2304065 (Refugee)

2304065 (Refugee) [2024] AATA 2575 (1 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael Kah
CASE NUMBER:  2304065
COUNTRIES OF REFERENCE:               South Africa and Nigeria
MEMBER:David McCulloch
DATE:1 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Statement made on 01 March 2024 at 11:25am

CATCHWORDS
REFUGEE – protection visa – South Africa – Nigeria – Federal Circuit Court remittal – particular social group – victims of family violence – political opinion – Actualisation of the Sovereign State of Biafra (MASSOB) activist – xenophobic attacks in South Africa – physical assault – fear of killing – detention – state protection – Economic Community of West African States (ECOWAS) entry and residence – members of the family unit – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 1.12
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MIMAC v SZRHU [2013] FCAFC 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Suntharajah v MIMA [2001] FCA 1391
WAGH v MIMIA (2003) 131 FCR 269
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first, third and fourth-named applicants claim to be citizens of South Africa, and the second-named applicant claims to be a citizen of Nigeria. They applied for the visas on 12 March 2014. The applicants attended an interview with a delegate of the Department on 29 June 2015. The delegate refused to grant the visas on 27 November 2015.
[Name] (the applicant) is the primary visa applicant, [Applicant 2] (the applicant husband) is the second-named applicant, [Applicant 3] (the applicant eldest daughter) is the third-named applicant, and [Applicant 4] (the applicant youngest daughter) is the fourth-named applicant.
The Tribunal affirmed the delegate’s decision on 14 September 2017. That decision was set aside by the Federal Circuit Court of Australia (the Court) [in] February 2023. The Court held that the Tribunal committed jurisdictional error due to the ambiguity and confusion in its reasons, as it was not possible to readily discern whether the Tribunal properly considered the applicant husband’s race or nationality. The Court also held that the Tribunal failed to undertake the required objective and predictive evaluation of all the evidence regarding the applicant husband’s past experiences and current circumstances.
The matter is now before the Tribunal pursuant to an order of the Court.
The applicant and applicant husband appeared before the Tribunal on 7 February 2024 at 9.30 am to give evidence and present arguments. Although an interpreter was present, the applicants elected to communicate in English.
The applicants were represented in relation to the review. The representative attended the 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied on the evidence that the applicant husband is the spouse of the applicant, and the applicant children are the dependent children of the applicant and therefore are a member of the same family unit as the applicant.
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 the credibility of the applicants and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s migration history is cited from the delegate’s Decision Record and the applicant’s Movement Record. [In] February 2014 the applicant arrived onshore with a [Visitor] ] visa. The applicant applied for a Protection (Subclass 866) visa on 12 March 2014. She was granted a Bridging visa A on 14 March 2014, which ceased on 9 October 2017. She was granted another Bridging visa A on 9 October 2017, which remains in effect to the date of this decision.
The following information about the applicant is apparent from the protection application form. The applicant was born on [date] in Rustenburg, South Africa. The applicant speaks, reads and writes English, Tswana and Xhosa. She has been married to the applicant husband since [October] 2009. The applicant’s father is deceased, and her mother resides in South Africa. She has [specified family members], and they all reside in South Africa. The applicant has one [child] to a previous marriage who resides in South Africa. The applicant resided at two addresses in Johannesburg from [specified year] to December 2014. [Between specified years] the applicant undertook and completed high school in South Africa. [Between specified years] the applicant completed education in [industry 1] in South Africa. From February 2012 to February 2013, the applicant completed a course in [subject 1] in South Africa. The applicant was employed as [an occupation 1] from December 2004 to August 2009.
The applicant husband’s migration history is cited from the delegate’s Decision Record and the applicant’s Movement Record. The applicant husband arrived onshore [in] February 2014 holding a [Visitor] ] visa. He was listed as a dependent on his wife’s protection visa application on 12 March 2014. He was granted a Bridging visa A on 14 March 2014, which ceased on 9 October 2017. He was granted another Bridging visa A on 9 October 2017, which remains in effect to the date of this decision.
The following information is apparent from the applicant husband’s protection application form. The applicant husband was born on [date] in Imo State, Nigeria. He is of Igbo ethnicity, and his religion is Christian. He speaks, reads and writes Igbo and English. His father is deceased, and his mother resides in Aba, Imo, Nigeria. He has [specified family members], who all reside in Nigeria. He also has a [child] that resides in Nigeria. From [specified year] to February 2003, the applicant husband resided in Abia State, Nigeria. From February 2003 to November 2014, he resided at two addresses in South Africa. [Between specified years], the applicant husband completed primary school and high school in Nigeria. From February 2003 to May 2003, he completed a course at a [college] in South Africa. From March 2008 to June 2013, the applicant husband was a manager at a [business] in Johannesburg.
The applicant eldest daughter’s migration history is cited from the delegate’s Decision Record and Movement Record. [In] February 2014 she arrived onshore with a [Visitor] visa. She was listed as a dependent on her mother’s Protection (Subclass 866) visa on 12 March 2014. She was granted a Bridging visa A on 14 March 2014, which ceased on 9 October 2017. She was granted another Bridging visa A on 9 October 2017, which remains in effect to the date of this decision.
The following information is apparent from the applicant eldest daughter’s protection application form. She was born on [date] in Johannesburg South Africa. She is of Igbo ethnicity, and her religion is Christian.
On 15 June 2015 the applicants added the fourth applicant to their application. The applicant youngest daughter was born onshore on [date]. She was granted a Bridging visa A on 17 June 2015, which ceased on 9 October 2017. She was granted another Bridging visa A on 9 October 2017, which remains in effect to the date of this decision.
The applicant submitted the following Statutory Declaration dated 11 March 2014, which sets out the claims for protection (not corrected for spelling or grammar, headings and footings omitted):
1.     I am afraid to return to South Africa. We fear for our lives if we are forced to return to South Africa. I and my husband [Applicant 2] were seriously harmed and our lives were put in danger by my former husband who was released from prison in South Africa.
2.     I was married to this former police officer and his name is [Mr A]. We had one child and his name is [name] and he is [age] years old and he lives in South Africa.
3.     In year 2006 there was a very serious incident that happened in [location 1]. In that incident during a [party] my husband who was flaunting his gun and his macho image accidentally shot and killed [an age] year old boy. That boy came from an influential family in that the boy’s father was a high ranking police officer. As a result of that my husband was given [lengthy] jail term.
4.     When he went to jail he told me that I should not find another man because he will be let out soon so that he could be back with me. He also asked me to look after the son and wait for him to return from the jail. I was so emotional for him at that time that I promised to wait for him.
5.     I was in touch with him going to visit him in jail. After many years I got tired and slowly cut down on the visit. When I started seeing [Applicant 2] he came to know about that and he sent me a warning saying that if he ever comes out he will kill [Applicant 2] for playing around with his wife. He also warned me that I will be killed for adultery.
6.     I was not worried at that time since I knew that there were many more years remaining out of that 20 year sentence. However in 2013 I started getting news that he was to be out soon because his terms has been gradually reduced. That is when the first alarm bells started ringing.
7.     In January he came to where I was living while my husband was away and asked me to come and live with him and our son. I told him that I am married to another man and that is has been a very long time and I could not wait for him and that there are many women who would be happy to marry him and that he should leave me alone. He tried to drag me along but I refused to go and he assaulted me. When he left he said he will come again very soon and take my son who was not at home at that time.
