2306477 (Refugee)

[2024] ARTA 231

2306477 (REFUGEE) [2024] ARTA 231 (17 OCTOBER 2024)

DECISION AND  

REASONS FOR DECISION

Representative:  Mrs Maree Elliott (MARN: 9902416)

Respondent:  Minister for Home Affairs

Tribunal Number:  2306477

Tribunal:Paul Windsor

Date:17 October 2024

Place:Melbourne

Decision:The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration, in accordance with the orders:

(i)that the first named applicant meets s 36(2)(a) of the Migration Act; and

(ii)that the second, third and fourth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

The Tribunal has no jurisdiction in relation to the fifth named applicant.

Statement made on 17 October 2024 at 2:22 pm

CATCHWORDS

REFUGEE – protection visa – Nigeria – Federal Circuit and Family Court remittal – race – Igbo – political opinion – Indigenous People of Biafra (IPOB) activist – MASSOB activist – detention – torture – attack on home – fear of killing – political activities in Australia – Economic Community of Western African States – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 8 April 2020 to refuse to grant the first four named applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first four named applicants, who claim to be citizens of Nigeria, applied for the visas on 8 March 2017. [Applicant 1] is the principal applicant, who made claims in his own right. [Applicant 2], is the principal applicant’s wife. They married in Enugu state, Nigeria [in] February 2007. [Applicant 3] (born in Australia on [date]) is their [age] year old son; and [Applicant 4] (born in Enugu state Nigeria on [date]) is their [age] year old daughter. The second, third and fourth named applicants did not make claims in their own right.[1]

   [1] See the Departmental file.

3. [Applicant 5] (born in Australia on [date]) is their [age] year old daughter. As she was born in Australia [after] the decision to refuse to grant the first four named applicants protection visas she was not included in the application for protection and decision refusing to grant her other family members protection visas. A protection visa application was made on her behalf on 22 October 2020.[2] A decision was made by a delegate of the Minister for Home Affairs on 9 November 2023 to refuse to grant her a protection visa. A review application in relation to this decision was made on 5 December 2023 (Tribunal case 2319853 refers).

   [2] See Departmental file [number].

4. In his application, [Applicant 1] stated he was born in Umuahia in Abia state Nigeria on [date], is of Igbo ethnicity and is a Christian. He indicated he last arrived in Australia [in] February 2017, having departed Nigeria legally [in] February 2017, and entered Australia on a Visitor visa.[3]

   [3] See the Departmental file.

5. In a statement included with his protection visa application, [Applicant 1] indicated he fled Nigeria and sought protection in Australia because he was arrested and tortured in October 2016 because of his activities on behalf of the Movement for the Actualisation of the Sovereign State Of Biafra (MASSOB).[4]

   [4] See the Departmental file.

6. The delegate refused to grant the visas on the basis that they did not find the applicant’s evidence credible and concluded he had never been involved with MASSOB in any capacity. The delegate was satisfied that the applicant has become a member of the Indigenous People of Biafra (IPOB), a Biafran separatist group, but found there is not a real chance he would face serious harm in Nigeria due to his involvement with IPOB in Australia.

7. The primary applicant sought review of this decision on 14 April 2020.[5] He included his second daughter [Applicant 5] (the fifth named applicant) in the review application. He provided the Tribunal with a copy of the delegate’s decision record.

   [5] See Tribunal case 2007121.

8. On 21 November 2022 the Tribunal, differently constituted, affirmed the delegate’s decision to refuse protection visas to [Applicant 1], his wife and his two elder children. No finding was made in relation to [Applicant 5].

9. [In] April 2023, the Federal Circuit and Family Court of Australia (FCFCA) set aside (by consent) the Tribunal’s decision.

10. In respect of the first, second, third and fourth applicants, the Court found the Tribunal erred in that the applicants made a clearly articulated claim that the first applicant was actively involved in the political group Indigenous People of Biafra (IPOB) in Australia, and feared harm in Nigeria on that basis. The Court noted the Tribunal accepted at [17] and [26] of its decision that the first applicant is a member of IPOB in Australia and attends IPOB events but failed to expressly consider and make a finding about his claim to fear harm for that reason in Nigeria. The Court found the failure to make a finding on this claim was a jurisdictional error: [source deleted] and could realistically have led to a different assessment of the applicants’ claims being made.

11. The Court also found the Tribunal erred because it made no decision regarding the fifth named applicant. The Court noted the Tribunal did not have jurisdiction to determine the review application in respect of the fifth applicant and found it should have expressly made a decision that it had no jurisdiction in respect of her. This was because the fifth applicant had not been born at the time that the delegate made the decision which was the subject of the review application and so there had been no decision by the delegate about the fifth named applicant.

12. The matter is now again before the Tribunal pursuant to an order of the Court.

13. The applicants appeared before the presently constituted Tribunal on 1 October 2024  to give evidence and present arguments in a joint hearing involving this case and related case 2319853 involving [Applicant 5]. As [Applicant 5] is only [age] years old, her father ([Applicant 1]) gave evidence on her behalf.

14. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAINS AND EVIDENCE

    Claims and Evidence

21. The principal applicant’s claims for protection, as set out in the supporting statement included with his application, are summarised as follows:[6]

    [6] See the Departmental file.

    ·In the present administration of President Muhammadu Buhari, the marginalisation of Igbo people was taken to heightened level as Igbo representation in his administration is abysmal and falls extremely short of the constitutional provisions for the reflection of the federal character in appointments to important government positions.

    ·Since joining the Movement for the Actualisation of Sovereign State of Biafra (MASSOB) in 2011 and subsequent elevation to the position of [Position 1], he has suffered in the hand of the government killer machine.

    ·[In] May 2016 he nearly lost his life during their rally in Onitsha, Anambra State which was led by him and IPOB (Indigenous People of Biafra) [Position 2], [Leader A], when a combined team of the military and police clashed with their members and those of IPOB during [an event] in the commercial city. This left about [number] people dead and many injured, and over 50 members of the Biafra group were arrested by the military and taken to [a location] in Onitsha, including him.

    ·To commemorate the struggle for the actualisation of the sovereign State of Biafra, in September 2016 a sit at home order was called. As the [Position 1], he lead the group that went around some places including markets, churches and some social gatherings to sensitise and mobilise people on the need to observe the exercise. This was to send warning signals to the Nigerian government of their displeasure over the situation of things in the eastern part of the country.

    ·[In] September 2016, the sit at home exercise was observed. It was very successful in Enugu and Onitsha. There was no movement. Shops and public places remained under lock and key. This was also the development in some other places, especially in the southeast geo-political zone.

