BWI17 v Minister for Immigration

[2019] FCCA 969

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWI17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 969

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – application for protection visa – has AAT failed to exercise jurisdiction conferred upon it – is decision irrational, illogical or unreasonable – has AAT failed to consider central aspect of claim for protection – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.2A, 5H, 36(2), 65, 474

Cases cited:
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611
ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593

Applicant: BWI17

First Respondent: Minister for Immigration & Border Protection

Second Respondent: Administrative Appeals Tribunal

File Number: ADG 157 of 2017

Judgment of: Judge Brown

Hearing date: 26 October 2018

Date of Last Submission: 26 October 2018

Delivered at: Adelaide

Delivered on: 12 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Markwell

Solicitors for the Applicant: W J Markwell & Associates

Counsel for the Respondents: Ms Stokes

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for review filed on 1 May 2017 as amended on 12 October 2018 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of seven thousand three hundred and twenty-eight dollars ($7,328.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Adelaide

ADG 157 of 2017

BWI17

Applicant

And

Minister for Immigration & Border Protection

First Respondent

Administrative Appeals Tribunal

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal[1] made on 4 April 2017.  In the decision, the AAT affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[2] not to grant the applicant a protection visa pursuant to the provisions of the Migration Act 1958.[3]  This decision is subject to the current application for judicial review.

   [1]  Hereinafter referred to as the “AAT”

   [2]  As the Minister for Home Affairs was previously known.  I will refer to the Department of Home Affairs and its administrative predecessors as “the Department”.

   [3]  Hereinafter referred to as “the Act”

Background

1. The applicant is a citizen of Nigeria, who was born in Awka, Anambra State, in the south east of Nigeria on 21 September 1971.   By way of ethnicity, he is Igbo.  He is a practicing Christian of the Catholic faith.

2. He came to Australia in June of 2010, pursuant to a provisional partner visa.  However, the sponsor concerned withdrew sponsorship in July 2010 and he and the sponsor subsequently divorced. 

3. Thereafter, the applicant applied for a permanent partner visa, on the basis that he had been the victim of family violence.  However, this claim was not accepted by the Department and the Migration Review Tribunal affirmed the relevant decision in April of 2014.

4. On 30 April 2014, the applicant applied for a protection visa pursuant to the provisions of section 36 of the Act.  In his application, he indicated as follows:

   ·He left Nigeria because of his marriage;

   ·However, after his departure and prior to his application for protection Boko Haram[4] killed his uncle;

   [4] Boko Haram is a radical Islamic movement which seeks to impose a strict form of Sharia.  Boko Haram means Western Education is Sinful in the Hausa language which is spoken in the Northern states of Nigeria.

   ·In particular the applicant asserted as follows:

   oHis uncle had been burnt alive in an automobile after having been identified;

   oHis uncle was a leader of the Christian community in Awka;

   oThis incident occurred in late 2013;[5]

   ·He is a Christian by religion and Igbo by ethnicity;

   ·He himself is a leader of the Awka and Christian communities;

   ·Between 2005 and 2009, he was a leader of the Catholic Youth Organisation in Awka, which is the capital of Anambra State.  As such, he had a high profile, attending mass daily;

   ·If returned to Nigeria, he will come to the notice of Boko Haram as he is a Christian and Igbo person;

   ·Boko Haram target individuals such as him, as is evident by the murder of his uncle and other members of his parish;

   ·Igbo Christians are at risk from Boko Haram;

   ·He is not able to relocate to another area or state of Nigeria because Boko Haram operate throughout Nigeria and he will be located by its network;

   ·The police and other authorities in Nigeria, including the Army, are not able to offer him adequate protection, as they lack resources and motivation to be able to do so.

