2402588 (Refugee)

2402588 (Refugee) [2024] AATA 3385 (31 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Marial Lewis
CASE NUMBER:  2402588
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Tony Caravella
DATE:31 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 May 2024 at 7:01am
CATCHWORDS
REFUGEE – Protection Visa – Nigeria – race – Igbo ethnic group – membership of Indigenous People of Biafra – criminal conviction – political opinion – a particular social group – being part of a drug operation from Nigeria/assisting during a police investigation – returnee Nigerian nationals convicted of an overseas drug offence – a failed asylum seeker – a member of the IPOB minority – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nigeria, applied for the visa on 13 January 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for by s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant as provided for in s 36(2)(b) or s 36(2)(c) of the Act. The delegate therefore found the applicant failed to satisfy the criteria in s 36(2) of the Act.
The applicant appeared in person before the Tribunal on 5 April 2024, and then again by videoconference on 17 April 2024 to give evidence and present arguments. The Tribunal also received oral witness evidence from [Ms A] and from [Mr B] who gave evidence and answered questions via telephone from Nigeria. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages.
After the hearing, and in response to a request by the applicant’s representative, the Tribunal issued a summons to the Western Australian Department of Justice requesting certain prison records be provided to the Tribunal. The summonsed records were provided to the Tribunal and these, together with all the written submissions made by the applicant’s representative and the applicant’s and his witnesses’ oral evidence, and all the evidence have been considered in reaching the decision in this appeal.
The applicant was represented in relation to the review. The applicant’s representative appeared at both hearings by way of video conference from Sydney.
BACKGROUND, PROCEDURAL AND MIGRATION HISTORY
The applicant was born on [date] in [Benue], Nigeria.
On 19 September 2013, the applicant was granted a TO-300 Prospective Marriage visa (Offshore). On [date] October 2013 he arrived in Australia. He married [Ms C] [in] April 2014 and was granted a UK-820 Partner visa onshore on 17 July 2014.
The applicant departed Australia on [date] December 2014 and then returned on [date] January 2015.
On 17 June 2020, the applicant’s UK-820 visa was cancelled under s 501F(3) of the Act. The applicant sought a revocation of that cancellation however the cancellation was not revoked. The applicant then sought a review in the AAT General Division of the visa cancellation. The review by the AAT affirmed the visa cancellation on character grounds. Judicial review of the AAT’s decision to affirm the visa cancellation failed when the Court dismissed the appeal [in] December 2023.
A protection visa application was lodged on 13 January 2024 and refused by the delegate on 14 February 2024. An application for review of the delegate’s refusal decision was lodged with this Tribunal on 16 February 2024.
APPLICANT’S CLAIMS MADE TO THE DELEGATE
In an Application for a protection visa submitted online to the Department of Home Affairs on 13 January 2024, the applicant makes the following claims.
He was born on [date] in Nigeria and he holds Nigerian citizenship. He claims to be of the Igbo ethnic group. His marital status is “separated” however he has 2 children, a [age]‑year-old and a [age]-year-old from his marriage to an Australian citizen. At the time of lodging his application for a protection visa he was held at [Immigration] Detention Centre. He continued to be held there at the time of the Tribunal hearings.
He claims he departed his country from Lagos Airport on [date] January 2009. He declares he lived in [Country 1] from January 2009 until October 2013. He declares he last arrived in Australia in October 2013.
He declares that he has been convicted in Australia for the importation of a commercial quantity of a border-controlled drug, [and] that he received a sentence of 8 years’ imprisonment.
In a statement headed “My protection visa narrative/story” submitted with the applicant’s Application for a protection visa the applicant makes the following claims:
a)He arrived in Australia entering as the holder of a prospective marriage visa on [date] October 2023. He married his now ex-spouse [in] April 2014.
b)He is [one] child in a family of [several].
c)He is presently in immigration detention after serving his criminal sentence after being found guilty of importing [drug]. He claims he was not found with the drug. He claims he was originally sentenced to 10 years’ imprisonment, but this was reduced to 8 years on appeal and he eventually served 5 years.
d)He claims he is seeking refuge from Nigeria on 3 grounds as follows:
i.   He gave testimony in the [court] against a co‑offender and this enabled the police investigation to convict the co-offender for the charge/crime of drug importation. The co-offender’s name is [Mr D] who is from [a] State in Nigeria. He claims he was the main witness for the police and this resulted in [Mr D] being convicted and sentenced to 17 years’ imprisonment. He claims [Mr D]’s family and business associates will end the applicant’s life as he is seen to have betrayed his co‑offender;
ii.     He fears he will be subject to the law of “double jeopardy” if he returns to Nigeria. In particular, he claims that even though he is an ex-criminal who has served his sentence in Australia, upon return to Nigeria the authorities will commence proceedings to convict and imprison the applicant for the same crime. He claims he will face torture, punishment and possible death. He claims he will be exposed to inhuman threats and suffering;
iii.    He seeks refuge from Nigeria because of his membership of Indigenous People of Biafra (IPOB). He claims this is an organisation peacefully seeking referendum from the federal government of Nigeria. He claims he joined IPOB in April 2012 while he was in [Country 1]. He claims that while in [Country 1] between 2009 and 2013, he participated as a member of IPOB and he made contributions during 2012 and 2013.
His statement continues by asserting that “Before now I had made up my mind to return to Nigeria even with these claims I have mentioned until my younger brother [made] mentioned of a call he encountered with one of the police officers on January 8^th 2024…” He claims he fears the police have invited the applicant for questioning regarding his involvement with IPOB. He claims that this might lead to his arrest, detention, torture or death. He claims the IPOB leader Mazi Nnamdi Kanu is in detention after being kidnapped from Kenya. He claims he will have the same fate if he is deported to Nigeria and claims he will be taken straight to the police station from the Lagos airport.
He claims that from spending 5 years in a correctional centre and almost 3 years in immigration detention, he has become a changed person, and he is ready to go out and support his children and he seeks another chance to prove himself to Australia if he is granted a protection visa. Twelve documents are attached to the protection visa narrative/story, including copies of passports, marriage and birth certificates, a letter of support from his brother, IPOB membership receipts/dues and an IPOB membership support letter.
APPLICATION FOR REVIEW BY THIS TRIBUNAL
An application for review by this Tribunal was lodged on 16 February 2024.
On 2 April 2024, the applicant’s representative submitted written submissions in this matter along with a further 18 documents which are asserted as supporting the applicant’s claims. I have taken all this material into consideration in deciding this appeal and I summarise the core of the written submissions in the following paragraphs.
It is submitted the applicant has a well-founded fear of persecution due to his membership of a particular social group (“PSG”); in particular the submission characterises the PSGs as follows:
a)Being part of a drug operation from Nigeria/assisting during a police investigation and giving testimony as a witness;
b)Returnee Nigerian nationals convicted of an overseas drug offence;
c)Being a member of the IPOB minority.
It is submitted there is a real chance of persecution in all areas of Nigeria and it is submitted it is not reasonable for the applicant to relocate given his fear is in relation to the whole country.
It is submitted that no state, party or organisation (including an international organisation) is willing or able to offer protection to the applicant. It is submitted, “if anything the police is who the applicant fears the most.”
It is submitted that Nigeria does not have an impartial judicial system by reference to the recent Department of Foreign Affairs and Trade (DFAT) Country of Origin Information (COI) report.
The claim details as submitted by the applicant’s representative are as follows:
a)The applicant is a Nigerian national who was convicted of a Nigerian drug operation overseas and is also an informant to the police. It is submitted the applicant cooperated with Australian law enforcement authorities and it is assessed as being medium-level assistance. The submission asserts the applicant’s fear stems from the drug lords knowing about his involvement and being caught in Australia, as well as providing evidence against his co-offender [Mr D]. It is submitted the delegate’s decision focussed on the offence occurring 8 years ago, and the applicant departing Nigeria 15 years ago. The submission refers to recent text messages “with unknown individuals” sent to the applicant by his brother which are submitted as evidence of unknown individuals threatening to kill the applicant;
b)The second claim in the representative’s submission is declared to be “Membership of a certain [sic] social group: Returnee Nigerian nationals convicted of an overseas drug offence”. After citing DFAT COI on failed asylum seekers from the 3 December 2020 report on Nigeria, the submission asserts that the police and the drug enforcement agencies will most likely be informed upon the applicant’s return to Nigeria and that the applicant is considered to be a Nigerian national with an overseas drug conviction within the meaning of Decree 33 and Section 22 of the National Drug Law Enforcement Agency Act (NDLEA Act) of Nigeria. It is further submitted that the NDLEA Act provides that any person whose outward journey originates from Nigeria and is found to have imported prohibited narcotic drugs to a foreign country shall be guilty of an offence of exportation of drugs, notwithstanding that such a person has been tried or convicted for any offence of unlawful importation of such a narcotic drug in that foreign country. The submission provides an extract of s 22(3) of the NDLEA Act which states:
(3) Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fin[e] and his assets and properties shall be liable to forfeiture as provided under this Act.
c) The third claim is the applicant’s claim to have a well-founded fear of persecution due to his membership of IPOB. It is submitted the applicant has provided a letter from [Ms A] which declares his membership since April 2012 and refers to the applicant making donations to IPOB. The representative’s submission refers to COI from DFAT reporting on the arrest in 2015 of IPOB’s UK-based leader Nnamdi Kanu, whereby he was charged with treason and sedition. The report goes on to state that serious clashes had taken place with IPOB supporters with the military firing live ammunition and shooting 60 people in 2 days. The submission highlights the DFAT report where it 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 the same report states ordinary members of IPOB, the Movement for the Actualization of the Sovereign State of Biafra and other Biafran secessionist organisations who participate in political demonstrations or rallies face moderate risk of being subjected to violence by state security forces. The submission submits that although IPOB was banned in Nigeria as a terrorist organisation in 2017, that decision was overturned in October 2023 by the High Court in Enugu, but further submits that COI reports on troops killing IPOB members and destroying the supreme headquarters.
The applicant’s representative’s submission submits that the delegate’s decision to find that the NDLEA Act is a law of general application and therefore would not amount to persecution “is not a correct position.” The submission then states: “The Applicant fears persecution and that reason is essential and significant reason and the persecution would involve serious harm to the person and does involve systemic and discriminatory conduct under a law of Nigeria.”
It is further submitted: “The Tribunal’s task is not to evaluate how many cases of Decree 33 Nigeria had in the past but whether the applicant’s fear of persecution is well founded with a possibility of harm occurring under the Migration Act as explained in High Court Decisions such as Chan v MIEA where the court held that ‘well-founded fear’ involves both a subjective and an objective element and that ‘unlikely’ is the wrong test.”
The applicant’s representative goes on to make further submissions in relation to the risk of ‘significant harm’ as defined in s 36(2A) of the Act. It is submitted that if the applicant is returned to Nigeria, he faces a real risk of torture and cruel, inhumane or degrading treatment or punishment.
EVIDENCE AT HEARINGS
Two hearings were held in relation to the applicant’s claims. The following is a summary of the evidence given and submissions and arguments made at those hearings.
Hearing held 5 April 2024
The applicant commenced his oral evidence by telling me he was born in [year] [in] Southern Nigeria and in [year] he moved to [a town] where he completed his formal education. He then completed a 6-year apprenticeship [from] 2003 to 2009.
He told me he separated from his wife [in] June 2023. He is not presently in a relationship with anyone else.
When I asked why he travelled from Nigeria to [Country 1], he told me he [doing specified work] and he went to [Country 1] to [work]. He conceded that he entered [Country 1] on the strength of a student visa and that he conducted his [business] contrary to the work prohibition applicable to his student visa in [Country 1].
Upon asking why he travelled to Australia, he told me he met the woman who would become his wife and she is Australian. He said he met her in [Country 1] in March 2011 and met her again in September 2011 when she returned to [Country 1] with her children. That was when he proposed marriage to her.
In relation to his claim that he returned to Nigeria from 2014 to 2015, he told me his grandmother passed away while he was in Australia and he had to return to pay his last respects. He told me when he left Nigeria no one knew he was supporting IPOB. When he returned to Nigeria in 2014, he went to a meeting and paid 150,000 Nigerian Naira. He said this money was to support good causes including less privileged people. He had no contact with police during this visit.
When I asked why he believes he would be targeted for harm if he returns to Nigeria now or in the reasonably foreseeable future, he said when he was in Nigeria previously no one knew who he was, however, his brother has since told him that the police approached his brother about him. He told me in January 2024 the police again approached his brother asking about the applicant. The applicant then told me in any organisation there are saboteurs who give out information without authority. He then told me that in 2016 Muhammadu Buhari became President in Nigeria.
The applicant confirmed there are 3 grounds under which he seeks non-refoulement, namely:
a)First, he fears he will be targeted for serious harm at the hands of his co-offender [Mr D] or persons associated with [Mr D], including his family, agents or associates or members of the drug syndicate.
b)Second, he claims he fears he will be subjected to double jeopardy in Nigeria and will face conviction and punishment in accordance with the relevant law in Nigeria because of his involvement in the failed drug importation enterprise from Nigeria to Australia.
c)Third, he claims he faces a real chance of serious harm for reason of his membership of and financial support to IPOB.
When I asked why he had not raised his protection claims before now, he told me the first reason is because he was not aware the police were inquiring about him in 2015 as his brother had not told him. However, he fears the police have an adverse interest in him now as they have made recent inquiries.
The second reason he said was that while he was in prison someone called [Mr E] passed on a message telling the applicant that he is a “fucking snitch” and that he would be targeted for harm. The applicant told me he has not received any direct threat of harm. When I asked him how he might explain this, the applicant said they do not have his phone number. The applicant told me the police in Australia did not raise the issue of witness protection with him prior to him giving evidence for the prosecution.
The applicant confirmed that his family members in Nigeria have not been assaulted or harmed. He then told me about receiving a photograph of someone named [Mr F] who had been in Australia and returned to Nigeria. The applicant told me [Mr F] had been bashed and the photograph depicting a bashed [Mr F] had been sent to the applicant.
The applicant told me [Mr G] is a friend and he is connected with the applicant and with [Mr D]. The applicant said they will ask [Mr G] about the applicant.
I invited the applicant to comment on the letters from [Ms A] and from his brother [Mr B]. The applicant told me he was angry with his brother for not telling him about the approach made to him by the police in 2015.
When I invited the applicant to explain why he believes the police in Nigeria would not provide protection, he said he has no faith that they would protect him. He told me there is a lot of killing in Nigeria, but no investigation. He added the police will not help him because it is a crime to be in IPOB. When I asked why he thinks he would be targeted for harm in Nigeria when someone like [Ms A] appears to be able to lead her life and hold positions in IPOB, the applicant replied, “I was supporting them financially and I was attending meetings.”
Witness evidence from [Ms A]

