Refugee Appeal No. 2403/95

REFUGEE APPEAL NO. 2403/95
AT AUCKLAND

Before:
	A Gupta (UNHCR Member)
:		J Lamont
:		No Appearance
Date of Hearing:		6 December 1995

DECISION

The Authority has derived considerable assistance from the 1994 US Department of State Country Reports on Human Rights Practices relating to Nigeria, at pages 212-213, which sets out a comprehensive summary of the political changes undergone in Nigeria in recent years. In particular, we note:

"At the end of 1993, Nigeria's military continued to rule the country. Until August 27, General Ibrahim Babangida, who came to power in a 1985 coup, was the head of the military regime. Under Babangida, Nigeria's main decision-making organ in 1993 was the military-dominated National Defence and Security Council (NDSC), which ruled by decree."

Regarding Barbangida's reign, the US DOS report states:

Amid controversy arising from his annulment of the June 12 Presidential election, Babangida resigned as President and Commander-in-Chief on August 26, installing the Interim National Government (ING), headed by businessman Ernest Shonekan. The ING included many members of the earlier Transitional Council, which had been responsible for managing day-to-day governmental affairs under the oversight of the DBSC. The ING was to organise a new presidential election and hand over authority to an elected civilian president by March 31, 1994. On November 17, the military forced Shonekan to resign, and General Sani Abacha assumed the titles of Head of State and Commander-in-Chief.

Abacha established a military-dominated "Provisional Ruling Council" (PRC), which ruled by decree, and named prominent persons from abroad the country to head government ministries, grouping them into a 32-member "Federal Executive Council" (FEC). Although the FEC included some hold-overs from the ING, it also included some well-known pro-democracy and human rights activists. The PRC quickly dissolved the national and state legislatures and the local councils and replaced elected civilian governors with military administrators. The military regime announced it would hold a constitutional conference to plot Nigeria's future, including a timetable for return to democratic government. In the interim, the decree suspending the 1979 constitution remained in force."

In addition to country information (which will be considered in more depth later) obtained as a result of its own enquiries subsequent to the hearing, the Authority has had the benefit of referring to recent country information submitted by counsel. This includes country profiles obtained by counsel through the Internet, various Amnesty International reports relating to the abuse of human rights in Nigeria dated 13 October 1995 and 10 November 1995 respectively, various news media articles in the "Time" and "Newswatch" publications and a video tape of a documentary compiled by the Australian SBS Television station, relating to the Ogoni crisis.

THE APPELLANT'S CASE

The appellant is a 34 year old, married man born in E village, Enugu State, Nigeria. His father is a descendant of the Ibo tribe, whereas his mother is Ogoni. The appellant has two younger siblings, one brother and one sister. Both are currently living in Nigeria with their parents at PH. The appellant and his family are Christians.

Until 1970, the appellant lived with his family in E. There, his father earned his living as a sales manager of a telecommunications company. The appellant's mother earned her living as a women's dressmaker. In 1970, the appellant's father was transferred by his employer company to work at their branch office in PH, located some 300 kilometres away in Rivers State. Subsequently, therefore, the appellant's family moved to live in PH. The appellant, however, remained in E to complete his schooling. He lived with and was cared for by his paternal uncle, P.

In 1975, the appellant's father voluntarily resigned from his managerial position and commenced a number of businesses on his own account. These businesses, which included hair salons, supermarkets, bakeries and carpet retail stores, were, according to the appellant, quite successful.

The appellant attended both primary and secondary school in E. All of the students attending these schools were Christian. In 1982, having passed the West African Examination Council examinations, the appellant studied Public Administration attending a polytechnic in Anambra State. He graduated with a diploma in 1984.

In January 1985, the appellant voluntarily joined the military. He received one year's initial training at Kabuna State. Following training, it was standard procedure for trainees to specify in order of preference, their top three preferred postings. Upon completion of his training, the appellant was assigned to the military police training school. This was despite the fact that he had not specified the school as one of his preferred options. Although the appellant agreed with the Authority that a posting to the military police would be considered a "privilege" by others, the appellant, nevertheless, had not chosen to be part of these forces.

When asked whether he had attempted to be reassigned to what he considered a "better" unit, the appellant stated that he had, but that application was declined. The appellant told the Authority that regulations (pertaining to transfers) required that such requests be made only after the applicant concerned, had served one year in the unit to which they had been deployed. As a result, the appellant's application for a transfer was unsuccessful. The appellant further stated that it was only possible to make the one application. For this reason, he was not eligible to re-apply even after he had served the requisite year with the military police.