    ·However, two days later, he returned from work and was told that three men in an unmarked car are looking for him. According to his neighbour they inquired about him, when he normally stays in the house, and refused to disclose their 'real' identities. They only informed his neighbour that they were 'friends who came into town and decided to check on' him.

    ·He became uncomfortable with the situation so moved his family to another location for safety and refused to sleep at his place that day. [Days later] the same group of people called again. This time they were more daring. They told another neighbour they met that they needed to see him for an urgent matter and told his neighbour that they have orders to bring him in, dead or alive, and urged him to take them to his present location.

    ·Without inquiring who they were, his neighbour brought them to his office. Fortunately, he was not around, but had gone to see one of their customers, who phoned that morning, to assist in explaining the use and function of one of their new [products]. He was still battling with the work when a fellow staff called to advise him that some three men asked of him and that the way they were dressed, he suspects them to be security operatives. He went further to narrate that they came in a private car and that one of them whom he suspected to be their driver was still in the car, while the others were milling around his workplace.

    ·He became afraid. About two hours later, his staff member called again to say that the men had left and warned him to stay away from the office. He did not return the office and later was called by his neighbour and told that his home has been broken into by Government agents and ransacked.

    ·On [a day in] October 2016, he was arrested on his way to Onitsha. He was tortured for 5 days. During his time in detention, they said that he should get them the names of all their members and he should publicly denounce the membership of MASSOB. He refused to do this. It took the intervention of [Mr A] of [Agency 1] to secure his release.

    ·While he stayed away from his house, he decided to start using a new mobile number to make it difficult for people who knew him with old line to reach him except his family members and MASSOB executives. He was, however, greeted with his greatest shock on return to discover that his apartment was ransacked twice, while one of occupants of the building was beaten up for asking questions and the other arrested and detained for two days by operatives of [Public Agency 1] for requesting the court warrant and identities of the personnel. They accused him of leaking information that they were security officials.

    ·As it is his only crime that he is the [Position 1] and/or because he oversaw the [specified] exercise which led to the successful sit at home ordered by MASSOB, privileged information available to him indicates that he is one of the executive marked for death because he is ‘one of the spearhead for the actuation of this goal’. It is important to note that the sit at home order and rally are a voluntary thing. They did not force people to observe it; neither did they block people from doing their businesses. He wonders why he is being ‘haunted’ even when he has not committed any crime.

    ·Some of their members who participated in the [specified] exercise are still detained and tortured. He has voiced that the [Public Agency 1] should stop this harassment and look for other jobs to do. This incessant harassment will not dwarf the spirit behind the Biafra struggle. Their desire is to achieve Biafra without ‘shield of blood’.

    ·Knowing that he will not escape death and reflecting on his young family, he humbly seeks protection to avoid members of his family unit being killed too. The Government killer squad have decided he will not be left alone and will not stop harassing and torturing him until he dies.

22. Also submitted with the application was a copy of a newspaper article from [Media Agency 1] Newspaper [in] October 2016 titled ‘[title]’. This states that a ‘[deleted]’.

23. On 30 May 2019, the Department received advice that the applicant had engaged a Migration Agent as his representative (on 10 August 2018). The representative made a submission in support of the application dated 15 October 2018.This summarised the key claims from the statement the applicant included with his Protection visa application, referred to his name being mentioned in the aforementioned [Media Agency 1] newspaper article, and asserts that, since he has been in Australia, Nigerian security officials have harassed his brother in Nigeria. The submission also cites country information, including from the Danish Immigration Service and Amnesty International, regarding the treatment of pro-Biafra activists by the Nigerian government. Included with the submission was a copy of a United States of Biafra card in the applicant’s name and a copy of a paper on Free Movement under ECOWAS (the Economic Community of West African States).

24. On 26 November 2019, the applicant was invited to attend an interview with the Department on 12 December 2019.

25. Among further documents submitted prior to and after the interview was a letter of support dated [in] December 2019 from the Indigenous People of Biafra (Biafra Community in Australia) co-signed by [Leader B] ([from] IPOB Australia) and [Leader C] ([from] IPOB Australia). The letter states that the applicant is Biafran and is a very active member of IPOB in Australia. It states he is currently the [Position 3] for the Biafra Community in Australia. The letter also states that he is a human rights activist who was involved in several [specified] exercises and protests for the freedom of Biafra, placing his life at serious risk. The letter states that the identity of IPOB members who champion the cause for the freedom of Biafra from outside of the country is known to Nigeria’s [Public Agency 1] and they are arrested upon arrival at the airport.

26. Support letters were also submitted, purportedly from two of the applicants former colleagues at [Employer 1] in Enugu, Nigeria, [named], regarding the events of early October 2016.

27. Further Country Information submitted included a copy of a UK Home Office Guidance Note dated 18 January 2007 on Nigeria, and an Amnesty International report from 2016 titled ‘NIGERIA: BULLETS WERE RAINING EVERYWHERE’ DEADLY REPRESSION OF PRO-BIAFRA ACTIVISTS.

28. On 13 February 2020, the representative submitted the following further materials:

    ·     Copy of an email from the applicant reporting further claimed harassment of his brother in Nigeria by [Public Agency 1] personnel.

    ·     Copies of photographs of the applicant’s legs and head purportedly showing marks/scars caused by torture.

    ·     Copy of a report from the Vanguard newspaper in Nigeria regarding attempts by the Nigerian army to prevent the leader of IPOB, Mazi Nnamdi Kanu, and IPOB members from attending the burial of Kanu’s parents.

29. The applicant engaged a new firm to represent him from July 2020 and has had a number of different Migration agents from that company represent him since that time.

30. The applicant was invited to appear before the previous Tribunal on 8 November 2022. On 1 November 2022, his new representative made a pre-hearing submission. This included a summary of the applicant’s background; summary of relevant law; discussion of his claims for protection; legal argument; and references to relevant country information. There were 19 annexures, including copies of the current DFAT Country Information Report on Nigeria; DFAT’s Thematic Report on ECOWAS; The Amnesty International Report 2021/22 (for all countries); the Human Rights Watch World report 2022 for Nigeria; the End of Visit statement of the Special OHCHR Rapporteur on Extrajudicial, Summary or Arbitrary Executions on her visit to Nigeria; and the CIA World Factbook, Nigeria, of 20 September 2022.

1. A further submission was made dated 4 November 2022. This consisted of photographs and messages evidencing the applicant’s IPOB membership; details of his financial contributions to IPOB; and a letter dated [in] April 2021 from [Leader B], [from] IPOB Australia, indicating the applicant had been appointed to [a] position [in] the [Committee 1] of IPOB in Victoria. The letter indicates that this position is responsible for [specified duties in] IPOB Victoria and [deleted].