   [5] See Case Book at 48

5. In support of his claim for protection, the applicant supplied to the Department a copy of a newspaper article headed Boko Haram members kill nine in highway attack dated 12 December 2013.  This was said to be the incident in which the applicant’s uncle was murdered, which in turn was central to his application for protection.[6]

   [6] Ibid at 95

6. The ministerial delegate did not accept that the applicant was in need of Australia’s protection with the relevant decision being made on 23 February 2016.  The delegate accepted that there had been an incident on 12 December 2013 but doubted that it had involved the applicant’s uncle.  The delegate was also concerned at the delay in the applicant applying for the protection visa.

7. In addition, after considering country information pertaining to Nigeria, the delegate concluded that Boko Haram’s activities were predominantly confined to the northern states of Nigeria, not to southern states such as Anambra, which had a large Christian and Igbo population, who did not suffer any level of systemic discrimination.

8. As a consequence of this decision, the applicant applied for review in the AAT on 1 March 2016.  The applicant was invited to appear before the Tribunal on 23 March 2017 to provide any evidence and make submissions in support of his application for a protection visa.

9. In this context, the applicant’s representative indicated that her client wished to call Esekwesili Nwogbo to give evidence concerning how his uncle was killed by Boko Haram on account of his Christianity and because he (the uncle) was assisting the applicant to become a priest.

10. In addition, the representative provided further country information regarding instability in Nigeria involving attacks by Fulani herdsman on Christians, in August 2016 and January 2017, in Enugu (which adjoins Anambra) and Delta state.  She also provided a further statutory declaration, deposed by the applicant on 16 March 2017, in support of his claim for protection.[7]

    [7] Ibid at 244 - 249

11. The statutory declaration provided further evidence regarding the relationship between the applicant and his deceased uncle, Mr Nwarinze Nwogbo, who had been killed on 12 December 2013.  The applicant deposed that his uncle had supported him, when he (the applicant) had run away from home, as a teenager, in 1988, in his desire to undertake seminarian studies and become a priest, against the wishes of his father. 

12. However, on the untimely death of his father, in 1991, he had decided to follow his father’s wishes and had therefore dropped out of the seminary in order to undertake training in a variety of trades, which he had pursued, between 1993 and 2010, when he had come to Australia.

13. He had learnt of the death of his uncle, form another uncle (Ezekwesili Nwogbo) whilst in Australia, during the spousal visa review process and so prior to his application for a protection visa application.  Mr Nwogbo had provided him with the following information regarding his uncle’s murder:

    “At the time my uncle Nwarinze was in a bus with a group of people travelling from Awka to Enugu.  The bus was stopped by Boko Haram group at Ugwuoba.  The leader of the group, I was told, he entered the bus and asked people who are Christian to stand on one side and who are Muslims on the other side.  The leader of the group recognised my uncle because he was a very active Christian individual that preached for Christianity.  He asked with him another 8 people to step aside.  The leader then shot the 9 people and lit the bus on fire.

    The Boko Haram had an interest in my uncle because he was a well-known Christian and because he was known as someone who sponsored someone who almost became a priest.  My uncle was very well-known within the Christian community as a Christian preacher.”[8]

    [8]  Ibid at 245 [25] – [26]

14. In support of his application, the applicant provided an extract from a Nigeria Police Crime Diary, which indicated that on 13 December 2013, a report was made of an incident occurring the previous day, near Ugwuoba in which Nwarinze Nwogbo had been killed by “hoodlums suspected to be Boko Haram terrorists” after having been picked out as a Christian.[9]  This evidence had not been available to the ministerial delegate as it had been obtained later by the applicant’s uncle and emailed to the applicant.

    [9]  Ibid at 250

15. In his statutory declaration, the applicant also expanded upon his claims for asylum.  He indicated that he was at risk of suffering harm in Nigeria because Boko Haram were killing Christians there and he personally was well known, within his community, as both a preacher of Christianity and an opponent of Boko Haram’s ideology.

