HTU24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1730

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

1. The applicant is a citizen of Nigeria. He arrived in Australia in 2010 on a partner visa. Following convictions for drug offences, he was imprisoned for a period of time. He applied for a protection visa on 18 June 2024.
2. On 18 June 2024, the Court Book indicates that correspondence was sent to the applicant at the email address he had nominated in his protection visa application. That correspondence, inter alia, sought copies of passports. Also on 18 June 2024, correspondence with duplicated attachments appears to have been sent by email to addresses associated with "NSW Detention" addressed to a "Detention Case Manager".
3. Correspondence dated 27 June 2024 was subsequently sent by email to an address associated with the applicant's wife. The correspondence indicates that this was because she had been "authorised to receive correspondence on behalf of the applicant", although no written authorisation appointing her appears in the Court Book. That correspondence was expressed to contain a "s56 Request for More Information", seeking various details regarding the applicant's protection claims. On 27 June 2024, the applicant's wife responded "on behalf of [her] husband" raising the issue that the applicant's passport had been lost and querying how to address the Department's request for a copy of this. No response to the email appears in the Court Book.
4. On 5 July 2024, the Delegate refused the application. The Delegate relied upon what was said to have been the applicant's lack of response to the "s56 invitation" and the consequent lack of detail that accompanied his claims.
5. The applicant applied to the Tribunal for review of the Delegate's decision on 6 July 2024. The applicant attended a hearing before the Tribunal on 19 August 2024.
6. On 26 August 2024, the Tribunal affirmed the Delegate's decision.

1. The Tribunal summarised the background of the matter, the criteria in issue and the material before it at [1]-[29] of its decision.
2. At [32]-[48], the Tribunal reasoned:
   1. The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
   2. In the hearing, the Tribunal sought to comprehensively obtain evidence from the applicant as to specific difficulties faced by him in Nigeria. In response to multiple questions seeking to obtain this information, the applicant made reference to his brother in 2002 being killed because he refused to join a gang in the family's home area. On exploration, the applicant indicated that he was asked to join a group of Biafran separatists. Because the applicant refused, he was killed.
   3. In terms of difficulties the applicant specifically faced, he indicated that after his brother was killed in 2002 he was sent a letter by the Biafran separatists asking that he join them. The applicant indicated that he did not respond and that he feared for his safety as a result, and this was part of the reason for him travelling to live in Senegal the following year.
   4. The applicant also indicated that after he came to Australia his brother was killed in a violent encounter.
   5. The applicant provided evidence of no other difficulties faced by him in Nigeria.
   6. The Tribunal put to the applicant in the hearing that neither in his original application for the protection visa or in his email to the Tribunal in August 2024 outlining difficulties in returning to Nigeria does he mention that he was sent a letter by Biafran separatists asking him to join them and that he feared for his life as he did not agree to join them.
   7. The Tribunal also noted that the applicant in the hearing had not provided prior evidence of difficulties in Nigeria resulting in him on multiple occasions having to flee his home and staying for a period in the jungle, returning to find homes destroyed.
   8. The Tribunal also noted that in the application form for the protection visa he does not provide details of any specific harm faced by the applicant himself but rather he indicates more generalised difficulties faced in Nigeria.
   9. In response, the applicant referred to deficiencies being a product of the applicant not wanting to talk about the issues that he has faced. The applicant indicated that he did not mention in the hearing having to flee from his home on multiple occasions because he had already provided evidence of this in his written statement.
   10. The Tribunal put to the applicant that in light of multiple questions asked in the hearing as to difficulties faced in Nigeria that it is likely not to accept that, if true that the applicant fled his home on multiple occasions and stayed in the jungle, the evidence of this would not have been given in the hearing. The Tribunal does not likely accept that the applicant would not reveal this event on the basis that it had been previously indicated in writing.
   11. The Tribunal also put to the applicant that it has difficulty accepting that the applicant would not provide evidence of difficulties and harm on the basis of a reluctance to recall traumatic events. While the Tribunal accepts recounting traumatic events is difficult, it would be the most important evidence to provide as part of an application for a protection visa.
   12. For the reasons put to the applicant at the hearing, the Tribunal is not satisfied that the applicant has been a truthful, credible witness as to claims made over time as to specific harm and difficulties faced by him in Nigeria.
   13. The Tribunal is not satisfied that in 2002 the applicant was sent a letter requesting that he join the Biafran separatist group and this was a reason for him leaving for Senegal in 2003. The Tribunal is not satisfied that on any occasion the applicant was subject to difficulties that caused him to flee his home and stay in the jungle for a period, before returning to find homes destroyed.
   14. The Tribunal is not satisfied that the applicant has been specifically threatened or targeted for harm in Nigeria.
   15. The Tribunal does accept that in 2002 the applicant's brother was killed in a traumatic event and is prepared to accept that this was related to the brother not agreeing to join a gang. The applicant gave evidence of the death with emotional content that persuaded the Tribunal that the applicant was recounting a genuine traumatic event. The Tribunal is prepared to accept that the death may have been related to the brother not becoming involved with Biafran separatists.
   16. However, this is not an issue the Tribunal considers created any targeting or risk to the applicant and, as indicated, the Tribunal does not believe that the applicant was subsequently targeted to join the Biafran separatist cause which he refused.
   17. Given the findings that the applicant has not been threatened or targeted for harm in Nigeria, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm from any group or individuals that have a targeted desire to harm him for any reason.