The appellant stated at the hearing that he considered he was subject to differential treatment within the military police due to the fact he was a Christian. Whenever officers were required for "fatigue" duties, of the 10 persons ordinarily chosen to form a team, seven of these officers would be Christian. The appellant also stated that whenever Christian officers performed night duties they would be assigned to 24-hour shifts, seven days a week, whereas Muslim officers were only required to be on duty for half this time. Whenever the appellant tried to complain about this treatment, he was subject to one week's detention. Many other Christian officers complained about this treatment, and were locked up in the guardroom for the same reason. The appellant also considered that his Christianity was a further reason why his application for a transfer was declined. The unit to which the appellant sought a transfer was predominantly Muslim. General Abacha was a Muslim, as were his top-ranking military aides.

Initially the appellant was ranked Lance Corporal. His duties involved the arrest and capture of soldiers as instructed by his superior. He also acted as a bodyguard or escort to two high-ranking military officers. In particular he became a bodyguard to two such officers, (then ranked) Lieutenant General D and Colonel G. Both of these officers were Christian.

The appellant told the Authority that from 1985 until 1987, the appellant was posted to the "2 Amphibious Brigade" at PH. In 1987 he was re-assigned to the 82 Division, Headquarters in E, where he served until 1990.

In June 1990, the appellant was selected as one of 52 officers from his military unit (which numbered some 500 officers) to take part in the Nigerian peacekeeping force in Liberia. Other soldiers from different units were also posted there. The appellant does not know if there was any particular reason for his being chosen to perform to go to Liberia, although he told the Authority that the majority of officers chosen to do so were Christians.

In October 1991, the appellant returned to Nigeria and was awarded for his service in Liberia with a promotion to the next rank above. All soldiers who returned from peacekeeping duties in Liberia received similar promotions.

As the appellant had been assigned to the 3 Motorised Brigade in Kano two weeks prior to being deployed to go to Liberia, he assumed these duties upon his return.

In July or August 1993, the appellant was posted to the Ministry of Defence headquarters in A, Lagos. His confirmed duties were to serve as a personal bodyguard to Major-General D, a Christian officer. Initially, the appellant had been engaged as D's bodyguard on a temporary basis given that D's current bodyguard had fallen seriously ill. (It had even been suggested to the appellant by other parties, subsequently, that this bodyguard had been "poisoned".) The appellant accompanied D on various inter-state visits and continued to do so even after two or three weeks, as D's original bodyguard had still not recovered from his illness. Subsequently, the appellant was officially appointed by D to be his personal bodyguard.

Two weeks later, D was promoted to the position of Lieutenant General by the then self-proclaimed President of Nigeria, General Ibrahim Babangida. Later, prior to his resignation from office on 26 August 1993, General Babangida promoted D once again to the position of Chief of Army Staff. This was considered to be a popular appointment which was endorsed by the military generally. D had been popular in army circles due to his having led the first command in Liberia and returned successfully to Nigeria. Also politically, D had been the person responsible for making the radio announcement following the successful coup in 1985 by Babangida. Thus the two were close friends. In contrast, the appellant understood D and General Abacha, (who subsequently took over as Head of State in November 1993), to be rivals. General Abacha had made the radio announcement at the time of the previous 1981 coup.

The appellant conceded that, in a predominantly Muslim military force, it would have been regarded as unusual for a Christian bodyguard to have been assigned to protect a Christian officer, even more so, when assigned to protect as high-ranking an 5officer as D. Although the appellant did not know whether D had been subject to similar approaches, some officers, including his company sergeant major, even requested that he relinquish his duties because of this. The appellant considered, however, that he was unable to do so, as his appointment had been specifically made by D and not military personnel. He therefore declined to resign from his duties on the basis he was "not ready". Had he made known reservations were being expressed about his assignment, the appellant considered it likely that D would have taken action against the officers concerned. This, the appellant believed, would have created "big problems" within the military. He therefore remained silent and continued with his position as D's bodyguard.

Towards the end of December 1993, the appellant was approached at his home in Lagos one evening by three men, two military officers and one Al-Haji (Muslim religious leader). The after-hours visit by military did not seem out of the ordinary to the appellant. He understood that the military worked 24 hours a day. The appellant recognised one of the military officers as General Abacha's former aide-de-camp. He did not, however, recognise the other military officer. From both officers' uniforms, the appellant identified them as having the rank of major.

