2313453 (Refugee)

[2024] AATA 3183

2313453 (Refugee) [2024] AATA 3183 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Ayse Meltem Akar (MARN: 2217992)

CASE NUMBER:  2313453

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Tania Flood

DATE:28 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

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

(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 May 2024 at 12:50pm

CATCHWORDS

REFUGEE – Protection Visa – Nigeria – applicant fears she will be killed by Boko Haram for opposing their efforts to recruit her son – victims of a serious physical assault – religion – Christians – fearing harm at the hands of Boko Haram  – membership of the particular social group – persons with mental illness – severe stigma surrounding mental illness – will face a real chance of societal discrimination –  applicant’s fear of persecution is well-founded – membership of the same family unit – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who are mother and son, claim to be citizens of Nigeria.  They arrived in Australia on [date] May 2014 on tourist visas and applied for protection visas on 27 June 2014.  The delegate refused to grant the visas on 2 March 2015.   Although the delegate gave the applicants’ the benefit of the doubt and accepted that their claims were credible, based on independent information about the activity of Boko Haram the delegate found there was not a real chance or a real risk the applicants’ will suffer serious or significant harm on return to Nigeria. 

3. The applicants sought merits review at the Tribunal and appeared before a differently constituted Tribunal on 17 October 2016 to give evidence and present arguments in support of their case.  The Tribunal affirmed the decision of the delegate on 15 February 2017 after finding that the applicant’s claims were not credible.

4. The applicants successfully sought judicial review of the decision and the matter was remitted back to the Tribunal for reconsideration in a judgement dated [date] August 2023. 

5. The applicants appeared before the Tribunal on 28 March 2024 and 15 May 2024 to give evidence and present arguments.

6. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Summary of claims and evidence

14. The first named applicant claims that she worked as a Pastor in Benin City and that she and her husband, who is also a Pastor, ran a church.  She claims that Boko Haram tried to recruit her son in 2013, the second named applicant, and she opposed it.  She claims she approached the leader of the local Boko Haram group.  She claims as she questioned him and advised she would not allow her son to be recruited that she was threatened.  She claims that the leader and other members later attacked her in her home in August 2013, stabbed her in the forearm, stomach and head and threatened to rape her.

15. The second named applicant claims he was also attacked in the same incident which occurred in August 2013.  He claims that when he came down from the ceiling where his mother sent him to hide when the attackers arrived he was hit in the head with a rifle and stabbed with a small knife in his leg and his teeth were broken.

16. The applicants claim they were knocked unconscious in the above attack and both woke up in hospital several days later.  After recovering, the first named applicant took the second named applicant to [Country 1] and then to [Country 2] to flee from the threats of harm and forced recruitment to Boko Haram.  They continued to receive threats by phone in [Country 1] via text message.   They were unable to settle in [Country 1] and [Country 2] due to the lack of family and friends and because of language barriers in [Country 2].  They returned to Nigeria and moved around to avoid detection by Boko Haram.   They took an opportunity to attend [an event] in Australia in order to escape the country.  They borrowed the money to enable their departure from Nigeria.

17. The first named applicant fears she will be killed by Boko Haram for opposing their efforts to recruit her son.  The second named applicant fears he will be forcibly recruited by Boko Haram, physically mistreated or even killed by Boko Haram if he returns to Nigeria. 

18. There is also the suggestion that both applicants will also be targeted by Boko Haram because they are as Christians; because they are advocates of western education in Benin City and members of [Organisation 1].  They also claim Boko Haram will convert them to Islam.  The second named applicant also claims that he will be targeted because both his parents are pastors and ran a church and converting him to Islam would be something for them to boast about.

19. Evidence provided to the Department in support of their claims includes but is not limited to:

    -Letter from [a named] Past President, [an organisation], Nigeria dated 18 November 2014.  The letter attests that the first named applicant was a member of the club from 3 February 2009 and served in various positions in the club.

    -A Certificate of Participation in [an event] awarded to [the second named applicant] on 10 September 2011.

    -Photographs (unclear) purportedly of the burnt church of the first named applicant.

    -Another set of unclear copies of photographs.

    -A letter from [a] Counsellor, [Organisation 2], dated 10 July 2014.  This letter attests that the first named applicant was assessed on 10 July 2014 for a reported range of severe symptoms associated with posttraumatic stress, depression and anxiety.  The letter states the first named applicant is not capable of undertaking paid employment for a period of at least three months.

    -A letter from [a named Professor] [at a university] dated 1 December 2014.  The sletter attests that the first named applicant presented at [a] Centre, where he worked as a part-time medical officer on 9 August 2014 with headaches and depression.  Professor [remarks] that the first named applicant fled Nigeria after being attacked and beaten by the rebel army who wanted to recruit her son.   Professor [assessed] that she suffers from depression with some features of PTSD including difficulty sleeping and concentrating, nightmares, flashbacks, loss of memory and agitation. 

    -A summary of treatment for the first named applicant provided by [a] Counsellor at [Organisation 2] dated 4 December 2014.  This report also references the past harm claimed by the applicants at the hands of Boko Haram in Nigeria. 

    -An Affidavit made by [the applicant’s daughter].  She attests that the first named applicant is her mother and that she and her brother travelled to Australia because they were tortured and threatened by Boko Haram members.  She attests that on 6 August 2013, strange, masked men broke into their kitchen whereupon her mother hid her brother in the ceiling for safety.  She states that a neighbour came to their rescue after the men left the house and she found her mother on the ground.  She states that her mother and her brother were rushed to hospital.  She states that her parents reported the incident to the police but they did not come to their rescue and they no longer live at the premises.

    -A letter from [a] Community to the first named applicant dated 29 October 2014, informing her that her house was set ablaze on 29 August 2014 by members of Boko Haram. 

    -An Affidavit made by [a named individual] on 20 October 2014.  He attests he is a neighbour of the first named applicant.  He attests that on 6 August 2013 he saw some strange, masked people at the premises of the applicants and he tried to call the police but the network was bad and he was scared to approach.  He attests that he heard the first named applicant crying for help and later heard her children shouting that their mother is dead.  He attests that he found the first named applicant on the floor and noticed that she and some of her family members were hurt.  He states he rushed the family to the hospital.  He states that the first named applicant informed him the attackers were members of Boko Haram who had been trying to involve her son.

    -An Affidavit made by Pastor [A] on 12 May 2014 attesting that the first named applicant borrowed N800,000 from [a fund] .

    -A copy of a Loan Agreement Form entered into between the first named applicant and the [Fund] for an amount of N800,000 dated 29 May 2014.

    -Various certificates of participation in [events] by the first named applicant.