2. Following the hearing with the first Tribunal, a further submission dated 14 November 2022 was made. The submission indicates that the applicant instructs that further factual evidence which he can provide in support of his claims of political engagement, membership and activism with MASSOB is limited due to the way in which MASSOB operates, in that they do not have a strong online presence and instead operate in a clandestine nature due to the adversity and opposition they face from the Nigerian government. He also indicated that the further factual evidence he can provide is limited because he did not bring such documentation to Australia and due to the time that has passed (more than 5 years) since he was active in MASSOB. Notwithstanding this, the following additional documents were submitted as evidence of the applicant’s involvement with MASSOB:

   ·Copy of a letter of support dated [in] November 2022, purportedly from [Leader D], [position], MASSOB. This indicates that the applicant is known to the author as a member of MASSOB from [2011] to [2017]; served in the capacity of [Position 1] from [2014] to ]2017] in Enugu zone; and was arrested [in October], 2016, detained unlawfully and tortured for a number of days. He comments that he is able to provide some copies of receipts for dues and donations made by the applicant during his membership.

   ·Copies of purported MASSOB Revenue Receipts for monthly dues dated [in] 2011, [2013] and ]2017]; and copy of a purported MASSOB Revenue Receipt for a ‘Donation for Welfare’ dated [date]/06/2015.

   ·Copy of a letter of support dated [in] November 2022, purportedly from [Leader E], [position title] of MASSOB. This confirms that the applicant was a dedicated member of MASSOB from [2011] and was appointed [Position 1] in 2014. The letter states that, for the safety of members, MASSOB does not use social media for its activities and meetings and no minutes of meetings are written during meetings.

   ·Copy of a letter of support dated [in] November 2022, purportedly from [Member A], MASSOB member, testifying that the applicant was a committed member of MASSOB in the Enugu Zone and was the [Position 1].

3. Further evidence also was submitted regarding the applicant’s activities with IPOB in Australia. This comprised:

   ·Copies of three news articles placed by the applicant in the Nigerian media ([sources deleted]) regarding the activities of IPOB Australia/IPOB Victoria Community Australia, including two articles [in] 2021 regarding a [programme] [for] late Biafra heroes on [date]; and an article [in September], 2020 condemning the killing of unarmed IPOB members by security agencies. The articles cite the applicant as a representative of IPOB and the article of [that date], 2020 also refers to him as the former [Position 1], MASSOB.

4. A further submission dated 17 July 2014 was made noting the FCFCA order of [April] 2023 and requesting that the matters for all five applicants be heard on the same day. A further copy was provided of all the written materials submitted to the previous Tribunal on 1 and 4 November 2022, along with a copies of the previous Tribunal decision; the relevant court order and the Tribunal’s letter confirming the matter had been remitted for reconsideration.

5. A further submission dated 2 August 2024 was received in support of the review application. This includes a summary of the applicant’s claims for protection; comments on the failure of the previous Tribunal to consider the risk of harm to the applicant due to his activities in Australia on behalf of IPOB; references to further country information, including regarding the proscription/illegal status of IPOB; and assessments by a registered psychologist and an IPOB lawyer supporting the grant of protection to the applicant. Attachments to the submission included:

   ·Copy of a photograph of the applicant and other IPOB members with [Official A].

   ·Copy of an undated Security Alert purportedly issued by IPOB regarding the receipt of ‘intel’ about a plan to assassinate members of the IPOB leadership and one of their legal representatives, [named].

   ·List of those persons, including the applicant, who have donated to IPOB Australia’s [fundraising program] in October 2022.

   ·An assessment by registered psychologist, [named], dated 24 July 2024, regarding the applicant’s mental state. The report indicates the applicant initiated counselling in June 2023 and has engaged in six additional appointments since that time. She assesses he is experiencing depressed and anxious feelings which are severely affecting his day-to-day functioning. She indicated he was recommended to start anti-depressant medication to coincide with the counselling, but is yet to find an appropriate dose/type of medication.

   ·An opinion by [named] Chief Counsel and Principal Partner of [Company], on the probable risk of persecution of the applicant, if returned to Nigeria. He concludes that ‘It is to be emphatically and unequivocally stated that the prevalent hostile atmosphere in Nigeria makes any suspected member of the Indigenous People of Biafra (IPOB), particularly those arriving or deported from a foreign country, gravely amenable to be harmed by the violent and poorly trained Nigerian security agents, and any person arrested on suspicion of being a member of Indigenous People of Biafra (IPOB) stand the probable risk of being killed in untraceable circumstance’.

6. On the day of the second Tribunal hearing (1 October 2024), a further submission was made comprising a copy of a medical report dated [in] October 2016 from [Hospital 1] in Enugu region regarding claimed treatment received by the applicant at the hospital from [a day in] October 2016. The report indicates that the applicant presented to the hospital with multiple body and head trauma, [and specified symptoms] following suspected criminal assault and ingestion of food poisoning. He received intravenous therapy’ antibiotics, antimotility agents and appropriate wound care during his five day admission and was discharged [later in] October 2016.

   Summary of evidence by [Applicant 1] from the Tribunal hearing of 1 October 2024

7. At the start of the hearing the Tribunal indicated it had read the report by his psychologist of 24 July 2024. Noting that she had indicated he was recommended to start anti-depressant medication, the Tribunal asked the applicant if he was taking any anti-depressant medication at the moment. He indicated he was not. He said he had been prescribed some, but ceased taking it after 2 weeks because he found it was not helping. He commented that his issue is difficulty sleeping. When asked, he indicated that he is still seeing the psychologist on a regular basis. The Tribunal observed that it would need to discuss some difficult issues with him at times during the hearing and encouraged him to request a break during the hearing at any time if he feels he needs one.

8. The applicant indicated that he still has [specified siblings] in Nigeria. He indicated he has a sister who resides in [Country 1] and his parents have temporary visas that allow them to spend extended periods with his sister in [Country 1]. He indicated that two of his wife’s brothers are living in Australia. He indicated [that one] brother, who he thought came to Australia in the 2000s, is now an Australian citizen, whereas [another] brother was granted refugee status in August 2023. He indicated that he gave evidence at his brother-in-law’s hearing. He indicated his wife’s parents and [siblings] are living in Nigeria.

9. When asked about his work as [an occupation 1] in Nigeria, the applicant indicated he [worked with] [Employer 1] in [location], a district in Enugu, the capital city of Enugu state, which is located in the south eastern geopolitical zone of Nigeria. He indicated that his [position] specialised in building relationship with and servicing the needs of local businesses. He said he had an operations manager who looked after the [other side of operations] but his focus was on [assisting client] businesses. He said he had [specified staff] working under him and a lot of his time was spent making relationship calls at businesses to assess their [needs]. He indicated his performance was judged based on the size of business [income] and [services] achieved.