[Ms A] told me she was speaking to me from [City] in Enugu State. [Ms A] told me she met the applicant in Nigeria. She said she comes from the same village as the applicant. She told me she had been asked in January 2024 to provide a letter regarding the applicant’s activities with IPOB. She told me she has 2 positions with IPOB, namely she holds the position of [Position 1] and she also holds the position of [Position 2] for IPOB in [City]. She has been involved with IPOB since 2011.
Upon asking her what she could tell me about the applicant’s involvement in IPOB, she told me the applicant commenced his involvement in 2012, and added “everyone is a member from birth”. When I asked if she could recall providing a written statement on the applicant’s behalf, she told me she does. When I asked her what she meant in that letter when she said the applicant had been consistently active, [Ms A] told me that everyone who is born Igbo is born a member, and then added that since he joined he has been active. She said there are 2 kinds of members and the applicant is the kind who contributes financially. She then said the applicant “is active when he is around”. I put it to her that the applicant has been mostly outside Nigeria since he joined. She replied that when he returned he joined in their activities and he was active in assisting the less privileged by giving money and asking the group to help the less privileged.
[Ms A] also told me the applicant attended meetings and he was therefore involved in the movement. She told me that as a member attending meetings, he contributed to deciding who the organisation would help.
When I asked if she could comment on who might want to harm the applicant if he returns to Nigeria, [Ms A] said their movement is a hidden organisation and they act in secret.
I asked her if there were any other receipts apart from the 3 which she had included in her letter. She said these were the ones she is aware of.
Upon asking why she believes the applicant needs protection in Australia, she said he needs protection because of their activity. She said they need protection and then added if she went to another country she would ask for protection too. When I asked if there has been any change in Nigeria since Buhari ascended to power in 2016, she told me “What we are going through we are going through. We are still in hiding. We are still operating in secret and we are careful for ourselves.”
When I asked if she could give some examples of what she does as [Position 1] to protect herself, she told me they make sure their meetings are held in private and she stores confidential records safely.
At the end of [Ms A]’s oral evidence, and upon inviting him to comment on her evidence, the applicant told me he wanted to correct the record as Buhari came to power in 2015.
Witness evidence from [Mr B]
[Mr B], the applicant’s brother, gave evidence by telephone. He told me he was speaking to me from Lagos. He confirmed his date of birth as [date]. He told me he wrote the 2 letters that he had provided the applicant and which had been submitted to the Tribunal.
He told me that on 5 February 2015 he received a telephone call from someone who said he was a police officer named [Mr H]. He told me he did not give [Mr H] information because he did not know who he was. He then said that he did not tell his brother about the call because the caller did not properly explain who he was. He then added that because the caller mentioned IPOB he knew there was a problem. He said that after the call in February 2015 he received no other calls until 8 January 2024 and during that call the officer said he was from [a place]. The applicant’s brother told me the second officer said he was officer [name] and said they had received information that the applicant was involved financially and socially with IPOB and they were trying to contact the applicant and wanted to interview him at the police station. When I asked what the applicant’s brother told the police officer, he said he told him the applicant is not around. The applicant’s brother then told me the police officer said “OK” and the call ended.
I asked the applicant’s brother in light of 9 years separating the 2 claimed telephone calls, how he would know the second call received on 8 January 2024 was “from the same unknown number” as claimed in his letter dated 10 January 2024. He replied saying “They called and spoke about IPOB”. He then added both callers gave their name. I asked how he managed to remember the precise date of the first telephone call as 5 February 2015 as he referred in his letter dated 10 January 2024. The applicant’s brother then said, “That day is my birthday and I jotted it down.” I put it to him that he had earlier told me his birthday is [date], not 5 February. He then told me he had said it was his “birth month”. I also put it to him that if he thought the call was so significant that it should be jotted down, it appears inconsistent that he would not make any mention of the call to his brother the applicant. The applicant’s brother then told me the reason why he did not tell the applicant was because he was overseas with his family and because he knows people make false reports.
When I asked the applicant’s brother if he is an active member of IPOB, he told me anyone who is Igbo by birth is a member of IPOB.
Upon asking the applicant’s brother about the printed screenshots of [social media] messages dated 28 February 2023, and whether he reported the threats made in the messages to the police, the applicant’s brother told me that in his part of the world if one makes a report to the police, they laugh at you. When I asked if there were any other messages from the same phone number, he said there were no other messages. He added that “they know where I work and live”. He told me he has blocked the particular messenger’s phone number. When I asked whether he had made any inquiry about the source of the message with his phone service provider he said he went to [a provider] and they told him they could not give him any information because of privacy grounds.
The applicant’s representative suggested I ask the applicant’s brother whether the applicant could approach the Independent Corrupt Practices Commission (ICPC) to intervene or to arrange protection for the applicant. The applicant’s brother responded saying that his country is well known for corruption and that if his family was wealthy, they could report to the ICPC, however, in their circumstances they have no one.
The applicant’s representative submitted that the ICPC does not deal with police complaints.
At this point as it was 5 pm in Perth, and 8 pm in Sydney where the applicant’s representative and the interpreter were located, I decided to adjourn the hearing.
Resumed hearing held 17 April 2024
Upon opening this hearing I asked the applicant whether he had any remarks or wanted to clarify anything from the first hearing. He said he wanted to clarify his statement made at the first hearing where he had implied he had breached the migration law of [Country 1] by working there. He said he was a business trader in [Country 1] and that he did not lie about this to the Australian authorities. He said that the Australian government has that information and what has happened has happened. I put it to the applicant that although he may have told the authorities, and the Tribunal, that he breached his visa obligations in [Country 1], the fact remains that there is still an issue, albeit non-determinative, as to the credibility of the applicant’s claims. He conceded that he did breach the [Country 1] migration law.
The applicant also told me that while he was in prison people were trying to harm him so he was kept in isolation in [prison].
After recapping his 3 claimed grounds for protection, and after the applicant confirmed these continue to be his claims, I referred the applicant to his My protection visa narrative/story statement where he stated that he had made up his mind to return to Nigeria even having made his claims until his younger brother [Mr B] mentioned to him the telephone call he received on 8 January 2024, and then mentioned to him that another call was received from the same unknown number in 2015. When I asked the applicant why he would claim he had decided to return to his country notwithstanding his claims, that is his claim of facing double jeopardy and harm for giving evidence against his co-offender, the applicant told me that at that time he was not thinking properly and he has 3 people in his life that he loves, namely his mother, his wife and his children. He said his mother passed away in 2018 and he separated from his wife in June 2023. He said he sees a psychologist for his depression and his frustration. He said he broke down and does not think properly.
I referred the applicant to the evidence given to me by [Ms A] at the first hearing and invited the applicant to provide further comment on it if he wished to do so. The applicant responded by saying that in the Igbo culture when one does good things one does not tell people or keep records of this. He said he sent money to IPOB while he was in prison and this money was for the purpose of feeding people and helping the underprivileged.
I referred the applicant to copies of receipts which the applicant had submitted evidencing his payments to IPOB [in] April 2012 and [in] December 2014 respectively. I put it to him that the numbering of the receipts appears to suggest the receipt for the latter payment had a serial number earlier than the receipt for the earlier payment, that is, the receipt for [April] 2012 is [xxxxx]6 whereas the serial number for the receipt for [December] 2014 is [xxxxx]5. I put it to the applicant that this might raise doubts about the authenticity of the receipts and might consequently raise doubts as to the credibility of his claims. The applicant responded by saying that he did not keep records and he had asked [Ms A]/IPOB to provide receipts. He told me he did not have time to check the receipts and he is not able to control the receipts that are issued by IPOB.