8.     He then started calling and threatening me. There were three calls in February 2013.
9.     In April 2013 he came while my husband was at home and they had a fight in which [Applicant 2] was beaten by [Mr A]. He said he had come from the jail and he is happy to go back if his wife does not come back to him. We went to the police but the police was already bribed by [Mr A] when we went, so they did not take any action. Another reason we believe that we were not protected by the police was because they were close to my ex-husband because of his police background.
10. In order to escape from him we applied to come to Australia. Since the visa was taking time and we feared imminent danger we left for Europe, hoping that it will be very short. We could not take my son because we could not get a passport for him because his father had to agree to that.
11. While in Europe we tried to get a passport for him in South Africa through one of my brothers and we were promised by an officer in the South African Immigration that we will get it. We were to offer him a bribe. But it went on for long so we decided to return and get the passport for our son and bring him with us to Australia.
12. When we returned we met the officer but we were told that we will not be able to get a passport for him as it is very strict now. So we had no choice but to leave for Australia without any delay.
The applicant eldest daughter and applicant youngest daughter rely on the applicant’s claims.
The applicant husband relied on his wife’s claims to seek protection from South Africa. In addition, he raised his own claims seeking protection from Nigeria. The applicant husband submitted the following answers on his protection application form:
Why did you leave that country?
I left Nigeria in 2003 to seek protection in South Africa. My life is in danger in Nigeria.
I left South Africa in Feb 2014 as our life was in danger in S.A.
Have you experienced harm in that country?
Yes.
Nigeria – on two occasions beaten by security forces. I was being hunted down.
S. Africa – I was severely harmed by my wife’s ex-husband.
What do you fear may happen to you if you go back to that country?
Nigeria – I will be detained, tortured & killed.
S.A – I will be seriously harmed or maimed.
Who do you think may harm/mistreat you if you go back?
Nigeria – Security forces.
S.A – Former husband of my wife.
Why do you think this will happen to you if you go back?
Nigeria – They think that I am a terrorist because I want freedom for Biafra.
S.A – Wife’s former husband want her back.
Do you think the authorities of that country can and will protect you if you go back?
No.
Nigeria – It is the authorities that I fear.
S.A – Because the perpetrator is an ex-policeman he has support in the police force.
The applicant husband submitted the following Statutory Declaration dated 12 June 2015, setting out his claims for protection (not corrected for spelling or grammar, headings and footings omitted):
1.     I am afraid to return to South Africa. We fear for our lives and if we are forced to return to South Africa I have no doubt that terrible things will happen to us. I and my wife [the applicant] were seriously harmed and our lives were put in danger by her former husband who was released from prison in South Africa.
2.     My wife has provided details about what happened to us in South Africa. This declaration is mainly about what happened to me in Nigeria that made me run away and seek asylum in South Africa.
3.     I went to South Africa in February 2003 because I was persecuted in Nigeria.
4.     I was the ‘[Position 1]’ for a political organisation called ‘Massop’. I was the [Position 1] for that organization so my responsibility it was to communicate information to the Massop members and supporters in my area. I come from Aba town in Eziukwu District.
5.     Our people are Ibo community and these were the people who shed their blood in the Biafran civil war. Although we were beaten in the war, the thought of freedom and self destiny never left out people. Ibo people feel discriminated in Nigeria and we want out share of the state benefits for our community.
6.     Massop is not openly involved in armed conflict and they are agitating for our rights and is also quietly involved in antigovernment activities.
7.     Activists of Massop were hunted down more rigorously in late 2002 and early 2003 as it is being down now. I was hiding for 3 months before I ran away in February 2003 to South Africa. The Immigration system was not modern at that time at the Lagos Airport so it allowed me to slip through the airport.
8.     I was a businessman and I had [vehicle 1s] which were used for transporting of people and this allowed me ample opportunity to mix with the community and pass on information about Massop. I passed on information about meetings and demonstration and other antigovernment activities.
9.     I had two very serious incidents that put my life in danger. In around July 2002 vigilante groups supporting the government against Massop stooped me on the road and beat me. They smashed my face with a torch-light and [I suffered specified injuries] and they told me next time I will be killed. This happened at the [named location].
10. In early October 2002 we had a meeting for Massop and the members who were on the lookout for security forces came and told us that a bunch of police were coming. We just could not run away and we were trapped. They arrested [all] of the executive officers including me and seven others who were also there.
11. They beat us and took us and detained us for three weeks and during this time we were beaten and humiliated. When we were left out I went to South Africa as I felt that I may be killed if I stay any further.
12. I am also the [Position 2] of the [Community Organisation 1]. Because of this involvement the Nigerian Government would persecute me if I return to Nigeria.
The applicants provided the following material to the Department in support of their application for protection:
·Letter from the [Positions 3 and 4] of [Community Organisation 1] dated [in] July 2015. The letter states the applicant husband is an active member of the community.
·Eight photographs of the applicant husband engaging in activities in support of Biafra.
·Four photographs.
·An undated statement by the [Community Organisation 1].
·A news article by The Biafra Times titled ‘Biafrans react to bombing by Nigerian Forces’ dated 20 June 2015.
·A document with 20 links to interviews and articles on Biafra.
·Indigenous People of Biafra (Biafra Community in Australia) – Chronology of Recorded Killings of Biafrans in Nigeria from 22 June 1945 to 23 June 2014.
·[Community Organisation 1]Notice and Petition (undated).
·Department Home Affairs – Republic of South Africa: Confirmation of Application for Temporary Residence Permit issued to the applicant husband. Letter dated [in] February 2014.
·Blog post titled ‘Withdrawal of Directive 43: New Visa Requirements For Foreign Nationals Awaiting Residency’.
·Al Jazeera article titled ‘Xenophobia in South Africa’ dated 3 May 2015.
·IB Times Article titled ‘South Africa Xenophobia 2015: Victims’ Names and Nationalities Released’ dated 28 April 2015.
·All Africa article titled ‘Nigeria: Kidnapper Fingers MASSOP Leader’ dated 1 July 2009.

Provided on behalf of the applicant on 31 January 2024 was a submission, supporting statements, supporting documents and prior Tribunal decisions as listed by the representative as follows:
1.A letter of support from [Person A] dated 19 January 2024;
2.A letter of support from [Person B] dated 23 January 2024;
3.A letter of support from [Person C] dated 22 January 2024;
4.A letter of support from [Persons D and E];
5.A petition from the [Community Organisation 1] to the Queen of England dated [in] 2015;
6.A Facebook post from [Community Organisation 1] dated [in] January 2024 describing the efforts of Nigerian authorities to undermine the [Community Organisation 1] movement;
7.[Community Organisation 1] development levy receipt dated [in] August 2015;
8.[Community Organisation 1] donation receipt for pledge dated [in] July 2019;
9.[Community Organisation 1] membership fees receipt dated [in] July 2020;
10.[Community Organisation 1] membership fees receipt dated [in] February 2021;
11.[Community Organisation 1] membership fees receipt dated [in] April 2023;
12.Immigration Act 2002 (SA);
13.Immigration Act 2002 (Immigration Regulations);
14.UNHCR Convention and Protocol Relating to the Status of Refugees;
15.Convention Governing the Specific Aspects of Refugee Problems in Africa;
16.2015540 (Refugee) [2021] AATA 1022 (17 March 2021);
17.1818739 (Refugee) [2023] AATA 1352 (26 March 2023);
18.2010932 (Refugee) [2023] AATA 3527 (1 August 2023); and
19.1711738 (Refugee) [2022] AATA 1245 (24 February 2022).
The Tribunal has reviewed and taken into account these documents. The various letters of support provide evidence of the good character of the applicants. They do not contain information relevant to substantial claims for protection.