16. He further detailed his involvement with Christian groups in Nigeria as follows:

    ·He was the president of the Catholic Youth Organisation of Nigeria between 2004 – 2009, which involved overseeing the youth wing of the church and attending seminars, conferences and preaching Christianity on behalf of the organisation;

    ·He was elected President of Catholic Youth of Nigeria;

    ·He had been an office holder of the Parish burial committee, Parish Laity Council and Parish Pastoral Council; which led to him having a high profile within the Church.

17. In all these circumstances, it is the applicant’s evidence that, if he returns to Nigeria, Boko Haram will have a particular interest in him because he is a Christian preacher and, as such, a person who speaks out against its aspirations to establish Nigeria as an Islamic State. 

18. In this context, he refutes the suggestion that Boko Haram’s activities are confined to the northern areas of Nigeria.  It is his evidence that they are active throughout the country, including in his home town of Awka.

19. The applicant further contends that his profile as an active Christian will be heightened if he is returned from a Western country.  His evidence is that he will not be able to hide himself from Boko Haram, if returned to Nigeria, and as a consequence, he is liable to the same level of harm as befell his late uncle.

The applicable legal framework under the Act

1. Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.

2. In respect of a protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.

3. Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia.  The expression refugee is defined in section 5H and provides a person is a refugee if that person:

   “in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”

4. The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:

   ·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   ·being subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and

   ·the persecution in question would involve the applicant suffering serious harm.

5. Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. 

6. This is known as the complementary protection criterion.  It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.

7. Subsection (2A) defines significant harm.  It includes the relevant applicant for protection suffering all or any of the following circumstances:

   ·being arbitrarily deprived of his or her life;

   ·being subject to the death penalty;

   ·being subject to torture;

   ·being subjected to cruel or inhumane treatment or punishment; or

   ·being subject to degrading treatment or punishment.

8. Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision.  As such, it cannot be challenged in any court.  The current decision, arising in this case, is a privative clause decision.

9. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[10]

   [10]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

10. In general terms, an administrative decision maker exceeds its powers and thus falls into 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 mistaken 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

11. In order to be successful in his application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT.  This court is not able to substitute its own discretion for that of the Tribunal.

The AAT decision

1. The AAT summarised the applicant’s claim for protection, on the basis he would be targeted by Boko Haram, if returned to Nigeria, for the following reasons:

   ·He is a well-known Christian;

   ·He is of Igbo ethnicity;

   ·He is an ex-seminarian;

   ·He is the nephew of a person targeted and killed by Boko Haram;

   ·His political opinions are at odds with Boko Haram;

   ·He will have been returned from the West. [12]

   [12] Ibid at 294 [14]

2. In its decision, the AAT made reference to country information, applicable to Nigeria, originating with the Australian Department of Foreign Affairs and Trade and the United Kingdom Home Office, as well as some non-government sources, to make a finding that Boko Haram was primarily active in the north east of Nigeria and as such it was highly unlikely individuals outside these areas would be targeted.[13]

   [13] Ibid at 299 [36]

3. The AAT found it to be farfetched that the applicant would come to the notice of Boko Haram because he would be considered to be a well-known Christian.  It reached this conclusion on the basis of the applicant’s evidence the he had attended a seminary high school 25 years ago and had held a number of leadership positions in his local parish between 2004 and 2009.  It did not think it probable that such a history would create a profile in a country of 173 million, 40% of whom are Christian.[14]

   [14] Ibid at 299 [38]

4. Further, although the AAT found it to be plausible that the applicant had preached against Boko Haram, to members of his church in Awka, it doubted that any affiliates of Boko Haram would be aware of this and as such it was unlikely that the applicant would be personally known to Boko Haram and so subject to being targeted by them. 

5. More specifically, the AAT found that the applicant had exaggerated his level of activity, as a preacher, in his local parish, particularly given the content of country information indicative of Boko Haram not targeting Christians outside its area of control.