The Al-Haji informed the appellant that they wanted him to carry out an operation for them and indicated that this would be "beneficial" to him. The appellant, thinking that he would have to get priority clearance from D before he could go elsewhere on mission, questioned the nature of the operation and asked for further details. The other officer, whom the appellant did not recognise, told him that there was "no reason" and that he would just have to do it. The appellant looked to the former aide-de-camp, who nodded his head in agreement.

The Al-Haji would not identify himself to the appellant, nor would he identify the subject of the particular operation. He was told that he would, however, be rewarded with 500,000 nira. The appellant considered he could not refuse to carry out the operation as this was a military command. The appellant, in hindsight, now believes that this was offered to him to secure his commitment in carrying out the operation.

The appellant was told that he would have to compete "the task" between the end of February and the first week of April 1994 (Nigerian Independence Day). He was told they would contact him again some time in January 1994 with further instructions and to hand over the money. The men then left.

Around the end of January 1994, the appellant was approached again by the Al-Haji who, this time, was accompanied by only one of the military officers who had visited him previously. It was on this occasion that the appellant was given orders to assassinate his charge, D. It was left to the appellant to devise the method or means by which he would carry out the assassination. The officers knew that the appellant was to accompany D on various commissions until 7 April, returning on 10 April 1994 and therefore was given this as a deadline by which he would have to carry out the assassination. The appellant was also promised that having successfully carried out this operation, he would then be promoted to the rank of Captain.

The Authority discussed with the appellant at length why he would be entrusted with such a task, given that he was a Christian. The appellant speculated that he was someone who had direct access to D. He had been promised the promotion as a means of ensuring that he would carry out the task. As for the money, which the appellant agreed was a considerable amount to pay someone in full and in advance of the operation, he believes that this was given as a means of securing his commitment to the operation. Once this money was accepted, the appellant could not later refuse to perform the job assigned. The appellant said that he was aware that even during General Babangida's regime, two military officers had lost their lives under similar circumstances.

Subsequently, the appellant informed D of the proposed plot to kill him. At his request, the appellant told D what had happened, giving him details of the men who approached him and what he had been instructed to do. D did not appear to be unduly surprised by what he had heard. However, he gave him no indication as to what, if any, action he would carry out in response. He merely instructed the appellant to go home subsequently. The appellant did not discuss this matter with anyone other than D.

The appellant continued to accompany D on various commissions around different states of Nigeria. It is for this reason that, despite his not having carried out his mission, the appellant believes he was never approached by the Al-Haji or other two officers.

The appellant told the Authority that he had, during this time, already contacted a friend of his to arrange the issue of a passport. Although he had not yet decided to leave Nigeria, the appellant realised he would be in danger if he did not carry out the operation to assassinate D. A passport was therefore a form of insurance which he felt it prudent to obtain, should the situation become dangerous for him in the future.

The appellant had not wanted to make the application himself. Any application he personally made would undoubtedly have attracted the attention of the Ministry of Defence. His friend, who was a businessman, was familiar with the various embassies, and therefore agreed to assist him to obtain a passport.

Towards the end of February 1994, while on duty with D in Kano, the appellant met his good friend, EU with whom he had become acquainted in the early years of his military career while stationed at E. The appellant said that although he and EU had belonged to different units, they had become close friends. Later EU was promoted and became a special advisor to General Abacha. The appellant would on a number of occasions meet up with EU at his office, three or four times a week.

In the course of accompanying D to his car, the appellant spotted his friend, EU. They stopped together and chatted. EU suggested they meet together that evening at a golf course. The appellant could not, due to his schedule make this appointment, and so it was arranged that the two would meet there the following day.

As arranged, the appellant met with his friend, EU, initially engaging in casual conversation. Later, EU raised the issue of his working with D. He warned the appellant that "something will come up against [him]". He was advised to "stay clear". Before the appellant could discuss the meaning of this warning further, their conversation was interrupted by the entry of other officers into the room. Before leaving, EU warned the appellant not to tell anyone about what had been discussed.

The appellant told the Authority that he regarded EU as a trusted friend and reliable source of information. EU had, on previous occasions, informed him of news such as his imminent promotion, prior to being informed of it officially. The following week the appellant was due to leave on another trip with D to Edo State. For this reason, he was unable to meet EU again.

Having received this warning, the appellant discussed his concerns with D in the course of accompanying him around Edo State. D advised the appellant that he should leave the country. Subsequently the appellant made plans to leave.