I invited the applicant to make further comment on the evidence provided by his brother, including his oral evidence given at the first hearing. The applicant responded by saying [Mr B] is his brother and he tried to look after the applicant by not telling him about the phone call in 2015. The applicant told me when his mother passed away, he was not told until 2 days after she died. He concluded by saying his brother does not like to tell him these things.
I referred the applicant to the screenshots of [social media] messages which have been submitted to the Tribunal. I referred the applicant to the date of these messages, that is, 28 February 2023, and invited him to express his view on why they might have been sent then and not before given it is submitted that these originate from an unknown person threatening to harm the applicant because of the applicant giving evidence against a co-accused. The applicant told me he does not have control over these things, and then said rumours circulate and people of the underworld know if he is in prison or not. He added that “maybe my co-offender reported it”.
I asked the applicant to explain how [Mr E], the inmate who he claims passed on a warning that he would be harmed for snitching, fits into the factual tapestry of this case. The applicant told me he does not know [Mr E]. He then told me [Mr E] might have contact with the applicant’s co-offender. When I put it to him that in the circumstances [Mr E] might have made a general comment rather than passing on a specific warning, the applicant told me the reason he brought it up was because it was related to his fear of harm in prison and that he claimed he faces a risk of harm outside prison now.
When I asked the applicant who sent the photographs of [Mr F] to him, the applicant indicated he was unsure who it was.
In light of the applicant’s reference to President Buhari coming to power in 2015, I referred the applicant to COI reporting that there has been a change in the presidency of Nigeria. In particular I put to him that COI reports that Bola Ahmed Adekunle Tinubu assumed office as President of Nigeria on 29 May 2023. I asked if the applicant believed that there might be any difference in his circumstances due to this change. He added that the leader of IPOB, Mazi Nnamdi Kanu, continues to be held in detention.
I referred the applicant to COI on 26 October 2023 reporting that a High Court sitting in Enugu declared the proscription and designation of IPOB as a terrorist organisation by the federal government of Nigeria was unconstitutional. When I invited the applicant to comment on whether and how this might affect his circumstances, he told me the Nigerian government does not respect the Court’s decisions.
When I invited the applicant’s representative to make oral submissions on behalf of the applicant, she began by referring to the visa history of the applicant, including how his partner visa was cancelled. She submitted that at no point did the applicant deceive the Australian government. She submitted he was convicted of a serious crime and sentenced to 10 years’ imprisonment but this was reduced on appeal and the applicant ultimately served 5 years.
Ms Lewis submitted that in response to the question as to why the applicant had not made protection claims earlier, she submitted he raised his fear of returning at the time of requesting a revocation of the visa cancellation, and also raised his fear at the appeal against the refusal to revoke the cancellation before the Tribunal.
Ms Lewis submitted the Tribunal’s task is to decide if the applicant has a well-founded fear of persecution and submitted that the fear is real and that the chance of serious harm in Nigeria is real. She submitted the applicant’s claims are supported by COI.
Ms Lewis submitted the applicant was convicted in 2015 and the situation in his country is different to when he visited in 2015 because of subsequent events. She submitted the applicant fears harm from the police and various drugs syndicates. The drugs originated from Nigeria and there is a risk from the syndicates and not just from the police. Ms Lewis referred to COI reporting on drug syndicates in Nigeria in her written submission. She submitted there is no information available as to the operation of a witness protection regime available in Nigeria. She submitted the applicant will be required to get a passport from the Nigerian authorities so the authorities will know when he returns. Ms Lewis also speculated that the drug syndicates might also have informants and will know when the applicant returns. She submitted the applicant cannot rely on state protection and he cannot relocate within Nigeria.
The applicant’s representative submitted that in relation to the ICPC, the applicant submits he does not have the financial means to bribe anyone and that the DFAT COI reports that Nigeria is very corrupt. It is submitted that the ICPC and other bodies were created in the early 2000’s but there is still corruption. It was submitted there are watch dogs, but there is still corruption and bribery.
In relation to IPOB, the applicant’s representative confirmed the IPOB leader is still in prison and also referred to COI reports on IPOB members being killed. It was submitted that although there are some changes reported, there is still a real chance of harm to IPOB members.
In relation to the report that the applicant expressed “No sense of persecution, no one bothering him or upsetting him” as reported in the Mental Health Screening report ([name], Psychiatrist, 17 January 2023), the applicant’s representative submitted the applicant suffered mental health problems.
The applicant’s representative also submitted that the applicant’s breach of his visa conditions in [Country 1] should not go to his credibility and the Tribunal’s attention was drawn to the AAT’s Guidelines on the Assessment of Credibility.
The applicant’s representative highlighted the applicant’s witness from IPOB referred to being in hiding.
The applicant made a further submission in respect of his credibility. In particular, he told me he did his best to provide the information to support his case despite being incarcerated.
Post-Hearing Submissions
On 15 May 2024, in response to a summons issued by the Tribunal, I received several documents from the Department of Justice (WA Government) related to the applicant’s time in prison during the period 27 July 2016 to 25 July 2021. In particular, the redacted documents include:
·Alert History – 2 pages;
·Cell Placement History – 2 pages;
·3 incident reports – 23 pages;
·Offender Notes – 5 pages.
I summarise and set out the most relevant comments from these documents as follows:
a)The Alert History refers to the Offender not being an Australian citizen and also states, amongst other things, he is a person of interest to the Department of Immigration and Citizenship. It then continues by reporting the applicant’s visa was cancelled by a delegate of the Minister for Home Affairs on 17 June 2020;
b)The Alert History reports that information indicates that [Mr D] may be at risk from the applicant. Prisoners are not to be placed on the same side of [the] Prison. Another remark states, “[the applicant] is at possible risk from [name deleted] as a result recommend not housed in same Unit”;
c)The Cell Placement History sets out the prison cells and the prison facility the applicant was placed in from 27 July 2016 until 24 November 2020. The History shows the movement reasons as being either a standard cell allocation, or show whether the cell placement is due to officer initiated, or due to observation or due to another reason;
d)The incident reports include reports on:
·The applicant complaining of chest pains and the applicant receiving oxygen and being conveyed to the medical centre (3 October 2016);
·The applicant presented as scared for his safety [in] 2018. Prison Staff were informed that due to [deleted], the applicant could be under threat from other prisoners within the unit. The applicant was moved out of his unit for his protection;
·A report dated 14 March 2020 states the applicant was “observed with facial injuries”. Other reports include reference to custodial officers conducting knuckle and elbow checks on inmates, and a report on a prisoner assault, however, it is not clear who the prisoner assaulted was due to redaction in the report;
·A report dated 14 March 2020 refers to an incident where one prisoner asked his POD mate to turn down the volume of music he was listening to. The reports also states that he was threatened by a prisoner who said he would stab him in the throat with a pen. The names/identity of the prisoners have been redacted. In another report, the applicant is reported as being asked whether any issues have occurred between him or anybody else and the applicant is reported as stating that he was in his cell playing games and has not heard any altercation in the POD;
e)The Offender Notes cover the period 24 August 2016 to 21 July 2021. The comments on this report cover a range of issues, including the applicant’s interactions and comments made to prison officers. The Offender Notes also record such things as the applicant’s courses completed in prison, and significant events such as when the applicants was informed that his mother had died in Nigeria, a warning for misconduct, and such things as being notified on his parole date.
Final submissions made by the applicant’s representative
Written final submissions were received on 23 May 2024 together with 8 attachments which include relevant pages from the documents produced under summons from the WA Department of Justice; COI reporting on crime and corruption in Nigeria; an article from the West Australian [Newspaper][date]; Court judgments for [two cases]; and a letter from the applicant’s brother dated 2 May 2024.

