AZAEP v Minister for Immigration - [2014] FCCA 2145

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAEP v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2145

Catchwords:
MIGRATION – Judicial review – application for protection visa – applicant claims RRT failed to consider a specific integer of his claim for asylum – allegation of denial of procedural fairness and failure to exercise jurisdiction by tribunal – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65; 425; 476; 477

Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24
Craig v South Australia [1995] 184 CLR 163
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
Re Commonwealth & Anor; ex parte Marks (2000) 177 ALR 491
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Applicant WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALD 630

Applicant:

AZAEP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 66 of 2014

Judgment of:

Judge Brown

Hearing date:

1 September 2014

Date of Last Submission:

1 September 2014

Delivered at:

Adelaide

Delivered on:

25 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr Charman

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr d’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application to extend time is dismissed.
The application filed 27 February 2014 be dismissed.
The Applicants pay the costs of the First Respondent fixed at the sum of six thousand four hundred and forty-six dollars ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 66 of 2014

AZAEP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Nigeria. He arrived in Australia, pursuant to a short-stay tourist visa, on 29 April 2011. On 16 August 2011, he applied for a Protection (Class XA) Visa “the visa”.
The proceedings relate to an application for review of a decision of the Refugee Review Tribunal “the RRT” confirming an earlier decision of a delegate of the Minister for Immigration & Border Protection not to grant the visa.
The applicant claims that the RRT failed to deal with a clearly articulated and substantial aspect of his claim for refugee status in Australia, namely that he feared persecution in Nigeria as a consequence of his political opinions arising from his membership of a political party. As a consequence, it is submitted on the applicant’s behalf, that the decision of the RRT is vitiated by jurisdictional error.
The applicant has tertiary qualifications in botany; and a post graduate diploma in environmental and petroleum law. In a statutory declaration prepared in support of his protection visa application, he claimed to have been kidnapped and held hostage for two months, in 2005, whilst working for an environmental consultancy engaged in negotiations with land owners, in Nigeria, to drill for oil.
A ransom was paid in respect of his capture and he was released. This led him to move to Malaysia, where he lived and furthered his studies between 2006 and 2010. In this context, the applicant asserted that he feared to return to Nigeria, as hostilities continued between local communities and the oil exploration companies, with which he had previously been associated, over issues related to the expropriation of land for petroleum extraction.
The applicant was born in 1973, in Jos, in Plateau State, in Central Nigeria. He was born and raised in the Catholic Church and attended a Catholic School prior to attending university. He claimed that his fiancée, also a Christian, had disappeared in traumatic circumstances.
In December 2010, the applicant claimed to have received a phone call from his mother, who advised that her home had been bombed. The applicant claims that this occurred because of his mother’s Christianity. It is the applicant’s contention that Christians, such as his mother and potentially he himself if he returns there, are being targeted in Jos, by Muslims Fundamentalists, because of their religion.
As a consequence of these reasons and for further reasons elaborated upon in subsequent documents, the applicant seeks protection, for himself, in Australia and claims that he cannot return to Nigeria because of a well-founded fear of persecution in that country.
The applicant claims to be entitled to the protection of Australia because he is a refugee, as defined by article 1A(2) of the Refugee’s Convention which defines a refugee as any person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
In a further submission, provided to officers of the Department of Immigration & Citizenship[1] “the Department”, on 29 September 2011, the applicant indicated that his mother was a member of the Osu caste, which has been the subject of discrimination by other castes within Nigeria, as it is regarded as being ethnically inferior and associated with sorcery.
[1] As the Department of Immigration & Border Protection was then known.
In addition, the applicant claimed that, in 2004, he had become a member of the Movement for the Actualisation of the Sovereign State of Biafra (hereinafter referred to as “MASSOB”). As a consequence of his membership of MASSOB, the applicant claimed that he was liable to arrest and injury at the hands of agents of the Nigerian Government, particularly the Police.
In his further submission, the applicant asserted that the exploration and drilling for oil in Nigeria were the source of considerable conflict between those who benefitted from the oil and gas industry and those who perceived that they had been dispossessed of their land by it.
As he had been strongly associated with the oil and gas exploration industry in the past and had been abducted because of his involvement with its activities, the applicant claimed to be at risk of suffering harm because of his previous employment in the petroleum industry.