6. One of the grounds of appeal, advanced by the applicant, turns on the manner in which the AAT approached the evidence provided by him in respect in the circumstances surrounding the murder of his late uncle and its findings in respect of the uncle’s profile with Boko Haram and its implications for the applicant himself vis-à-vis his potential profile with Boko Haram.  The relevant section of the decision is as follows:

   “The applicant claims his Uncle was targeted because he was a leader in the Christian community and well known as someone who once sponsored someone who nearly became a priest. The Tribunal finds the applicant did not nearly become a priest, but merely went to a seminary high school; a school which he left 25 years ago. The Tribunal finds it highly unlikely Boko Haram would be aware of where the applicant went to high school or who sponsored him to go there. Further, the police report the applicant provided does not support a claim that his Uncle was personally targeted either because he was well known as a Christian or because of any connection to the applicant. The report states the Uncle was amongst a group of people killed on 12 December 2013. It states a commercial bus was stopped by 'hoodlums suspected to be Boko Haram terrorists' and that all the Christians on the bus, including the informant's brother Nwarinze Nwagbo, were picked out and killed. The Tribunal accepts that tragically for the applicant's Uncle, he happened to be on a bus that was pulled over by persons looking to harm Christians. He was murdered along with the other Christians, in an opportunistic attack on Christians. The Tribunal does not accept the Uncle was individually targeted for being an Christian leader or for being well known as someone who more than 25 years ago sponsored a nephew to go to a seminary high school. No relatives have since been targeted and harmed, and the Tribunal finds the claim that the applicant will be targeted because he was once supported at school by this Uncle to be farfetched. The Tribunal does not accept the applicant has a well-founded fear of harm for reason of being a member of his Uncle's family.”[15]

   [15] Ibid at 300 [41]

7. The AAT did not accept that the applicant would be target by Boko Haram because he was an Igbo man given country information indicated Igbo constituted 18% of Nigeria’s population, who were mainly located in the south east of Nigeria, which included the applicant’s home state of Anambra, some distance away from the north east areas of the country subject to infiltration by Boko Haram.

8. The AAT considered the claim that the applicant would be subject to attack by Fulani herdsman to be speculative given the attacks reported in the press had occurred in Enugu state.  It did not consider the fact that there was a cattle market in Ambra which raised the degree of risk of the applicant being exposed to such herdsman. 

1. Finally, the AAT found, largely on the basis of country information that the applicant was not at greater risk of suffering persecution, at the instigation of Boko Haram, in Anambra state, if he was returned there from Australia, given the number of Nigerian who entered and left the country daily, including failed asylum seekers.  It further found that Australia did not owe the applicant any complementary protection obligations.

The grounds of appeal

1. In his amended application, filed on 16 October 2018, the applicant relies on two grounds of appeal, which can be summarised as follows:

   ·The AAT took into account an irrelevant consideration and/or has made a decision characterised by illogicality and irrationality by finding that the death of the applicant’s uncle, at the hands of Boko Haram terrorists was opportunistic;

   ·The AAT failed to take into account a number of relevant considerations and aspects of the evidence in reaching its decision, which establish his contention that he does have a well-founded fear of persecution, if returned to Nigeria.  This submission turns on oral evidence provided by both the applicant himself and Mr Ezekwesili Nwogbu at hearing.

Ground One 

1. Counsel for the applicant, Mr Markham, places particular emphasis on the use of the word opportunistic in respect of the manner in which the AAT made its findings regarding the murder of the applicant’s uncle in December 2013 in the Awka area of Anambra state, when considered particularly in the light of the Nigeria Police diary extract and the newspaper coverage.

2. In summary, it is Mr Markham’s submission that it is unreasonable, illogical and irrational to characterise the death of Mr Nwagbo as opportunistic when the Police record indicates that his assassins were Boko Haram terrorists and he was picked out by them because he was a Christian and then killed.