I extract and summarise the applicant’s representative’s post-hearing submissions in the following:
a)It is submitted that the applicant’s claim made at hearing that his cell placement was changed in [prison] for his own protection is supported by the [prison] cell placement report and the incident report dated [date], which refers to an article in the West Australian [Newspaper], and also a further incident report where the applicant claimed he was told to leave the unit by another prisoner due to a newspaper article published on [date].
b)It is submitted the applicant assisted in the investigation and provided critical testimony against his co-accused and in exchange received a 3-year discount on his sentence. It is submitted that a prisoner within the prison knew about the applicant providing assistance and testimony. It is also submitted that it “could be known to the drug syndicate in Nigeria as well as all associates of [Mr D] and the applicant in Australia, [Country 1], and overseas”.
c)In relation to the applicant’s letter where he wrote that he was going to return to Nigeria until his brother told him about police officers contacting him, it is submitted that the applicant explained he was not thinking clearly and that he had been on various medications and suffered mental health issues and stress due to the situation.
d)The representative’s submission advances a statement in response to my expressed concern at the hearing where I put to the applicant that his breach of his visa conditions in [Country 1] might reflect adversely on my assessment of the credibility of his claims. It is submitted that the applicant’s credibility should be assessed in relation to the current claims and his fear of persecution rather than in relation to admitting a breach of the law in [Country 1].
e)It is further submitted the applicant demonstrated honesty in applying for a prospective marriage visa, being married and sharing 2 children in Australia and applying for the correct visa for which he met the criteria. It is submitted that breaching [Country 1] immigration law as an issue relevant to credibility is not a relevant consideration and should not be taken into account. It is also submitted that it is “unreasonable/illogical” for the Tribunal to consider the applicant as not credible in relation to his claim due to the applicant acknowledging that he worked while on a student visa in [Country 1].
f)In relation to the evidence from the applicant’s brother, the Tribunal’s concern that he was able to recall the exact date of a phone call that was made in 2015 and his assumption that it was from the same unknown number, the submission submits the brother noted down those events due to the first call happening in a significant month. The submission urges the Tribunal to look at all the evidence in its totality and it is submitted that “it is quite plausible that those threats were made” due to “the busted drug operation from Nigeria as well as his support to IPOB group”. The submission refers to the applicant’s brother’s latest letter dated 2 May 2024 and submits it clarifies this point. It is submitted that even if the Tribunal finds the calls/threats from police were not made, the applicant will still meet the definition of refugee or could meet the complementary protection ground.
g)In relation to the delegate’s finding that the receipt numbers for IPOB contributions are out of sync, it is submitted that both the applicant and the IPOB [Position 1] confirmed under oath that the contributions were made to IPOB. Reference is made to the COI submitted in relation to the IPOB group and their treatment in Nigeria.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection obligations by Australia in respect of his claims against returning to Nigeria and in accordance with the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, and Prasad v MIEA (1985) 6 FCR 155 at 169–70).
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 Pan 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.
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 and Guidelines on International Protection, (2019). However, the Handbook also states :
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.
I have considered all of the applicant’s claims, individually and cumulatively, and have considered the evidence before me having regard to the Tribunal’s Guidelines on the Assessment of Credibility and I make the findings set out herein.
Credibility concerns
After considering all the evidence before me, including the witnesses’ evidence, and after comparing the evidence in the applicant’s written Form 866 with the written submissions and claims made at the hearing, I have concluded that while parts of the applicant’s evidence and claims are credible, other significant parts of the applicant’s evidence and claims are not credible as I will discuss below. I have found some inconsistencies in the applicant’s claims and I have ignored these where I have considered them to be immaterial or not significant. For example, and as discussed at the hearing, I have decided to ignore the evidence in the report submitted on behalf of the applicant where it is recorded as the applicant expressing “No sense of persecution, no one bothering him or upsetting him.” This was reported in the Mental Health Screening report ([name], Psychiatrist, 17 January 2023). I have given the applicant the benefit of the doubt and ignored this claim on the basis of the argument that the applicant was suffering some mental health problem at the relevant time.
I have considered the evidence given by telephone by the applicant’s 2 witnesses, that is, IPOB [Position 1] [Ms A] and the applicant’s brother [Mr B]. I have decided to place little weight on their witness evidence, including the documents they have provided. In particular, in the case of [Ms A], I found the oral evidence given during the hearing was vague and generalised and based on this, and based on all the evidence as to the applicant’s claimed involvement in IPOB, I was not persuaded at all that the applicant is an IPOB activist or that he faces a real chance of serious harm because of his association with IPOB in Nigeria. I will discuss this, and in particular the claimed police interest and alleged telephone calls from the police to the applicant’s brother, further in what follows.
In the case of the applicant’s brother [Mr B]’s witness evidence, I found his evidence in relation to the claimed telephone calls from police officers inquiring about the applicant in 2015, and then again 9 years later, lacked credibility. I find his claimed conduct of recalling and making a record of when the first phone call that was allegedly received in 2015, on the basis of considering the call to be significant, but then failing to inform the applicant of the call for years, significantly inconsistent with what one might expect he would do had he a real concern that the applicant faced harm. This evidence, together will all the evidence, leads me to find this witness is unreliable and I place little weight on his evidence. In relation to the screenshot of [social media] messages (dated 28 February 2023) which the applicant’s brother has submitted were received from a person threatening to harm the applicant, based on my assessment of the unreliability of the witness’s evidence, and on the absence of any supporting or credible evidence to indicate the provenance of the messages, I do not find I can place any significant weight on this screenshot evidence. In arriving at this conclusion, I am mindful of the principle that the use of false documents as evidence does not necessarily mean an applicant’s claims are untrue.
I find the applicant’s conduct, for example, his claim that he breached the migration law while in [Country 1] by operating a [business] contrary to the work prohibition applicable to his student visa in [Country 1], raises some doubts as to the credit and credibility of the applicant’s claims. I reject the applicant’s representative’s submission which submits that the applicant’s credibility should be assessed only in relation to the current claims and his fear of persecution rather than in relation to admitting a breach of the law in [Country 1]. It is submitted that breaching [Country 1] immigration law is not a relevant consideration in assessing the applicant’s credibility and should not be taken into account. It is also submitted that it is “unreasonable/illogical” for the Tribunal to consider the applicant as not credible in relation to his claim due to the applicant acknowledging that he worked while on a student visa in [Country 1]. I disagree with the applicant’s contention in relation to this and find the applicant’s representative’s submission on this is fundamentally flawed. In particular, I reject the proposition that the applicant’s past breaches and conceded dishonesty apropos non-compliance with migration law of another jurisdiction should be compartmentalised and ignored as the submission suggests. To the contrary, while I have considered all the applicant’s claims and evidence in relation to the grounds upon which he seeks non-refoulement now, the applicant’s past conduct in relation to migration matters is quite obviously and quite fundamentally relevant in an assessment of the applicant’s character, and in an assessment of his credibility as a witness and in relation to seeking a particular migration outcome. To ignore such conduct would, in my view, reduce the prospects of accuracy of fact-finding in non‑refoulement claims, and in my view contribute to an undermining of the integrity of the precious non-refoulement protection regime in Australia. I have therefore borne in mind the applicant’s conceded non‑compliance with his migration obligations in [Country 1], not in any determinative way, but as a part of all the evidence before me, which includes his compliance with the Australian prospective marriage visa which was granted to him. The evidence, of course, also includes evidence of his cooperation with the police in giving evidence against his co-accused which also led to a reduced sentence for the applicant.
I have also had regard to the fact that the applicant has been in prison for 5 years, and then in immigration detention since his release from prison, and the fact the applicant was in immigration detention at the time of the Tribunal hearings. In recognition of this I decided to hold 2 hearings, and also allowed time for post-hearing submissions.
I have also carefully considered the applicant’s responses given at the hearing and found some of those appeared rehearsed and exaggerated. In particular I have concluded the applicant has exaggerated his claimed risk of serious harm in Nigeria on each ground advanced, and for all the reasons in the decision, based on all the evidence before me, I conclude he is not in need of non-refoulement protection based on anything he has asserted to the Department, or to this Tribunal. I will now set out my detailed findings and reasons why I have decided to affirm the decision in this appeal.
Receiving country