Finally, the applicant reiterated his fears of persecution because of his Catholic religion. He claimed that there was a continuing round of religious and sectarian violence between various Muslim groups and Christians in Jos.
In summary, the applicant feared persecution in Nigeria because of his association with the Osu caste and its related ethnicity; his Christian religion; his political opinion, exemplified by his membership of MASSOB; and because he belonged to a particular social group, namely workers in the petroleum industry in Nigeria.
In a further statutory declaration, submitted to departmental officers on 15 December 2011, the applicant elaborated on his claims for being liable to persecution because of his membership of and association with MASSOB, which was a political organisation seeking autonomy for Igbo people, who identified with the state of Biafra, which had ceased to exist following the Nigerian Civil War of 1967 to 1970.
The applicant claimed to have joined MASSOB because of the marginalisation, particularly in the sense of a denial of educational opportunities, which he had experienced as an Igbo speaker, whilst in his youth. The applicant produced a membership card, bearing his name, from MASSOB. This card is central to his current application for review.
As a consequence of this he claimed to have attended MASSOB rallies and private meetings from 2004 onwards. In addition, he claimed to have supported MASSOB financially by sending donations to it, whilst he had been studying in Malaysia between 2006 and 2010.
In November 2011, the applicant asserted there had been a government crackdown on MASSOB members in River State. Members of MASSOB’s executive had been arrested and the Group’s documents seized, which had led to his identification as a donor to and member of the Group. He claimed that evidence of his financial contributions, to MASSOB, had been publically identified in a Nigerian newspaper, which would have resulted in him having come to the notice of the Nigerian Police.[2]
[2] See Case Book at 115
Finally, the applicant asserted that the tribal chief of his village had written to his mother, in September 2011, advising her that police had called upon him seeking information relating to his whereabouts because of his prior involvement with MASSOB.[3] Copies of this letter and the newspaper article, identifying the applicant were forwarded to the Department, which took steps to ascertain their probity through the Department of Foreign Affairs and Trade.
[3] See Case Book at 117
As the applicant’s submissions have developed during the course of the hearing of his appeal, it is now apparent that the major thrust of his case turns on his membership of MASSOB. In this context, the applicant no-longer pursues grounds of review relating to claims of persecution on the basis of his ethnicity or religious believes.
In this context, although the applicant accepts that the RRT considered his submissions relating to claims made by him relating his donations to MASSOB and his central role in the group’s organisation and its foundation, which it rejected on credibility grounds, he submits that the RRT did not consider his claim for persecution arising from him being an ordinary or rank and file membership of MASSOB. It is the applicant’s case that this aspect of his situation was clearly before the RRT but was not adequately considered.
In this context, the applicant contends that he has definitively established that he was such a member, as a result of the production, by him, of the MASSOB membership card bearing his name. The authenticity of which has not been disproved by any evidence available to the RRT. In addition, country information available to the Tribunal confirms that rank and file members of MASSOB have been targeted by the Nigerian authorities in the recent part.
The High Court has held that the failure of a tribunal, such as the RRT, to respond to a substantial, clearly articulated argument relying on established facts, propounded by an applicant before it, amounts to a failure to accord natural justice to that applicant, which amounts to a failure, on the Tribunal’s part, to exercise the jurisdiction conferred upon it.[4]
[4] See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394, 408

The delegate’s decision

The applicant’s claims for protection were assessed by a delegate of the Minister in March of 2012. In addition to the applicant’s various statutory declarations, the delegate had other documentary evidence submitted by the applicant and country information, in respect of Nigeria, available to her.
These additional documents included a photocopy of a MASSOB membership card bearing the applicant’s name and an address in Imo State; and the letter previously referred to allegedly addressed to the applicant’s mother, from the village chief, which had been examined by the Department of Foreign Affairs.
The delegate found the letter to be a forgery, for various reasons, including doubt regarding the existence of the village chief in question, as the Department of Foreign Affairs had not been able to illicit independent evidence to corroborate his identity.
In interview, the applicant described himself as an ordinary member of MASSOB, who did not have an active role, within the organisation, either when he was in Nigeria or since he had left the country in 2006. In these circumstances, the delegate doubted that the applicant would have an adverse profile, with the police, because of his association with MASSOB.
For these and other reasons, the delegate did not find the applicant’s claims of being liable to persecution, in various regions of Nigeria, to be credible. As a consequence, the delegate declined to grant the applicant the protection visa sought by him.