    -Certificate of Incorporation of the Trustees of [a church] indicating the first named applicant is a trustee of the church.

    -A statutory declaration made by the second named applicant on 25 August 2014. 

    -A statutory declaration made by the first named applicant on 4 August 2014.

    -A letter to the President of [a club] congratulating them on the organisation of [a club].

    -A letter from [a] Medical Adviser [stating] the first named applicant was assessed to have abdominal pain, trouble sleeping and an RLQ scar from a previous attack.

    -A report by the United States Institute of Peace entitled ‘Why Do Youth Join Boko Harm’.

    -A Human Rights Watch article entitled “Nigeria: Boko Haram Abducts Women, Recruit Children’, November 29, 2013.

    -A certificate of ordination in the name of the first named applicant issued on 24 June 2000.

    -Copies of the applicant’s passports.

    The Departments Decision

20. The delegate gave the applicant’s the benefit of the doubt and accepted their claims as credible.  However, based on independent information as to the activity of Boko Haram the delegate found that there was not a real chance of serious harm or a real risk of significant harm to the applicants on their return to Nigeria. 

    Claims made to the differently constituted Tribunal in 2016

21. During the Tribunal hearing in 2016 the applicants reiterated their claims about fearing harm at the hands of Boko Haram for the abovementioned reasons.

22. The first named applicant indicated she had lost contact with her husband in Nigeria in September 2014 and she stated she did not know his whereabouts. She said her three other children called her and advised her that their father had left them.   She said she did not fear harm from her husband but had faced difficulty in the past from his family.

23. The first named applicant stated that the church where she and her husband were Pastors was burnt down in September 2014 while she was in Australia.  She said she believes it was burnt by Boko Haram and that they have burnt down many churches in Edo State and in Benin City.  She said her church is no longer operational.

24. A [named person] gave evidence to the Tribunal from Nigeria that it was not safe for the applicants to live in Nigeria.  She said that Boko Haram was looking for the applicants.  She said the problem with Boko Haram arose because the first named applicant would not let her son be recruited by them.

25. The following documentation was provided to the differently constituted Tribunal for consideration:

    -Letters of support from fellow [club members] in [Suburb 1], Sydney which attest to the applicants  good character and refer to the persecution and abuse they claim occurred in Nigeria. 

    -A letter from [a dental clinic] dated 3 November 2014 addressed to [an organisation] regarding an assessment of the dental health of the second named applicant.  The letter indicates the applicant had a tooth impacted by decay as a result of food stagnation and a fractured upper central incisor requiring treatment.

    -A news report from 2015 regarding a security alert on the likelihood of a Boko Haram attack on Lagos seaports.

    -A news report from 2016 entitled ‘Benin City Under Threat Boko Haram:  Explosion Rocks Benin City’.

    -A Nigeria Travel Warning dated 3 August 2016.

    -A news article from 2016 entitled ‘Police arrest 150 suspected Boko Haram insurgents in Ondo’.

    -A news article from 2016 entitled ‘Boko Haram threat warning ahead of summit’.

    -A news article from 2012 entitled ‘Nigeria unrest:  Mosque attacked in Benin City’.

    -A news article from 2015 entitled ‘Nigeria’s Boko Haram ‘spreads to Lagos’.

    -A news article from 2016 entitled ‘UN Condemns Boko Haram Violence in Nigeria’.

    -A new article entitled ‘More soldiers deployed to fight organised crime in 30 states’.

    -A news article from 2015 entitled ‘The most dangerous places to be a Christian in 2015’.

    -A news article from 2015 entitled ‘Nigeria’s levels of pressure and violence against Christians are at a record high’.

    -A news article entitled ‘Bomb threats: University of Ibadan beefs up security’.

    -A news article from 2014 entitled ‘Boko Haram extends its reach’.

    -A news article entitled ‘Two Boko Haram suspects arrested in Lagos’.

    -A news article from 2014 entitled ‘Boko Haram Claims Lagos, Abuja Attacks’.

    -A news article from 2014 entitled ‘Suspected suicide bomber arrested at Lagos Airport’.

    -A collection of unclear copies of photographs.

    -A letter of support from [name deleted] dated 20 October 2016 attesting to the applicant’s involvement in [a club] of [Suburb 1].  The letter references their claimed experiences in Nigeria.

    -A letter of support from [name deleted], former [position] of [Suburb 1] City Council who also states he is aware of the applicants’ background in Nigeria and opining that they deserve to be granted refugee status.

    -An undated letter from the first named applicant provided after the hearing with the differently constituted Tribunal explaining why they should be given protection.   She repeats her claims about Boko Haram’s interest in her son.  She states she wasn’t attacked because of her affiliation with [Organisation 1] or because she is a Christian but due to her connection with her son.  She refers to the differently constituted Tribunal making a phone call to her church in Nigeria during the hearing.  She notes the call would have been received at 1am in Nigeria and argues that this shows the number which was called was a personal phone number and not the church number because calls to the church would not be picked up at that time of day.   She states she was reliably informed that the church was burnt down.  She attached evidence in support of this claim.   She further states that her children in Nigeria had to leave the place where they were staying because the owner heard they were targets and did not want his property destroyed.  Now her children are living in an uncompleted building.  She attached photographs depicting young people and personal belongings in a building appearing to be under construction.  She argues that no mother would leave her children without their father if her life was not threatened.  She states that she was always receiving threat messages and strange calls to her phone even when she travelled to other countries.  She couldn’t change the number because that was the only way for her children to reach her.  She states that when she was issued the visa to Australia she couldn’t travel immediately as she had no money to pay for the tickets and had to search for a way to secure the funds required.  She argues that it used to be safe in the south of Nigeria but not if you are a target and before Boko Haram came into the light. 

    -Article by Sani Aliyu entitled ‘14^th July The Making of Another But Avoidable Boko Haram in Edo State’.

    -Research paper by Veronika Tesrova entitled ‘Causes of Political Violence’.

    -News article from 2017 entitled ‘African security: Boko Haram is recruiting beyond Nigeria’s borders’.

    -Google maps printouts indicating the distance from [a] School to Benin City.

    -A copy of a tenancy agreement executed on 1 August 2016.

    -A letter from Paster [B], [dated] 19 October 2016.  Pastor [B] states that the first named applicant asked him for a loan to repay a debt she incurred in Nigeria to get herself and her son out of Nigeria which she has since repaid.

    -Report entitled Safety in Nigeria.

    -Various unclear screenshots.

    -A letter from the second named applicant stating that his mother is at the point of committing suicide.  He claims the police came and prevented her from doing so and she was taken to [Suburb 1] Hospital where she was admitted for mental stress and depression.  He states that after the hearing with the differently constituted Tribunal he noticed that she was reminded of the terrible incidents which occurred in Nigeria.