D left Edo State on yet another commission, allowing the appellant to return to Lagos on 17 March 1994. The appellant was contacted by his businessman friend the following day and given his passport. He then travelled to Niger State and resumed work with D for a few more days, before leaving him again on 23 March 1994 to go to Lagos. On 25 March 1994 the appellant left Nigeria from Lagos airport bound for Taiwan. Apart from a minor incident at the airport which the appellant solved by paying the airport authorities 3,000 nira, the appellant encountered no serious problems in leaving the country.

The appellant had not informed either his wife or family that he was leaving the country. The appellant had rarely had contact with his wife since her transfer to Kano State as supervisor of a bank.

The appellant arrived in Taiwan on 27 March 1994. He had no particular plans to apply for refugee status in Taiwan. The appellant said he had asked other "blacks" but was told that the Taiwanese government did not accept refugees. This was further confirmed to him when he met with a lawyer in a bar. The appellant had also applied to go to Korea but had later been informed by a Ghanaian, whom he met in Taiwan, that refugee status applications could not be dealt with there either.

Subsequently, the appellant tried to obtain employment in Taiwan but was unable to do so as he did not have a work permit. He nevertheless remained living in Taiwan until February 1995. Officially, the appellant was categorised as an "over-stayer" by the Taiwanese authorities. This is evident by the "C" classification in the appellant's passport. The appellant was able, however, to remain in Taiwan by paying a "tax" of $9,000 to the authorities. He supported his living using the 500,000 nira which he had received as advance payment for carrying out D's assassination. The appellant also had 50,000 nira which D had given him to facilitate his departure from Nigeria.

In November 1994, the appellant met a Nigerian businessman, J. Although he was unaware of the full extent of the appellant's troubles, J suggested that he travel to New Zealand. The appellant was told that New Zealand was quieter and that work was available there. The appellant decided that he would go to New Zealand and apply for refugee status upon his arrival there.

The appellant subsequently learned through J that D had been compulsorily retired in 1994. According to his friend, this was significant news in the Nigerian media. The appellant does not know the reason, (official or otherwise), why D was made to retire.

In the beginning of 1995 the appellant asked J to help arrange his trip to New Zealand. J obtained for the appellant a letter of introduction by a New Zealand jewellery company containing a statement that the appellant was wanting to travel to New Zealand to conduct business there. The appellant does not know if the New Zealand contact was aware of the real reason the appellant wished to come to New Zealand. In any event, this letter was sufficient to facilitate the issue of a visa to the appellant when, at J's suggestion, he approached the New Zealand Embassy in Manila. The appellant explained that his visa to remain in Taiwan was due to expire, and the appellant had not been successful in obtaining a valid extension to remain in Taiwan. He therefore flew to Manila on 12 February 1995. Having obtained the requisite visitor's visa around 20 February 1995, the appellant left the Philippines for New Zealand the following day. Subsequentl to his arrival, the appellant made contact with a Nigerian living in Auckland who assisted him in meeting an immigration consultancy versed in refugee applications.

The appellant lodged his application for refugee status on 27 February 1995. He was subsequently interviewed by the Refugee Status Branch of the New Zealand Immigration Service (RSB) on 28 March 1995. That application was declined by the RSB by letter dated 14 June 1995.

The appellant, in support of his claim, submitted various original documents as well as copies of correspondence he received from his family in Nigeria since his arrival in New Zealand. These are:

a.A letter dated 28 February 1995 from the appellant's wife, informing the appellant that she had been arrested and interrogated by the authorities for one week and that subsequently, his parents were also questioned but not detained. She was again detained for a further three weeks and, following her release, was evicted from the barrack accommodation. The appellant's wife goes on to say that he is a "wanted man" still. Two officers, the appellant's friends, were also dismissed, "because of the incident". She concludes the letter by warning the appellant not to return to Nigeria.

b.A letter dated 23 March 1995, from the appellant's uncle, sent care of counsel's office. The uncle informs the appellant in this letter that there was a failed coup on 3 March 1995, resulting in the arrest of D and another brigadier for whom the appellant had acted as a bodyguard. 60 other army officers were also arrested in connection with the coup, which had attempted to overthrow General Abacha's government.

c.An undated letter from the appellant's sister, informing him that two men had enquired about his whereabouts.

d.A letter dated 29 September 1995 from the appellant's mother, informing him that D is still in detention with the other officers for their part in the coup attempt in March 1995. The appellant's mother goes on to say that in her absence, the appellant's sister had been questioned by two unknown men about the appellant's whereabouts. The appellant was warned to be careful and not to write to any of his friends. She then goes on to say:

