220707150351 and 'The myth of Ahiajoku – originator of the New yam festival', Woke Nation TV, 30 September 2021, 20220707151902.
The worship of Ahia Njoku is part of a traditional religion system which is orally transmitted to
subsequent generations. Consequently, it has been widely diffused among its adherents. Igbo
indigenous religion links the living with the ancestors and those yet to be born in a mystic continuum. Within the traditional religious beliefs of the Igbo there is a high degree of ritualisation which includes the officiating of elders, kings, priests (such as chief and fetish priests) and diviners.[6][6] Conflicts Between African Traditional Religion and Christianity in Eastern Nigeria: The Igbo Example, Vol. 7, Iss. 2, SAGE Open Publications, 31 March 2017, p. 2, 20220708091955
No information was located which specifically stated consequences for people who refused to take up the mantle of becoming Nmaji/Njoku. No information was found relating to devotees of Ahia Njoku engaging in violence against people unwilling to be involved or opposed to serving the deity.
In a dated 2010 response the Immigration and Refugee Board of Canada provided information relating to a person who refuses a chief priest or fetish priest position which they have been selected for. A Professor of History at the African Studies Centre (ASC) provided the following information regarding respect and fear of fetish/shrine priests.
…the ASC Professor stated that in rural communities, local shrines are influential and community
members ‘respect and even fear’ the shrine priest. The ASC Professor said that local shrines serve as informal arbitrators of justice, particularly given that Nigeria’s criminal justice system is ‘not functioning’. Similarly, the Professor wrote that shrines are ‘not really religious institutions’ but rather ‘legal institutions,’ adding they are becoming more influential as Nigeria’s criminal justice system ‘deteriorates’.The ASC professor expressed the view that it would not be considered an offence against the shrine for someone to refuse the role of chief priest or fetish priest. The ASC Professor stated that he had never heard of the priesthood being forced on anyone in Nigeria. The shrine would want a successor who had the interest in and aptitude for the role, in the opinion of the ASC Professor. The successor would also likely be initiated at a young age. A University of London Professor said that his research indicates that there are no consequences for someone who refuses a position of chief priest or fetish priest. [7]
Prevalence of fraud
Although the Penal Code and the Criminal Code criminalise fraud and the falsification of documents, Nigeria has experienced high rates of document fraud in the past. In addition to birth certificates, death certificates and marriage certificates, immigration officials report other common documents subject to the possibility of falsification include bank statements, health insurance certificates, invitation letters, letters of introduction and letters of employment from multinational companies. Such fraudulent documents are often used to obtain passports: in June 2017, the Police Special Fraud Unit reported the Italian Embassy was sending to them an average of 50 Nigerian passports obtained through the use of fraudulent documents monthly.
…
In-country sources report numerous business operations exist in Nigeria from which it is neither difficult nor expensive to obtain a fraudulent driver’s licence or other documents that can be used to obtain a genuine passport (such as marriage certificates, birth certificates, age declarations, and letters of identification from local government). Corruption at local NIS offices may also enable the fraudulent production of genuine passports.
Nigeria has established institutions and strengthened procedures to combat the risk of fraud. Banking system controls, for example, have facilitated the growth of electronic transactions and widespread use of mobile app funds transfer. Nigeria is gradually strengthening its national identity system and biometrics. The NIS has a forensic laboratory for the examination of travel documents and monetary instruments, and the Nigeria Police Force has established a Special Fraud Unit to combat fraud, which actively investigates and prosecutes suspects. DFAT understands, however, that very few cases have thus far resulted in convictions.
DFAT assesses that, notwithstanding Nigeria’s efforts to improve controls against fraud, document fraud remains a significant issue in Nigeria, including in the process for re-issuing lost documents.[8]
[7] NGA103485.E: Nigeria: Consequences for a person to refuse a chief priest or fetish priest position for which they have been selected in south and central Nigeria', Canadian IRB: Immigration and Refugee Board of Canada, Immigration and Refugee Board of Canada, 6 July 2010, 2256.
[8] DFAT Country Information Report – Nigeria 3 December 2020.
CONSIDERATION OF CLAIMS AND EVIDENCE
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[9] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[10] This is consistent with the established proposition that it is for the applicant to make his or her own case.[11]
[9] Section 5AAA of the Act.
[10] Ibid (with effect from 14 April 2015).