10. The applicant acknowledged that his wife worked as a public servant for [Employer 2] as indicated in her application. He commented that she also had a ‘side business’ as she owned a [two businesses].

11. When asked why he joined MASSOB in 2011, the applicant said he always liked what they stood for because he believes the Biafran people have been marginalised and persecuted by the Nigerian government. He added that his father was a soldier for Biafra during the civil war and this gave him strong motivation to get involved. When asked what MASSOB’s ultimate goal is, the applicant said it is to achieve their own country. When asked whether he sees that as a realistic objective and how it might be achieved in a practical sense, the applicant commented that the Nigerian government don’t want the Igbo people to progress and keep marginalising them so they want their own country to stop this from happening.

12. In relation to his comment that Igbo people were being marginalised, the Tribunal observed that he and his wife seem to have done pretty well as they were both successful professional/business people in Nigeria. The applicant responded indicating that he had to overcome significant obstacles to achieve his success. He said he would have liked to have been able to study at the Ahmadu Bello University or a university in Lagos but was restricted to universities in the south eastern zone. While he did a few months training in Lagos in 2006 with the first [employer] he worked for, he said he was placed in a position back in the east. He added that he had to keep switching [employers] be able to get ahead (he worked for four different [employers] from 2006 until he came to Australia in 2017.

13. The Tribunal discussed with the applicant the delegate’s concern that he had not provided any evidence that he was a member of MASSOB. The applicant indicated that he had provided a copy of a Biafra card to the delegate but the delegate was focused on the Biafra International passport. He commented that what he was trying to say to the delegate was that he did not see the utility in a Biafra passport as no international airport would accept it for someone to travel on. He commented that he has now contacted [Leader D] who is a leader and is in Enugu where he was a member, and [Leader D] has provided a letter confirming his membership of MASSOB.

14. The Tribunal observed that copies of four receipts for membership fees and a donation were also provided, but expressed concern that while these cover a period of a number of years and appear to be signed by different people, the handwriting, which is quite distinctive, appears to be by the same person. The applicant said he does not know where they were produced but commented that he made the payments and MASSOB got the copies of the receipts for him.

15. The Tribunal asked the applicant how and why he became an [Position 1] with MASSOB. He said he joined the organization in 2011 and attended meetings and events from that time. He commented that the leadership knew he was [an occupation 1] and that he is [in] a role which involves meeting people and networking. He said they approached him in 2014 regarding the position because of this background. When asked, he said the position involved managing the logistics around planned activities, for example, if they were planning a rally, he would be responsible for arranging transport, venues, food and so on. He said that, in response to the government’s violent response to rallies, they began to do a sit-at-home exercises, where all economic activity would cease for a day, to avoid the risk of people getting hurt. He said they then used him to speak to unions, employers, market managers and church leaders to get their support for the planned protest.

16. The Tribunal observed that he indicated in his application that he worked 45 hours a week as [an occupation 1] and asked the applicant how he found the time to undertake these activities with MASSOB and meet his responsibilities as [an occupation 1]. The applicant indicated that his performance at [his employer] was measured in terms of whether or not he met his [specified] targets, which he did, and his role required him to be out of the office dealing with business clients at their workplaces, so he had flexibility. He added that his work with MASSOB also helped with his [employment] work because a lot of people in the east are passionate about the Biafra cause. When asked, the applicant said he reported to [Leader F] who was the local Director at the time. He added that [Leader F] had a health challenge at the time and wanted the applicant to step into his role but he declined.

17. The Tribunal asked the applicant to tell it about the [May 2016] incident. He said it is a very important day [details deleted]. He indicated a ‘mega’ rally was planned to be held in Onitsha in Anambra state, about one and half to two hours away from Enuga. He indicated that people were to come from a number of south eastern states. He said his role was [specified] for the rally. He said they left very early, between 5 and 6 am and were supposed to rendezvous at a [location 1] in Onitsha, but got word that the previous night members who had gathered at the [location 1] were arrested. He said they went to the venue instead.

18. When asked who spoke at the rally, the applicant said the crowd, with was more than a thousand people, had come to sing Biafra songs and march in procession to [location 2] rather than to listen to speeches. He indicated that the crowd was in a high state of excitement  (‘a crazy crowd’) and commented that he spoke to the group immediately around him stressing the need for them to focus on why that are there and to not engage in any criminality such as looting. He commented that his brother-in-law was also at the rally, having travelled there from Abuja, the Nigerian capital, where he was studying.

19. The applicant said that while singing their Biafra war songs and proceeding in procession to [location 2] on the Niger river, the military and police personnel who were present started shooting into the crowd, causing chaos and a stampede.

20. The applicant said he was among those who were arrested. He said they were taken to the army barracks where they were detained and beaten with sticks.

21. The applicant said they were kept at the army barracks until about 4 am where they were marched into the back of 4 or 5 trucks and driven away. He said they did not know where they were being taken but where afraid they might be taken to be shot. He added that, in the past, [many] bodies of MASSOB and IPOB members had been found in the river. He said when one of the trucks became stuck in mud or broke down, the people in that truck were asked to come down and they started running so he and others also decided to flee, so the army personnel started shooting at them. He said he and some others from his truck just kept running, for about an hour, until they came to some locals who directed them to the local bus station.

22. When asked what other leaders were at the rally, the applicant said [Leader A], the IPOB leader from his area was also there, as it was a joint MASSOB/IPOB rally, as well as the leaders with their people from all over the states that comprise Biafra. He added that it was a peace making mega-rally for MASSOB and IPOB, commenting that he thinks it was the first rally where the two groups attended and worked together, after IPOB had emerged from MASSOB after a split a few years earlier.

23. The Tribunal asked the applicant if the authorities told him why he had been arrested. He indicated that they were not questioned but were just beaten with belts and sticks, as the military knew why they were there. The Tribunal observed that the applicant indicated briefly in the statement included with his protection visa application that he attended this rally, that people were killed and some were arrested, including himself, but did not mention in his statement that he and others fled when a truck broke down in the middle of the night (which he raised for the first time at the interview with the delegate). The applicant said he did not have a migration agent when he made the application and although he had a migration agent at the time of the interview with the delegate who had gone through his statement with him, the agent did not pick-up on the omission of this part of his account.