The appeal to the Refugee Review Tribunal

On 10 April 2012, the applicant applied to the RRT seeking to review the delegate’s decision. Pursuant to section 425 of the Migration Act 1958 (“the Act”) the applicant was invited to appear before the RRT to give evidence and present any relevant arguments relating to his case. The required hearing took place on 29 August 2012.
The day prior to the hearing, the applicant submitted a further document, which purported to be a letter from the MASSOB office of the Director of Information. In the letter the applicant was described as a bona fide member of MASSOB, who had been involved with the organisation during the formation stage of our struggle for self-determination as far back as 2004.[5]
[5] See Case Book at 168
In interview with the Tribunal, the applicant was asked to explain why he did not wish to return to Nigeria. The Tribunal summarised the applicant’s evidence, in respect of this issue, as follows:
“The applicant said that the most classical reason was his issue with MASSOB. He said that when he joined the organisation, like any young man he wanted to be part of the movement, but when he moved to Malaysia he wanted to concentrate on his studies. He said however his past had come back to haunt him.
The applicant said that because of the letter that his mother showed him and the letter from his friend, he feels that it is not safe for him to go back to Nigeria. The applicant said that when he went to Malaysia, he did not go as a refugee, to seek refugee status, but unfolding events had brought him to this state.
The Tribunal asked the applicant whether he was saying the main reason that he did not want to return to Nigeria was because he was a member of MASSOB. The applicant said that was the case. He said that also he made contacts with members of the group which did not come to the attention of the authorities. He said that because this case came up he is scared. …”[6]
[6] See Case Book at 175
Thereafter, a significant portion of the RRT’s reasons for decision deal with the applicant’s various assertions regarding his membership of MASSOB. In addition, the Tribunal had access to generic county information regarding the situation for MASSOB members, who were resident in Nigeria.
This information indicated that MASSOB was founded in 1999. It has been banned by the Nigerian Government and its members arrested and killed by the Nigerian security forces, most recently in 2012. The UK Home Office reports that less prominent persons, who are affiliated with MASSOB, might be at risk of ill-treatment by the authorities, in order to intimidate others.[7]
[7] See Case Book at 268
The applicant indicated to the Tribunal that he became a member of MASSOB, in 2004, which was the date on which he obtained his membership card. At this stage, he described the organisation as being like child’s play or a boy’s scout thing. The applicant indicated that he attended meetings of MASSOB, which were attended by between ten and twenty people. The import of the applicant’s evidence was that MASSOB could not be described as a cohesive organisation, at this stage.
The applicant indicated that he had joined MASSOB, as a teenager, because he had felt disaffected. After leaving school, he had wished to pursue a career in the military, but his application to attend the military college had been rejected because he was an Igbo, a tribal group associated with Biafra. This rejection had provided the impetus for him to join MASSOB.
After leaving Nigeria, in early 2006, the applicant stated that he had remained in contact with a friend, Obi, who was a member of MASSOB. In this context, Obi had asked him for financial assistance, for MASSOB, which had resulted in the applicant donating a sum of $100.00 and $200.00 respectively. As previously indicated, it is the applicant’s position that these donations came to the notice of the Nigerian Police, when the MASSOB premises had been raided.
The applicant stated that he feared returning to Nigeria, “not just because he was a MASSOB member but because he contributed money.”[8] In terms of the prospect of being involved, with MASSOB in the future, if he returned to Nigeria, the applicant said that in his heart he would want to be involved because he associated with MASSOB’s cause, but he was not sure that he would want to take the risk of such involvement.
[8] See Case Book at 177
The RRT did not find the applicant to be a credible witness for the following reasons:
·His evidence regarding his alleged kidnapping was found to be inconsistent;
·The newspaper article in the Weekly Watch, which named the applicant under the headline MASSOB Members Busted had been inserted into the newspaper and was not genuine;
·It was implausible that the applicant would not have raised with the Department earlier, in his statutory declarations, issues relating to his alleged donations to MASSOB, whilst he had been living in Malaysia, given the centrality of the donations to his case now.
The Tribunal summarised its findings regarding the applicant’s claim of being at risk of suffering persecution, because of his association with MASSOB, as follows:
“The applicant claims that he fears that he will be harmed if he returns to Nigeria because of his political opinion, and political opinions imputed to him, because he is and was a member of MASSOB and he made financial contributions to MASSOB whilst he was living in Malaysia.
In support of his claims, the applicant provided a MASSOB membership card, a Weekly Watch newspaper article entitled “MASSOB Members Busted” dated 1-7 March 2011, a letter on “Weekly Watch” letterhead, a letter purportedly from Eze Johnson Igwe, a letter from Ikeduru Local Government, two letters from the Office of the Director of Information of MASSOB, and letters written to the applicant on behalf of his mother.
The Tribunal has found, for the reasons set out above, that the applicant is not a credible witness in relation to his claimed fears of harm. As a result, the Tribunal does not accept the applicant’s evidence about this claim and it does not place any weight on the supporting documents provided by the applicant.
The Tribunal therefore finds that the applicant does not have a well-founded fear that if he returns to Nigeria he would be seriously harmed because of his membership of MASSOB and because he made financial contributions to MASSOB in 2009 whilst he was living in Malaysia.”[9]
[9] See Case Book at 205
In addition, the RRT rejected the applicant’s claims of being at risk of persecution as a consequence of his association with the Nigerian oil industry; his ethnicity, as a member of the Osu caste; and because of his Christianity. All these claims for asylum were rejected on credibility grounds.
As a consequence of these findings, the decision of the Tribunal was that the applicant did not satisfy the refugee criterion specified in section 36(2)(a) of the Migration Act 1958 (“the Act”).