"As you requested for us to find out about Major EU, I sent O to Lagos to see him but unfortunately he came back with bad news that Major U has been dismissed and jailed by army court martial for the period of 15 years for assisting you which the case was pending, and one other soldier who let one of the arrested coup plotters to escape from detention. The soldier has fled the country, it's really horrifying."

e.A further letter from the appellant's uncle, dated 27 November 1995, sent to the appellant by facsimile, care of his counsel's office. The appellant's uncle was apprehended by military police and taken to the headquarters at Enugu that day. He was subjected to a "very rigorous interrogation" and was threatened with death. He was threatened that he would be detained unless the appellant produced himself. Subsequently, he was released after six hours' detention with a warning that he should help produce the appellant or else face re-arrest.

f.Original military ID and photographs of the appellant in military uniform.

SUR PLACE CLAIM

Subsequent to receiving his negative RSB decision, and prior to attending the Authority's appeal hearing, the appellant claimed to have received disturbing news that his uncle had been executed by the Nigerian authorities. The appellant further claimed that his uncle, Barinen Kiobel, was one of the nine persons named as having been convicted for murder and consequently executed by hanging, along with Ken Saro-wiwa, a well-known human rights activist.

The appellant claimed that his uncle was the former Rivers State commissioner from 1984 until 1986. Since the establishment of the Movement for the Survival of the Ogoni People (MOSOP), his uncle had been active in fighting for the rights of the Ogonis along with Ken Saro-wiwa.

By facsimile, dated 21 November 1995, the appellant received a letter from an uncle, P, informing him that his family members had been in hiding following Barinen Kiobel's hanging. All members of his family lived constantly in fear as a result of the "unusual intermittent calls to our homes" by strange elements, strongly believed to government security operatives. The government had also deployed several thousands of armed troops in the area, who kept vigil day and night. He goes on to say that these troops search, molest and harass people arbitrarily. The appellant's uncle concludes the letter with a warning:

"I must not fail to warn you to please keep off from home for the time being. This warning has become absolutely necessary because some military personnel and other security operatives in mufti have been besieging our homes in search of you for undisclosed reasons. Their intermittent visits here have been a source of grave concern to us."

Subsequently, the appellant was informed by his uncle, P, in another facsimile dated 27 November 1995, that:

"... after a recent press statement made by our father on the Ogoni crisis and other national issues which were published in a newspaper on 14 November, security officials have constantly kept our home under surveillance. This situation has led to our Dad and most of us being in hiding."

The appellant is advised to take the warning seriously and is reminded that the government is very busy harassing, detaining and even killing their opponents and known friends.

By recent facsimile dated 3 December 1995, once again sent to counsel's offices immediately prior to the hearing, the appellant received further news from his uncle that:

"The latest report of what is happening in our village now. O, your junior brother, phoned me on Saturday morning and told me that three military policemen and some mufti security men came on Friday night and arrested your father. The cause of the arrest is not known yet, but am suspecting it is because of some interviews he made to some national newspapers and what he wrote in the National Sketch, condemning the killing of our brother O and other Ogoni people.

I want to tell you now that conditions are bad here at home since the killing of our brother Obeni and other Ogoni people including Ken Saro-wiwa. After the arrest of your father, I went on Sunday to see him at Bonny camp where he's being detained, the OC in charge refused me to see him. Our traditional chief had contacted other ruling class around and they are making every effort to see that he (your father) can be release within the week.

Can you believe that your fiancée working with Union Bank was whisked away after serious searching. She was released and when she later came back she told us that they the military arrested her and, after interrogating her, they later released her and her father is about taking the matter to court.

I was told by your junior brother O that one of the military that came to arrest your father asked this "For where your pikin they your son", your father said "I no know". And what he replied last is "When the time reach you go know"

Thats all for now. pls keep watch." (sic)

Attached to this letter is a hand-written note from the appellant's uncle. Although undated, the appellant confirmed for the Authority's information, that this letter and the note were sent to him by facsimile at the same time.

In this note, the uncle tells the appellant that his father had granted interviews to some national newspapers, and that this was the reason, his uncle considered, why the military arrested him. The uncle goes on to say that that very morning, the appellant's younger brother informed him that his wife had been arrested once again and was currently being detained. The uncle had also enclosed a copy of a news report, dated Tuesday, 14 November 1995, entitled "Chief [U] speaks on Ogoni 9 and Nigeria's socio-economic and political problems". The news report states that Chief [U], the chairman and chief executive of BOPU group of companies, aged 70, "lambasted the federal government under General Sani Abacha for the unwarranted and brutal execution of nine Ogoni leaders, including his brother-in-law, "Barrinen Kioye" and Mr Ken Saro-wiwa."