3. Accordingly, it is Mr Markham’s submission that the incident involving the late Mr Nwagbo was a concerted act of persecution directed against a person because of his religious beliefs and, as such, it is fallacious to categorise it as opportunistic.  Rather, both the Nigeria Police Record and the press report indicate the attack was planned and Christians specifically targeted. 

4. In this context, it is submitted, by necessary implication that the AAT has failed to consider adequately a central aspect of the applicant’s claim for protection, namely his association with a person who has been the subject of persecution by Boko Haram.  In addition, this evidence undermines the AAT finding that the activities of Boko Haram are largely confined to the north eastern states of Nigeria as it indicates the organisation is capable of targeting Christians in south eastern areas of the country.

5. The applicant also contends that the finding regarding the risk to the applicant, posed by Fulani herdsman, who are both Muslim and associated with Boko Haram, as being speculative, is also unreasonable, in the light of evidence available to the AAT.

6. Underpinning these submissions, as I understand Mr Markham’s submissions is his contention that the AAT has failed to apply the real chance test in respect of whether the applicant’s claim that he is at risk of persecution is well-founded, in the sense that the persecution in question has a distinct possibility of occurring.

7. The expression real chance derives from Chan v Minister for Immigration & Ethnic Affairs.[16]  In the case, Mason CJ said as follows:

   “… I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring …”

   [16] Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389

8. In both Chan and another case Minister for Immigration v Guo,[17] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur.  However far-fetched possibilities of persecution must be excluded.

   [17]  Minister for Immigration v Guo (1997) 191 CLR 559

9. Given the evidence regarding the late Mr Nwagbo and the involvement of Fulani herdsman, in his written submissions, questions whether the evidence available to the AAT does indicate that it would be a “far-fetched possibility that the Applicant would face significant harm should he return to Awka in Nigeria.  This submissions is based on his contention that any proper consideration of the evidence would not lead a reasonable decision-maker to the conclusion that Mr Nwagbo came to his death opportunistically.

10. In summary, in his written submissions, Mr Markham submits as follows:

    “…there is an element of irrationality and illogicality about the decision in that on its face if the Applicant’s uncle was killed in broad daylight because of his Christian profile and the Applicant has a close association with his uncle then it is logical and rational that there would be a real chance that the Applicant may be killed if he was to return to Nigeria.”[18]

    [18] See Applicant’s written submissions at [53]

11. Further, Mr Markham submits the characterisation, by the AAT, of this murder, as being opportunistic has tainted the entire decision making process with caprice, arbitrariness and irrationality to such a degree that the decision in question cannot stand.

12. On the other hand, Ms Stokes, counsel for the Minister, submits that given the basis on which the applicant had founded his claim for protection the AAT was required to consider the circumstances surrounding the murder of the late Mr Nwagbo and make findings in respect of it, particularly in terms of any potential connection it had to possible level of risk associated with the applicant’s possible return to Anambra state.

13. In his statutory declaration, the applicant’s claim for protection, in respect of this discrete aspect is as follows:

    ·His uncle was travelling by bus from Awka to Enugu with others;

    ·The bus was stopped by Boko Haram at Ugwuoba;

    ·The leader of the Boko Haram group entered the bus and directed those who were Christian to stand on one side and those who were Muslim to stand on the other;

    ·The leader of the group recognised his uncle as a very active Christian and preacher;

    ·The uncle and eight others were then directed to step aside and then shot dead;

    ·The applicant received this account from his other uncle, Ezekwesili.

14. Given that the applicant had posited his case on the basis that his association with the late Mr Nwagbo would lead him, in turn, to be targeted by Boko Harum, the Tribunal had to consider whether the evidence supported a conclusion that this was what had in fact occurred to Mr Nwagbo – he had targeted by Boko Haram.  In this context, there were three sources of evidence: the Nigeria Police Diary extract; the press report; and the oral evidence of Mr Ezekwesili Nwogbu to the Tribunal.