The application to the Court

The RRT published its decision on 19 September 2012. The applicant commenced proceedings, in this court, seeking a judicial review of the decision on 27 February 2014, which is approximately seventeen months later. As a consequence of this delay, the applicant also seeks an extension of time, in which to commence these proceedings, pursuant to section 477 of the Act.

Counsel for the applicant, Mr Charman concedes that findings regarding the applicant’s credibility were matters which fell within the exclusive domain of the RRT, as the finder of fact in the case. As a consequence of this concession, Mr Charman indicated that he was abandoning all but one of the grounds for review specified by the applicant.
The applicant seeks an order, in the nature of certiorari to quash the decision of the RRT and thereafter an order, in the nature of mandamus, requiring it to review the decision according to principles of law.
The sole ground, on which the applicant relies in this regard, is that the RRT failed to observe the requirements of natural justice and/or committed jurisdictional error and denied the applicant procedural fairness, in the hearing before it, on the following basis:
“The second respondent failed to exercise its jurisdiction in that it failed to consider an integer of the applicant’s claim, namely whether membership of MASSOB of itself would be the basis of a real chance of him being persecuted.
Particulars
1. The second respondent appeared to accept that the Country Information indicated that less prominent figures involved in MASSOB might be at risk of ill treatment.
2. The second respondent rejected the applicant’s claims about his level of involvement with MASSOB because of concerns about his credibility concerning a newspaper article, payments made by him to MASSOB and his general lack of credibility. This was open to the second respondent but does not address the claim that he would be persecuted because of his membership of MASSOB per Stephanie given 1.1 and 1.2 above.”