The Authority questioned the appellant at some length about the full and correct names of the appellant's father and uncle, whom he claims was executed. The appellant claims that Chief "U" and "Barrinen Kioye" are his father and uncle respectively, despite the fact that the full names he provided at interview did not correspond exactly with this news report.

Counsel submitted that there was some inconsistency in a number of human rights reports from various NGOs as to the full and correct name of the former River State commissioner who was executed along with Ken Saro-wiwa. Leave was accordingly granted to counsel to provide further information to the Authority evidencing the appellant's relationship with these two men, and their correct names. At the time of this decision, no such information had been received by the Authority.

The appellant was also questioned closely about his father's relationship with the Ogoni people. The appellant said his mother would visit his grandmother regularly every two weeks in Ogoniland. His father also visited, although not as regularly, approximately once a month or every two months. When asked why he considered his father would openly criticise the government's execution in the press, the appellant replied:

"My father, if he sees something, doesn't hide his face. My father goes to the press all the time before and is a man that is known."

In support of the appellant's claim, counsel provided a video-tape of a 1994 Australian television documentary produced by SBS on the Ogoni crisis in Nigeria. The documentary was made prior to the execution of Ken Saro-wiwa and others.

It was put to the appellant that he had been forwarded a copy of the interview report of the RSB via his counsel on 31 March 1995. Subsequently, his co-counsel, Mr Chambers, replied with a number of amendments to the record at his client's instructions. This letter was dated 12 April 1995. The appellant was asked why he had never raised, even by this time, any news about the possible problems he would face upon his return due to his father's arrest and uncle's execution. The appellant said that he received this news around the same time that the letter prepared by Mr Chambers would have been sent to the RSB. The Authority accordingly requested counsel to clarify with Mr Chambers the circumstances in which this more recent information was made available.

By letter dated 12 December 1995, the Authority was advised by Mr Chambers:

"Mr U approached me in February of this year for assistance in respect of an application for refugee status. Preparation and engrossment of documentation followed and an application for refugee status was lodged to the Refugee Status Branch on 28 February.

As Mr U's application progressed through the normal channels of the Refugee Status Branch, we had reason to speak on a frequent basis about the situation in Nigeria and in particular the gross abuse of human rights. I do recall in particular discussing the problems in Ogoni land. Mr U had explained to me that his maternal relations had roots from this troubled area and the abuses of the government towards the land and its people had been occurring for many years and the situation was not likely to improve. It was not, however, a situation which concerned Mr U a great deal at that time. His primary concern was the instruction which he did not carry out and as a result he now fears death at the hands of the Nigerian government.

I did question Mr U a number of times in respect of possible visits of security forces to his family home. He had been advised by relatives that there had been a number of visits to his home, and in particular over one two day period by armed personnel. He couldn't, however, provide any clarity on these visits as to who in particular they were or their reasons for visiting. You will note that question 64 in the application for refugee status, Mr U has answered "not sure" to possible visits of security forces to his home or place of work. Again I say that these visits by unidentified personnel may well be as a result of Mr U's sudden departure from the Nigerian army, however, his primary concern was always the consequences of not carrying out orders to kill [D]. I do apologise for not presenting these particular issues at some stage during Mr U's application for refugee status."

Subsequently by letter dated 3 January 1996, the Authority received a further communication from the appellant's counsel attaching copies of two further letters received by the appellant from his brother O in Nigeria. Both are undated. According to counsel, these letters were sent from Hong Kong by international courier service from a friend of the appellant's father who had recently visited Nigeria and offered to carry them out of the country and deliver them to New Zealand from another location (in this case Hong Kong). Counsel in his covering letter notes from the letters that there were problems in posting them from Nigeria due to the security situation there.

In the first letter the appellant's brother apologises for the lapse in correspondence due to his preoccupation with exams and his studies. He goes on to say that after the appellant fled the country, unknown persons came, asking about his whereabouts. The brother did not tell the men where the appellant had gone. The brother refers to the appellant's father making a comment on television some time in June, following which time he was told that he should not attend any further interviews. He was reminded that he was the father of a "wanted soldier". Despite this his father "went up again and now he is in detention at the KOMY camp barracks." He was then arrested on 1 December by four military policemen in uniforms and one other in civilian clothes. Security men patrol at night. The family's telephone line has been disconnected, even though they do not have any outstanding telephone bills. The appellant's wife is also said to have been missing for one week since she was taken away by "some men". They believe she was arrested although they cannot locate her, either at the police station or barracks.