1. The Tribunal considered what was said to have been the applicant's claims to face harm on account of "generalised volatility" at [49]-[53]:
   1. More broadly, the applicant appears to be claiming a risk of requisite harm as a result of the generalised volatility in Nigeria, including prevalence of crime, kidnappings, killings and harm from Muslim extremists.
   2. The Tribunal does accept a degree of volatility for these reasons in Nigeria and harm suffered by individuals as a result. However, as the Tribunal put to the applicant in the hearing, it was not inclined to consider that the independent information before the Tribunal (the DFAT Report and information provided by the applicant) would suggest that every individual in Nigeria faces a real chance of serious or significant harm based on general problems faced in Nigeria.
   3. The Tribunal, for example, notes that the applicant in his hearing evidence indicated that he had lived in Lagos for approximately five years before he travelled to Senegal in 2003 without any substantive difficulties, apart from the claim that he received a letter requesting that he join Biafran separatists (which the Tribunal does not believe).
   4. The applicant maintained difficulties for the specific reasons claimed.
   5. In the absence of the Tribunal accepting that the applicant has been specifically targeted for harm, the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a reason set out in s 5J(1) of the Act based on broader problems being faced in Nigeria, including the incidence of crime, the incidence of kidnapping, or killings or harm by Muslim extremists. Further, the complementary protection criteria would not be met in relation to harm for these reasons because it applies to the population generally and not to the applicant individually. The Tribunal is not otherwise satisfied that the applicant faces a risk of significant harm for these reasons.

1. At [54]-[61], the Tribunal considered the evidence that had been provided regarding the impact upon the applicant's family in Australia. The Tribunal expressed sympathy for the family's plight. However, noting Ministerial guidelines, the Tribunal did not consider it to be a suitable case to make a recommendation for Ministerial intervention.
2. Having regard to the above, the Tribunal was not satisfied that the applicant met the criteria in ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (at [62]-[66]). Accordingly, the Tribunal affirmed the Delegate's decision.

1. The applicant applied for review of the Tribunal's decision through an application filed on 30 September 2024. An amended application was filed, after the matter was referred for pro bono assistance. The brief was accepted by Mr Thomas Bagley of Counsel. I wish to express my sincere appreciation for the capable assistance that has been provided by Mr Bagley in this matter.
2. The following grounds were relied upon in the amended application:
   1. The Administrative Appeals Tribunal failed to consider claims that clearly emerged on the evidence before it.

The Applicant claimed that he feared of harm on the basis of his religion, and due to the killings of three immediate family members. The Tribunal found that the Applicant was a Christian but did not consider the consequence of that finding or the country information about the harm to Christians in Nigeria.

The Applicant otherwise refers to his submissions, filed with this Amended Application.