15. It is Ms Stokes’ contention that when this evidence is considered it was open to the Tribunal to conclude that the late Mr Nwagbo’s death did not occur as a result of him being actively sought out or personally targeted by Boko Haram.  In this context, although the use of the word opportunistically may be infelicitous, it is not illogical or irrational in its legal application.

16. I agree with this submission for the following reasons.  Firstly, the press report describes a bus being attacked on a highway and nine commuters being killed.  The assailants are described as “suspected members of the violent Islamic sect, Boko Haram.”  The report goes on to describe the highway in question being the site of other similar attacks by “the insurgents”.  The report does not link the attack or its motivation to either Mr Nwagbo personally or to his faith or that of any other passenger.

17. Secondly, the Nigeria Police Diary indicates that “hoodlums … suspected to be Boko Haram terrorists” had attacked a commercial bus at Ugwuobe and “picked out the Christians among [the passengers] including the said Nwarinze Nwagbo”.  Again, although Mr Nwagbo is a victim of the attack, the report does not indicate his presence (or suspected presence) on the bus is the catalyst for the attack.

18. Thirdly, there is Mr Now gbo’s evidence.[19]  He gave evidence, via the telephone from Nigeria.  He was question by the tribunal member, Ms Wilson.  The Tribunal summarised his evidence in the following terms:

    “[Mr Nwogbu] said he lives near Awka and is in contact with the applicant’s mother.  He confirmed his brother Nwaile was killed by people they believe were associated with Boko Haram.  He did not witness the event, but was told by eye witnesses that Christians on the bus were killed.  He confirmed no other family members have since been harmed in Nigeria.  He said all Christians were targets of the Boko Haram, so the applicant should stay in Australia where he is safe.”[20]

    [19] See affidavit of the applicant filed 12 October 2018

    [20] See Case Book at 294 [15]

19. It is the applicant’s submission that this summary represents an inaccurate summary of Mr Nwogbo’s evidence, which if it is analysed reveals that conclusions reached by the Tribunal regarding the circumstances surrounding the murder of the applicant’s uncle is illogical and unreasonable.  The relevant passage of evidence reads as follows:

    “MEMBER WILSON: Yes. Can you tell me about how he died and when he died.

    WITNESS- EZEKWESILI NWOGBO: Ok he died at Ugwuoba on his way to Enugu you know some of this I don't know but they say it was maybe Fullani Herdsmen and all these Housa people. They came stopped their vehicle and identified him and some other people and err I think they say they killed him and set the place ablaze

    MEMBER WILSON: How do you know this? Were you there when it happened?

    WITNESS- EZEKWESILI NWOGBO: No I wasn't there, I wasn't there. But when we were told and we because it happened to be around Awka I have to go there. We only identified him though the body was mutilated.

    MEMBER WILSON: But who told you what happened?

    WITNESS- EZEKWESILI NWOGBO: Yes some people, some I eye witness say so that the vehicle was stopped by those Housa people they asked for those who are Christians among them. That's why we knew it must be Housa people who are Christians they personally identified him then took him outside with some others killed them and then set them ablaze, went into the bush.

    MEMBER WILSON: So as far as you know they were looking for anyone who was Christian and they killed all the Christians on that bus.

    WITNESS- EZEKWESILI NWOGBO: My sister even today a lot of things happen that if you are here you have to only be going to go. Sometimes you are on your farm and these people comes to your farm and their cattle want to graze and you say why that this what you are struggling for. They will kill you and they do a lot of things and the government is not doing anything.”[21]

    [21]  See affidavit of Matthew Uchenna Nwobu sworn 5 October 2018 exhibit MUN-2

20. Mr Nwogbo’s last answer, above, was not responsive to the member’s question regarding whether the Fulani Herdsman or Housa people were looking for Christians in a general sense or for the late uncle specifically.  In addition, Mr Nwogbo had not specifically identified Boko Haram.  The member attempted to clarify this issue:

    “MEMBER WILSON: So you are talking about Boko Haram here or are you talking about something else? Another group?