100. Notwithstanding my expressed concerns set out in the preceding paragraph regarding the credibility of the applicant’s claims and evidence, I accept the applicant’s objective evidence in the form of a photocopy of the biodata page from his passport is credible. I find no evidence to suggest the applicant’s passport is tainted by fraud and find the applicant is a citizen of Nigeria and that he has no right to enter or reside in any other country. I find the receiving country for the purpose of assessing his protection claims is therefore Nigeria.
Does the applicant face a real chance of ‘serious harm’? – s 36(2)(a) of the Act
101. Notwithstanding my unfavourable assessment of aspects of the applicant’s credit and credibility as a witness, I will extend the benefit of the doubt to him and for the sake of assessing his claims at their highest, and proceed by accepting that he is of the Igbo ethnic group, that his Australian marital status is “separated” and that he has 2 children. I also accept the applicant departed Lagos Airport on [date] January 2009, that he lived in [Country 1] from January 2009 until October 2013 and then he travelled to Australia in October 2013. I also accept that the applicant was convicted in Australia for the importation of a commercial quantity of a border-controlled [drug], and that he ultimately received a sentence of 8 years’ imprisonment and then served 5 years in prison. I will now assess the risk of serious harm faced by the applicant in relation to his various asserted grounds.
Risk of serious harm due to giving incriminating evidence against [Mr D]
102. The applicant submits that if he is returned to Nigeria, he faces serious harm from his co‑accused, [Mr D], in the drug importation enterprise. He argues that [Mr D] or his family members or others associated with him will seriously harm or kill him because the applicant gave testimony in the [court] against his co-offender and this enabled the police investigation to convict the co-offender for the charge/crime of drug importation. I am satisfied the evidence before me confirms the applicant did in fact provide testimony in Court and that was relevant to the conviction of [Mr D]. I accept that [Mr D] was subsequently sentenced to 17 years’ imprisonment. However, I am not persuaded by the totality of the evidence before me that the applicant faces a real chance of targeting for serious harm now or in the reasonably foreseeable future in Nigeria because of his testimony. The applicant asserts, amongst other things, that his brother received a [social media] message on 28 February 2023, which contained a threat directed at the applicant. As discussed above, based on what I consider to be the unreliability of the provenance of this screenshot of a [social media] exchange, and the unreliability of the witness who provided it, I place little evidentiary weight on the screenshot. In addition, when one examines the words in the [social media] message, the words are vague and there is nothing in those words to connect the asserted threat to the applicant’s incriminating testimony, or even to his claimed IPOB membership and activities.
103. The applicant’s assertion is that [Mr D]’s family and business associates will end the applicant’s life as he is seen to have betrayed his co-offender. He has also submitted that he was kept separate from other prisoners in the Western Australian prison system to protect him because he gave incriminating testimony, or “snitched”, against his co-accused. In relation to the prison records that were submitted in response to a summons issued by the Tribunal, I accept that the records do record the prison authorities considered the possibility of the applicant being at risk from other prisoners due to giving incriminating testimony against a co-accused. I accept that such conduct within the community of those convicted and sentenced could result in the adverse treatment of the party that assisted the prosecution, and accept it was appropriate for the prison system to deal with this possibility of harm. However, I find that the measures taken by the prison system have protected the applicant from any serious harm had he in fact been at risk of it while he served his prison term. What is more relevant is whether the applicant faces a real chance of serious harm because of his incriminating testimony from those in Nigeria should he be returned there. I have summarised the documentary evidence submitted by the Department of Justice to the Tribunal (supra) and shall not duplicate that here. I do not accept the documentary evidence provided by the Department of Justice (WA Government) provides any persuasive evidence to suggest the applicant faces a real chance of serious harm from [Mr D]’s family or associates, or from those who were involved in the intercepted and failed drug importation enterprise. While I accept that [Mr D] may hold some animosity towards the applicant for assisting his prosecution, based on the evidence before me, including the applicant’s evidence where he told me he has not received threats directly, and evidence that his family in Nigeria have not been harmed, I find all the evidence does not, even on the low standard applicable in protection assessment cases, suggest there is a real chance that the applicant will be targeted for serious harm by those the applicant claims wish to harm him.