[11] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[12] In this regard, the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[13] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the Court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[12] Fox v Percy (2003) 214 CLR 118
[13] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[14] A similar approach is taken in the Department’s Refugee Law Guidelines[15] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[16] which provides useful guidance for this Tribunal.
[14] SZLVZ v MIAC [2008] FCA 1816 at [25].
[15] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[16] UNHCR, re-issued February 2019 at [203]–[204].
The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to Nigeria they would be persecuted for one of those reasons. If not, whether 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 the applicants will suffer significant harm as defined in s 36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants claim they have a well-founded fear of persecution due to [Applicant 1]’s membership of a particular social group. It is claimed [Applicant 1]’s mother was a leader in the Ahianjoku cult (the cult) and its members have attempted to force [Applicant 1] to take her mother’s place following the latter’s death, but she has refused. The applicants made allegations of previous harm that they attribute to the cult and its influences including the following; [Applicant 1] has witnessed disturbing ceremonial rites carried out by the cult; she had been assaulted and injured by cult members, she suffered physical and psychological harm, her daughter was subjected to a kidnapping attempt as a young child and her development has been affected, another of her children passed away as an infant following a visit by cult members; other family members have died mysteriously, cult members have tried to force her to return to her village, and a friend of the applicants who helped them evade the cult in 2018 has been killed.
The applicants claim they continue to fear harm because they are Christians and they have refused the cult’s efforts to force [Applicant 1] to undergo cleansing and take up a hereditary role. The applicants claim they fear for their lives if they return to Nigeria and continue to defy the cult’s objectives. [Applicant 1] claims she discovered that taking part in any cleansing ritual would involve the blood sacrifice of her husband and two of her children. She alleges she is bound to the cult by heredity and that her daughter and granddaughter would be affected by the same issues. The applicants claimed [Applicant 2] pursued an overseas transfer with [his workplace] to take the family away from harassment and harm by the cult in Nigeria.
Since arriving in Australia, the applicants have returned to Nigeria for temporary visits. [Applicant 1] returned in 2018 to attend her mother’s funeral, and [Applicant 2] the secondary applicant accompanied her. [Applicant 2] also travelled to his home country in his position [at work]. The applicants described events that they allege took place when they went to Nigeria in 2018. They claimed [Applicant 1] travelled to her mother’s village for the burial but two of the cult members demanded her husband and children also come to the village to take part in rituals. A scheme was said to have been devised whereby [Applicant 2] agreed to accompany the cult members but due to a call from his wife, he had been able to pre-arrange for a security company to stop them on the road by force and help the applicants return to Lagos. It was claimed that this event convinced the applicants that time and distance have not lessened the cult’s objectives and they will be seriously harmed or killed if they return to Nigeria.
The applicants claim that in 2021 [Applicant 2] visited the family of a friend who was allegedly the victim of a violent murder in Nigeria. It was claimed the friend was a security consultant who had referred them to the private security company that arranged their escape from the Ahianjoku in 2018 and as a result, he had been abducted, killed, and mutilated in 2020. It was alleged the man had been found with Ahianjoku paraphernalia near his body. The applicants submitted documents said to support this claim including statements and police reports.
Assessment – refugee criteria
The Tribunal assessed the evidence provided to determine whether there is a real chance the applicants will suffer persecution if they return to Nigeria. The Tribunal is prepared to accept the primary applicant [Applicant 1] has a cultural connection through her family history and culture to the Ahianjoku cult. It is also accepted the applicants have experienced tragedy in their lives including the loss of an infant child and an adult son. The Tribunal is not satisfied however, that it is settled the primary applicant belongs to the cult or that the applicants have established “their hereditary and irrevocable membership of the Ahianjoku” as the applicants and their representative claim. The Tribunal does not accept the Ahianjoku cult has had any connection to the difficulties and loss the applicants have experienced in their lives.
[Applicant 1] has attributed several events in her life to the influence of the Ahianjoku including her and her daughter being injured in an attempted kidnapping as well as the deaths of two of her children, her aunt, and a family friend. However, none of the documentary evidence substantiates that these incidents were perpetrated by the Ahianjoku, or that they occurred for the reasons claimed. [Applicant 1] claims she experienced dreams and visions amounting to spiritual attacks by the Ahianjoku. While she may have experienced disturbing dreams as clamed, they are likely to have been caused by mental distress or disturbance and are not accepted as being the deliberate actions of a cult. The Tribunal agrees with the Departmental delegate that there is no persuasive evidence to suggest the applicants claims of past hardship are anything other than tragic accidents.