    WITNESS- EZEKWESILI NWOGBO: Yes boko in fact Boko Haram is the major name we know them all by this Muslim people do anything this Muslim people are heartless.

    MEMBER WILSON: Now has anyone else in the family been targeted or harmed by Boko Haram?

    WITNESS- EZEKWESILI NWOGBO: As far as I know, as far as I know if you are Christian and you are well known, in fact everybody in Nigeria -is a target except those in government who pretend that they don't know what's happening.

    MEMBER WILSON: And are you a Christian?

    WITNESS- EZEKWESILI NWOGBO: I am but I'm not the type of Christian that Matthew is.

    MEMBER WILSON: Is anyone else in the family there very involved in the church?

    WITNESS- EZEKWESILI NWOGBO: The one that is really involved, that I say really involved like him is (Nwarinze) my brother. I think that is why he was killed because he was actually encouraging Matthew at the time so he made himself a target a major target and they succeeded.

    MEMBER WILSON: And do you worry about your nephew Matthew returning to Nigeria?

    WITNESS- EZEKWESILI NWOGBO: If you are within a fire and you are able to run out of the fire would you want to come into the fire again.

    MEMBER WILSON: Do you think that.

    WITNESS- EZEKWESILI NWOGBO: I don't know.

    MEMBER WILSON: Yes continue.

    WITNESS- EZEKWESILI NWOGBO: I say I don't know if you understand my parable.

    MEMBER WILSON: Yes I do.

    WITNESS-: EZEKWESILI NWOGBO: Okay

    MEMBER WILSON: But do you think that he like anyone else in your family in Awka is equally at risk or do you think that he has a special risk?

    WITNESS- EZEKWESILI NWOGBO: I think that he has the majority risk because when his father actually wanted him to go traditional way and he refused and said he wanted to the follow the English way. That's why sometimes they call him the white the English man. He said he wanted to be a seminarian and all this I think that is what made him a major target more than any other person.

    MEMBER WILSON: but why do you say that he wasn't targeted while he was still living in Nigeria?

    WITNESS- EZEKWESILI NWOGBO: That he wasn't targeted. Well Just Boko Haram and all this Islamic things just started gradually spreading almost in fact spread outside Nigeria very soon.”[22]

    [22]  Ibid

21. Mr Nwogbo asserts that the late uncle was targeted because of his encouragement of the applicant to become a seminarian.  However, the evidence available to the Tribunal was that the applicant had voluntarily desisted from his studies some years prior to his uncle’s death.  Accordingly, Mr Nwogbo did not provide a clear narrative as to why the late Nwarinze Nwagbo was murdered and what connection his death had to the applicant himself. 

22. In these circumstances, in my view, there was evidence available to the Tribunal to characterise the circumstances surrounding Mr Nwagbo’s death in the manner in which it did and for it to conclude there was no connection between it and the personal risk described by the applicant in terms of his own safety in Nigeria.

23. To fall within jurisdiction, all administrative decisions require an evident and intelligible justification.  All statutory powers are to be exercised reasonably.[23]  One yardstick, frequently used to gauge whether an administrative decision is to be regarded as legally reasonable, is to ask whether the decision is one which no reasonable person could have made.

    [23] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [26]

24. In Minister for Immigration & Border Protection v SZVFW[24] Kiefel CJ said as follows of this test:

    “…it serves to highlight the fact that the test for unreasonableness is necessarily stringent.  And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion.  The question is where that area lies.”