104. I have considered the applicant’s claim where at the hearing he asserted that he had received a photograph of someone named [Mr F] who he claimed was bashed, and submitted he received a threat that he would suffer the same way. The applicant did not submit the photograph or anything else to support this particular assertion. I found the assertion about the bashing of [Mr F] vague and lacking detail and found he presented this evidence in a way which I found was rehearsed and ultimately not credible. I have therefore rejected the applicant’s claim that he has received direct or credible threats of harm from anyone in relation to his assertion that he faces a real chance of serious harm at the hands of [Mr D] or persons related to him, or persons acting on his behalf, if he returns to Nigeria now or in the reasonably foreseeable future.
105. I have taken into account the applicant’s evidence given at hearing that his family members in Nigeria have not been assaulted or harmed by his claimed enemies. While of course in no way determinative, I nonetheless consider this relevant in the context of persons and individuals who are asserted to be powerful or influential and conclude the fact that the applicant’s family have not been harmed is further evidence that the applicant is not a person of adverse interest to the claimed enemies or that he faces a real chance of serious harm if he returns to Nigeria.
106. I have considered the risk of harm facing the applicant from those, in particular the principals, who might have been associated with the failed drug importation enterprise. It is reasonable to assume that some of those who may have been involved in the failed drug exportation from Nigeria, and in particular those who contributed to financing it, may stand to lose money in light of the confiscation of the drugs. However, the applicant has not advanced any evidence to suggest that he will be held personally liable for the monetary loss, or that he would be harmed if he returns to Nigeria because of the loss. There is nothing in the evidence before me to suggest that the applicant’s action led to the interception, confiscation, and loss of the drugs, or that the “drug lords” as suggested in the applicant’s representative’s submissions demonstrate an intention to inflict serious harm on the applicant because of the loss in the particular enterprise. I accordingly reject the claim that the applicant faces a real chance of serious harm at the hands of principals or others involved in the particular botched importation, or at the hands of drug lords or syndicates otherwise associated with the illegal drug milieu in Nigeria if he returns there now or in the reasonably foreseeable future. I have also considered the claim made in the representative’s submission where it is asserted that the drug lords know about the applicant’s involvement and being caught in Australia, as well as providing evidence against his co-offender [Mr D], however, I am not persuaded that the evidence before me suggests that the applicant will therefore, or in combination with all the other circumstances and evidence, face a real chance of serious harm by such persons or groups.
107. I have considered the applicant’s evidence given at the hearing where he told me that while in prison someone called [Mr E] passed on a message telling the applicant that he is a “fucking snitch” and that he would be targeted for harm. I accept such a message was passed on by [Mr E], having regard to the newspaper publication of the applicant’s testimony, and in light of what is most likely a code of conduct against “snitching” amongst the convicted cohort. However, I note and accept the applicant’s statement at the hearing that he received no direct threat of harm which he sought to explain away by telling me that “they” do not have his phone number. I am not persuaded by this attempted explanation, and find this evidence further supports that the correct conclusion in relation to the claim that the applicant fears a real chance of serious harm in Nigeria is that it should be rejected on the basis that the claims are not demonstrated as credible by the totality of the evidence.
108. For all these reasons, I conclude that based on the evidence before me, there is not a real chance that the applicant will suffer ‘serious harm’ as that term is non-exhaustively defined in s 5J(5) of the Act from [Mr D], or his family, or from drug lords or syndicates, or anyone else, for reason of providing incriminating evidence in the trial of [Mr D] if he returns to Nigeria now or in the reasonably foreseeable future.
Risk of serious harm due to facing ‘double jeopardy’ in Nigeria
109. I next turn to the second claim made by the applicant where he asserts he will be subject to the law of “double jeopardy” if he returns to Nigeria. In particular, he claims that even though he is an ex-criminal who has served his sentence in Australia, upon return to Nigeria the authorities will commence proceedings to convict and imprison the applicant for the same crime. He claims he will face torture, punishment and possible death. He claims he will be exposed to inhuman threats and suffering.
110. In particular, in advancing the applicant’s claim about his fear of double jeopardy, the representative has submitted the applicant will be targeted for harm because of his membership of a certain [sic] social group, namely the group comprising “Returnee Nigerian nationals convicted of an overseas drug offence”. However, the submission does not provide any clear or credible reasoning why or how this claimed group is a PSG, or why the applicant would be targeted for harm for reason of being a member of it. Based on the evidence before me I do not accept the applicant faces a real chance of serious harm for any reason including being targeted for harm because he is a Nigerian convicted of an overseas drug offence as discussed in this decision.
111. I now consider the claim that the applicant fears he will suffer double jeopardy in Nigeria as a result of his conviction and sentence in Australia and in accordance with the operation of the relevant law in Nigeria, namely Decree 33 and Section 22 of the NDLEA Act of Nigeria. It is further submitted that the NDLEA Act provides that any person whose outward journey originates from Nigeria and is found to have imported prohibited narcotic drugs to a foreign country shall be guilty of an offence of exportation of drugs, notwithstanding that such a person has been tried or convicted for any offence of unlawful importation of such a narcotic drug in that foreign country. The submission provides an extract of s 22(3) of the NDLEA Act which states:
(3) Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fin[e] and his assets and properties shall be liable to forfeiture as provided under this Act