In his second letter, the appellant's brother says that:

"We are afraid of sending anything to you from home. Courier company refused to carry our letter to you. They said they don't carry jewellery. When I wrote the first letter included herein our telephone line was disconnected now uncle P's has been disconnected. He is detained in the military barracks at Enugu. It was his wife who told me about his detention when I went to Enugu on Friday 8 December. He was arrested on Thursday morning. According to his wife she noticed the phone was not working on the night of Thursday. .... Nobody is allowed to see Dad up till now. Mum is arranging for us to go home between 16 and 18th of this month for Christmas. Things have not been going well in the country since the hanging of Saro-wiwa and uncle B. A lot of arrest and secret killings have been going on. Since we can't send this letter with the gift through Nigeria we now give it to CC. He came to see her on Saturday. Mum said CC came to see her on Friday and he told Mum he will be going overseas. In that case Mum asked him to send the letter and gift to you through wherever he is going and if he cannot he should return it. I gave it to him on Saturday night. I hope you will receive it. Uncle said military men came to our village Enugu last week and security men are still parading our house day and night, especially at night. They are in military uniform. May God be with you. Yours, brother".

The appellant fears that if he returned to Nigeria now, he would face death at the hands of General Abacha given his failure to carry out orders to assassinate D. The appellant's fear is further heightened in light of the recent news of his uncle's death and subsequent arrest of his father.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees relevantly provides that a refugee is a person who:-

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

In the context of this case, the four principal issues are:

1. Is the appellant genuinely in fear?

2. Is it a fear of persecution?

3. Is that fear well-founded?

4. Is the persecution feared persecution for a Convention reason?

In this regard, the Authority refers to its decision in Refugee Appeal No. 1/91 re TLY and Refugee Appeal No. 2/91 re LAB (11 July 1991). In the same decision, the Authority held that in relation to issue 3, the proper test is whether there is a real chance of persecution.

ASSESSMENT OF THE APPELLANT'S CASE

The appellant's pre-flight claim

We address first the issue of credibility. Insofar as the appellant's pre-flight claim is concerned, we found the appellant to be materially consistent in all aspects of his account between the RSB and before this Authority. The appellant impressed the Authority with his frankness, his direct response to questions asked of him and the detailed answers which he was able to give, without exaggeration or embellishment. We accept, therefore, without reservation, that the appellant does have a genuine, subjective fear. We have no difficulty in further finding that the harm which he fears, namely death at the hands of General Abacha's government, is of sufficient gravity to amount to persecution. The appellant's fear is related to the Convention reason of imputed political opinion. In failing to carry out the order to assassinate D, a political rival and alleged instigator of a subsequent coup attempt against the General himself, we find that the appellant has been imputed with an adverse political opinion.

We are also satisfied that the appellant's fear of persecution is well-founded. There is recent country information to substantiate the appellant's claim that various coup attempts have allegedly occurred in recent times. The Human Rights Watch Report relating to Nigeria for 1996, refers to the secret and closed trials of some 50 alleged coup plotters, including former Head of State, General Olusegun Obasanjo and former Deputy Head of State, Major General Shehu Musa Yar'Adua, by a seven-man military tribunal. Most of the defendants were detained incommunicado and without charge between March 1995 and the start of trials in early June 1995. They were denied access to independent and freely-chosen legal counsel, although they did have the option of being represented by armed forces personnel with legal training. In late July 1995, 40 of the defendants, who included active and retired military personnel, as well as civilians, were convicted and sentenced, some to varying terms of imprisonment, and others to the death penalty. The tribunal's decision was not subject to review by a higher court, but only to confirmation by the Provisional Ruling Council. On October 1, 1995, General Abacha announced that the Provisional Ruling Council would commute the sentences of those defendants who had been sentenced to death. (Refer supra page 34).

Critics of the Abacha government claimed that the government "fabricated" the coup crisis to perpetuate its tenure; the government produced no compelling evidence that a coup attempt actually occurred. (supra).

