ARA17 v Minister for Immigration
[2018] FCCA 342
•23 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARA17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 342 |
| Catchwords: PRACTICE & PROCEDURE – Applicant retained legal representation – application to amend original application – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36 |
| Cases cited: BBO16 v Minister for Immigration & Border Protection [2017] FCA 212 MZANX v Minister for Immigration & Border Protection [2017] FCA 307 MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 |
| Applicant: | ARA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 95 of 2017 |
| Judgment of: | Judge Smith |
| Hearing dates: | 16 August 2017 & 13 February 2018 |
| Date of Last Submission: | 13 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 23 February 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N. Draper, Granich Partners |
| Solicitors for the Respondents: | Ms A. Ladhams, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 95 of 2017
| ARA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nigeria who arrived in Australia on 13 July 2015. His tourist visa was cancelled when he informed officers of the Department that he was in fact in Australia for business purposes and he was taken into immigration detention.
On 4 September 2015, the applicant applied for a protection visa. On 9 September 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. On 12 January 2017, the Tribunal affirmed the delegate’s decision.
The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed, he must establish that the Tribunal’s decision was affected by jurisdictional error.
Background and claims
The applicant had a spare car parts business in Nigeria. In 2010 he travelled to Taiwan to locate, export and sell a variety of spare car parts for the purposes of his business. After spending some time unlawfully in Taiwan, the applicant returned to Nigeria on 16 September 2014.
On 5 October 2014, the applicant received a letter from the Movement for the Actualization of a Sovereign State of Biafra (MASSOB) inviting him to a meeting. He did not respond to that letter or attend the meeting.
On 28 November 2014, a container of spare parts acquired by the applicant in Taiwan arrived in Nigeria. He sold the contents of the container for a total of USD9,000. However, on or about 5 December 2014, after the applicant had unsuccessfully attempted to deposit the cash in a bank, eight members of MASSOB entered the applicant’s house, assaulted the applicant and then stole his money.
The applicant did not report the incident to the Police as he was advised that would create further problems for him.
On 7 December 2014, five members of MASSOB came to the applicant’s house and demanded that he attend a meeting with them. The applicant was taken to a location where a meeting was being held and the members apologised to the applicant for having taken the USD9,000. They explained that they would repay that money if he joined MASSOB and threatened him with death if he did not. The applicant than joined the group and received a membership card.
On 4 January 2015, the applicant was again invited by telephone to attend a MASSOB meeting and he attended the meeting the following day. The meeting was suddenly interrupted by Police who detained and arrested approximately ten of the thirty MASSOB members at the meeting while the others, including the applicant, managed to escape. The applicant than fled to another town and stayed there for the remainder of his time in Nigeria.
On or around 14 April 2015, militants from Boko Haram bombed the applicant’s family village and killed the applicant’s father and two brothers, destroying the applicant’s family home. The applicant then travelled to his family village and took his mother back with him to the town where he was staying.
The applicant was then granted a visitor’s visa for the purposes of visiting Australia and he left Nigeria in July 2015.
The applicant claimed that he feared being mistreated by the Nigerian authorities, including members of the Nigerian police force, MASSOB, Boko Haram and other militant Islamist groups. He claimed that the Nigerian authorities would not protect him because they viewed him as a member of MASSOB and also because they do not have capacity to protect Christians such as the applicant from persecution caused by militant Islamic groups such as Boko Haram.
The applicant was interviewed by a delegate of the Minister on 16 March 2016. The applicant and the delegate were present in the same room while the applicant’s representative and an interpreter in the Igbo language took part in the interview by telephone. According to the reasons of the delegate, there were at times some communication problems between the interpreter and those present on site. The delegate believed this to be caused by technological problems with the medium of communication.
The delegate made his decision on 9 September 2016 refusing to grant the applicant a protection visa. Amongst the reasons for the delegate’s decision was the fact that the applicant had been interviewed by Departmental officials on 16 July 2015 and had claimed to fear harm from Boko Haram on the basis of his Christian religion, but that the first time that he made a claim relating to MASSOB, was in his protection visa application made on 1 September 2015[1].
[1] See Court book, p.193, [45].
The applicant applied to the Tribunal for review of the delegate’s decision and attended a hearing conducted by the Tribunal on 9 December 2016. In its reasons for decision, the Tribunal explained that at the hearing the applicant addressed the “delegate’s conclusion that his failure to raise his claims earlier meant they were not credible”. The applicant explained that when he flew to Australia he was flying to Sydney and “although his plane landed in Perth, before he was to transfer to a flight to Sydney, he did not expect he would be clearing immigration in Perth”. He said that he was not prepared at that point to disclose his reason for coming to Australia, particularly as he feared he might be returned to Nigeria[2].