    Formerly constituted Tribunal’s decision

1. The Tribunal did not consider the applicants to be credible witnesses.  The Tribunal found that they have fabricated their claims and concocted evidence to achieve an immigration outcome.  Further, the Tribunal found that independent information about Boko Haram activities does not support and is inconsistent with the applicant’s claims.

   Evidence provided to the Tribunal as part of the current review

2. The Tribunal received a submission and supporting documentation from the applicants’ representative on 22 March 2024 which includes the following:

   -A submission from the applicant’s representative on their behalf.

   -Statement and photographs of the first named applicant sharing her story with the [a politician].

   -A divorce certificate for the first named applicant and her husband.

   -A 2014 US Department of Justice Report on Boko Haram in Nigeria.

   -Three Character Statements.

   -Police AVO for a work incident and photographs of the incident.

   -Hospital release documents.

   -Psychologist report.

   -Cardiologist referral.

   -Medication prescription.

   -Work incident report.

   -Payslip detailing work incident.

   -Copies of the applicant’s passports showing stamps.

   -Statement from [the] daughter of the first named applicant.

3. The abovementioned submission from the applicants’ representative repeats their claims for protection.  It is noted that Boko Haram had plans to initiate a takeover of the Southern part of Nigeria through bombing and destroying cities there on 9 August 2009 (link to news article attached).  It is argued that even a “low” level of Boko Haram in Southern Nigeria is threatening and it is claimed that not everything is accurately recorded in Nigeria and the group is expanding its presence throughout the country.   Various articles are referenced which it is argued support that there is substantial Boko Haram activity in the South of Nigeria.  Submissions are made as to why relocation within and outside Nigeria (to neighbouring countries) will not remove the threat of harm.  It is submitted that there is a real chance of persecution of the applicants due to them being part of a particular social group, their political opinion and religion.  It is further submitted that they will face harm because they are known in the community for escaping and going to a Western country known for its progressive education and inclusion of others.  It is argued that this makes them a strong target for even their previously known friends to expose them.  Members of the community have called the first named applicant to guilt her for leaving her children and the second named applicant does not know who out of his classmates ended up being recruited so upon return he will be unsure who might draw Boko Haram’s attention to his whereabouts.

   Tribunal hearings

4. The applicants appeared before the Tribunal on two occasions.  During the first hearing the Tribunal heard oral testimony from both applicants although the testimony received from the first named applicant was brief and incomplete as she was unable to proceed with giving evidence due to being physically and mentally incapacitated on the day of the hearing.  During the first hearing the Tribunal discussed with the second named applicant his background in Nigeria, the events which he claimed occurred in Nigeria and the reasons why he fears returning to Nigeria now. 

5. Following the first hearing the Tribunal received additional information from the applicants including the following:

   -A letter from [a] Clinical Psychotherapist and Accredited Clinical Supervisor/Victims Services Approved Counsellor, dated 8 May 2024. 

   -A letter from [a] GP, NSW Refugee Health Services, dated 10 April 2024.

   -A discharge report from [Organisation 3] dated 28 October 2016.

   -A letter from [a] Clinical Psychologist, [Organisation 2] dated 5 November 2018.

   -A referral for psychiatric assessment dated 29 April 2024.

   -A letter from [a] Counsellor, [Organisation 2] dated 7 May 2024.

   -Two documents related to eye surgery for the first named applicant.

   -[Suburb 1] Hospital discharge report.

   -A letter of support from [the] Secretary of [a club].

6. During the second hearing the Tribunal held discussions with the applicants about the first named applicant’s mental health including discussions about her diagnosis and treatment and whether her mental health might potentially impact her ability to safely return to Nigeria.  The applicants’ testimony on these issues is summarised as follows:

7. The first named applicant stated that she is no longer working after suffering a severe physical assault at her place of employment in Australia.  She advised that she is currently in receipt of workers compensation payments.

8. The applicants confirmed that they live together.  The second named applicant indicated that he is unmarried but is dating.  He said he would not contemplate living apart from his mother given the state of her mental health.  The applicants testified that they share their living costs although the bulk of the expenses are covered by the second named applicant who is currently [working].  The applicants described themselves as having a very close relationship having been separated from family and reliant on each other psychologically for the past eleven years. 

9. The first named applicant advised that she first sought treatment for a mental health condition in 2014 when she made contact with the Asylum Seeker Centre.  She said she received counselling and therapy under the care of a psychologist with [Organisation 2].  She said that in 2016 she developed suicidal thoughts and after her son called the police she was referred to [Organisation 3] for observation where she also received counselling.   When asked if she still experiences suicidal thoughts she replied yes noting that she gets scared when people approach her from behind.  She also said that she feels threatened in crowded spaces.   The second named applicant stated that his mother has not been able to socialise normally since she arrived in Australia.  He confirmed that following the workplace assault she cannot tolerate anybody walking behind her and she constantly checks to see if anybody is walking behind her.  He stated that if she observes anybody walking behind her she jumps to the side to avoid contact. 

10. The first named applicant confirmed that she is currently seeing psychologists through [Organisation 2] and through her employer.  She confirmed that she has been referred to a Psychiatrist but is waiting to secure an appointment.

11. The first named applicant confirmed that she has been taking anti-depressant medications since 2014 as well as other medications.  She stated that if she did not take the anti-depressant medication she would become more stressed, fearful and agitated. 

12. The first named applicant stated that she had never suffered psychological symptoms before the claimed assault in Nigeria in 2013.  She said she did not know anybody in Nigeria who suffered from a mental health condition.  The first named applicant stated that until they came to Australia they could not differentiate between a person in poverty and a person with a mental health condition.  The Tribunal asked the first named applicant how the church in Nigeria generally deals with people who present with mental health problems and she said they simply pray for them. 

13. The first named applicant stated that she would not be comfortable seeking out mental health services in Nigeria if they were available because of the stigma involved.  She said that she would be labelled a “mad” person and would be unable to find work.  When asked how other people would know she has a mental health condition she said they would observe her fearfulness; her stilted communication and unwillingness to socialise.  She said her condition would also likely affect her other family members.

14. When asked if she fears serious harm in Nigeria on account of having mental health problems she said that she would be more prone to physical assault as people prey on the vulnerable. 

15. When asked if she could resume living with her three remaining children in Nigeria she appeared at a loss and stated that she did not think she could.  When questioned further she appeared to struggle to answer the question and finally stated that she is afraid she might harm them.  The second named applicant stated that they would have nowhere to live if they returned to Nigeria because the home in which his siblings live is fully funded by him from his earnings in Australia.  He said that without his support the entire family would end up living on the street.