In determining whether there is a real chance the applicants will suffer persecution if they return to Nigeria in future, the Tribunal considered the background of the applicants and their circumstances in Nigeria. According to the evidence, [Applicant 1] lived in Lagos with her aunt from the age of six, she attended school and in the 1980s, she earned several typing certificates. She was appointed to a position in [Organisation 1] in [year] and according to a retirement letter, was employed in [that industry] for [number] years. The secondary applicant [Applicant 2] worked for [Organisation 2] in Nigeria and secured [work in] Australia in 2016. The Tribunal finds the lives and work history of the applicants suggest a mainstream, professional existence and is not consistent with the background of a person who is destined for a village life as a priestess with the Ahianjoku. It was claimed [Applicant 1]’s aunt was trusted to care for her in Lagos during her childhood despite her alleged inherited role as a priestess which the Tribunal does not find to be credible. It is also not plausible that her mother would order her to return to Lagos from the village after being told of [Applicant 1]’s plan to marry the secondary applicant when it is claimed she was expected to marry and man from the cult and take up a hereditary position. The Tribunal finds [Applicant 1]’s upbringing and life in Nigeria raise doubt that it was ever intended for her to inherit a significant role in the Ahianjoku cult or that she would be expected to fulfil such a role in future.
The limited information available about the Ahianjoku, some of which is included in this decision, indicates it would not be considered an offence for a person to refuse the role of priest. This is because a successor who had an interest in and aptitude for the role would be preferred. Research academics suggest any successor would likely be initiated at a young age and there are no known consequences for someone who refuses a position of chief priest or fetish priest. The Tribunal accepts the representative’s claims that cults in Nigeria are secretive, and evidence is difficult to obtain. However, the Tribunal prefers the information available from reliable academic sources to that offered by the applicants which was provided to bolster claims for protection in Australia.
The primary applicant [Applicant 1] returned to Nigeria in 2018 to attend her mother’s funeral. The secondary applicant has returned to his home country three times, in 2018, 2019 and 2021. [Applicant 1]’s visit to Nigeria involved travelling to her village for the burial of her mother. This is despite both applicants claiming to be in fear for their lives from the Ahianjoku, whose members originate there. The representative and the secondary applicant attempted to distinguish between temporary visits for reasons of family tradition (a parent’s funeral) and employment duties (the stated reasons for [Applicant 2]’s visits) and a permanent return to Nigeria. Given the extent of the applicants’ claims of persecution in the past, and fears of being killed or seriously harmed in future, the Tribunal does not find it credible they would return to Nigeria voluntarily for any reason if those fears were genuine. The Tribunal did not find the account of the applicants being rescued by arrangement with a private security company enroute to [Applicant 1]’s village in 2018 to be at all plausible. The Tribunal did not find it credible that [Applicant 2] would agree to go with the Ahianjoku, but with hastily arranged, dangerous plans in place to be intercepted and rescued. The Tribunal is not satisfied the bank statement dated November 2018 said to indicate funds paid for the “staged kidnap”[17] supports the applicant’s claims in this regard. It is not accepted the Ahianjoku would expend such energy and resources pursuing [Applicant 1] against her wishes or that they would expect her to take part in cleansing rituals involving the sacrifice of some of her family members. According to country information, there is no evidence members of Ahianjoku engage in violence against people unwilling to be involved or opposed to serving the deity.
[17] The representative took issue with the Departmental delegate referring to the alleged event as a “kidnapping” and said it was “an extraction”. The Tribunal notes in fact there are several references to “kidnap” in the applicants’ submissions, including the description of the bank statement as “funds transfer staged kidnap”
The applicants claimed a friend of [Applicant 2] named [Friend 1] was murdered in 2020 by Ahianjoku because according to their evidence, he was a security consultant who introduced the applicants to the security company that arranged their rescue. The kidnap event was said to have occurred in November 2018 (based on the date of the bank statement) and it is claimed [Friend 1] was murdered in November 2020. The Tribunal did not find it credible the Ahianjoku would want to kill someone for merely introducing the applicants to a security firm, that they would discover his alleged minor role in the affair, and that they would wait two years to carry out his murder. While it is possible a man named [Friend 1] was the victim of a violent murder, the Tribunal is not satisfied any association with the applicants or Ahianjoku has been established.