The applicable legal framework

The decision not to grant the applicant the visa is a privative clause decision as defined by section 474 of the Act. This stipulates that any administrative decision, relating to the granting or otherwise of a visa, pursuant to section 65 of the Act is a final and conclusive one. As such, it is not to be called into challenge or reviewed in any court.
However, the High Court of Australia in Plaintiff 157/2002 v Commonwealth of Australia[10] has held that the provisions of section 474 do not prevent judicial review of decisions of the MRT, which are affected by jurisdictional error or have been made in bad faith.
[10] See Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24
Accordingly, in refugee and migration cases, where it is established that an error of jurisdiction has occurred, pursuant to section 476 of the Act, this court has the same jurisdiction as the High Court under paragraph 75 (v) of the Constitution and may issue a prerogative writ quashing a decision, if an error of jurisdiction is demonstrated.
In this case, the applicant contends that the RRT has committed a jurisdictional error in the conduct of the hearing before it. Essentially it is submitted, on his behalf, that the Tribunal failed to exercise its jurisdiction because it did not consider a central aspect of his claim for asylum in Australia, namely his membership of MASSOB, which rendered him liable to a real risk of suffering significant harm, if returned to Nigeria.
As a consequence of this failure to exercise jurisdiction, on the part of the RRT, the applicant seeks that certiorari and mandamus should attach to its decision, which should be quashed and returned to the Tribunal to be reconsidered.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a conclusion, in a way, that affects the exercise or purported exercise of the power conferred upon it.[11]
[11] See Craig v South Australia [1995] 184 CLR 163
It is also clear that a failure to afford natural justice may also amount to a jurisdiction error under the Act. The requirements of natural justice, pertaining to the case in question, are to be determined within the relevant statutory context, which in this case is section 425(1), which requires the RTT to invite applicants, in proceedings before it, to give evidence and present arguments, relating to the issues arising in the relevant decision.[12]
[12] See Kioa v West (1985) 159 CLR 550
An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[13]
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[13] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Pursuant to section 477(1) of the Act, any application to this court, in relation to a decision, made pursuant to the provisions of the Migration Act 1958, must be made within 35 days of the date of that decision. In the case of the current matter, the application was filed considerably out of time.
Pursuant to section 477(2)(b) of the Act, the court has a discretion to extend the applicable time frame, if it considers that it is necessary to do so “in the interests of the administration of justice”.
In order for an applicant to avail himself of such an extension, it is necessary for a written request to be made as to why it is in the interests of the administration of justice to make an order extending time. In the current case, the applicant provided the following explanation, on the face of his application:
·He did not have the benefit of legal advice until very recently;
·As such, he was unaware of his rights to seek judicial review of the decision in question, in this court;
·Neither the Minister nor the RRT will suffer prejudice, if the extension of time is granted.
More recently, he has filed an affidavit setting out more particular of these matters.[14] He deposes that throughout the process of his application to the Department and thereafter in the proceedings before the RRT, he was represented by a pro bono migration agent, Sister Patricia Sealey.
[14] See affidavit of the applicant filed on 27 February 2014
The applicant asserts that Sister Sealey advised him that she had requested that the Minister intervene on his behalf and grant the visa sought, following the RRT proceedings. He further deposes that Sister Sealey had advised him that the prospects of this occurring successfully, from his point of view, were good. However, this had not proven to be the case, which further explained the delay.
In addition, the applicant has provided two further letters, purporting to be from the Nigerian Police and to relate to his association with MASSOB, which it is said support his claim for asylum. It is not my function to make any comment on the probity or otherwise of these documents. Neither counsel for the applicant, nor counsel for the Minister referred to these documents.
In Fisher v Minister for Immigration & Citizenship and Another, [15] Stone J suggested that the concept “…in the interests of the administration of justice” in section 477(2)(b) “…would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”
[15] Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299
In SZNZI v Minister for Immigration & Anor[16] Smith FM identified two critical considerations relevant to the discretion to extend time pursuant to section 477(2)(b) firstly an explanation, reasonable to the circumstances for the party’s default and secondly that “the party in default had a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.”
[16] SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]
The Minister opposes the making of any order under section 477(2). In this regard it relies on what was said by McHugh J in Re Commonwealth & Anor; ex parte Marks[17] as follows:
“The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgement ample time in which to commence proceedings in this court. In all but the very exceptional cases, they should be rigidly applied, when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.”
[17] Re Commonwealth & Anor; ex parte Marks (2000) 177 ALR 491 at 495
It is the Minister’s contention that, in the current matter, the period of time between the decision in question and the application to the court must be regarded as one of significant length. It is further submitted that there is nothing exceptional about the circumstances of the case and therefore the application for an extension of time should be refused.
Notwithstanding this position, Mr d’Assumpcao, counsel for the Minister, conceded that it was logistically pragmatic for the court to proceed with the substantive hearing of the judicial review application, as the overall prospects of the applicant’s success in the application was a consideration germane to the granting or otherwise of the extension. From this position, it can be inferred, I believe, that the Minister accepts that the applicant has at least an arguable case in respect of the ground of review on which he currently relies.