16. The Tribunal asked the first named applicant if her children in Nigeria are aware she is receiving treatment for a psychological condition.  She replied that her eldest daughter might be aware of it.  When asked if her children in Nigeria would likely be supportive of her knowing she has mental health problems she said that if they noticed her behaving strangely they might become scared of her.

17. The applicants’ representative submitted that it is obvious from the first named applicant’s mannerisms that she has extreme anxiety.  She referred to the continual shaking of the applicant’s leg throughout the hearing.  She argued that based on her experience the first named applicant doesn’t always appear logical in her responses and she argued that these behaviours will become obvious to others in the community.  She argued that mentally ill people in Nigeria are considered to be insane and the authorities would not assist her or take any complaints from her seriously because they too will view her as a crazy person.  Further, she argued that any attempt by the applicant to obtain mental heath services will expose her condition to others in the community as they will notice her going in and out of mental health care facilities.    

18. Following the second hearing the Tribunal received a further submission on 27 May 2024 from the applicant’s representative.  The following is a summary of the arguments made therein:

19. The first named applicant is at risk of harm in Nigeria due to her membership of a particular social group – persons with mental illness.  Due to the severe stigma surrounding mental illness she is at risk of serious harm, including deprivation of life and liberty and discrimination if she returns to Nigeria. 

20. The first named applicant was attacked in Nigeria by Boko Haram and while in her line of work in Australia [she] was attacked from the back and tortured which has exasperated her PTSD, trauma, anxiety and depression and the symptoms associated with that.

21. It is noted that those diagnosed with PTSD and trauma experience the following:

    -Anxiousness (expressed behaviourally as leg shaking and jittery actions).

    -Thoughts of harming themselves.

    -On edge/irritable behaviour.

    -Sever sleep difficulties.

    -Affective behaviour.

    -Easily distressed.

    -Unable to relate to family or friends.

    -Seemingly uninterested or distant.

    -Avoidance of eye contact.

22. It is submitted that the psychological reports provided to date show that the first named applicant has a variety of the above characteristics and more, notably:

    -She easily becomes distressed in conversion.

    -Unable to process questions and answer accordingly once distressed.

    -Leg shaking and nervous fidgeting.

    -Easily withdraws and becomes avoidant wherein her answers become brief and short and she cannot hold eye contact.

    -Voice shakes and sometimes uses a cold tone when she shuts off from the interaction.

    -Cannot walk with someone behind her.  In public areas like train stations and shops she must wait for everyone to clear and go in front before she can proceed.

    -Cannot go out at night as easily frightened.

    -Apprehensive around new people and easily goes into shut off mode as she cannot discern their intention and whether they are a perceived threat or not.

    -Severe sleep issues even with medication.

    -Overwhelming shame and guilt.

    -Suicidal risk as previously attempted suicide.

23. It is submitted that despite consistent health support in Australia many of her symptoms remain the same and she requires ongoing care and support.

24. It is submitted that many of her behaviours can be observed in normal day-to-day interactions with others.  She is unable to balance eye contact and speech that is appropriate for social norms making it evident that there is something wrong.  Not being able to walk in certain group formations, times, locations etc are attributes that can also be easily noticed.  Her withdrawn behaviour can make her verbal responses sound blunt and short giving the impression she does not want to interact.

25. It is submitted that Nigeria is a society that doesn’t recognise mental health as a treatable disease where a person’s autonomy and dignity is maintained; it is a society that has labelled mentally ill people as “mad” or “crazy” or “possessed”.  The commonly held views about mental illness are deeply ingrained in super-natural belief systems and stigma is further re-enforced by the legal system.  It is submitted that Human Rights Watch reports have found that those who are perceived to have mental health conditions are placed into government-run rehabilitation centres where they are shackled with iron chains and denied food and held in unhygienic conditions, forced to sleep eat and defecate in the same small place.  They are abused and forced to take treatments against their will.   A 2023 Human Rights Watch report is further quoted as reporting that Nigeria has yet to enact a legal ban on chaining people with mental health conditions and psychosocial disabilities.

26. It is further noted that Nigeria’s 1958 Lunacy Act was legally followed until 2023.  The use of the word “Lunacy” in the Act’s name added to the stigmatisation of mentally ill people.  It is argued that the replacement of this Act in 2023 will not immediately change social perceptions.  It is argued that it will take at least a decade before citizens start to shift their notion that those suffering/living with mental health illnesses are “lunatics” or “crazy” people. 

27. It is submitted that the stigma surrounding mental illness will also mean that the first named applicant will face discrimination in employment.  She will also face discriminatory treatment socially, possibly even from her own children, and will be more prone to being physically and sexually abused or murdered.  Any attempt to report such abuse would go unconsidered and be regarded as a crazy person telling tales.

28. It is submitted that it is unreasonable to expect that a person with a myriad of mental health issues could relocate internally or to another ECOWAS country where people share similar views to those held in Nigeria. 

    COUNTRY INFORMATION

    MENTAL HEALTH IN NIGERIA

29. The latest DFAT report[1], which the Tribunal is required to have regard to, notes the following about mental health in Nigeria:

    Mental health has historically been neglected on Nigeria’s health and development policy agenda.  The WHO estimates one in four Nigerians suffer from mental illness, but fewer than 10 per cent of mentally ill Nigerians have access to the care they need.  According to the WHO, the absence of treatment is fuelled by poor funding, stigma and poor knowledge of the disease.  There is a strong societal belief that mental illness is caused by evil spirits or supernatural forces.  Many Nigerians suffering from mental illness seek treatment from traditional or faith-based healers rather than mental health professionals.

    There are eight federal neuropsychiatric hospitals in Nigeria (totalling around 4,000 beds), as well as three state-run hospitals in Port Harcourt, Ondo and Anambra.  The WHO last estimated (in 2006) that, for every 100,000 persons, Nigeria had around 0.4 mental health beds, 4 psychiatric nurses, 0.09 psychiatrists and 0.02 psychologists and social workers.  These ratios are unlikely to have significantly improved, with many Nigerian-trained health professionals migrating to western countries, particularly the UK and Canada.

    Nigerians suffering from mental health issues can be vulnerable to abuse.  A 2018-19 Human Rights Watch investigation reported many people, including children, with actual or perceived mental health conditions were placed in facilities without their consent, usually by relatives.  In some cases, police arrested people with actual or perceived mental health conditions and sent them to government-run rehabilitation centres.  Once there, many were reportedly shackled to heavy objects or to other detainees, in some cases for months or years.  HRW reports people were often confined in overcrowded and unhygienic conditions.  Many were physically and emotionally abused and forced to take treatments.  Following the investigation, the Nigerian Government closed two Islamic rehabilitation centres in Kaduna and Kano states.