24. When asked why the authorities did not detain him again after he escaped, given his role in co-organising the rally, the applicant said the authorities did not know about his leadership role because they were very careful regarding who was seen as a leader, even among the people attending, because there may be people there who are informers for the government. He also clarified that he was not the organiser for the whole rally, but organised [one arrangement for the rally]. He added that it was chaotic, many died, many were left with serious wounds and many ran away, and the authorities did not know who was who and who got away. He said it was depressing, seeing all those people die. The applicant became visibly distressed at this point and the hearing was adjourned for 10 minutes.

25. After the adjournment, the Tribunal observed that he came to Australia with his family [in] August 2016, a few months after this incident, but did not seek protection at that time and returned to Nigeria after a short stay. The Tribunal asked why that was the case. The applicant commented that he tried everything possible to forget that incident. He added that he also was not harassed personally in the months after the incident, so did not consider seeking asylum. He said it was not until he was arrested in October 2016 and after the ordeal of that arrest, being tortured for 5 days, and only being released due to ‘noise’ around his detention that he knew he could not stay in Nigeria.

26. The applicant showed the Tribunal some marks on his [body] which he said were due to the torture he suffered. He said they beat him, wanting to know how MASSOB is funded, the names of other members and for him to denounce the organisation. He said he was released on the 6^th day following the intervention of [Mr A] of [Agency 1]. He said he then spent 5 days in hospital. When asked, he said it was [Hospital 1]. When asked why he does not have any medical records of this, the applicant said he does have records of this treatment but does not have records from the treatment he received after the [May 2016] incident, because he refused to stay in the hospital after that incident because he was afraid security agents would come looking for those who were injured. When asked why he had not submitted any medical evidence to the delegate or the previous Tribunal, the applicant said he did not have the record when he was interviewed by the delegate but had it for the first Tribunal and will submit it now.

27. The Tribunal asked the applicant to tell it about the planned sit-at-home exercise [in] September 2016. He indicated that the idea was to avoid being on the streets, where supporters of the Biafra cause could be subjected to violence, but to have a peaceful sit-at-home where they cease all forms of economic and social activity. He said in the lead-up he met with union, church and market leaders to gain their support. He commented that, after this, things ‘became personal’ for him.

1. The applicant said they came looking for him [a day in] October 2016. He said he worked on [this day] so was in the office but his wife was away visiting her parents. He said when he heard [Public Agency 1] security personnel were looking for him he asked his wife to stay away. He said they came again around [a specified date] and asked a neighbour to bring them to his work place. He commented that they might have known he was [an occupation 1] but his [employer] had several local branches and they would not have known what branch he worked at. He was out of the office making a call when they came and when they met a fellow staff member they pretended they were former colleagues of his, but [Public Agency 1] people dress in a distinctive manner because they wear suits but not with ties so don’t look like [occupation 1s]. He said he they then went back to his home and ransacked it, looking for things, so he decided to stay away from home.

2. The Tribunal asked the applicant regarding the article placed in [Media Agency 1] newspaper [in] October 2016 and the delegate’s concern that it did not state he was a MASSOB leader or member but referred to him as ‘a right’s activist’, and that there are other people named [the applicant’s name] cited on media sources including a lawyer from Enugu. The Tribunal also observed that he made no mention of this article in his statement of claims. The applicant acknowledged that his name is a common name in Nigeria but was adamant that he wrote the article. He said he did not include specific reference to it in his initial statement because he thought he could explain it later (he included a copy of it with his application).

3. He said on [a day in] October he had a MASSOB meeting in Onitcha which he was travelling to by bus. He indicated [Public Agency 1] personnel apprehended him at a checkpoint on the way and took him to their office in Onitcha.

4. The Tribunal asked if the security personnel told him why he was arrested. He said they told him it was because he is a MASSOB member and they wanted to get information regarding MASSOB and how it is funded. When asked, he said he did not give them any information. The Tribunal queried how he was able to tolerate 5 days of torture without telling them anything. The applicant again became emotional and commented that if it had gone on any longer maybe he would have. He indicated that [Mr A] from [Agency 1] was the only person who was allowed to contact him because he was making ‘a lot of noise’ on radio and TV. He said [Mr A] was able to come to see him and other MASSOB and IPOB people who had been detained and spoke with them, and was able to secure his release.

5. When asked what he did between when he was released and when he left for Australia [in] February 2017, the applicant said he was in hospital for 5 days and then confided in his boss who knew the security people had come to the office looking for him. He indicated his boss helped him. He said he did not return to the office regularly but largely worked remotely and went directly to customers’ businesses. He said he did not stay at home but stayed with friends, his in-laws where his wife was staying, and hotels. He added that he was scared and always looking over his shoulder. He added that his wife also received threats and was told they would kill him and that she and her daughter would be raped and killed. He said it was a very difficult time for both of them so they decided they had to leave Nigeria.

6. He said it was not easy to leave Nigeria at that time as he was now known as a MASSOB member. He said he had to pay some people at the airport through the MASSOB network to make sure there were no issues with him departing. He said he sold assets and borrowed to get the money for airline tickets (around AUD 7,000), a driver to take he and his family to Lagos (around AUD 1,500) and bribes (around AUD 5,000).

7. The Tribunal asked the applicant when and why he got involved with IPOB in Australia. He indicated that while he maintained contact with some MASSOB members in Nigeria after he came to Australia, including [Leader D variant], the current [position title], it was not until 2019 that he got involved with IPOB in Australia. He said this was because he and his family went through a very difficult time after they arrived in Australia in February 2017. He said they suffered culture shock, he could not get work for 4-6 months and they had to rely on help from [Agency 2].

8. The applicant indicated that, once the family were settled, he felt he had to join IPOB. He said there is no MASSOB in Australia so he joined IPOB because he is passionate about freedom for the Biafran people. The applicant said there is a process that has to be gone through to join IPOB – they interview the person; do background checks; induct them; have the person take an oath; and then they are admitted as a member. He commented that when he joined they were planning for the IPOB supreme leader to come to Australia, but he was denied a visa because the Nigerian community had written through the Nigerian Ambassador saying he should not be granted a visa.

9. The applicant said when he joined, IPOB was being run on a state-based basis, but at the end of 2019 a new structure was introduced. He said at the top, there is now a Director of States (DOS) who is the supreme leader, Mazi Nnamdi Kanu, and below that there are continental representatives. He indicated that, for [Australia], that is [Leader C]. He said there is then a [Position 4], [named], and under him there are [Position 4s] for each of the states, and in Victoria that is [Leader B]. The applicant said he is currently responsible for [Committee 1] in Victoria, reporting to [Leader B]. He said he is the interface between IPOB in Victoria and the Victorian community. He commented that is why his ’footprint’ can be seen on a lot of their activities in Victoria. As an example, he said they did a protest during [a major event], which he organised. He said that, even though the police tried to shut it down they were still able to get in. He said he was also involved in planning and organising their commemoration event for the fallen Biafran war heroes. The applicant indicated that he wrote to the previous [official] seeking an audience to introduce IPOB Victoria to him and regarding a proposal to build a Biafra centre in Australia. He said that information has been posted on [social media].