The applicant’s submissions

The starting point for the applicant’s submission is the evidence, available to the RRT, that the MASSOB membership card, provided to it by the applicant, is “common and appears genuine”.[18] In this context, the applicant submits that it was an integral part of his initial submission for protection that he had been an ordinary member of MASSOB, since 2004, and members similar to him had been arrested and detained by the Nigerian Government.[19]
[18] See casebook at page 112
[19] See statutory declaration of the applicant dated 16 September 2011 casebook at page 49
In this context the applicant points to the fact that the Tribunal had available to it, country information germane to Nigeria, which indicated that MASSOB members simpliciter had been subject to harassment, arrest and extra-judicial killings, by the Nigerian Government.[20] This country information did not differentiate between rank and file or ordinary members of MASSOB and members of the group’s executive.
[20] Casebook at 120
Accordingly, the applicant contends that the evidence available to the RRT indicated that ordinary members of MASSOB, such as himself, were liable to suffering a real chance of being persecuted, within Nigeria and suffering serious harm as a result.
It is the applicant’s submission that the Tribunal did not deal with this claim but rather dealt with him on the assumption that he was a more significant member and financial supporter of MASSOB, which contention it rejected on credibility grounds.
The authorities are clear that a failure to consider a claim, raised expressly or implicitly, on the material before a Tribunal, such as the RRT, is a clear jurisdictional error. In this regard, the applicant relies on Dranichnikov v Minister for Immigration & Multicultural Affairs[21] where the High Court (Gummow, Callinan JJ) said as follows:
“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”
[21] See Dranichnikov v Minister for Immigration & Multicultural Affairs (supra)
The applicant contends that he definitively established before the RRT that he was an ordinary member of MASSOB and further that MASSOB members were subject to persecution, in Nigeria, for a convention related reason. He further asserts that his argument, in this regard, was not adequately considered by the Tribunal and thus its jurisdiction has failed.
In this context, reference is also made to the statements of Allsop J (as he then was) in Htun v Minister for Immigration & Multicultural Affairs[22] where His Honour described the nature of the review function as follows:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the jurisdiction embarked upon. The claims or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
[22] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
It is Mr Charman’s submission that his client did not necessarily have to expressly articulate his claim for asylum on the basis of being an ordinary member of MASSOB if such a ground was objectively implicit in the material put forward on his behalf. In this regard, the comments of the Full Court of the Federal Court in Dranichnikov appear apposite.
“The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.”
In this context, it is Mr Charman’s submission that his client did not have to specify whether his claim for asylum was on the basis that he was a senior member of MASSOB and a financial contributor to its cause, as opposed to a relatively minor member. Essentially, it was not up to the applicant to tick a box in this regard, once he had clearly expressed a fear of returning to Nigeria because of his overall association with MASSOB.
In this regard, Mr Charman submits that the RRT, in the portion of its decision headed MASSOB[24] is entirely inadequate with the aspect of the applicant’s claim for asylum advanced on the basis that he was a member of MASSOB simpliciter. On this basis, it is submitted that the decision should be quashed and remitted back to the Tribunal for re-hearing.
[24] Casebook at 205 – paragraph 320-323 quoted in paragraph 4** hereof