The Tribunal notes the following from the submission. It recites factual substantial claims for protection. It details relevant law relating to protection criteria. It refers to independent information indicating prevalent domestic violence in South Africa and low levels of prosecution and conviction in domestic violence cases. Independent information is provided concerning the treatment of Biafran separatist groups in Nigeria – the Actualisation of the Sovereign State of Biafra (MASSOB) and [Community Organisation 1].
Evidence is provided of authorities in Nigeria responding to activities of these groups with arbitrary arrests and extrajudicial killings. There are a number of reports of violence, injuries and deaths in the context of clashes during protests with security forces. For example, a report from 2016 by Amnesty International indicates at least 150 people were killed during a peaceful pro-Biafra rally. A report in 2021 by the European Union Agency for Asylum indicates, in recent years, Nigerian authorities deliberately targeting persons suspected to be [Community Organisation 1] members.
The submission provides independent information as to discrimination in South Africa of Nigerian nationals. Reference is made to recent xenophobic attacks in South Africa, including assaults and deaths and attacks on businesses.
The submission details reasoning in a number of prior Tribunal decisions. The submission then deals with various legal submissions, which have been considered by the Tribunal. Submissions relevant to the Tribunal’s reasoning are set out and canvassed below.
Independent evidence sourced by the Tribunal
The 2020 DFAT report on Nigeria provides the following information (underlining added):
RECENT HISTORY
2.1 The boundaries and territory of contemporary Nigeria were established under British colonial rule commencing in the mid-19^thcentury. The British formally consolidated the separate Protectorates of Northern and Southern Nigeria into the single Colony and Protectorate of Nigeria in 1914, bringing together a population comprising more than 250 ethnic groups, a major religious divide and a significant disparity in economic and educational development between north and south. In line with the post-WW2 wave of decolonisation across Africa, Nigeria achieved independence on 1 October 1960 under a constitution that provided for a parliamentary government and a substantial measure of regional self-government.
2.2 Independent Nigeria faced significant challenges from the outset, with ethnic and religious rivalries magnified by economic disparities. The first of a series of coups and counter-coups occurred in 1966, and Nigeria spent much of the remainder of the 20^thcentury under military rule. In May 1967, the southeast region declared itself independent as the Republic of Biafra, sparking a three-year civil war that ended in January 1970 with Biafra’s defeat. Up to 3 million civilians died from the conflict, mostly from starvation. Several organisations continue to advocate for Biafran secession (see Biafra Secessionists).
2.3 Military rulers suppressed political activities, most notably General Sani Abacha who seized power in November 1993. After the widely condemned 1995 execution of a prominent writer and political activist, the European Union imposed sanctions and Nigeria was suspended from the Commonwealth. After Abacha’s 1998 death, parliamentary and presidential elections in 1999 brought former general Olusegun Obasanjo to power, marking the formal end of military rule. Nigeria introduced a new Constitution in 1999, which outlines the federal system of government and the hybrid application of religious, customary and civil laws.
2.4 Civilian-run presidential elections in 2003 resulted in a second term for Obasanjo, and there have been no further military coups since. Subsequent elections have occurred at four-year intervals, have all been civilian-run and have included victories by opposition candidates. While far from perfect and often accompanied by political violence, international observers agree these elections have generally reflected the will of the population. Nigeria’s most recent presidential election occurred in February 2019, resulting in a second term for former general Muhammadu Buhari.
2.5 Despite the return to civilian rule, Nigeria has continued to face significant challenges on a number of fronts. Ongoing ethno-religious tensions have occasionally led to deadly violence across the country, generally sparked by localised factors. Tension over the adoption of sharia (Islamic law) by several northern states in 2000 resulted in hundreds of deaths in clashes between Christians and Muslims and continues to be a point of friction (see Religion). Militant activities in the Niger Delta region targeting the oil industry have impacted upon the economy and national security more generally. An enduring campaign of violence in the northeast by the Boko Haram Islamist group has killed tens of thousands and displaced millions. Nigeria’s oil-focused economy remains highly vulnerable to external factors, and huge numbers of Nigerians live below the poverty line (see Economic Overview). Significant human rights abuses by both state and non-state actors continue to occur, often committed with impunity. The long-term effects of the COVID-19 pandemic remain to be seen.[1]
[1] DFAT, Country Information Report – Nigeria, 3 December 2020, pp. 10-11
[…]
Igbo
3.7 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.
3.8 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.
3.9 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 (see Biafra Secessionists).
3.10 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.[2]
[2] DFAT, Country Information Report – Nigeria, 3 December 2020, p. 24
[…]
Biafra Secessionists
3.45 As noted in Recent History, Nigeria fought a civil war from 1967 to 1970 against a secessionist movement in the southeast that titled itself the Republic of Biafra. The war came after coups and counter-coups around the central government, followed by a pogrom in which an estimated 30,000 Igbo were killed in the north, causing over a million people to flee into the east. While the exact number is unknown, most estimate the number of civilian deaths caused by the conflict to be 2-3 million, mostly due to famine.
3.46 Targeted re-engineering of the country occurred in the immediate aftermath of the Biafra conflict, aimed at preventing any further attempts at secession and encouraging national unity and peaceful coexistence among Nigeria’s more than 250 ethnic identities. These moves included greater federalisation, including through the creation of additional states, and the introduction of constitutional diversity requirements to prevent both monopolisation of leadership, and economic and political exclusion. Informal ethnic quotas and arrangements continue to seek to maintain ethnic and religious harmony.
3.47 Despite these moves to encourage greater national unity, there has never been a national reckoning or dialogue in relation to the issues that led to the Biafra conflict, which is not officially commemorated. According to observers, many in the southeast report feeling ongoing resentment at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation in national life. Such feelings have reportedly grown stronger in the years since President Buhari came to power, with many of his major political and military appointments tending to favour individuals from the north. As a result, in recent years there has been a noticeable resurgence of calls from the southeast for greater self-determination in the form of an independent Biafran state.
3.48 While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.
3.49 While the two groups (and other Biafran secessionist movements) have called for independence to occur through peaceful means, such as via referendum, central authorities have strongly rejected such calls, stating the country’s unity is ‘not negotiable’. In October 2015, security forces arrested IPOB’s UK-based leader Nnamdi Kanu on his return to Nigeria, charging him with treason and sedition. Kanu’s arrest sparked nationwide protests among his followers, leading to serious clashes with security forces. Amnesty International reported in November 2016 that, on a number of occasions across the southeast, the military had fired live ammunition with little or no warning to disperse crowds, causing multiple fatalities; while security forces also shot at least 60 people dead in the space of two days in connection with events to mark Biafra Remembrance Day in Onitsha, Ananambra state.
3.50 After Kanu’s release from detention in April 2017 failed to end the demonstrations, security forces launched a military operation, Operation Python Dance, to quell the agitation in the southeast. According to international observers, a September 2017 security operation against IPOB supporters at Kanu’s home resulted in up to 150 deaths. Authorities subsequently designated IPOB a terrorist organisation., While the clampdown by security forces appeared to largely curtail IPOB’s public activities, November 2020 saw a new outbreak of open conflict in the southeast of the country. Rivers state Governor Nyesom Wike has reportedly ‘declared war’ on the group following an attack on security forces which killed six soldiers and four police officers. In her September 2019 post-visit report, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution noted she had received a large number of allegations of killings of IPOB members by military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings. The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges; and there had not been any convictions of IPOB members since 2015 due to the discontinuance or dismissal of charges.