112. I accept that in the circumstances of this case, the Nigerian authorities including the police and the drug enforcement agencies would in all likelihood become aware of the applicant’s return to Nigeria and would readily determine that the applicant has an overseas drug conviction. I accept that if the applicant is prosecuted under s 22(3) of the NDLEA Act, and if convicted, he may face imprisonment for a term of 5 years and may forfeit assets or property.
113. The applicant’s representative submits that the delegate’s decision to find that the NDLEA Act is a law of general application and that it would therefore would not amount to persecution “is not a correct position.” I disagree. To the contrary, I consider it is not the correct position to follow the course of decision-making proposed by the applicant’s submission, that is, to ignore the principle that the enforcement of a generally applicable law does not ordinarily constitute persecution. The relevant principle is articulated in Applicant A v MIEA (1997) 190 CLR 225 (Applicant A) where Brennan CJ stated:
the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.

114. The other relevant and significant principle that applies in this case is the principle that, ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution whether or not a particular law is oppressive or repugnant to the values of our society (per Dawson J in Applicant A at 245 citing with apparent approval MIEA v Respondent A and B (1995) 57 FCR 309 at 319).
115. Having regard to all the circumstances and evidence in this case, I find nothing in the evidence to suggest the provisions of the NDLEA Act, and in particular s 22(3), would be applied in a discriminatory way against the applicant if he returns to Nigeria. Rather, based on the evidence before me I find that if he were to be prosecuted under the provisions of the NDLEA Act then it would be because he has been convicted of a relevant crime outside of Nigeria and stands to be adjudged in accordance with the law of his country. Based on the evidence before me, I reject the proposition that the NDLEA Act would be selectively enforced against the applicant, or that there is a real chance that there is another motivation for the enforcement of the law against the applicant. For example, and as discussed in greater detail under the next ground (the IPOB claim), I do not accept the applicant would be prosecuted in accordance with the provisions of the NDLEA Act for reason of his claimed association or membership of IPOB.
116. Based on the evidence before me, I do not accept the applicant’s submission where it is asserted that “[t]he Applicant fears persecution and that reason is essential and significant reason and the persecution would involve serious harm to the person and does involve systemic and discriminatory conduct under a law of Nigeria” explains away, or refutes, the characterisation of the NDLEA Act as a law of general application. I have also considered the related proposition sought to be advanced by the applicant’s representative where it is further submitted that “[t]he Tribunal’s task is not to evaluate how many cases of Decree 33 Nigeria had in the past but whether the applicant’s fear of persecution is well founded with a possibility of harm occurring under the Migration Act as explained in High Court Decisions such as Chan v MIEA where the court held that ‘well-founded fear’ involves both a subjective and an objective element and that ‘unlikely’ is the wrong test.” I accept that an evaluation of how many cases involving Decree 33 or the NDLEA Act is not the determinative test, however, considering whether and how the particular law is enforced is indeed a relevant consideration in this case. Having considered all the relevant evidence and the applicable principles, and considered in light of the relevant COI, I find that if the applicant is returned to his country, and if he is prosecuted under s 22(3) of the NDLEA Act, then such a prosecution does not amount to serious harm on the basis that the enforcement of that law is nothing more than the enforcement of a law of general application. Based on the evidence before me, the NDLEA Act appears to have legitimate objectives, namely the prevention and punishment of Nigerian nationals trafficking narcotics in countries outside Nigeria. Based on the evidence before me, the evidence does not suggest that the measures in the NDLEA Act appear disproportionate as a means to achieve those objects and as such that the implementation of these laws is not persecutory.

I have also considered the COI available to me, and that was also available to the delegate, which confirms that the Nigerian government rarely gives effect to Decree 33, and that DFAT is not aware of any cases in which Decree 33 has been applied in the last 3 years.[1]
[1] Para 5.44 DFAT Country Information Report – Nigeria (3 December 2020) and Country Information Request Report – Decree 33 (22 January 2024).

118. To conclude my assessment of the risk facing the applicant in relation to double jeopardy and prosecution under s 22(3) of the NDLEA Act, I find the applicant does not face a real chance of serious harm by being faced with the possibility of being prosecuted under the NDLEA Act because it is a law of general application, and in any event there is only a remote chance, and not a real chance, that the applicant would be prosecuted under its provisions if he returns to Nigeria now or in the reasonably foreseeable future.
119. I therefore find for these reasons that the applicant does not face a real chance of serious harm as defined in s 5J(5) of the Act for reason of double jeopardy prosecution under s 22(3) of the NDLEA Act if the applicant is returned to Nigeria.
Risk of harm for reason of membership and activities with IPOB
120. I now turn to consider the third ground on which the applicant seeks protection and that is that the applicant claims he will suffer serious harm or death because of his membership of IPOB.
121. I accept the country information reports on the existence and activities of Biafra secessionists including IPOB.[2] I also accept the COI reports that Nigeria fought a civil war from 1967 to 1970 against a secessionist movement in the southeast that titled itself the Republic of Biafra and that there are reports that 2–3 million people died due to famine. I also accept that IPOB continues to be a prominent secessionist movement and that it has called for independence to occur through peaceful means, such as via referendum, though central authorities have strongly rejected such calls.
[2] Paras 3.45 to 3.52, DFAT Country Information Report – Nigeria (3 December 2020).
122. I have considered the applicant’s claim where he asserted it is a crime to be a member of IPOB. Based on the evidence before me I do not accept the evidence in fact now suggests that it is a crime to be in IPOB, and more significantly the COI I have cited elsewhere in this Decision does not demonstrate to me that the applicant as an ordinary member or ordinary supporter of IPOB faces a real chance of serious harm now or in the reasonably foreseeable future if he returns to Nigeria.
123. I have carefully considered all the applicant’s evidence in relation to his claim that he has been an active member of IPOB. I proceed by giving the applicant the benefit of the doubt and accepting that he began his association with IPOB in April 2012 while he was in [Country 1]. However, I find no credible evidence to suggest that the applicant has ever had anything more than the status of an ordinary rank and file member of IPOB. I find nothing in his evidence to suggest the applicant is perceived by the Nigerian authorities, or anyone else, to have a profile as an activist, or a person who is of such adverse interest or a person who is to be eliminated or silenced through the use of serious harm, or any other harm. The evidence before me simply does not support a conclusion that he faces a real chance of serious harm. In particular, the applicant has submitted the evidence of his brother and of [Ms A] to support his contention that the authorities in Nigeria have an adverse interest in him and an intention to inflict serious, if not fatal, harm on him if he returns. In particular, he asserts that the police have been in contact twice by telephone with his brother, [Mr B], once in 2015 and again 9 years later, expressing some concern over the applicant’s membership or involvement (financial and social) with IPOB. Having regard to my discussion with [Mr B] at the hearing and having regard to his 2 letters submitted to the Tribunal (10 January 2024 and 4 April 2024), I do not believe [Mr B] in fact received any telephone call from Officer [Mr H], or Officer [name], or from anyone else associated with the police force in Nigeria, or anyone inquiring as to the applicant. I have discussed elsewhere in this decision why I do not find [Mr B] a credible witness, and I do not accept his claims in relation to the asserted telephone calls from the police. I consider, amongst other things, the passage of 9 years between the calls, and [Mr B]’s failure to pass on details of the first purported call in 2015 to his brother, and his evidence as to how he recalled when the first call was purportedly received, all add up to a reasonable conclusion that the calls did not occur as claimed, or at all.
124. The applicant has advanced evidence submitted by [Ms A] who declares she is the [Position 1] of IPOB in Enugu State. I proceed by accepting that [Ms A] indeed holds the position which she declares to hold. However, I do not find [Ms A]’s documentary evidence (an undated letter and receipts) supports a conclusion that the applicant is an activist with IPOB, or a person of adverse interest to the authorities as claimed. In particular, I am not persuaded by [Ms A]’s evidence where in response for detail of the applicant’s activities in IPOB she recited little more than “everyone is a member from birth”, and that the applicant has been “active”.
125. I have considered the representative’s submission which refers to COI from DFAT reporting on the arrest in 2015 of IPOB’s UK-based leader Nnamdi Kanu, whereby he was charged with treason and sedition. I accept that the DFAT report states that serious clashes had taken place with IPOB supporters with the military firing live ammunition and shooting 60 people in 2 days. However, I find based on the evidence before me the applicant has had little actual active association with IPOB and the evidence does not suggest, as already discussed, the applicant is anything more than an ordinary member of IPOB. I reject the proposition that comparing the applicant’s activities and profile with IPOB with those of Nnamdi Kanu is a reasonable or fair comparison and I reject the proposition that the applicant has a profile anywhere near the profile of the leader or any profile whatsoever that would give rise to him being targeted for adverse interest by the relevant authorities in Nigeria. In this regard, I am guided by the DFAT COI which reports that 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. Significantly, the DFAT report states that ordinary members of IPOB who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces, however, based on the evidence before me, including no credible evidence to suggest he has participated in political demonstrations and rallies in the past, I am not persuaded that the applicant will participate in such demonstrations or rallies if he returns to Nigeria.
126. I have considered all the evidence and COI before me in reaching my decision in this appeal. That evidence includes a statement which is included in the applicant’s submissions where he asserts that “Before now I had made up my mind to return to Nigeria even with these claims I have mentioned until my younger brother [made] mentioned of a call he encountered with one of the police officers on January 8^th 2024….” I raised this claim with the applicant at the hearing and it is submitted that the applicant was under mental stress and pressure and that was the reason he contemplated this seemingly inconsistent course of action, that is, returning voluntarily to Nigeria. I am not satisfied with this explanation. Having regard to all the evidence, including the submitted medical/psychiatrist reports from the applicant’s time in prison, I do not accept that this statement indicates anything other than the applicant not having a subjective fear of serious harm when faced with the prospect of being returned to his country. As I do not accept the evidence of his brother [Mr B] is reliable or credible, and as I have rejected the claim that the police have inquired through [Mr B] about the applicant in 2015 and in 2024, I reject the applicant’s claim that he reconsidered and decided not to return to Nigeria because he feared it might lead to his arrest, detention, torture or death.