The respondent’s submissions

As previously indicated that Minister opposes the grant of any extension of time to the applicant, pointing to the fact that the period which has elapsed since the decision of the RRT was made is an extensive one.
It is further the respondent’s submission that the RRT discharged its jurisdictional obligations arising under the Act, particularly in respect of the evidence it elicited from the applicant, in respect of his association with MASSOB, pursuant to the invitation issued to him under section 425 of the Migration Act 1958.
In this regard, Mr d’Assumpcao asserts that a fair reading of the decision of the RRT indicates that it did not overlook any aspect of the applicant’s claims for protection based on his membership of MASSOB.
Rather the Tribunal heard extensive evidence regarding all aspects of the applicant’s claims in respect of his association with MASSOB and has made a wholesale rejection of his case, as it was entitled to do on its assessment of his credibility.
In this context, Mr d’Assumpcao relies on the well-known statement from the High Court in in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[25] namely:
“… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the decisions-maker, upon proper principles into a reconsideration of the merits of the decision.”
[25] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
It is Mr d’Assumpcao’s submission that Mr Charman’s analysis of the reasons of the RRT does amount to an over-zealous dissection, which is unsustainable, given that the applicant’s own case was constituted by an intermingling of various roles, within MASSOB, all of which were comprehensively rejected.
In particular, Mr d’Assumpcao points to the manner in which the Tribunal has recorded the answers provided to it, by the applicant, in the section 425 invitation process. The applicant indicated to the Tribunal the classic and main reason why he did not wish to return to Nigeria was his issue with MASSOB and because he was a member of it.[26]
[26] Case Book at 175 paragraphs 108 and 110
In these statements to the Tribunal, it is asserted that the applicant did not differentiate, between degrees or graduations in his level membership of MASSOB, in expressing a fear of returning to Nigeria. Rather, it was his relationship with MASSOB, which allegedly precipitated his fear of returning.
In addition, it is asserted that the Tribunal elicited from the applicant a comprehensive account of his involvement with MASSOB from 2004 onwards, including asking him questions about the membership card. This evidence indicated that the applicant asserted that he had various roles in MASSOB, from time to time, starting from when it a boy scout thing up until he made donations to it.
In this context, Mr d’Assumpcao submits that it is apparent from the following passage from the decision that the RRT, which appears under the heading Finding and Reason, that the Tribunal was aware that the applicant’s claim for protection within Australia was based on his association with MASSOB, which had taken different forms in the past:
“First the applicant claims that he may be harmed by the Nigerian authorities because he has been a member of the political group MASSOB since 2004 and attended MASSOB meetings during 2004, and because he donated money to MASSOB on two occasions in 2009 whilst he was living in Malaysia and the Nigerian police are looking for him.”[27]
[27] Ibid at 201 paragraph 289
As a consequence, it is asserted by the Minister that the RRT dealt with the applicant’s claims for protection in a comprehensive manner and found them to be lacking. In this context, Mr d’Assumpcao submits that the Tribunal found the applicant not to be a credible witness as it found there were inconsistencies in his accounts provided over his three statutory declarations and also that he had provided bogus documents to it.
As a consequence of this, it is the Minister’s contention that the decision of the Tribunal, when read as a whole, demonstrates that it has comprehensively repudiated each and every aspect of the applicant’s claim, as it had earlier summarised it.
Pursuant to section 430(1) of the Act, the RRT, in discharging its statutory obligations, is required to set out its reasons for decision in the form of a written statement which includes its findings on material questions of fact by reference to relevant evidence.
In this particular case, the decision record comprises fifty eight pages. In my assessment, it is a comprehensive document. In any event, the applicant does not criticise it on the basis that it does not contain matters which he did not put to the Tribunal.
In this context, Mr d’Assumpcao relies on the comments of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[28] as follows:
“Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.”
[28]Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423