3.51 DFAT understands that, although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to conduct public activities. There have also been recent reports of deaths, injuries and mass arrests of MASSOB members in the context of clashes with security forces during pro-Biafra demonstrations. In May 2019, two MASSOB members were reportedly killed and 15 wounded following clashes with police at a MASSOB anniversary event in Onitsha, Anambra state, while in the same period a MASSOB member was reportedly arrested and tortured at a police station in Mgbidi, Imo state. In September 2018, 125 MASSOB members were reportedly arrested, with some sustaining injuries, during a rally in Anambra state.
3.52 DFAT assesses that, as members of a proscribed organisation, IPOB members face a risk of arrest that is likely to be higher for those in leadership positions. Ordinary members of IPOB, MASSOB and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.[3]
[3] DFAT, Country Information Report – Nigeria, 3 December 2020, pp. 30-31
[…]
TREATMENT OF RETURNEES
5.37 Article 41(1) of the Constitution states no citizen shall be expelled from Nigeria or refused entry or exit from the country. Article 41(2)(a) and (b), however, permit the State to impose restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent them from leaving Nigeria; or provide for the removal of any person from Nigeria to any other country to be tried outside Nigeria for any criminal offence, or undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which they have been found guilty, provided there is reciprocal agreement between Nigeria and such other country in relation to the matter.[4]
[4] DFAT, Country Information Report – Nigeria, 3 December 2020, pp. 57-58
[…]
Exit and Entry Procedures
5.38 The Immigration Act (2015) provides the legal and regulatory framework for the entry and exit of persons into or out of Nigeria. The Nigerian Immigration Service (NIS), an agency under the Federal Ministry of Interior, is charged with the responsibility of regulating and approving immigration, emigration, and the granting of visas and entry permits into Nigeria.
5.39 Section 17 of the Act requires every passenger who arrives or departs Nigeria from any recognised port to produce a landing or embarkation card, and to satisfy an immigration officer that he or she is the holder of a valid travel document. According to Section 39 of the Act, the Comptroller-General of Immigration may at any time revoke any entry permit under the Act, if he/she deems it to be in the public interest. Under Section 31 of the Act, the Minister of Interior also has the power to prohibit the departure of any person from Nigeria on public interest grounds, which can include insufficient funds, invalid visas or passports, no return airfare or a ‘doubtful mission’. In July 2020, the Minister invoked the section while preventing 58 medical doctors from departing the country on the grounds that they did not have entry visas for the United Kingdom.
5.40 Officials from the NIS and other agencies, including police and drug enforcement agencies, meet flights returning failed asylum seekers. Once disembarked, authorities transport the returnees to a reception centre, where they are processed by NIS. The NIS can reportedly seize the passports of Nigerians who have been deported for a minimum of two years.[5]
[…]
Conditions for Returnees
5.41 Thousands of Nigerians enter and leave the country every day. According to the National Commission for Refugees, Migrants and Internally Displaced Persons, Nigeria received a total of 11,494 returnees in 2018, of which 10,180 were from Libya. There is no evidence of any stigma attaching to such returnees.
5.42 Nigerian nationals may return voluntarily to any region of Nigeria at any time by way of the Voluntary Assisted Return and Reintegration Programme, run by the International Organization for Migration (IOM) and co-funded by the European Refugee Fund. The Programme provides assistance with obtaining travel documents, booking flights, and organising re-integration assistance in Nigeria, and is open to those awaiting an asylum decision or the outcome of an appeal, as well as failed asylum seekers. Upon arrival, returnees can receive immediate assistance such as food, medical screening, overnight accommodation and money (up to 100 Euros) for basic needs and transportation. Returnees can also receive in-kind re-integration assistance and skills training.
5.43 The government allocated 100 billion naira (around AUD400 million) in its 2019 Budget to projects that included re-integration efforts for returnees. Some states also offer monthly stipends for returnees. In August 2019, the government established the Ministry of Humanitarian Affairs, Disaster Management and Social Development, which aims to better coordinate rehabilitation and re-integration efforts.
5.44 Nigerian citizens returning from overseas with a criminal record can be charged under Decree 33 of the National Drug Law Enforcement Agency Act (1990). Decree 33 provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas, including those with drug convictions and other serious crimes (including money laundering, fraud, armed robbery and rape). The minimum sentence under Decree 33 is five years’ imprisonment. In practice, DFAT understands the Nigerian Government has rarely given effect to Decree 33.[6]
[5] DFAT, Country Information Report – Nigeria, 3 December 2020, p. 58
[6] DFAT, Country Information Report – Nigeria, 3 December 2020, pp. 58-59
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, 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 or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicants are citizens of South Africa and Nigeria and accordingly their claims will be assessed against South Africa and Nigeria.
Claims in relation to South Africa
There are multiple credibility concerns in the evidence of the applicant and the applicant husband in terms of claimed harm inflicted by the applicant’s ex-husband, details of complaints to police and the applicant husband going into hiding during the course of 2013.
In relation to the latter, both the applicant and applicant husband initially gave evidence in the hearing that they lived continuously at their home in Johannesburg for the entirety of 2013 until they went to [Country 1] in November 2013.
The Tribunal put to both the applicant and applicant husband the fact that previous claims indicate there was a period in 2013 in which at least the applicant husband was in hiding. Both in the hearing then changed their evidence to indicate that there was periods of hiding and they were not living continuously at the home during 2013. However, there were inconsistencies between these changed accounts.
The applicant husband in the hearing indicated that they went into hiding for approximately two months. In contrast, the applicant indicated that they may have gone for a week to stay with her sister in Soweto.
The Tribunal considers that the truth of the situation, based on the initial evidence of both the applicant and applicant husband in the hearing, is that they stayed continuously at their home in Johannesburg until travelling to [Country 1] in November 2013. The Tribunal considers that the changed evidence of going into hiding, after prior evidence of having been in hiding was put to them, was untruthful.
In evidence as to the visit to their home of the ex-husband in April 2013, in the hearing (giving evidence with her husband out of the room) the applicant indicated that she was not physically injured but the applicant husband was punched on the jaw. The applicant indicated that after the ex-husband left, they called police who visited the home where they made a complaint. However, police did not properly investigate the issue, although there was no follow-up from the applicant to the police to enquire about the progress of investigations.
The Tribunal put to the applicant that in evidence to the delegate in the interview she gave evidence that she was hit by her ex-husband when she tried to stop him hitting her husband. She was hit on the ear, creating problems with hearing. In that evidence, she indicates that she sought medical attention from a doctor.
The applicant indicated that it was a long time ago and she has forgotten key details and indicated that it was the case that she was injured and saw a doctor. She indicated that she went with her husband the next day to see a doctor for both of their injuries.
In contrast, in the hearing the applicant husband gave evidence that he went alone to a doctor for his injuries on the evening of the attack.
In addition, the applicant husband, when giving evidence of this physical encounter, says that he visited police to make the complaint, in contrast to the applicant’s evidence that police visited the home.
In the hearing, the applicant gave evidence that she only had two interactions with police. This was after the physical encounter in January 2013 and the one in April 2013 where police were called, attended the premises and took details, but provided no follow-up information, and no further enquiries were made by the applicant.
The applicant indicated that there were no other approaches to the police. The applicant did give evidence in the hearing of abusive phone calls from the ex-husband after the January 2013 encounter, but no complaints were made to the police about these calls.
The Tribunal noted to the applicant that prior evidence in the delegate interview made claims of complaints to the police after each abusive phone call from the ex-husband. In the interview, the applicant also indicated that there were five approaches to police in total.