    DFAT assesses that Nigeria has a limited capacity to provide formal mental health services to its citizens.  Community and family structures and religious institutions may, in some cases, help cover this gap.  In other cases, social and religious attitudes can significantly exacerbate mental health challenges. 

    Persons with Disabilities

    The Constitution prohibits discrimination on the ‘circumstances of one’s birth’. In January 2019 President Buhari signed into law the Discrimination Against Persons with Disabilities (Prohibition) Act (2018), which prohibits discrimination on the basis of disability.

    DFAT reports that despite the legal framework and support services, human rights observers report many persons with disabilities continue to face a number of human rights abuses, including social stigma, discrimination, exploitation, violence and lack of access to healthcare, housing and education.  Relatives of persons with disabilities often regard them as a source of shame, and many indigent persons with disabilities beg on the streets.  International observers report there is little evidence to date that the new disability law has been implemented or enforced.

    DFAT assessed that, notwithstanding the constitutional and legislative protections in place, persons with disabilities continue to face considerable official and societal restrictions that limit their ability to participate fully in society.

    [1] DFAT Country Information Report Nigeria, 3 December 2020

30. A 2023 United States Department of State Report notes that while the law prohibited discrimination based on disability and provided persons with disabilities the right to equal access to education, health services, public buildings and transportation, persons with disabilities often did not have such access.  The government did not always enforce the law.[2]

    [2] United States Department of State, 2023 Country Reports on Human Rights Practices: Nigeria

31. The author of ‘A review of Stigma and Mental Illness in Nigeria’ (2015)[3] states:

    “… the misunderstandings of society about the various mental disorders results in stigma…”

    “Stigmatization deprives victims of mental illness their full measure of human dignity and participation in wider society by undermining social support and compromising opportunity for treatment.  And this is done by individual and Institutional discrimination resulting from misconception, prejudicial stereotypes and negative public and professional attitudes about mental illness.”

    “A national survey on stigma and mental illness among nursing professionals in Nigeria conducted in the six geopolitical zones of the country by Obeme et al, reported that 40% of their studied population viewed mentally ill individuals as violent, 26.5% would distance themselves from the mentally ill and a third associated mental illness with lack of self-discipline and will power but generally they held less negative views about mental illness.  Another study conducted by Abasiubong on stigmatizing attitudes towards the mentally ill in a Nigerian university teaching hospital among the hospital population found that 52% of the respondents believed witches were responsible for the causation of mental illness, 44.2% thought it was due to demon possession, and close to one third felt it was due to the consequences of divine punishment.  The respondents generally held strong negative views about the mentally ill.  Most of the respondents believed being authoritarian and restrictive in their attitudes towards the mentally ill and placing emphasis on custodial care is the best approach to treatment.”

    “There is widespread stigma and discrimination among the mentally ill in Nigeria even in populations that are expected to be enlightened in their aspect.”

    [3] Aishatu Yushau Armiyau, ‘A review of Stigma and Mental Illness in Nigeria’ (2015), Clinical Journal of Case Reports

1. The authors of ‘Religion, culture, and discrimination against persons with disabilities in Nigeria’ (2016)[4] provide that stigma associated with mental illness in Nigeria stems from ancient belief mythology.  The authors note that people with mental illness are killed in rituals and are at risk of being kidnapped.

   [4] Edwin Etieyibo and Odirin Omiegbe, ‘Religion, Culture and Discrimination Against Persons with Disabilities in Nigeria’ (2016), 5(1) African Journal of Disability 1, 2-3

2. Oliver Lewis provides that “Workshop participants were unanimous in their view that even educated people in Nigeria believe that madness is caused by the devil (I use the term ‘mad’ rather than using illness or disability terms to avoid either the suggestion that madness is viewed by the average Nigerian as a medical defect or a social phenomenon).  People who have mad thoughts or exhibit mad behaviour are thought to be possessed by evil spirits, and thus the cure is to ensure that the spirits leave the possessed person’s body.  Spiritual healers therefore beat the affected person to drive out the evil spirit or shackle the person and deprive them of food or water.  The fact that this practice involved inflicting physical and mental violence on another human being is seen at best as a minor inconvenience.”[5]

   [5] Oliver Lewis, ‘Nigeria’s Lunatic Laws and Evil Spirits:  What Place for Human Rights?’ on Oliver Lewis, Oliver Talks (6 March 2013)

3. Cheluchi Onyemelukwe in an article titled ‘Stigma and Mental Health in Nigeria: Some Suggestions for Law Reform’[6] states that stigmatisation of mental illness and mentally ill persons in Nigeria is very high in the country.  The author states that stigma remains the most basic, cultural and moral barrier to the relief of mental health challenges.  As a result of this, human rights abuses with deep roots in the stigma attached to mental illness continue to flourish largely unrestrained, impacting negatively on the dignity of mentally disabled persons as human beings.  In an atmosphere of intense stigma, the author states that mental illness is a burden carried by affected persons and their families alone, such persons are more likely to hide their illness, fail to seek help, and when they seek help do so surreptitiously without much information or support.  Stigma affects not only the individual with mental illness, it affects professionals who are involved in mental health care.  Importantly, it has been found that health policy experts are also affected by discrimination and stigma, resulting in a harmful shrinking back from necessary work on mental health policy.  The author further states that stigma manifests itself in all sorts of discrimination – from the personal to external matters like employment and appointments.  The upshot is a society where mental health issues and challenges are hidden because of the perceived stigma.  Yet the secrecy does not ensure a mental health challenge free society.  What is more likely accomplished is merely a driving underground of people with mental health challenges, with many adverse consequences.  Among these consequences are continuing low uptake of treatment, needless suffering and a lack of public education resulting in lack of support for the mentally ill and those who care for them.  A lack of public education also engenders a vicious cycle of stigma and discrimination. 

   [6] Cheluchi Onyemelukwe, ‘Stigma and Mental Health in Nigeria:  Some Suggestions for Law Reform’, Journal of Law, Policy and Globalisation Vol 55, 2016

4. An article published in The Lancet, ‘Nigeria’s National Mental Health Act 2021: any challenges ahead?’[7] provides an overview of the legislative framework for mental health.  It notes that in 1916 Nigeria enacted its first mental health legislation which was called the Lunacy Ordinance.  This legal framework was revised in 1958 under the name Lunacy Act, to grant magistrates and medical professionals the authority to detain individuals with mental health problems.  In 1991 Nigeria’s first mental health policy was established and its elements included promotion, advocacy, prevention, treatment and rehabilitation.  In 2003 the National Assembly of Nigeria received a mental health bill to address the many defects of the 1958 law however the bill was withdrawn in 2009.  Despite being reintroduced in 2013 the bill was not passed into law due to a lack of support.  However, on January 5, 2023 the Nigerian President signed the Mental Health Bill into law replacing the outdated 65-year-old Lunacy Act.  The article notes that although this law reflects the political will in Nigeria regarding the need to improve mental health care, the aim of Nigeria’s National Mental Health Act 2021 can only be achieved through effective implementation.  Actual commitment of the Nigerian government will be needed for a correct execution of the legal framework, via the provision of financial, material, and human resources.