In support of this statement, McHugh J pointed out that, pursuant to section420 of the Act, the Tribunal is required to conduct its processes fairly, justly, economically, informally and quickly. In addition, in reviewing a decision, the Tribunal is required to act according to the substantial justice and merits of the case before it.
It is Mr D’Assumpcao’s submission that, given its findings about the applicant’s credibility, the Tribunal was entitled to regard his evidence overall as being effectively “poisoned beyond redemption”. This it did in the reasons under the heading MASSOB where it found:
“…the applicant does not have a well-founded fear that if he returns to Nigeria he would be seriously harmed because of his membership of MASSOB and because he made financial contributions to MASSOB in 2009 whilst he was living in Malaysia.”[29]
[29] Case Book at 205 paragraph 323
In this statement, it is asserted that the Tribunal has effectively summarised all the aspects of the applicant’s claims regarding his relationship with MASSOB and comprehensively rejected them. Mr d’Assumpcao categories this as a clear finding.
In these circumstances, it is said, on behalf of the Minister, that it cannot be established that the Tribunal has, in any way, over-looked the applicant’s membership of MASSOB, in the assessment of his claim for protection in Australia, particularly given that the reasons in respect of the applicant’s involvement with the organisation are clear and comprehensive.
In any event, it is Mr d’Assumpcao’s submission that it is a significant matter for a court engaged in judicial review of a decision of a tribunal, such as the RRT, to infer that such a tribunal has failed to consider a particular matter, where the reasons are thorough overall and the issue in question has at least been advert to.
In this context, Mr d’Assumpcao relies on Applicant WAEE v Minister for Immigration & Indigenous Affairs[30] where the Full Court of the Federal Court said as follows:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.”
[30] Applicant WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALD630 at 641

Conclusions

In my view, the comments from WAEE (supra) are apposite to the current case. In my view, the reasons of the RRT, in this matter, relating to the applicant’s association with MASSOB from 2004 onwards are to be regarded as being comprehensive.
In the reasons, the Tribunal alluded to the fact that the applicant regarded himself as being a rank and file member of the organisation, when he joined it in 2004. It described his involvement with MASSOB in this period, prior to him leaving Nigeria, for Malaysia, to further his studies. It noted that the applicant’s concern about returning to Nigeria related to his previous involvement with MASSOB.
Thereafter, the Tribunal recounted his evidence, regarding his donations to the organisation from Malaysia, which he alleged had come to the notice of the authorities, leading him liable to be targeted, on his return to Nigeria. The Tribunal disbelieved these claims.
In my view, it is clear from a reading of the exhaustive reasons for judgement that not only did the Tribunal identify the issue of the applicant’s historical membership of MASSOB, established by his possession of the membership card and his attendance at meetings prior to his departure for Malaysia, it also dealt specifically with the issue in paragraph 323 of the decision record. It rejected his interlocking claims in respect of his involvement with MASSOB, at various stages of his life, from 2004 onwards.
The Tribunal said unequivocally that it did not accept that the applicant would suffer harm because of his membership of MASSOB. True, this could have been more elegantly expressed and the Tribunal could have placed the finding in the context of the applicant’s activities before and after he left Nigeria.
But even so, the Tribunal, in the same paragraph, explicitly rejected the claim that the applicant was liable to be targeted because of his donations to MASSOB. In any event, I regard the issue, as characterised by Mr Charman to have been identified in the decision record overall, which I regard as being comprehensive in nature. In my view, to view the reasons otherwise would be tantamount to scrutiny by an overzealous eye too “keenly attuned to the perception of error”. Essentially it would amount to an unfair reading of the lengthy and comprehensive decision record.
In my view, what the Tribunal did in its reasons was to make a finding at a higher level of generality regarding the applicant’s level of involvement with MASSOB since 2004 – his membership did not render him liable to persecution – which encompassed the more specific issue – that he was a rank and file member of MASSOB.
Essentially the more general finding subsumed any need to refer to the more specific issue.[31] In this sense, I do not think it can be said that the Tribunal has disregarded a specific integer of the applicant’s claim for protection and so fallen into jurisdictional error.
[31] See Minister for Immigration & Multicultural Affairs v Yusuf (supra) at 353
I have found that the applicant does not have a material argument, which would lead to it being apparent that the relevant decision of the RRT is vitiated by jurisdictional error. In addition, in my view, his explanation for the delay in instituting these proceedings cannot be regarded as justifying given that his application is seventeen months out of time.
As a consequence of these matters, I decline to grant the extension of time sought. It must follow therefore that the application should be dismissed and the applicant should pay the first respondent’s costs fixed in the sum of $6,646.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 25 September 2014

[23] See Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49]