The above numerous credibility issues were put to the applicant and applicant husband in the hearing as undermining of the truth of what is being claimed in terms of harm and threats from the ex-husband of the applicant. In response, the applicant indicated that it has been a long time, and that this is the reason for the inconsistencies.
The Tribunal put to the applicant that even if it were to accept that what the applicant claims is true, there was no contact by the ex-husband to the applicant or her husband from April 2013 until they left for Australia in February 2014. The Tribunal noted that a further 10 years has passed and questioned whether the husband would have maintained a motivation to harm the applicant and her husband given that passage of time. The applicant maintained that this risk does still exist. She indicated that the attitude of her ex-husband is reinforced by the fact that he will not take necessary steps as a parent to facilitate their son in South Africa gaining identity documents. The applicant indicated that the ex-husband refuses to do this because he wants to lure the applicant back into the country to take this step.
The credibility concerns and inconsistencies outlined above are numerous and, in the Tribunal’s view, not readily explained by uncertainty as to what occurred as a result of the passage of time.
The Tribunal does not consider that the applicant or the applicant husband have been truthful witnesses in terms of claimed encounters, threats and harm from the ex-husband.
The Tribunal is not satisfied that either the applicant or the applicant husband were physically harmed by the ex-husband in physical encounters in 2013. The Tribunal is not satisfied that the applicant’s ex-husband seeks to extract revenge and has a desire to continue the relationship with the applicant in a way that means he wants to cause any of the applicants serious or significant harm.
The Tribunal is prepared to accept that the ex-husband holds a degree of grievance towards the applicant, but the Tribunal is not satisfied, given its disbelief as to what has been claimed by the applicant and applicant husband in relation to the ex-husband, that he has a desire to cause them harm that would meet protection criteria.
The Tribunal considers claims by the applicant husband that he faces requisite harm in South Africa as a result of the potential for xenophobic attacks based on him being from Nigeria. In the hearing, the Tribunal asked the applicant if her husband had suffered any significant difficulties in South Africa from his arrival there in 2003 until leaving in early 2014, apart from the issues related to her ex-husband. In response, the applicant indicated that he had not.
The Tribunal put the same question to the applicant husband. He referred to the potential for xenophobic attacks, including being stolen from and assaulted. He said that nothing problematic had happened to him in these respects during his time in South Africa but it had happened to his friends and there was a risk of harm on this basis in the future, if he was to be returned.
The Tribunal accepts from the independent evidence that hostility, abuse and some attacks are directed towards foreign nationals of other ethnicities in South Africa. However, the Tribunal is not satisfied that the extent of difficulties in these respects means that every foreign national of a different ethnicity in South Africa faces a real chance of serious or significant harm. The Tribunal considers that there needs to be some particular factor relevant to the individual that exacerbates the risk to this level. There is no claim and the evidence does not establish that the applicant husband has any additional characteristic that elevates the risk to him to a level of harm that would meet protection criteria.
The Tribunal is not satisfied that the applicant husband faces a real risk of serious or significant harm in South Africa based solely on being a foreigner, combined with his ethnicity.
Given earlier findings, the Tribunal is not satisfied that either the applicant or the applicant husband faces a real risk of serious or significant harm in South Africa from the ex-husband of the applicant in his quest to seek revenge on them.
Claims against Nigeria
The applicant husband has claimed involvement in Nigeria in the Biafran separatist movement, particularly involvement with the organisation MASSOB. The Tribunal notes that the Tribunal decision which has been remitted for reconsideration found that the applicant husband is owed protection in Australia against the risk harm on this basis in Nigeria. Having said that, the Tribunal’s analysis at that time was limited and the ultimate finding was that the applicant was not owed protection because he had the right to enter and reside in South Africa.
Given this, and the very significant credibility issues with both the applicant and the applicant husband identified earlier in the hearing, the Tribunal was conscious of needing to be detailed and probing as to what the applicant husband claims in Nigeria in terms of his involvement in MASSOB and the harm that he suffered as a result.
The Tribunal asked the applicant husband detailed questions in this respect. The applicant indicated that he became seriously involved with MASSOB in 1998 when he became a paid-up member, albeit having had some involvement in the years before. The applicant husband indicated that in 1998 he became a MASSOB ‘[Position 1]’. This role involved him travelling around the city [in his vehicle 1] distributing flyers and promoting rallies. The applicant husband gave evidence of involvement on the executive of the organisation in the planning of events, including rallies. The applicant husband indicated that rallies would occur every few months and would mostly take place in fixed locations, mainly schools, although on occasions there would be rallies and marches on the streets. The applicant husband referred to authorities regularly interrupting the gatherings, firing tear gas, inflicting injuries and making arrests, although the applicant himself was never arrested at a rally.
The applicant husband gave evidence consistent with his written claims of an incident in July 2012 where he was attacked by vigilantes who smashed his face and broke a tooth with a torch. The applicant also gave evidence consistent with written claims of him and [other] executives of MASSOB being arrested by police at a gathering and ending up being detained for three weeks, where they were physically harmed and tortured. He indicated that he was released when MASSOB lawyers intervened. The applicant indicated that it was after this event that he decided he needed to leave the country.
The applicant gave detailed evidence of involvement in MASSOB rallies and the two instances of harm and included peripheral information, which persuaded the Tribunal that the applicant was recounting events that actually took place.
The Tribunal is satisfied that the applicant husband was significantly involved with MASSOB in Nigeria from 1998 and that he has been involved organisationally and has participated in rallies. The Tribunal is satisfied that there were at least some instances in which the applicant was physically harmed as a result of his political involvement. The Tribunal has carefully considered these claims, particularly the claims of being detained for three weeks and tortured, in light of the credibility issues identified in terms of the claims as to what happened in South Africa. Having carefully considered claims as to what happened in Nigeria, the Tribunal is persuaded that the applicant husband was significantly politically involved in Biafran issues and suffered some physical harm as a result.
The Tribunal has doubts, however, that the applicant husband is noted as a person of adverse interest in government systems given his ability to leave through normal channels to South Africa in 2003 and to enter and exit Nigeria again in 2013 when he returned there briefly for his father’s funeral. In response, the applicant indicated that this is because systems were not so advanced in 2013 and earlier. The Tribunal is not inclined to be satisfied of this.
The applicant husband indicated that in Australia he has become involved with the [organisation], [Community Organisation 1], which was not yet operational during the period he was involved in MASSOB in Nigeria.
The Tribunal accepts, based on third-party evidence provided, that the applicant husband has had not insignificant involvement in Australia in Biafran political issues, including with [Community Organisation 1].
In the hearing, the applicant husband indicates that were it not for the fear he would wish to continue to be politically involved in Nigeria as he had been before.
While the Tribunal does not consider that the applicant is noted as a person of adverse interest on systems of the Nigerian government, the Tribunal is persuaded that the applicant faces a requisite risk of harm as a result of what the Tribunal accepts is his desired level of political involvement on return to Nigeria.
The Tribunal considers that the applicant husband would continue to be involved politically in MASSOB and/or [Community Organisation 1] and continue to be involved as a mid-level organiser. The Tribunal considers that the applicant husband would continue to participate in rallies.
The Tribunal is persuaded from the independent evidence provided, including the DFAT report, as to the ongoing targeting by Nigerian authorities of members of [Community Organisation 1] and MASSOB. DFAT information indicates that ordinary members of secessionist groups who participate in political demonstrations or rallies face a moderate risk of being subject to violence by state security forces.