   [7] ‘Nigeria’s National Mental Health Act 2021: any challenges ahead?’, March 25, 2023

5. An article titled ‘Normalising mental health needs in Nigeria: A wake-up call’, notes that the old Lunacy Act was steeped in stereotypes, stigmatisation, discrimination, dehumanisation and forced psychiatric treatments.[8]

   [8] Dr Toyin Ajao, ‘Normalising mental health needs in Nigeria:  A wake-up call’, Kings College London, 11 May 2022

   BOKO HARAM

6. DFAT’s latest country information report on Nigeria[9] provides the following:

   Security

   [9] DFAT Country Information Report, Nigeria, 3 December 2020.

7. While varying according to location, the security situation across Nigeria is unstable and highly fluid.  Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry.  Militant groups have regularly conducted terrorist attacks against a range of targets, including government and security institutions, oil facilities and infrastructure, the headquarters of international organisations and financial institutions, and transportation facilities such as bus bays.  While these have occurred nationwide, they have been most common recently in the northeastern states in relation to the Boko Haram insurgency.

8. Boko Haram, which translates roughly to ‘western education is sinful’ in the Hausa language, is a radical Islamist movement that has fought since 2009 to overthrow the government and create an Islamic state in northern Nigeria.  The organisation split into two factions in 2016, one pledging allegiance to the so-called Islamic State organisation (Da-esh) and calling itself the Islamic State West Africa Province (ISWAP); the other known as Jama’atu Ahlis Sunna Lidda’await Wal-Jihad (JAS).  Most Nigerians still refer to both groups collectively as Boko Haram. 

9. Boko Haram promotes a strict version of Islam that forbids Muslims from taking part in any political or social activity associated with Western society, including voting in elections, wearing shirts or trousers, drinking alcohol or receiving a secular education.  While initially headquartered in the northeastern city of Maiduguri and still largely centres in Borno state, the Boko Haram insurgency has spread across northern and central Nigeria and into neighbouring countries.  The group has also carried out attacks against the police and UN headquarters in Abuja.  The Boko Haram insurgency has resulted in thousands of deaths and injuries, widespread destruction, the internal displacement of approximately 2.7 million persons and the external displacement of almost 250,000 Nigerians to neighbouring countries.

10. The Boko Haram insurgency has targeted a range of groups, including those associated with the government (including police, military and politicians); individuals seen as supporting ‘western’ concepts such as secular education or elections; foreign aid workers and clerics from other Muslim traditions and Christian preachers.  Christians are opportunistically targeted by Boko Haram.  However, Muslims are also victims of attacks, in greater numbers than Christians, principally because they constitute a greater proportion of the population in the affected northern states. 

11. Its insurgent activities have included conventional warfare against state security forces; targeted killings of perceived opponents; bombings of churches, bus ranks, bars and military barracks; and mass attacks on villages and towns, resulting in looting, killing and mass abductions, including of children.  In 2014, Boko Haram abducted 276 mostly Christian schoolgirls from Chibok, Borno state, reportedly forcing them to convert to Islam and become ‘wives’ for Boko Haram fighters.  Around 100 of the girls remain unaccounted for.  In February 2018, insurgents abducted a further 110 schoolgirls from Dapchi, Yobe state, releasing 104 of the girls two weeks later after negotiations with the government.  Five of the remaining girls reportedly died in captivity and one girl continues to be held hostage, allegedly for refusing to deny her Christian faith.

12. Boko Haram has also paid, forcibly conscripted, or otherwise coerced young boys and girls to serve in its ranks and perpetrate attacks and raids, plant improvised explosive devices (IEDs), serve as spies, and carry out person borne IED bombings, often under the influence of drugs. 

13. Attempts by security authorities to curtail the Boko Haram insurgency in an enduring fashion have not proved fully successful to date.  The government initially declared a state of emergency in May 2013 in the three northeastern states in which Boko Haram was strongest – Borno, Yobe and Adamawa – while in the same year, the Office of the Prosecutor in the International Criminal Court declared the fighting in northeastern Nigeria to be a non-international armed conflict.  By March 2015, a regional coalition made up of troops from Nigeria, Cameroon, Chad and Niger had succeeded in winning back all of the towns under Boko Haram’s control, leading President Buhari to declare in 2015 that Boko Haram had been ’technically defeated’.  The insurgency has successfully regrouped in recent years, however, and continues to present a significant security threat in the northeastern states.  International observers report there was a resurgence of Boko Haram activity in 2019, with Boko Haram responsible for 1,136 death in Nigeria in 2019, compared to 872 in 2018.  The Tribunal notes that the examples of recent Boko Haram insurgent activities in 2019 and 2020 cited in the report related to incidents which occurred in northeastern Nigeria. 

14. DFAT assesses Boko Haram poses a serious ongoing threat to security in the northeast of Nigeria, with limited prospects of being neutralised in the short term. 

    Religion

15. While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians.  The traditional divide between the Muslim north and the Christian south remains although there are Christian communities in the north of the country and Muslim communities in the south.  A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions.  

16. Despite claiming an Islamist motivation, Boko Haram has regularly committed attacks against both Christian and Muslim religious communities and institutions during its insurgency in the northeast.  Person-borne IED attacks have targeted both churches and mosques:  according to the Council on Foreign Relations, Boko Haram has destroyed 59 churches and 22 mosques since 2010. 

17. The US Department of State’s 2021 Country Reports on Human Rights Practices: Nigeria[10] states that [T]he insurgency in the North East by the militant groups Boko Haram and the Islamic State in West Africa continued.  The terrorist groups continued attacks on civilians, military, police, humanitarian and religious targets; recruited and forcefully conscripted child soldiers; and carried out scores of attacks on population centres in the North East and in Cameroon, Chad, and Niger.  In its 2020 report[11] it states: Boko Haram and ISIS-WA attacked population centres, security personnel, and international organisation and NGO personnel and facilities in Borno State.  Boko Haram also conducted attacks in Adamawa, while ISIS-WA attacked targets in Yobe… While Boko Haram no longer controlled as much territory as it did in 2016, the two insurgencies nevertheless maintained the ability to stage forces in rural areas and launch attacks against civilian and military targets across the Northeast…”.