10. The applicant said the [official] subsequently wrote to him inviting IPOB to attend an [event], which they did. He said they have organised their annual remembrance events in Canberra, Sydney and Melbourne, and are planning to hold it in Adelaide this year. He added that he has his ‘footprints’ all over this.

11. The applicant also said that he actively donates to [Group 1]. He commented that this is an arm of IPOB in Nigeria. The Tribunal asked if [Group 1] is an armed group. The applicant said the Nigerian government describes it as an armed group but it was formed by Mazi Nnamdi Kanu as a ‘vigilante’ group, to help protect their forests so their women can have safe farming because they have a problem with Fulani Herdsmen coming into their farms, killing, ravaging their crops, destroying properties and raping their women. He commented that now there is a lot of internal infighting, squabbles and hijacking and the Nigerian government is claiming the [Group 1] is behind all the criminality in eastern Nigeria so those who are donating are blacklisted and marked for death.

12. The Tribunal observed that the applicant has identified himself in the articles that have been submitted to the Tribunal that were provided to Nigerian media outlets, and queried why he has chosen to do that rather than just attribute them to an IPOB spokesperson in Australia. The applicant commented that maybe he did not get proper guidance as his brother in Nigeria has been harassed. He said he has stopped doing that. He added that he did it to show his passion for the situation of his people.

13. At the end of the hearing, the applicant’s representative commented that the applicant decided to release articles on behalf of IPOB naming himself because there had been a focus in previous assessments on him not being known. She suggested that if the style of his more recent articles is compared with the earlier [Media Agency 1] article, it is clear it was written by the same person. The representative also commented that the applicant showed considerable emotion during the hearing which she does not consider can be fabricated and which she believes shows he is genuine. She added that this is consistent with the psychological report that was provided.

    Assessment of claims

    Identity

14. On the basis of the copies of their identity documents submitted to the Department,[7] the Tribunal accepts that the first four named applicants are citizens of Nigeria and that their identities are as claimed. The Tribunal accepts that Nigeria is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [7] See the Departmental file.

15. The issues in this review are whether the principal applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Nigeria, there is a real risk he will suffer significant harm.

16. As the fifth named applicant, [Applicant 5], was born in Australia on [date], [after] the decision was made to refuse to grant the first four named applicants protection visas, and she therefore was not included in the application for protection and decision refusing to grant the other family members protection visas, the Tribunal finds it has no jurisdiction to consider her as part of this review application.

17. In relation to the first four named applicants, for the following reasons, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.

    Credibility

18. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

19. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

20. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

21. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

22. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

    Background

23. The Tribunal accepts that the applicants are of Igbo ethnicity and are Christians. The Tribunal finds that they are from the South East Zone of Nigeria which comprises the states of Anambra, Enugu, Ebonyi, Abia and Imo.

24. The current DFAT Country Information Report on Nigeria indicates that the Igbo, who are concentrated in the southeast, comprise 15.2 per cent of the estimated population of 206 million, making them the third largest ethnic group in Nigeria. Christians comprise 46.9 per cent of the population while 51.6 per cent of the population identify as Muslims.[8]

    [8] DFAT Country Information Report, Nigeria, 3 December 2020, sections 2.6, 2.8 and 2.9.

25. The DFAT report includes the following information regarding Biafra, the Biafra conflict and the Biafran secessionist movement:[9]

    ·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.

    ·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.

    ·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.

    ·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.

    Claim to be at risk of serious/significant harm due to involvement with MASSOB in Nigeria

    [9] DFAT Country Information Report, Nigeria, 3 December 2020, sections 3.45-3.48.

26. Considering the totality of the evidence that has now been provided in this matter since the applications were made in March 2017, the Tribunal considers the applicant’s evidence has remained broadly consistent over that time. Importantly, he has also been able to provide additional information and clarify some areas of confusion since that time.

27. The applicant has consistently maintained that he became involved with MASSOB in 2011 and in 2014 became the [Position 1]. He indicated that he participated in a rally in Onitsha in neighbouring Anambra state held [in] May 2016 on [a specified day], at which a large number of people were arbitrarily killed, many others were injured and many were arrested (an account that is supported by the Amnesty International report submitted by his previous representative). He also has consistently stated that the triggering incident for he and his family seeking protection in Australia was his arrest, detention and torture by [Public Agency 1] personnel in October 2016, because of his role in organising a MASSOB sit-at-home protest in late September 2016.

28. Finding elements of his evidence to be inconsistent and/or implausible, the delegate did not consider the applicant's claims to be credible and did not accept he was a member of MASSOB in any capacity. While the Tribunal considers that the applicant may have exaggerated some aspects of his involvement with MASSOB, the Tribunal considers the delegate took an overly-stringent approach to the consideration of some of the evidence in finding that he was not involved in any capacity.

29. In relation to the concerns expressed that the applicant did not have a MASSOB membership card, was apparently unaware of the existence of a 'Biafran passport', and is not named in any publicly available documentation as a member of the MASSOB executive, the Tribunal has considered DFAT's advice above that it does not have any information on the membership procedures or organisational structure for either MASSOB or IPOB. The Tribunal finds this supports the applicant's assertion that MASSOB did not issue membership cards and that MASSOB was cautious to guard the identities of operatives. The applicant submitted a 'Biafra card' with his application, and has clarified that he was dismissive of the concept and utility of a Biafran passport at the interview with the delegate because no foreign government would accept it as a valid travel document. The applicant has also clarified that he was involved with MASSOB locally, in his home state of Enugu, rather than on a national basis.

30. At the hearing, the applicant presented as an educated, articulate and successful professional who is passionate about the Biafra cause. He indicated he is motivated by his father's role as a Biafran soldier during the conflict, the great loss of life that occurred in the conflict and, as noted by DFAT above, resentment at the lack of action to resolve issues emanating from the conflict and from the perceived ongoing marginalisation of people from the south eastern states of Nigeria in national life. Given this context, the Tribunal finds it unsurprising that he would support and become a member of MASSOB.