1. The Administrative Appeals Tribunal failed to perform its statutory function of reviewing the Applicant's claims.

1. There was overlap between the grounds, which were addressed together in the applicant's written and oral submissions.
2. The applicant submitted that failure to consider a "substantial, clearly articulated argument relying upon established facts" goes to the heart of whether a decision maker has properly exercised their statutory functions: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 389 at [24]-[32] per Gummow and Callinan JJ. The Tribunal was required to consider contentions, supported by probative material, capable of justifying a conclusion that the applicant satisfied the criteria for the visa: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 per French, Sackville and Hely JJ at [45].
3. The applicant observed that the Tribunal was not limited to the case articulated by him but was also required to consider a case that clearly emerged. A case may clearly emerge from materials, information or evidence without an applicant specifically identifying the material as a reason for meeting the criteria for a protection visa. In considering whether a claim is 'articulated' or 'unarticulated', or if it 'clearly emerges', it is to be borne in mind that there is no 'clear distinction' between claims and evidence: see Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287 at [56] (Feutrill J) and the cases cited therein. A finding that a claim clearly emerges is not to be made lightly, however " a court will be more willing to draw the line in favour of an unrepresented party": see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ and the cases cited therein.
4. The applicant contended that the Tribunal failed to consider two claims of specific harm that he had made. The first was that, as a Christian, the applicant faced risk of harm from religious extremists. The second concerned the killings of three immediate family members. This was submitted to give rise to two related grounds. The first was that the Tribunal erred in failing to consider the applicant's claim that he faced a real risk of persecution or significant harm given his religious faith and indications that his family were being targeted. The second was that the Tribunal erred in performing its statutory task in review of those claims: see for example Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (Kenny and Griffiths JJ, with Mortimer J as the Chief Justice was then known).
5. The applicant observed that he had claimed to be a Christian, which was acknowledged by the Tribunal (at [15] of the Tribunal's decision). In his application for a protection visa, the applicant had stated that he was a Christian (CB 36) and that he had left Nigeria due to tribal violence and Islamic extremists (CB 42).
6. The applicant, who was unrepresented before both the Delegate and the Tribunal, made limited statements to the Delegate. These were supplemented by the applicant's evidence to the Tribunal, including various informal statements that the applicant made via email. The applicant indicated that he had left Nigeria after one of his brothers was killed (CB 140). He stated that, due to political and religious crises, he had fled his home and stayed hidden for weeks, returning to find homes destroyed (CB 140).
7. In an email sent to the Tribunal on 10 August 2024, the applicant expressed that "Religious, Ethnic, Separatism and Political violence" was "unbearable in Nigeria" (CB 163). The applicant expressed that he had "lost too many family members", the closest being his "two brothers and... dad". The applicant provided links to online country information in the email. This was stated to be for the purpose of allowing the Tribunal to "understand a little bit what is going on in Nigeria". The applicant requested in his email that the Tribunal "go through these pages" so that it could "understand a bit of [his] worries".
8. Country information provided through those links has been supplied in a tender bundle provided on behalf of the applicant (TB). Although those links have been accessed more recently, I infer from their dates and parts that match other material in the Court Book that the country information relied upon by the applicant was before the Tribunal. As the applicant submitted, this included material reporting:

(a) Boko Haram (an Islamic extremist group) had launched an insurgency in which at least 35,000 people had been killed and more than 2 million people displaced due to extremist violence. This was "in an effort to establish their radical interpretation of Islamic law": Al Jazeera article at TB 62-63;

(b) attacks in 17 Christian-dominated communities in Plateau in December 2023, resulting in the deaths of 140 people: VOA article at TB 64-65;

(c) clashes between Muslim herders and Christian farming communities in Plateau State, resulting in the deaths of 30 people, and displacing 1,500 people, reported in January 2024: Al Jazeera at TB 80-83;

(d) raids "on mostly Christian villages" killing nearly 200 people: Al Jazeera at TB 83;

(e) 896 civilians killed in attacks by Islamist groups like Boko Haram, who particularly targeted Christians because of their faith, in the first three months of 2022: Open Doors at TB 90-99;

(f) "more Christians are killed for their faith in Nigeria than the rest of the world combined", with "[a]ttacks ... happening almost on a daily basis": Open Doors at TB 91.