    [10] US Department of State, 2021 Country Reports on Human Rights Practices: Nigeria

    [11] US Department of State, 2020 Country Reports on Human Rights Practices: Nigeria

18. The assessment that Boko Haram groups are based and conduct insurgent activities primarily in the northeast of Nigeria is supported by various other reports.[12]  Janes website stated in 2020 that ISWAP operates primarily in northeast Nigeria but has previously demonstrated an ability to stage mass-casualty attacks in central Nigeria, including the capital Abuja, where it conducted indiscriminate bombings in 2010, 2011, 2014 and 2015.[13] 

    [12] Danish Immigration Service report ‘Violent Extremism in West Africa’, June 2020; CRS, ‘Nigeria: Current issues and US policy’, 18 September 2020; Rule of Law in Armed Conflicts (RULAC), ‘Non-international armed conflicts in Nigeria’, 23 November 2020; EASO – European Asylum Support Office, Nigeria – Security situation, June 2021

    [13] Janes, Wilayat Charb Afriqiyya, Areas of Operation, updated 24 November 2020

19. A more recent US Department of State report on terrorism in Nigeria in 2022[14] states that terrorist groups, ISIS- West Africa, Boko Haram and Ansaru, continued attacks against Nigerian government and security forces and civilians across the northern and central regions of Nigeria, resulting in deaths, injuries, abductions and the destruction of property.  Boko Haram attacks did not appear to discriminate between civilians and government officials, whereas ISIS-WA generally concentrated its attacks on government and security forces and expanded efforts to implement shadow government structures.  Boko Haram and ISIS-WA also continued to fight one another, and Boko Haram was significantly degraded, while ISIS-WA expended its geographic presence.  The report provides a sample of terrorist incidents recorded in 2022 some of which are believed to have been conducted by ISIS-WA and Boko Haram in Kogi State, Ondo State, a prison close to Abuja’s international airport and on the Abuja-Niger highway close to Abuja.

    [14] US Department of State, Country Reports on Terrorism 2022: Nigeria

20. A 2021 European Union Agency for Asylum (EUAA) country guidance report for Nigeria[15] also states the activities of Boko Haram concentrate in Borno, Yobe and Adamawa although incidents are also reported in other places in the country.  It provides an overview of indiscriminate violence in individual states.  The section on Edo makes no mention of violence perpetrated by Boko Haram and indicates that the main actors of violence included herders and farmers, rival cult groups, criminal gangs, and security forces involved in counter-insurgency operations.  The presence of communal militias was also reported in Edo state.  Some of the main drivers of conflict and security issues included criminal violence and gang/cult supremacy clashes, violent clashes between herders and farmers, vigilantism and mob justice, violent protests and counter-insurgency operations in relation to the #endSars protests (social movement and series of mass protests against police brutality).

    [15] EUAA, Country Guidance: Nigeria (October 2021)

21. An EASO  (European Asylum Support Office) report on the security situation in Nigeria from 2021[16] states that Boko Haram continues to operate in Borno, Yobe and Adamawa states.  In 2019, a resurgence and escalation of the Boko Haram crisis was witnessed across north-eastern Nigeria.  Since 2019 Boko Haram’s reach has extended into north-western Nigeria with attacks taking place in Kaduna, Katsina, Sokoto and Zamfara, killing ‘thousands of people’.  The report also states that the Boko Haram challenge is increasingly spreading to the North-Central region.  In 2020, violence continues to escalate.  The report states that Edo state falls within the South-South Region.  Reported sources of violence include cultism and conflict between herdsmen and farmers. None of the  security incidents reported in 2020 were attributed to Boko Haram.

    FINDINGS AND REASONS

    [16] EASO, Nigeria Security Situation, Country of Origin Information Report, June 2021

    Country of nationality

22. When the applicants appeared before the Tribunal they produced their Nigerian passports which verify their claimed identity and nationality.  Based on this documentation, and in the absence of any information to the contrary, the Tribunal accepts the applicants are citizens of Nigeria and that Nigeria is their receiving country for the purposes of the Act.

    Fear of harm from Boko Haram

23. The applicants claim that Boko Haram made attempts to recruit the second named applicant in 2013 and because they both resisted these attempts Boko Haram members invaded their home in Benin City and physically abused them in August 2013.  They claim that those persons still maintain an interest in them and will further harm them if they return to Nigeria because they defied their recruitment interests; because they will still wish to recruit the second named applicant to their ranks; because the first named applicant is a Pastor; because they are both Christians; because they will be perceived to be advocates of Western style education and/or because of their involvement with [Organisation 1]. 

24. For reasons which will be evident below, the Tribunal did not conclude its initial enquiries into the events which are claimed to have occurred in the past in Nigeria involving Boko Haram.  Notwithstanding this, the Tribunal acknowledges that the medical evidence which has been provided in respect of the first named applicant’s diagnosis in 2014 with Post-traumatic Stress Disorder, anxiety and depression, lends some support for the physical assault which is claimed to have occurred as do the dental reports provided by the second named applicant.  Further, the applicant’s have consistently claimed that they borrowed the money to travel to Australia and arrived with barely a cent to their name and lived rough until such time as they established a more secure existence in the community.  Also, the first named applicant has persuasively maintained that she would not have abandoned her three children in Nigeria to come and remain in Australia indefinitely if she was not fearful for her and her son’s safety at home.  The medical reports before the Tribunal indicate that her continuing separation from her children in Nigeria has impacted her psychological wellbeing and despite all this she has never contemplated returning home.  Considering these issues cumulatively, the Tribunal is persuaded and is prepared to accept that the applicants were the victims of a serious physical assault in their home in August 2013 and that this event was the catalyst for their decision  to depart Nigeria in 2014. 

25. However, for a variety of reasons, including that the relevant country information at that time, which was thoroughly outlined and assessed by the former Tribunal in its decision record, does not indicate or support that Boko Haram were operating in Edo State at the time the claimed incidents occurred, the Tribunal has very serious doubts that Boko Haram operatives were involved in that attack or would have any ongoing interest in the applicants should they return to Nigeria now.  However, for the reasons which follow the Tribunal has not found it necessary to consider those facts further or to make firm findings about the claims made by the applicants in this regard.