Given the Tribunal’s acceptance that the applicant husband would continue to wish to be involved in rallies, the Tribunal considers he faces a moderate risk of violence. The Tribunal considers that this is sufficient to establish that he faces a real chance of serious harm, being the risk of physical attack at a rally. The risk to the applicant is exacerbated by what it accepts would be his desired organisational role in the organisations.
The Tribunal considers that the essential and significant reason for the risk is a product of the applicant husband’s political opinion. The Tribunal considers that the risk to the applicant husband is systematic and discriminatory. The Tribunal considers that the risk exists in all parts of Nigeria, because the applicant husband would wish to be politically active in all parts of the country.
Thus, the Tribunal considers that the applicant has a well-founded fear of persecution in Nigeria for a Convention reason.
Third country protection for applicant husband in ECOWAS countries
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.
The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91 has held that the term ‘right’ in s 36(3) should not be restricted to a right that is legally enforceable in the strict sense. Rather, it should include the notion of: a liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. The right must be a right to both enter and reside: WAGH v MIMIA (2003) 131 FCR 269 per Hill J. The right must be existing, and not a past or lapsed right, or a potential right or expectancy: Suntharajah v MIMA [2001] FCA 1391.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a presently existing liberty, permission or privilege to lawfully enter and reside in a third country either temporarily or permanently; whether he has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A) (i.e. no need to be legally enforceable).
Nigeria is a member of the European Community of Western African States (ECOWAS). ECOWAS was established on 28 May 1975 by the Treaty of Lagos and is a 15-member regional group with a mandate of promoting economic integration in all fields of activity of the constituting countries. The member states are Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, Senegal and Togo.[7]
[7] ECOWAS website, >
Considered one of the pillars of the African Economic Community, ECOWAS was set up to foster the ideal of collective self-sufficiency for its member states. As a trading union, it is also meant to create a single, large trading bloc through economic cooperation. Integrated economic activities envisaged include the areas of industry, transport, telecommunications, energy, agriculture, natural resources, commerce, monetary and financial issues, and social as well as cultural matters.[8]
[8] ECOWAS website, >
The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment, and its supplementary protocols, commonly referred to as the Free Movement Protocol.[9] According to the Department of Foreign Affairs and Trade (DFAT), a revised treaty was signed in 1993, further strengthening intra-regional economic and political integration and regional unity across national and linguistic borders.
[9] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 2.1, 2.2, 2.4 and 2.5; For a listing of the Protocol and the Supplementary Protocols, with a summary of their major features, see 'NEW ISSUES IN REFUGEE RESEARCH: Promoting integration through mobility: free movement and the ECOWAS Protocol', United Nations High Commissioner for Refugees, Aderanti Adepoju, Alistair Boulton and Mariah Levin, 01 December 2007, CIS20876, p. 2

All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[10]
[10] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.1 and 3.2
The ECOWAS treaties and protocols provide citizens of the member states with a legal framework for the progressive implementation of rights of entry, residence, work and establishment.[11] The ECOWAS protocols entitle ECOWAS citizens to visa-free entry, to work and reside in all ECOWAS member states for 90 days provided they have valid travel documents, an international health certificate and they are not ‘inadmissible immigrants’ under the domestic laws of the member state.[12] This right of entry has been implemented by all 15 member states.[13]
[11] 'Protecting refugees and other persons on the move in the ECOWAS space', International Organization for Migration (IOM) and United Nations High Commissioner for Refugees (UNHCR), 01 January 2011, CIS22697, p. 23
[12] 'Protecting refugees and other persons on the move in the ECOWAS space', IOM and UNHCR, 01 January 2011, CIS22697, pp. 24 and 42
[13] ‘Annex of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" ACP Observatory on Migration, 1 January 2014, 'Nationality, Migration and Statelessness in West Africa: A Study for UNHCR and IOM', UN High Commissioner for Refugees (UNHCR) and International Organisation for Migration (IOM), 01 June 2015, CISEC96CF13653, 5.6; and 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.3
Under the protocol, a valid travel document “means a passport or any other valid travel document establishing the identity of the holder with his photograph, issued by or on behalf of the Member State of which he is a citizen and on which endorsement by immigration and emigration authorities may be made. A valid travel document shall also include a laissez-passer issued by the Community to its officials establishing the identity of the holder”.[14]
[14] 'Protocol Relating to Free Movement of Persons, Residence and Establishment', Official Journal of the ECOWAS, Economic Community of West African States (ECOWAS), 01 May 1979, CIS22699, Part I, Definitions, Article 1; ECOWAS has issued a standardised travel certificate since 1985 – see 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 5.3
The term ‘inadmissible immigrant’ is not defined in the Protocol and is otherwise left to the domestic laws of the member states. A 2007 report included a list of the inadmissibility provisions of ECOWAS member states.[15] Nigeria, Sierra Leone and Ghana each declare certain persons to be prohibited migrants under their relevant legislation.[16]
Right of residence
[15] 'NEW ISSUES IN REFUGEE RESEARCH: Promoting integration through mobility: free movement and the ECOWAS Protocol', United Nations High Commissioner for Refugees, Aderanti Adepoju, Alistair Boulton and Mariah Levin, 01 December 2007, CIS20876, pp. 9-10 (Table 3)
[16] Sierra Leone see - section 19; Ghana see section 8; and Nigeria see section 44
DFAT states that under the right of residence, “ECOWAS community citizens have the right to settle or establish in another member state other than their state of origin, ‘and to have access to economic activities, to carry out these activities as well as to set up and manage enterprises, and in particular companies, under the same conditions as defined by the legislation of the host Member State for its own nationals”. Stays over 90 days theoretically require a residence permit. ECOWAS citizens wishing to utilise the right of residence must apply and obtain a residence permit or work permit just like non-ECOWAS immigrants. The granting of a right of residence to ECOWAS citizens is not guaranteed — “refusal is possible on public order, public security or public health grounds”.[17] The right of residence has only been implemented in a limited number of ECOWAS member states,[18] namely: Benin, Burkina Faso, Cote d’Ivoire, The Gambia and Nigeria. The immigration authorities’ websites for Nigeria, Sierra Leone and Ghana provide some information about residence permits/visas for immigrants.[19]
Challenges of implementation of ECOWAS treaties and protocols
[17] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.3
[18] Only Benin, Burkina Faso, Cote d’Ivoire, The Gambia and Nigeria grant a specific residence permit to ECOWAS citizens – see ‘DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.16
[19] Ghana (permit and visa information) – Sierra Leone (resident permits) – and Nigeria (ECOWAS residence card) - >
Key challenges related to implementing the ECOWAS treaties and protocols are: inconsistency between the ECOWAS protocols and the national laws and policies regarding migration across ECOWAS member states; national laws and policies often do not conform to the ECOWAS protocols; and few member states have adapted their legislation to be in accordance with the 1979 Protocol and supplementary protocols.[20] In practice, many member states have provisions in their labour laws and regulations that protect certain economic sectors and public sector jobs from foreign nationals.[21] Resistance from influential member states, particularly Nigeria, has also hindered progress in implementing the ECOWAS mandate.[22]
[20] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.5
[21] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.6
[22] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.8
Other difficulties have been identified in the implementation of the ECOWAS treaty and protocols in practice. A 2014 report refers to challenges from border checks, harassment, and extortion of money from travellers within ECOWAS by security personnel. Women face some particular challenges, given the varying administrative procedures and harassment at borders.[23]