[2] Court book, p.270, [15]-[16].
The Tribunal made its decision on 12 January 2017.
Tribunal’s decision
The Tribunal found that the applicant had fabricated his claims to have been approached and threatened by MASSOB. It explained, at [18]:
… The Tribunal makes this finding based on the applicant’s failure to raise the claim at the interview on 16 July when he was asked why he could not be returned to Nigeria. The Tribunal also makes this finding on the basis of the applicant’s poor migration history, which the Tribunal finds affects his credibility and points to his real motives for coming to Australia. He resided and worked in Taiwan for 4 years, when he had only a 2 week visa. He came to Australia on a Visitor visa with business documents in his possession. When asked at the airport as to his intention, he conceded he was not a tourist but was here for business purposes. The Tribunal finds the applicant came to Australia not to flee MASSOB or the police, but to work in the spare car parts business as he had done in Taiwan. From the applicant’s perspective a short term Visitor visa was no impediment for his doing so, as it had not stopped him residing and working in Taiwan for a lengthy period.
The Tribunal found in the alternative, that if it were wrong in that conclusion, the applicant could relocate to avoid the harm he claims to fear. It noted that after the claimed raid of the MASSOB meeting in January 2015, the applicant claimed to have left his home town and relocated to another place. The applicant said that he had lived there for six months prior to coming to Australia but did not claim that he was followed to that location either by MASSOB or the police. Further, the Tribunal noted that there was no claim that his family was harmed during that time, or since that time, in any attempts to locate him. Finally, the applicant was not hindered in his travel to his family village to collect his mother and did not claim to have been hindered by authorities when he departed Nigeria.
The Tribunal then considered the claim concerning Boko Haram. It found that the country information considered by it, did not support a conclusion that a Nigerian Christian from one of the southern states such as the applicant, faced a real chance of persecution from that group. While it accepted that it was possible that Boko Haram could commit acts of terror targeting Christians in southern Nigeria, it found that the chance of that was too remote to amount to a real chance. For those reasons, the Tribunal found that the applicant did not have a well-founded fear of persecution for either reason set out in s.5J of the Migration Act1958 (Cth) (Act), did not meet the definition of a refugee as defined in s.5H and therefore did not meet the requirements of sub-s.36(2)(a) of the Act.
The Tribunal then went on to consider the complimentary protection criteria in sub-s.36(2)(aa) of the Act.
In respect of the MASSOB claim, the Tribunal relied upon its findings rejecting the applicant’s factual assertions and found in its conclusions in the alternative that the applicant would be able to relocate where there would be no real risk that he would suffer significant harm. In relation to Boko Haram, the Tribunal acknowledged violent attacks upon Christians and Muslims in Nigeria. It found that they were concentrated in the north of Nigeria and that the risk of the applicant facing significant harm as a resident in a southern State was too remote to amount to a real risk of significant harm. For those reasons, the Tribunal was not satisfied that the applicant met the criteria in sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate.
Grounds of the application
The applicant relied upon a further amended application by leave. There were two grounds in the further amended application, the first of which had two particulars. The applicant only pressed the first of those particulars. The ground as set out in the further amended application was:
1.The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.
Particulars
(a)The Authority misdirected itself in concluding that the Applicant, a Nigerian Christian from Anambra State, does not face a real chance of serious harm for reasons of MASSOB’s forced recruitment of members if he returns to Anambra, Nigeria, when the Authority failed or neglected to consider various media outlets information and articles reporting forced recruitments by MASSOB in the South and South Eastern Nigeria.
Although the applicant pressed that ground at the hearing, in fact he relied on a completely different argument. In its final form the first ground argued by the applicant, was that it was that the Tribunal fell into jurisdictional error by relying upon the applicant’s failure to make certain claims at the interview conducted of him by officers of the Department on 16 July 2015.
The applicant relied upon the following statement by the Full Court of the Federal Court in MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 (MZZJO):
[56]On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely that many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
[57]Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
I do not understand that the Full Court in MZZJO was stating anything more in this passage than what might be considered good administrative practice in light of practical realities that might face particular applicants. Certainly, the statements in [56] and [57] were no part of the reasons for the decision in that case and so create no binding principle. Even if it did create a binding principle which must be applied by this Court as a court lower in the judicial hierarchy, there are several difficulties facing the applicant in this case.