    The first named applicant’s mental health

1. The Tribunal has considered and has taken account of the various medical reports and opinions submitted in support of the applicants claims and accepts that the first named applicant suffers from PTSD and severe anxiety and depression which has been exacerbated by an assault she endured in her workplace in Australia.  Sources[17] consulted by the Tribunal indicate that PTSD is often viewed as one category when it is in fact a very complicated disorder with varying symptoms that affects victims of different traumatic events.  It is a disorder of reactivity and avoidance and its psychopathology is characteristically expressed during interactions with the interpersonal or physical environment.  It is for this reason that individuals with PTSD are consumed by concerns for their personal safety and they persistently scan the environment for threatening stimuli.  The difficulty encountered in treating PTSD is that individuals are not able to process the fact that the threat, which was previously present in their life, no longer poses a risk once the person has relocated to another environment.  To the individual with PTSD the threat is always present and they sometimes act inappropriately as they construe their environment as dangerous and threatening.  It has been submitted, and the Tribunal accepts, that the first named applicant displays a range of behaviours consistent with this assessment. 

   [17] Hamner, MB (1997) Psychotic features and combat-associated PTSD, Depression and Anxiety Vol 5; Friedman, MJ (2011) PTSD and related disorders in DJ Stein, MJ Friedman (eds) 2011, Post-traumatic stress disorder, UK, Wiley-Blackwell Publishers.

2. The Tribunal accepts that the first named applicant continues to require treatment, including medication and psychological and psychiatric therapy for her condition.   Based on the above country information, the Tribunal considers that access to this level of care is unlikely to be available to her in Nigeria.  Relevantly, even with ongoing psychological counselling and medication the evidence suggests that her symptoms have not greatly changed despite the treatment she has received in Australia.  The Tribunal considers that without the required level of support she currently enjoys it is likely that her condition will worsen and her unusual behavioural traits, which are listed above, will become even more pronounced and noticeable.  Additionally, it has been submitted and the Tribunal accepts that any attempts she might make to access what limited services are available to people with mental illnesses in Nigeria would add to the risk of her illness becoming known in the community.  The Tribunal is satisfied that if she is required to return to Nigeria there is a real chance, based on her behaviour, that she will be perceived by the Nigerian populace to have a mental illness.

3. The Tribunal has considered country information about the situation for people with mental health conditions in Nigeria and finds that Nigeria offers little, if any, support to people with mental illness.  The Tribunal finds that access to and availability of quality medical services are inadequate, with most Nigerians unable to afford the care which is needed.  The Tribunal accepts that care for the mentally ill is by and large left to the families and finds that persons with mental health problems are subject to significant societal stigmatisation and discrimination in the community.  The Tribunal is satisfied that there is a real chance the first named applicant will be stigmatised by the community and regarded as a “mad” or “lunatic” person or someone affected by evil spirits.  Based on the country information outlined above the Tribunal accepts that she will face a real chance of societal discrimination including ridicule, shame, rejection and social isolation, harassment and verbal abuse, physical neglect and/or serious physical harm or mistreatment.  Additionally, the Tribunal accepts that there is a real chance that she will also face discrimination within the health care system if she seeks professional intervention in Nigeria due to a reported lack of understanding, education and fear on the part of mental health professionals leading to mistreatment and neglect of mentally ill patients.  The Tribunal is satisfied that this treatment amounts to serious harm. 

4. The Tribunal finds that the essential and significant reason for the harm the first named applicant will suffer will be her membership of a particular social group – persons with, or perceived to have, mental illnesses in Nigeria.  The Tribunal is satisfied that this particular social group is identifiable by a common characteristic, that being their mental illness and that this characteristic is shared by each member of the group and distinguishes the group from society at large.  The Tribunal is also satisfied that the characteristic common to the group is not the shared fear of persecution. 

5. The Tribunal acknowledges that the National Mental Health Act 2021 which was signed into law in January 2023 has the potential to ensure greater protections for those with mental health conditions in Nigeria.  However, sources quoted in the country information outlined above note that while the new law may reflect political will in Nigeria to improve mental health care the aims of the new Act can only be achieved through effective implementation and resourcing.  According to Human Rights Watch there is little other evidence to date to support that the new law has been fully implemented or enforced and the government is yet to enact a legal ban on chaining people with mental health conditions and psychosocial disabilities.  Despite improvements to the legislative environment the Tribunal considers it will take considerable time to change long held discriminatory views about persons with mental health conditions in Nigeria.  The Tribunal finds that it is likely that persons with mental illnesses in Nigeria will continue to face considerable societal and official discrimination that limits their ability to live safely and participate fully in society. 

6. In light of the above and noting reports of high levels of corruption, inaction and inefficiency in government and the justice system in Nigeria[18] the Tribunal is not satisfied that the first named applicant will be able to avail herself of state protection against the harm she fears for reason of her membership of a particular social group – persons with or perceived to have mental illnesses in Nigeria.  As the situation for mentally ill people exists state-wide the Tribunal finds the first named applicant would be a particularly vulnerable person anywhere within the Nigerian state.  Therefore, the Tribunal finds that it is neither reasonable nor practicable for the first named applicant to relocate to another area in Nigeria in order to avoid the harm she fears.

   [18] DFAT Country Information Report, Nigeria, December 2020

7. For these reasons, the Tribunal finds the first named applicant has a well-founded fear of being persecuted on return to Nigeria now or in the reasonably foreseeable future for reason of her membership of a particular social group – persons with or perceived to have mental illnesses in Nigeria. Therefore she is a person in respect of whom Australia has protection obligations under s. 36(2)(a) of the Act.

8. The Tribunal notes that s.36(3) of the Act provides that 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.  Additionally, s 36(4)(a) of the Act provides that subsection (3) does not apply in relation to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.  There is information[19] before the Tribunal which indicates that discriminatory and prejudicial societal and institutional attitudes towards people with mental illnesses are reportedly little different in neighbouring countries such as Togo, Benin and Ghana.  The Tribunal is satisfied that the first named applicant is saved by s.36(4) of the Act.

   [19] “The Chains of Mental Illness in West Africa”, The New York Times, 11 October 2015

9. In view of the above and the below findings in respect of the family unit, the Tribunal has not found it necessary to consider the other claims raised by the applicants in their written and oral submissions.

   Member of the Same Family Unit

10. The Tribunal accepts that the second named applicant is the son of the first named applicant.  The available evidence indicates that they have no other family support in Australia; they reside together and are dependent on each other for psychological support.  In view of this the Tribunal is satisfied that the second named applicant is wholly or substantially reliant on his mother for psychological support and therefore satisfies the definition of ‘dependent child’.  The Tribunal is satisfied that he is a member of the same family unit for the purposes of s 36(2)(b) of the Act.

    CONCLUSIONS

11. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

12. The Tribunal is satisfied that the second named applicant is the son of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s. 36(2)(b)(i) of the Act. Therefore he will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

13. The Tribunal remits the matter for reconsideration with the following directions:

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

    (ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Tania Flood
    Member