The Amnesty International Report relating to Nigeria "A Travesty of Justice - Secret Treason Trials and Other Concerns" (26 October 1995) at page 1, goes further:

"Amnesty International is concerned that the evidence of coup-plotting appears to have been fabricated as a pretext to imprison key political opponents of the government as prisoners of conscience, in particular former Head of State, retired General Olusegun Obasanjo and his former Deputy, retired Major General Shehu Musa Yar'Adua. Sentenced by the tribunal to life imprisonment and death respectively, their sentences have been commuted to 15 and 25 years' imprisonment. The real reason for their conviction seems to have been their non-violent pro-democracy activities, General Obasanjo's in the international arena and in bringing together critics of the military government from all parts of Nigeria, and Major General Yar'Adua's within Nigeria, particularly as a delegate to a constitutional conference in which he advocated an early end to military rule."

The Authority further notes from this report that Chief Moshood Abiola, the presumed winner of the annulled June 12, 1993, presidential elections, also remains in detention under harsh conditions in late 1995. Although General Abacha had agreed, initially, to a conditional release in April 1995, he later reneged on this promise on the ground that the courts were still adjudicating Chief Abiola's case. (Human Rights Watch Report supra).

In assessing the appellant's claim, we accept that the appellant was ordered to kill a political rival of General Abacha, namely D. Instead of carrying out his task, the appellant, on the advice of his friend (special advisor to General Abacha) fled the country. Since his departure from Nigeria, the appellant has learned that D has subsequently been arrested, due to his involvement in the failed coup attempt against General Abacha. The appellant has also learned that his friend, Major EU, has been arrested and sentenced to 15 years for assisting the appellant in his illegal departure and that the authorities are presently seeking to arrest the appellant.

In view of the appellant's circumstances and the country information available, we find that there is a very real chance that the appellant would be arbitrarily arrested upon his return to Nigeria and be subjected to lengthy imprisonment, if not summary execution, for his association with an alleged coup instigator, whom he failed upon state orders to kill. We therefore find there is a real chance that he will be persecuted by reason of imputed political opinion.

Having accepted that the appellant does have a well-founded fear of persecution upon his return to Nigeria due to his pre-flight experiences, it is not necessary for the Authority to further consider the secondary claim to refugee status on sur place grounds. The Authority does, however, make the following remarks.

Sur Place Claim

There were a number of matters raised at the hearing in respect of which the Authority had reservations, and which caused us concern as to the genuineness of this aspect of the appellant's claim.

The Authority has some reservations as to the genuineness of the correspondence which has been submitted in support of the appellant's claim. The brother's correspondence forwarded to this Authority under cover of counsel's letter dated 3 January 1996 was purportedly hand delivered by the appellant's family members to a friend of the appellant's father who offered to post it from overseas. Both letters are undated. In the second letter, the brother reportedly claims that given "the present situation" they were afraid to send the appellant any correspondence via the normal communication channels. The Authority considers, however, that the situation was already serious in December 1995 when the appellant received earlier correspondence from his family by letter. In these circumstances, we consider these more recent letters to be highly suspect and to have been fabricated to further embellish the appellant's account. As such, we place little weight on these letters.

Further, the basis of the appellant's sur place claim rests solely on his evidence that his maternal uncle was one of the nine human rights activists acting on behalf of the Ogoni people, who was recently executed by the Nigerian government. The appellant's father is said to have made critical remarks quite openly in the press condemning the actions of that government following his brother-in-law's execution, as a result of which he was arrested by the military. The appellant submitted copies of news articles which he received from Nigeria from his uncle by facsimile.

The names of the persons, whom the appellant claims referred to his father and uncle in the news report dated 14 November 1995 do not correspond with the names which the appellant provided to the Authority at interview. The person whom the appellant claimed was his father, is said to be aged 70 years in the news report, whereas the appellant has stated in his refugee status application form that his father was born in 1935, indicating he would in fact now be 61 years of age. There is also a difference between the Christian names declared by the appellant in that same application, compared to that referred in the news report. We note that the more high profile figure "Barinen Kiobel", who was executed along with Mr Ken Saro-wiwa, has been referred as "Barrinem Kioye" in the same news report, and so this has merely added to the confusion. However, the Authority is unable to say conclusively whether the man referred to in the report as having "Barrinem Kioye" as his brother-in-law is the appellant's father. Given the material nature of such discrepancies referred, we are unable to make any finding of facts upon which we can determine whether or not the appellant has a well-founded fear of persecution. Accordingly, the appellant's surplace claim must fail.

CONCLUSIONS

For the reasons outlined above, the appeal based on the appellant's pre-flight experiences is allowed, and refugee status is accordingly granted.

Chairperson