31. The Tribunal also finds that, given his background and role in marketing his [employer’s] products to business customers and his skills as a networker, the applicant was asked to become the MASSOB [Position 1] for Enugu state. He subsequently has provided a number of documents supporting his claim that this was the case and, while the Tribunal cannot be certain these documents are genuine, the Tribunal accepts it is plausible that he undertook this role. He has clarified that the role involved organising [logistics for events] for MASSOB members from Enugu state and speaking with union, church and market leaders, but did not involve high public profile activities such as addressing rallies.

32. The Tribunal accepts the applicant was present at the incident in Onitsha [in] May 2016 and witnessed terrible violence. The Amnesty International report submitted by the applicant indicates that at least 60 protesters, who were unarmed, were killed and 70 injured, with some shot in the back, an indication that they were fleeing the scene when shot.

1. The Tribunal has some concerns, however, regarding the applicant's claim to have been arrested and to have subsequently fled when a truck broke down when those who were arrested were being taken in trucks to an unknown destination pre-dawn the next day. This is both because the applicant did not mention this in the statement of claims included with his application, and because he did not seek protection when he and his family members came to Australia just over three months later.

2. The Tribunal finds it plausible that MASSOB decided to hold sit-at-home protests following the events of [May 2016], in order to avoid further unprovoked loss of life, that the applicant had a role in organising this in Enugu city in his home state and that this led to his subsequent arrest and ill-treatment by security personnel. Given his current role as the [Committee 1 leader] for IPOB in Victoria, the Tribunal finds it plausible that the applicant authored the letter printed in [Media Agency 1] [in] October 2016 which he submitted to the Department.

3. The Tribunal accepts that the applicant's arrest in October 2016 and subsequent mistreatment by security [personnel] was the catalyst for him and his family coming to Australia and seeking protection.

   Claim to be at risk of serious/significant harm due to involvement with IPOB in Australia

4. The Tribunal accepts that the applicant joined IPOB in Victoria in 2019, subsequently became [Position 3] and is now responsible for the [Committee 1]. The Tribunal considers it is clear from the supporting documents submitted that the applicant has a public profile with IPOB Victoria and accepts that this is likely known to the Nigerian authorities.

5. The Tribunal considers that the applicant’s joining IPOB and his activities for IPOB in Australia reflect his long-standing commitment to the pro-Biafran cause and therefore is satisfied that his activities in Australia were engaged in otherwise than for the purpose of strengthening his claim to be a refugee (s 5J(6) refers).

6. The DFAT report includes the following additional information regarding MASSOB and IPOB:[10]

   ·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, Anambra state.

   ·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.

   ·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.

   ·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.

   [10] DFAT Country Information Report, Nigeria, 3 December 2020, sections 3.49-3.52.

7. The Tribunal considers that, were he to return to Nigeria, the applicant would continue to actively support IPOB and the Biafran secessionist movement generally. The above information from the current DFAT report makes clear that the Nigerian authorities have strongly rejected calls for Biafran independence to occur through peaceful means. IPOB leader Nnamdi Kanu was arrested in October 2015 on treason and sedition charges, sparking protests among his followers, leading to serious clashes with security forces. His release in April 2017 failed to quell the situation in the southeast and since that time there have been further security operations and clampdowns resulting in hundreds of deaths. Significantly, IPOB had been designated a terrorist organisation. 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) and ordinary members of IPOB, MASSOB and other Biafran secessionist groups who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.

8. Considering the relevant country information, the Tribunal cannot find that the risk of the applicant suffering serious harm due to his ongoing involvement with IPOB is remote or far-fetched. The Tribunal finds, therefore, that there is a real chance the applicant would suffer persecution involving serious harm, for reason of his political opinion, should he return to Nigeria now or in the reasonably foreseeable future.

9. The Tribunal finds that the persecution involves systematic and discriminatory conduct and the applicant's political opinion is the essential and significant reason for the persecution. The Tribunal considers the real chance of persecution relates to all areas of Nigeria, his receiving country.

10. As the agent of persecution is the Nigerian state authorities the Tribunal finds that effective protection measures are not available to the applicant in Nigeria.

    Third Country Protection

100.   Under s.36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

101.   Nigeria is a member of the Economic Community of West African States (ECOWAS). DFAT indicates that ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo.[11]

[11] DFAT Thematic Report – Economic Community of West African States (ECOWAS). 3 December 2020, sections 2.1-2.3, 3.1-3.8, 3.14-3.16, 5.3-5.4.

102.   A desire among West African states to better regulate migration and promote regional economic integration led to the signing of the ECOWAS Treaty in Lagos on 29 May 1975. Member states signed a revised treaty in Cotonou in July 1993 that aimed to strengthen further intra-regional economic and political integration and regional unity across national and linguistic borders.

103.   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. 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.

104.   The ECOWAS Treaty confers the status of ECOWAS community citizenship on the citizens of ECOWAS member states. The Right of Entry affords all ECOWAS community citizens in possession of valid travel documents and International health certificates the right to stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements. In accordance with 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’. ECOWAS community citizens wishing to utilise the Right of Residence must apply and obtain a residence permit or work permit just like non-ECOWAS immigrants. Granting of Right of Residence to ECOWAS community citizens is not guaranteed — refusal is possible on public order, public security or public health grounds. The Right of Establishment affords all community citizens the right to access economic activities and to hold employment, including pursuit of the liberal professions, throughout all ECOWAS member states. Refusal is, again, possible on grounds of public order, public security or public health.

105.   While all member states have ratified the Free Movement Protocol, and gradual efforts to progress the ECOWAS protocols at the national level across member states are ongoing, implementation challenges persist. There has been some success with adoption of the Right of Entry, although only the first phase of the ECOWAS framework for regional integration (visa-free entry for 90 days) has been implemented by all member states.

106.   There are no specific policies or programs driving the realisation of the ECOWAS Common Approach to Migration. A key challenge is inconsistency between the ECOWAS Protocols and the national laws and policies regarding migration across ECOWAS member states. According to international observers, national laws and policies often do not conform to the ECOWAS Protocols (despite being adopted to implement protocol commitments). Few ECOWAS member states have adapted their legislation to be in accordance with the 1979 Protocol and supplementary protocols.

107.   Although the ECOWAS Treaty suggests ECOWAS migrants and nationals have equal opportunities, 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. In most member states, national labour legislation does not set specific provisions for access to employment by ECOWAS citizens, which jeopardises the implementation of the Right of Residence.

108.   Capacity issues also restrict implementation. Reports indicate ECOWAS suffers from a severe shortage of staff and human capacity, which impedes ECOWAS’ ability to run its programs and implement its mandate effectively. Other issues are due to inadequate administrative and financial support systems, which limit ECOWAS’ capacity to absorb committed resources.