[23] ‘Annex of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" ACP Observatory on Migration, 1 January 2014, p86: >
A 2015 report refers to an earlier report that states: regional travel documents had not been distributed in half the countries; in most countries West African passports were not available; and harassment at border control posts continued.[24] An article in 2017 refers to the ECOWAS Commission President stating that harassment comprised a major handicap to free movement of persons.[25]
[24] 'Nationality, Migration and Statelessness in West Africa: A Study for UNHCR and IOM', UN High Commissioner for Refugees (UNHCR) and International Organization for Migration (IOM), 01 June 2015, CISEC96CF13653, 5.6
[25] ‘ECOWAS Commission President urges setting up of regional data sharing mechanism for migration’, ECOWAS website, 3 August 2017, >
DFAT indicates media reporting in October 2018 that claimed: Liberians, Sierra Leoneans and Guineans experienced delays, harassment and disrespect for their travel documentation when travelling between their countries’ borders for market trade; movement across land borders in ECOWAS member states could be met with harassment and administrative challenges; authorities in some Francophone countries engaged in harassment and showed little respect for Brown Cards (an ECOWAS-wide motor vehicle insurance scheme) issued by Ghanaian insurance companies; and ECOWAS border management capacity was limited and the borders remained porous.[26]
[26] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 3.17, 3.19 and 5.18
One commentator in a 2021 article described the ECOWAS free movement protocol as ‘a disintegrating legal regime’, given the reliance of ECOWAS member states on the ‘inadmissible immigrants’ exception, and given border closures by Nigeria, Mali and Niger.[27] Other examples of ECOWAS border closures include those arising from the 2014 Ebola outbreak in West Africa.[28]
Travel documents
[27] American Journal of International Law, ‘Free movement of persons in West Africa under the strain of COVID-19’, A Hamadou, 9 November 2020, p338: ‘West African states call for end to border closures over Ebola’, Reuters, 28 August 2014, and Poletto C, Gomes M F, Pastore y Piontti A, Rossi L, Bioglio L, Chao D L, Longini Jr I M, Halloran M E, Colizza V, Vespignani A, ‘Assessing the impact of travel restrictions on international spread of the 2014 West African Ebola epidemic’, Euro Surveill, 26 September 2014, 2014;19(42):pii=20936: >
DFAT states that ECOWAS has produced a number of travel documents to facilitate cross-border movement, but in practice restrictive national inadmissibility laws limit the effect of both the ECOWAS protocols and documentation. Many migrants in the ECOWAS region have no documentation for a variety of reasons including inability to prove origin, lack of access to authorities, lack of understanding of benefits of documentation, and the costs associated with obtaining documentation. Living without documentation in a foreign country exposes the migrants to risks of police extortion, problems integrating into the formal economy and an inability to access other rights.
ECOWAS has issued a standardised travel certificate since 1985 and ECOWAS passports since 2000. ECOWAS approved the introduction of a national biometric identity card for ECOWAS citizens in July 2014, but they have not been fully rolled out.[29] Further information on the extent to which travel certificates, ECOWAS passports or identity cards are used in practice to enter and reside in third countries, and how easy or difficult it is to obtain them, has not been found to date.
Impact of COVID-19 pandemic
[29] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020, 20201203123827, 5.1, 5.2 and 5.6
The first case of COVID-19 on the African continent was recorded in mid-February 2020. The pandemic greatly increased the mobility challenges that migrants face even within the West and Central Africa region. The closure of borders to prevent the spread of COVID-19 paralysed both regular and irregular migration: migration routes have been blocked; migrants found themselves trapped at borders, unable to reach their destination or return home; and basic transit services were overwhelmed due to the increased number of people in need. Since the outbreak of COVID-19, the risks irregular migrants face in the broader region have significantly increased, as now irregular migrants are being abandoned by criminal networks in dangerous areas given increased border control in the region.[30]
[30] ‘“See Migration Like Water” - An Analysis of Flow Monitoring Survey Data on Migration Flows in and Through West and Central Africa’, IOM and FXB Center for Health and Human Rights at Harvard University 6 April 2021, p10: >
Nigeria recorded its first case of COVID-19 in late February 2020 and within a month it had spread to all ECOWAS member states, with most of the member states subsequently closing their borders by April 2020.[31] Al Jazeera reported on the closure of airspace and lockdowns in a number of states.[32] Commentators have indicated that the COVID-19 border closures heavily impacted on, or practically suspended, free movement within ECOWAS.[33]
[31] ‘When a global virus meets local realities: Coronavirus (COVID-19) in West Africa’, OECD, 11 May 2020, p 4 (Box 1) and p 11 (Figure 3): ‘Coronavirus: Travel restrictions, border shutdowns by country’, Al Jazeera, 3 June 2020, American Journal of International Law, ‘Free movement of persons in West Africa under the strain of COVID-19’, A Hamadou, 9 November 2020: and ‘What will international migration in West Africa look like after COVID-19?’, Open Democracy,” 16 December 2020, >
The border closures in ECOWAS member states have also negatively impacted migration flows within ECOWAS member states.[34] A 2021 study noted several macro-trends of human mobility in relation to the spread of COVID-19 in West Africa. First, there were severe immobilisations until June 2020 with a peak in May, followed by a continuous decline towards the pre-pandemic baseline; and towards the end of the year, there were signs of both overcompensation and a second, smaller wave of immobilisations. Secondly, cross-border mobility was and is heavily restricted with an underlying tendency of significantly prioritising the opening of airports and maritime border points over land borders within ECOWAS. Thirdly, while many people returned to January 2020 levels of mobility and public transport usage, those depending on cross-border movements still experienced substantial restrictions.[35]
More recent situation
[34] ‘The Socio-economic Impact of COVID-19 on Free Movement and Migration in Niger’, International Organization for Migration (IOM), April 2021, p 6: ‘Covid-19 and (Im)mobilities in West Africa’, University of Bayreuth, African Studies, Working Papers, 2021, p112, >
The International Organisation for Migration (IOM) in its latest World Migration Report 2022 observed that migration involving ECOWAS member states is almost completely made up of migration between those member states; out of the 10 million international migrants moving to or from ECOWAS countries in 2020, more than six million moved within ECOWAS.[36] The IOM indicated that the border closures in ECOWAS member states due to the COVID-19 pandemic, resulting in the suspension of free movement arrangements, reduced intraregional movement between West and Central Africa by nearly 50 per cent at key border points, and thousands of migrants were stranded in quarantine and transit centres and at international borders. Further, some migrants resorted to irregular migration channels with reports of smugglers charging higher fees. However, due to tighter border controls and the general decrease in population movements, migrant smuggling in the area decreased in the early months of the pandemic. The IOM reported that while many countries have reopened their borders, various health and travel restrictions remain and continue to have impacts on migration and mobility in the subregion. The pandemic has also complicated political priorities, including those related to migration governance; however, as some analysis suggests, this is also an opportunity to strengthen migration governance and cooperation in the subregion and there is impetus to this end in some countries.[37]
[36] 'World Migration Report 2022', International Organization for Migration (IOM), 01 December 2021, 20220221102242, p 212
[37] 'World Migration Report 2022', International Organization for Migration (IOM), 01 December 2021, 20220221102242, p 68