1. The applicant submitted that the DFAT Country Information Report - Nigeria, 3 December 2020 (DFAT Report) was consistent with this material. The applicant noted that it reported that Boko Haram insurgencies, including kidnappings, bombings, and killings, opportunistically targeted Christians. DFAT assessed that Boko Haram posed a serious ongoing threat in northeast Nigeria: DFAT at [2.60]-[2.67], at TB 19-21. DFAT reported that ongoing conflict between Muslim herdsmen and (inter alia) Christian farmers resulted in numerous deaths and displacement in the Middle Belt. DFAT observed that Christian NGOs had stated religious identity as a primary driver of the conflict as violence predominantly targeted Christian communities, religious leaders and churches. Other analysts acknowledged religious identity as at least a "contributing factor" to violence: DFAT at [3.21]-[3.22] at TB 26. DFAT observed that the US Department of State had included Nigeria on a Special Watch List for governments that have engaged in or tolerated severe violations of religious freedom in 2019, due to the "perceived failure of state authorities to protect religious communities from insurgency-related violence": DFAT at [3.23] at TB 26.
2. The applicant submitted, by reference to the above, that on the better view, he made a claim to face risk of harm as a Christian in Nigeria. At minimum, the applicant contended that such a claim clearly emerged on the material. The applicant submitted that this claim was not considered and determined by the Tribunal.
3. I accept the applicant's submissions.
4. I accept, as the Minister submitted, that a careful analysis of the applicant's claims over time indicates that he claimed that the risks of violence in Nigeria were "multifactorial". However, he also claimed that he was a Christian and provided country information to the Tribunal demonstrating his "worries" regarding (inter alia) religious violence, emphasising particular risks of harm to Christians in Nigeria on account of their religious faith.
5. I accept, as the Minister submitted, that none of the country information attached to the 10 August 2024 email referred to the applicant personally. However, I do not accept that it needed to do so in order for a claim of the nature contended to have been made.
6. I accept, to an extent, the Minister's submission that the Tribunal made reference to certain parts of the country information attached to the 10 August 2024 email. At [27], the Tribunal made general reference to the links provided. Curiously, no reference appears to have been made to the Open Doors article, upon which particular reliance was placed by the applicant in this proceeding. The Tribunal also did not refer to the religious aspect of the violence that was articulated in a number of the articles. In any event, brief reference to the articles in a part of the Tribunal's decision that summarised, rather than evaluated, the evidence before it (prior to the "findings and assessment" section of the Tribunal's decision) was not sufficient to consider or determine the claim in question.
7. I accept, as was submitted by the Minister, that the applicant did not state (in exact words) that he feared harm in Nigeria because he was a Christian. The applicant's claims were expressed informally, by an unrepresented applicant in detention. He nonetheless expressly claimed that he was a Christian and that (inter alia) "religious... violence [was] unbearable in Nigeria". He attached links said to explain to the Tribunal his "worries" in this regard. A significant proportion of the linked information spoke to religiously motivated violence. The article from Open Doors, in particular, spoke to the targeting of Christians and emphasised in large print the view expressed in the body of the article that "Nigeria [was] one of the scariest places to be Christian": TB 91.
8. Having regard to the above, I do not accept the Minister's submission that there was "no basis on which the [Tribunal] could have been satisfied as to the subjective element" of persecution (relying upon cases such as Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). The "worries" expressed by the applicant were capable of satisfying this element and, in any event, the Minister's submission in this regard does not answer the question regarding complementary protection.
9. I do not accept the Minister's submission that the claim was answered by [50]-[53] of the Tribunal's decision. Those paragraphs did not grapple with what had been submitted by the applicant regarding the particular or aggravated risk of harm said to be experienced by Christians in Nigeria. Reliance upon a finding that the applicant had not been "specifically targeted" did not, without more, answer the question. It is apparent that, within context, the Tribunal's reasoning at [50]-[53] depended upon its understanding that the applicant's claims regarding various forms of harm (including from Muslim extremists) effectively comprised a claim that the applicant would face harm as a result of "generalised volatility". For the reasons given above, I do not accept that the applicant's claims were limited in this manner. I therefore do not accept that the applicant's claims regarding religion were capable of being answered by the Tribunal's conclusion at [53] that risks faced were faced by the "population generally".
10. I also do not accept the Minister's submission, made at hearing, that the articles submitted by the applicant were effectively considered by the Tribunal because the Tribunal relied upon the DFAT Report in parts of its decision and the DFAT Report referenced other country information regarding the targeting of Christians. What was said in the articles relied upon by the applicant went beyond the references in the DFAT Report. In any event, the Tribunal's reasons do not evidence any evaluation of the material in the DFAT Report regarding Christians. Rather, the Tribunal's reasons are consistent with a lack of appreciation on the Tribunal's part that a claim regarding the targeting of Christians had been made by the applicant. That claim was not determined in any part of the Tribunal's decision. As found above, the Tribunal's findings regarding generalised volatility and violence were not sufficient to determine the claim.
11. I am unable to accept the Minister's suggestion at hearing that the applicant's case regarding the Open Doors article was somehow undermined by the quality of the material, which included opinions published by what was submitted to be a Christian non-government organisation. Evaluation of the material was a matter for the Tribunal. The Tribunal was required to consider the claims that were made, together with evidence that was of central relevance to those claims. It did not do so in relation to the claimed risk of harm to the applicant as a Christian in Nigeria. I accept the applicant's contention that the Tribunal fell into jurisdictional error on this basis.
12. I do not accept, however, that jurisdictional error has been demonstrated in relation to the deaths of the applicant's father and one of his brothers. I accept that it does not appear that the deaths of those relatives were expressly considered by the Tribunal. However, I accept the Minister's submission that insufficient content was given to those claims to give rise to a claim to protection. Absent such content, the applicant's claims in this regard were capable of being considered by the Tribunal to have related to what it understood to be the applicant's claims of generalised violence. In these circumstances, I am not persuaded that jurisdictional error has been demonstrated by the lack of reference to the deaths in the Tribunal's decision.
13. Nonetheless, for the reasons given above, I accept that jurisdictional error has been demonstrated by the applicant.

1. For the above reasons, the decision of the Tribunal will be quashed. The matter will be remitted to the Administrative Review Tribunal (its successor) for reconsideration and redetermination according to law.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.