109.   Resistance from influential member states, particularly Nigeria, has also hindered progress in implementing ECOWAS’ mandate. Issues of sovereignty can prevent ECOWAS engagement, particularly in relation to conflict resolution, as member states can be reluctant to accept external influence over sovereign affairs. Sovereignty issues can also affect willingness to engage on immigration matters that intersect with national security. Other member state dynamics, such as the Anglophone-Francophone divide or the overlap with other regional groupings such as the G5 Sahel, also pose challenges for cooperation in peace and security.

110.   All ECOWAS member states have implemented the first phase of the ECOWAS framework for regional integration in relation to the Right of Entry. In principle, this means community citizens in possession of valid travel documents and international health certificates can stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements (i.e. without a visa). The eight UEMOA member states also have separate agreements on freedom of movement, allowing travel and residence based only on a national identity card rather than a passport. Immigration authorities can refuse entry if the would-be migrant is a prohibited immigrant, a person without visible means of support, an undesirable person, or a mentally disabled person (on advice of the health authorities).

111.   Although the ECOWAS regime allows stays of up to 90 days visa-free, longer stays over 90 days theoretically require a residence permit. Few ECOWAS citizens resident in other ECOWAS countries possess the necessary identification documents to apply for residence permits, and documentation can be difficult and expensive to acquire. Sources report if a form of ID other than a passport is used for border crossing, a stamp is not issued and it is therefore impossible to date entry. In addition, although passports should technically be stamped and the stamp initialled, in-country sources report this does not happen reliably in practice.

112.   Benin, Burkina Faso, Cote d’Ivoire, The Gambia and Nigeria are the only member states that grant a specific residence permit to ECOWAS citizens. These countries have ratified: the Supplementary Protocol relating to the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment; the Supplementary Protocol relating to the second phase (Right of Residence); the Supplementary Protocol relating to amending and complementing the provisions of Article 7 of the Protocol on the Free Movement Rights of Residence and Establishment; and the Supplementary Protocol relating to the Implementation of the third phase (Right to Establishment).

113.   The reliability and efficiency of passport processing at land border crossings is variable. Movement across land borders can be met with harassment and administrative challenges. The Free Movement Protocols have reportedly been abused in some instances; for example, to smuggle goods and trade narcotics, which has increased negative sentiment between source and destination member states.

114.   ECOWAS issued a standardised travel certificate in 1985. The travel certificate is a light blue manual card resembling a passport, which is valid for two years and renewable for a further two years. Sources advise the ECOWAS travel certificate was initially created to manage the issue of Francophone member state community citizens having national IDs and not passports. The certificate was essentially intended to serve as an emergency passport, limited to a specific journey or requirement, rather than for regular ongoing travel. Sources report it is generally quicker, cheaper and easier for ECOWAS community citizens to pay a bribe to enter another ECOWAS member state rather than obtain the ECOWAS certificate.

115.   The applicants do not have valid Nigerian passports. The Tribunal has considered the availability of ECOWAS Travel certificates but has also considered the advice above that it is generally quicker, cheaper and easier for ECOWAS community citizens to pay a bribe to enter another ECOWAS member state rather than obtain the ECOWAS certificate. The Tribunal also finds that ECOWAS community citizens wishing to utilise the Right of Residence must apply for and obtain a residence permit or work permit just like non-ECOWAS immigrants, and that the granting of Right of Residence to ECOWAS community citizens is not guaranteed - refusal is possible on public order, public security or public health grounds.

116.   Furthermore, most ECOWAS countries closed their borders in April 2020 due to the COVID-19 pandemic.[12] Al Jazeera reported on the closure of airspace and lockdowns in a number of states.[13] Additionally, an academic article in the American Journal of International Law in 2020 states:

[12] ‘When a global virus meets local realities: Coronavirus (COVID-19) in West Africa’, OECD, 11 May 2020, When a global virus meets local realities: Coronavirus (COVID-19) in West Africa (oecd.org)

[13] “Coronavirus: Travel restrictions, border shutdowns by country’, Al Jazeera, 3 June 2020, Coronavirus: Travel restrictions, border shutdowns by country | Tourism News | Al Jazeera

Immediately after the first signs of COVID-19 in West Africa in March-April 2020, twelve
countries officially closed their borders. Other countries, such as Benin, Ivory Coast and
Senegal, adopted a more pragmatic approach by merely limiting to essential crossings any
arrivals or departures over land, and by adopting human[1]itarian corridors. Many of these
measures are based on Article 4 of the 1979 Dakar Protocol of the Economic Community of
West African States (ECOWAS) and Article 91 of the amended Treaty of the West African
Economic and Monetary Union (known under its French acronym UEMOA), which authorize
states to limit the freedom of movement and residence for reasons of public order, public
security, or public health. The measures, however, have heavily impacted the legal regime of
free movement of persons throughout the ECOWAS area. In the following analysis, I will
show that the measures have (1) contributed to the disintegration of the legal regime of free
movement of persons in ECOWAS and (2) instrumentalized COVID-19 for political ends in ways that are counterproductive for the region.[14]

[14] Abdoulaye Hamadou, ‘Free Movement of Persons in West Africa Under the Strain on COVID-19’, Cambridge University Press, 9 November 2020, Free Movement of Persons in West Africa Under the Strain of COVID-19 | American Journal of International Law | Cambridge Core

117.    The Tribunal finds that, due the applicants not having valid Nigerian passports; the uncertainty of obtaining an ECOWAS Travel Certificate; the possibility that the applicants could be refused entry on public security grounds because of the first named applicant’s activities with IPOB; a proscribed ‘terrorist’ organisation in Nigeria; border closures between ECOWAS states; and uncertainty regarding how the COVID -19 pandemic might continue to change border restrictions, it is not satisfied that the applicants have an existing right to enter and reside in ECOWAS countries.

Conclusions

118.   As the fifth named applicant, [Applicant 5], was born in Australia on [date], [after] the decision was made to refuse to grant the first four named applicants protection visas, and she therefore was not included in the application for protection and decision refusing to grant her other family members protection visas, the Tribunal finds it has no jurisdiction to consider her as part of this review application. A separate decision will be made in relation to her in related case 2319853.

119. For the reasons given above, the Tribunal is satisfied that the first named and principal applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

120. The second, third and fourth named applicants did not make claims for protection in their own rights. The Tribunal is not satisfied that they 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 second, third and fourth named applicants are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to protection visas provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISIONS

121.   The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration, in accordance with the orders:

(i) that the first named applicant meets s 36(2)(a) of the Migration Act; and

(ii) that the second, third and fourth named applicants meet s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

122.   The Tribunal has no jurisdiction in relation to the fifth named applicant.

Paul Windsor

Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…