127. I have considered the applicant’s claim that he returned to Nigeria in late 2014 as his grandmother has passed away earlier and that had to return to pay his last respects. As to why he was not harmed due to his IPOB membership or activities during this visit, the applicant submitted that “no one knew” he was supporting IPOB. I find this claim inconsistent with his claim that he had been an active supporter and contributor to IPOB and that the authorities would have an adverse interest in him. Even if I accept his claim that when he returned to Nigeria in 2014 he went to a meeting and paid 150,000 Nigerian Naira to support good causes including supporting less privileged people, I find the fact that he was able to move freely and faced no threat or actual harm supports the finding that he did not have any significant profile, and was perceived to be without significant profile by the relevant authorities. Having regard to the evidence before me, and to the relevant events that have occurred in the 10 intervening years since he last returned to Nigeria, I find nothing in the evidence to suggest the applicant’s profile has heightened or changed in any relevant way such that he would be considered a target for serious harm in relation to his IPOB association now or in the reasonably foreseeable future if he returns to Nigeria.
128. I have considered the applicant’s claim made at the hearing where he asserted he faces a real chance of harm due to his financial support to IPOB. While I have decided to disregard the apparent irregularity in the numbering of the receipts submitted, and I accept the applicant has made some financial contribution to IPOB welfare activities targeted at the less fortunate, I do not accept his financial support has been so significant as to elevate his profile such that he would be regarded as a leader or someone to be targeted for serious harm or elimination if he returns to Nigeria.
129. I have considered the evidence I put to the applicant at the hearing whereby COI reports that a High Court sitting in Enugu declared the proscription and designation of IPOB as a terrorist organisation by the federal government of Nigeria was unconstitutional. When I invited the applicant to comment on whether and how this might affect his circumstances, he told me the Nigerian government does not respect the Court’s decisions. While I accept this High Court judgement may not resolve the disputation between the secessionists and the government in Nigeria, I do not accept that it is without significance and a further step in the process of the move towards a possible Biafran solution. I also reject the assertion by the applicant that the government does not respect the Court’s decision. In this regard, I have considered the COI[3] before me reporting on the effectiveness of the judiciary in Nigeria, and while accepting the lower courts can be affected by corruption and political pressure, the judiciary seeks to operate professionally and independently. Having regard to all the circumstances in this case, and considered in light of the relevant COI, while I do not find there is a real chance the applicant will be prosecuted on any of the grounds he has advanced, I am satisfied that he could ultimately access a fair trial if he were to in fact be prosecuted.
[3] See paras 5.14 to 5.20 of DFAT Country Information Report – Nigeria (3 December 2020).
130. Having considered all the applicant’s claims and evidence in relation to his asserted membership and activities with IPOB, I reject the claim that the applicant is a person who is, or who is perceived to be, an active member of IPOB or a person in a leadership role in IPOB such that he would face a real chance of serious harm pursuant to s 5J(5) of the Act, now or in the reasonably foreseeable future if he returns to Nigeria.
Further considerations

I have considered the applicant’s claim where he submits that, having spent 5 years in a correctional centre and almost 3 years in immigration detention, he has become a changed person who is ready to go out and support his children and he seeks another chance to prove himself to Australia if he is granted a protection visa. While I accept the last 8 years in prison or in immigration detention would have had an effect on the applicant, the question in this appeal is whether there is a real chance of serious harm if the applicant returns to Nigeria. For all the reasons in this Decision, I find there is not a real chance.

132. I have considered the assertions made during the course of this appeal, in the various submissions made, and in the documentary evidence submitted that the applicant has suffered mental health issues. I accept that the applicant’s arrest, prosecution and imprisonment for his crime in Australia would have caused him stress and anxiety. I find from the documentary evidence submitted that he has had access to mental health professionals while in prison. I do not find the evidence before me indicates there is a real chance the applicant will face serious harm for reason of hie mental health now or in the reasonably foreseeable future if he is returned to Nigeria.
133. The applicant’s representative’s submission is that the applicant is a member of a particular social group which is characterised as “Returnee Nigerian nationals convicted of an overseas drug offence”. As I find the evidence before me does not demonstrate to my satisfaction that the applicant faces a real chance of serious harm on any of the grounds advanced, it is not necessary to determine whether the purported harm is for reason of the applicant’s membership of a particular social group.
State protection
134. It is submitted that no state, party or organisation (including an international organisation) is willing or able to offer protection to the applicant. It is submitted, “if anything the police is who the applicant fears the most.” It is also submitted that Nigeria does not have an impartial judicial system by reference to the recent DFAT COI report.
135. While I accept the applicant may not have confidence in the police service in Nigeria providing him with adequate protection, as I do not accept he faces a real chance of harm on any of the grounds he has submitted in his non-refoulement claims, it is not necessary to further consider or to make findings on whether there are effective protection measures available in Nigeria. In relation to the claim that the applicant fears the police “the most”, as previously discussed, I do not accept the claim that the police called the applicant’s brother in 2015 and in 2024 expressing an interest in the applicant’s IPOB activities. I find the evidence before me indicates the applicant has had very little to do with the police in Nigeria and find the evidence does not suggest there is a real chance that members of the police force in Nigeria would target the applicant for serious harm. In relation to the assertion that Nigeria does not have an impartial judiciary, I do not accept the COI, overall, concludes that the entire Nigerian judiciary is corrupted. I find the COI, on balance, does indicate that the judiciary is not perfect, but that the applicant would ultimately be able to access a fair trial and justice if he faced a real chance of harm or faced prosecution.
Internal relocation
136. It is submitted there is a real chance of persecution in all areas of Nigeria and it is submitted it is not reasonable for the applicant to relocate given his fear is in relation to the whole country. As I find the applicant does not face a real chance of persecution in any area of the receiving country, it is not necessary to consider or to make findings on the viability or reasonableness of internal relocation.
137. For all of the foregoing reasons and findings, I find the applicant does not face a real chance of ‘serious harm’ now or in the reasonably foreseeable future if he returns to Nigeria. It follows therefore that the applicant fails to meet the requirement prescribed in s 36(2)(a) of the Act.
Does the applicant face a real risk of significant harm? – s 36(2)(aa) of the Act

As I have found the applicant does not meet the criterion in s 36(2)(a) of the Act for refugee protection, I must consider whether the applicant meets the criterion pursuant to s 36(2)(aa) for ‘complementary protection’.

139. Section 36(2A) of the Act provides that a non-citizen suffers 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.

140. I have considered all the evidence and claims before me and have discussed my assessment of whether there is a real chance of the applicant being harmed in any way for the reasons claimed if he is removed to Nigeria. As discussed in the preceding paragraphs, I find there is not a real chance of the applicant being harmed in any serious way for any of the reasons advanced in his claims. For the same reasons, I find there is no real risk the applicant will suffer ‘significant harm’ on any basis identified or cognisable if he is removed from Australia to Nigeria. In particular, I reject the proposition that the evidence before me indicates the applicant’s claimed enemies, namely the police or the relevant state authorities, or [Mr D] or [Mr D]’s family members, or anyone else associated with [Mr D] or drug lords or drug syndicates, or anyone else at all would harm him in any way specified in s 36(2A) of the Act.
141. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant will suffer ‘significant harm’ as that term is defined in the Act. Having considered all the claims, circumstances and findings individually and cumulatively, I find that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is no real risk that the applicant will suffer significant harm at the hands of his claimed enemies or anyone else as claimed pursuant to s 36(2)(aa) of the Act.
Conclusions
142. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION

145. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tony Caravella
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.
…

[2024] AATA 3385

31 May 2024

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