Due to the prevalence of document fraud in Nigeria, the Tribunal does not accept the certificates that refer to Ahianjoku inscriptions being found with the said [Friend 1]’s body are genuine. The Tribunal notes the applicants’ representative argued in his written submission to the Tribunal:
The delegate accepts and it is not in contention that the documents provided in proof of the claims are genuine. The delegate also expressly states that there is no evidence before him that any of the documents provided is a bogus document as defined in s5(1) of the Act. This is a crucial point regarding some of the conclusions reached by the delegate on the applicants’ credibility following a flawed assessment.
The representative then sets out a list of documents submitted in evidence to the Department. The Tribunal does not accept the representative’s claim that the delegate found: “the documents provided in proof of claim are genuine.” The delegate’s decision has a section titled “Part 3: Identity Assessment” and includes the statement “There is no evidence before me that any of the documents provided is a bogus document as defined in s5(1) of the Act.” This statement is in relation to passports issued for each applicant. It does not refer to documents provided in evidence which are listed in the following section: “Part 4: Summary of Claims”. Even if the delegate had found the documents submitted to support the applicants claims were genuine, the Tribunal is nevertheless a new decision maker and is considering the facts and evidence anew.
The Tribunal considered the statements said to be provided by family members of the applicants including the cousin of [Applicant 1] and brother of [Applicant 2]. The witnesses attest to their knowledge of the applicants’ claims, including [Applicant 1] having a background with the Ahianjoku and opposition to their marriage. However, the Tribunal is not satisfied close family members are independent or reliable witnesses.
Therefore, on the basis of the findings above, the Tribunal, accepts that the primary applicant has an association through family history and culture to a yam cult but rejects the claims made by the applicants that they are being pursued by the Ahianjoku or that they will be killed or seriously harmed by members of the cult if they return to Nigeria. The Tribunal finds that the applicants do not face a real chance of persecution involving serious harm in the reasonably foreseeable future due to [Applicant 1] being a member of a particular social group, that being a daughter of a cult member who refuses to join the cult. The Tribunal finds the applicants do not face a real chance of persecution because [Applicant 1] married her husband against the wishes of his family and the cult. The Tribunal finds that the applicant’s fears in this regard are not well-founded. The Tribunal finds that in addition to being unable to substantiate their claims, the applicants were not generally credible.
The Tribunal is not satisfied the applicants will be persecuted for being Christians because it contravenes the wishes of the Ahianjoku, or for any other reason. The applicants’ representative submitted evidence regarding the persecution of Christians generally but according to country information, the population in Nigeria is largely comprised of Muslims and Christians. The applicants did not provide detailed claims that they would be persecuted specifically due to their Christian beliefs but claimed it was not accepted by the Ahianjoku. The Tribunal has not accepted [Applicant 1] has established she is a hereditary membership of the cult and is not satisfied she would be persecuted by adherents due to her Christian faith. As members of a significantly large religious group in Nigeria, the Tribunal is not satisfied they would be persecuted for practicing Christianity.
The Tribunal is not satisfied the applicants meet the refugee criteria in s.36(2)(a) of the Act.
Assessment - complementary protection
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[18] The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
[18] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
The applicants did not specifically claim that they are at risk of being arbitrarily deprived of their lives; or that the death penalty will be carried out but did claim to fear being killed or seriously harmed by members of the Ahianjoku cult. In assessing the evidence in this regard, the Tribunal considered whether there is a real and personal risk to the applicants. It was not claimed that either applicant would be killed by the state. Where the threat is from non-state actors, the Tribunal must first be satisfied that there are extremely widespread conditions of violence and second, that there is a particular risk to the individual in question.[19] As outlined in this decision, the Tribunal does not accept the primary applicant [Applicant 1] has been or will be persecuted by the Ahianjoku cult, or that she or [Applicant 2] will be seriously harmed because of a family or cultural association with the yam cult. The Tribunal is not satisfied there is a particular risk of herm to the applicants in this case or that they are at any greater risk of harm than the general population in Nigeria.
[19] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.1 (generally) and 3.4.1.2, as re-issued 29 February 2020.
For the reasons given above the Tribunal is not satisfied that either of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
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 applicants protection visas.
Wendy Banfield
MemberATTACHMENT - 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.
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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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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