First, the applicant relied upon no more than suggestions that his ability to understand the questions being asked of him on 16 July 2015 might have been affected by his recent arrival. The problem is that, unlike the appellant in MZZJO, the applicant did not arrive in Australia on a cramped boat and was not, relevantly, interviewed predominantly about people smugglers and his family history. Rather, as found by the Tribunal he was asked why he should not be returned to Nigeria and, as also noted by the Tribunal, was able to indicate a response to that question which showed that he understood the question.
Secondly, unlike the case in MZZJO, the Tribunal did not simply rely upon what was not said by the applicant at the interview on 16 July 2015 but, rather, had a separate basis for its credibility finding. This was set out [18] of its reasons which is extracted above.
Thirdly, the applicant took issue with the Tribunal’s reasoning that were the applicant genuinely fearful of returning to Nigeria he would have put his best case forward at the interview on 16 July 2015. The applicant argued that at that point he might not know what his “best case” was and that it was really only a matter for the Tribunal to determine. That argument, with respect, completely misrepresents the Tribunal’s decision. The reasoning at [17], properly understood, involved a comparison of the Boko Haram claims that were made at the interview, and which relied upon the general situation in Nigeria which had not yet had any direct impact upon the applicant, and the more specific claim concerning the MASSOB which was based upon recent events that had occurred directly to the applicant including being beaten up, robbed, threatened with death and then chased by police from an illegal meeting.
For those reasons, the first ground as it was finally argued is rejected.
Second Ground
The second ground is that the Tribunal erred in finding that it was reasonably practicable for the applicant to relocate within Nigeria. The grounds states:
…when no consideration was given to the practicality of the Applicant working in Nigeria, the economic circumstances in Nigeria, the Applicant’s qualifications and ability to secure employment or any other factors necessary to be considered in determining whether or not relocation is reasonable and practical.
This ground faces two difficulties.
The ground is addressed to the way in which the Tribunal dealt with relocation in respect of the complementary protection criterion. That focus was, it may be assumed, based upon an acceptance that the issue of reasonableness of relocation does not arise in respect of the refugee criteria in sub-s.36(2)(a) of the Act because of the operation of s.5J(1C): see DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215; [2017] FCCA 308 (compare comments by Logan J in CDZ16 v Minister for Immigration & Border Protection [2017] FCA 967 at 11-28 and Robertson J in BBO16 v Minister for Immigration & Border Protection [2017] FCA 212 at 70-75). However, the first difficulty lies in the fact that the relocation finding in respect of the complementary protection criterion was an alternative finding to the conclusion that the applicant did not face a real risk of significant harm within the meaning of sub-s.36(2)(a) anywhere in Nigeria. Although the applicant sought to impugn that finding in the first ground of the further amended application, that ground has been rejected. For that reason, regardless of any error made in connection with the reasonableness of relocation, the Tribunal was bound to affirm the decision of the delegate and so that error would not amount to jurisdictional error or, in the alternative, relief would be refused in the exercise of discretion.
The second difficulty is that the Tribunal based its consideration of the reasonableness of relocation on the claims made by the applicant as well as the material before it. In SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 (SZMCD), Tracey and Foster JJ said, at [124]:
The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 442-443, especially at 443C-D.
The applicant placed particular reliance upon the decision of Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 (MZANX) in which her Honour said:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to restart her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
However, her Honour went on to explain at [58] that while “the framework set by an applicant” was an important factor, the task of the reviewer was not confined to the matters raised by an applicant but must based on all of the material before it.
Nothing said in MZANX was inconsistent with, or indeed could be inconsistent with, the authority of the Full Court in SZMCD.
The only objections put by the applicant to the issue of relocation were first, that he would be harmed everywhere in Nigeria, and secondly, that the place he went to live for six months was not suitable because it was farmland. The Tribunal dealt with both of those objections.
In his submissions the applicant argued that the Tribunal ought to have considered the economic situation of Nigeria and, in particular, the availability of work in the automotive industry there. However, the applicant could not identify any material which might have impacted upon the Tribunal’s consideration of the assessment of the reasonableness of relocation in that respect or, indeed, any other respect. For that reason, there was nothing before the Tribunal that required the granular approach explained by Mortimer J in MZANX and otherwise the Tribunal properly identified the issues for consideration by reference to the material and claims before it.
The second ground is rejected.
Conclusion
For those reasons, there is no jurisdictional error in the Tribunal’s reasons and the application must be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 February 2018
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