100. In December 2021, ECOWAS leaders agreed to the reopening of all land borders in the region by 1 January 2022. They also welcomed the reopening of already opened borders. The reopening of the borders was recommended based on the economic effect the closure has had on the economy of the region. In addition to the closure of borders on account of the COVID-19 pandemic, the ECOWAS member states facing security crises had also tightened security checkpoints within and at the borders of their respective countries. The ECOWAS leaders also urged member states: to implement the adopted ECOWAS guidelines on harmonisation and facilitation of cross border trade and transport and mitigation of health in the ECOWAS region as it relates to COVID-19; to enhance the coordination, collaboration and cooperation through border agencies among member states sharing contiguous borders; and to adopt mutual recognition of PCR tests at borders, harmonise the validity period of test results in member states and provide equipment and facilities at all points of entry.[38]
[38] ‘ECOWAS leaders agree to reopen land borders in January 2022’, Premium Times, 13 December 2021, and COVID-19 and the State of Global Mobility in 2021, | IOM Publications Platform
101. In the event, not all ECOWAS borders reopened in January 2022. Media reports indicate Ghana’s borders, shut for two years in response to COVID-19, reopened in March 2022.[39] Nigeria closed its land borders to goods in August 2019, reportedly as part of a policy geared towards preventing the smuggling of food and illicit goods.[40] In March 2020 it closed its land borders to human traffic following Nigeria’s first recorded death from COVID-19.[41] Four land border crossings were opened in December 2020,[42] and another four re-opened in April 2022.[43] Sierra Leone reopened the land border with Guinea in February 2021,[44] and its land border with Liberia was closed in March 2020 but has since reopened.[45] An IOM report suggests there was only a substantial reopening of borders by ECOWAS member states in August 2021.[46]
[39] ‘Relief and concerns as Ghana reopens borders’, Deutsche Welle, 28 March 2022, ‘Ghana reopens land and sea borders to boost its economy’, africanews.com, 29 March 2022, and DFAT confirms Ghana’s land borders are open, in its travel advice dated 27 May 2022 and current as at 25 August 2022, ‘Nigeria’s border closure: a road block or a speed bump on the road to a successful AfCFTA?’ World Bank, 23 January 2020, and ‘Nigeria’s border closures haven’t served their purpose’, Institute for Security Studies, 22 March 2021, ‘Nigeria closes land borders to fight coronavirus spread’, Reuters, 24 March 2020, ‘Border closure, effects and curbing recurrence’, The Guardian, Nigeria, 31 December 2020, and ‘Nigeria’s border closures haven’t served their purpose’, Institute for Security Studies, 22 March 2021, ‘FG reopens another four land borders three years after’, Business Today, 23 April 2022, and DFAT confirms some of Nigeria’s land borders are open, in its travel advice dated 3 August 2022 and current as at 25 August 2022, ‘Guinea and Sierra Leone reopen their border’, Economist Intelligence, EIU, 23 February 2021, ‘Liberia closes borders with Sierra Leone – Official’, APA news, Agence de Presse Africaine, 1 April 2020, DFAT confirms Liberia’s land borders (including Sierra Leone) are open, in its travel advice of 5 August 2022, current as at 25 August 2022, Benton, Meghan, Samuel Davidoff-Gore, Jeanne Batalova, Lawrence Huang and Jie Zong. 2022, ‘COVID-19 and the State of Global Mobility in 2021’, Washington, D.C., and Geneva: Migration Policy Institute and International Organization for Migration, May 2022,
102. The ECOWAS region continues to face challenges with its porous borders, particularly the entry of people through unofficial border crossings following border closures, and its associated issues including transborder crime and security threats.[47] Despite the reopened borders, other hurdles remain. For example, at the border to Ghana, Togolese officials were reportedly charging Ghanaians before allowing them to cross into the capital, and health protocols remain, with Ghanaian officials explaining people are required to be fully vaccinated and have a negative PCR to be allowed to cross the border.[48] A report notes that while ECOWAS nationals have certain rights to work in Ghana, as stipulated in the various agreements and protocols, these rights at times conflict with local laws, and this has led to various clashes between Ghana traders and their Nigerian counterparts in particular.[49]
[47] 'World Migration Report 2022', International Organization for Migration (IOM), 01 December 2021, 20220221102242, pp 69 and 316; and Virgil Kuassi Lokossou et al, ‘COVID-19 pandemic in Economic Community of West African States (ECOWAS) region: implication for capacity strengthening at Point of Entry’, PAMJ. 2021;39(67). 10.11604/pamj.2021.39.67.29089, 25 May 2021, pp 2, 6, 8, 9, and Table 3, ‘Relief and concerns as Ghana reopens borders’, Deutsche Welle, 28 March 2022, 'BTI 2022 Country Report - Ghana', Bertelsmann Stiftung, 23 February 2022, 20220301090157, p 25
Conclusion on right to enter and reside in ECOWAS countries
103. There are many barriers, identified above, to the applicant husband establishing a right to enter and reside in ECOWAS countries outside of Nigeria. These barriers include lack of domestic laws implementing the treaty, practical barriers to implementation, and the limitations and practical hurdles in documentation systems to facilitate entry rights granted under ECOWAS. There is significant uncertainty as to whether the applicant husband would be authorised to stay in other ECOWAS countries after 90 days.
104. Given the barriers and uncertainties outlined, the Tribunal is not satisfied that the applicant husband has an existing right (a liberty, permission or privilege) to enter and reside in any of the ECOWAS countries. Therefore, the qualification to protection that exists in s 36(3) of the Act does not apply to the applicant husband in respect of ECOWAS countries.
Third country protection for applicant husband in South Africa
105. A submission and supporting documents were provided on the applicant’s behalf following the hearing relating to the applicant husband’s immigration status in South Africa.
106. It is indicated that the applicant husband applied for permanent residency in South Africa [in] April 2013. His application was refused under s 27(G) of the Immigration Act 2002. The applicant husband, however, was permitted to continue to reside until [April] 2015 with the applicant as his spouse as a dependent with work and study prohibited. [In] February 2014, the applicant husband received a letter from the South African Department of Home Affairs confirming an application for temporary residence and that the applicant husband applied for a Transfer Permit [in] February 2014. The applicant was given authority to leave and re-enter South Africa pursuant to Immigration Directive No.43 of 2010. On 1 April 2014 this directive was repealed with immediate effect, evidence of which has been provided. It is submitted that this means that foreign nationals not in possession of a South African visa were no longer able to travel abroad without the risk of being declared ‘undesirable’ and banned from re-entering South Africa. [In] February 2024 the applicant husband contacted the South African Department of Home Affairs via a South African lawyer. As a result, the Department gave confirmation in writing that was provided to the Tribunal, which makes reference to the prior refusal of permanent residency and notes that the applicant is not qualified to ‘sojourn’ in the Republic of South Africa.
107. The Tribunal is satisfied, based on the supporting information provided, that the claims as to the applicant husband’s immigration status in relation to South Africa outlined above are substantially correct. The supporting material from the South African Department of Home Affairs makes clear that the applicant husband does not have the right to enter and reside in South Africa.
108. The Tribunal is not satisfied that the applicant husband has an existing right (a liberty, permission or privilege) to enter and reside in South Africa. Therefore, the qualification to protection that exists in s 36(3) of the Act does not apply to the applicant husband in respect of South Africa.
109. The Tribunal is satisfied that the applicant husband does not have the right to enter and reside in any other country.
CONCLUSION
110. For the reasons given above, the Tribunal is satisfied that the applicant husband is a person in respect of whom Australia has protection obligations. Therefore, the applicant husband satisfies the criterion set out in s 36(2)(a).
111. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant is the spouse of the applicant husband, that the applicant youngest daughter is the daughter of the applicant husband and that the applicant eldest daughter is the daughter of the applicant husband and thus are members of the same family unit as the applicant husband for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant husband’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
112. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

David McCulloch
Member

[2024] AATA 2575

1 March 2024

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Immigration

Administrative Law

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