    [24] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [11]

25. Accordingly, the test of whether a decision is legally unreasonable is one which is to be applied strictly.  In addition, it is one which is invariably driven by an analysis of the applicable facts and the identification for justification for the conclusions reached.  Again in SZVFW Gageler J said as follows:

    “…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence.  That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases.  Where reasons are provided, they will be a focal point for that assessment.  It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”[25]

    [25] Minister for Immigration & Border Protection v SZVFW (supra) at [84]

26. Two major areas of legal unreasonableness potentially follow from this rubric.  Firstly, any finding of fact, which is not supported by evidence, is open to being characterised as unreasonable.  Secondly, a finding that is axiomatically irrational or illogical, particularly as demonstrated when a decision-maker takes into account an irrelevant consideration or places excessive weight on some such irrelevant matter.

27. In Minister for Immigration & Citizenship v SZMDS[26] Crennan and Bell JJ said as follows in respect of how a court, conducting a judicial review of a primary decision maker’s determination is to assess whether that decision is irrational or illogical.  Their Honours said as follows:

    “On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal.  Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.  A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”

    [26]  Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611 at 649 [135]

28. In ARG15 v Minister for Immigration & Border Protection[27] the Full Court characterised the degree of illogicality or irrationality of fact finding required to found jurisdictional error, on this basis, as being extreme in nature. 

    [27]  ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 [47]

29. It is not sufficient for the fact finding involved to be controversial in the sense that the conclusion reached in any given case was one on which “reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”.

30. The portion of the Tribunal’s findings, which the applicant contends is illogical or irrational,[28] can be summarised as follows:

    ·The Tribunal rejected the assertion the late Mr Nwagbo was targeted because he personally had a high profile, as a Christian, including because he had sponsored the applicant;

    ·The Tribunal doubted that Boko Haram would have been aware of any connection between the uncle and the applicant or of the applicant’s personal circumstances, particularly that he had nearly become a priest, on the basis that the applicant had attended a seminary high school, as a teenager, some years ago;

    ·The police report did not indicate the late uncle had been personally targeted;

    ·In these circumstances, the Tribunal did not accept that the applicant’s uncle had been targeted because of any connection with the applicant or because of his personal background;

    ·Implicit in its finding was that the uncle had been killed because of a terrorist attack which was directed at Christians in a generic sense;

    ·No other members of the applicant’s family had been harmed;

    ·Therefore the applicant’s claim that he was at risk of being himself targeted because of his relationship with the late Mr Nwagbo was farfetched.

    [28]  Appearing at Casebook 300 [41]

31. In my assessment, on the evidence available to it, this conclusion was logically and rationally open to the Tribunal.  The decision does have a clear and intelligible justification as a consequence of a logical analysis of the evidence provided.  As such, in my view, the decision is not one vitiated by jurisdictional error on this basis. 

1. The decision cannot be described as being extreme in the sense of being farfetched or one based on an unorthodox view of the evidence.  The finding is one which would be open to any rational decision maker, who was presented with the same evidence.  For this reason, ground one is not made out.

Ground Two 

1. The second ground of appeal turns on aspects of the applicant’s oral evidence given to the Tribunal.  In this evidence the applicant raised issues relating to the alleged attacks on his home parish, in Nigeria, St Peters.  In this context, the applicant contends that the AAT failed to consider an essential integer of his claim, namely that there was a real chance he would suffer persecution, if returned to Nigeria.

2. It is also the applicant’s submission that the AAT failed to consider the oral evidence of Mr Ezwkesiki Nwogbo and, in so doing failed to exercise the jurisdiction conferred upon it.  Essentially, the Tribunal did not explicitly indicate whether it accepted or rejected Mr Nwogbo’s evidence overall and made no specific reference to its credibility in the decision.

3. In his evidence, the applicant indicated that he personally had been involved in an attack on his church and had rescued a parishioner who was being attacked by Boko Haram.  The specific portion of evidence is as follows:

   “MEMBER WILSON: Has there been an attack on St Peters Parish?

   MR NWOBU: There have been there has been a situation where a member of the church was attacked, and the youth saw a Muslim around the church and they tried to attack him as well. He ran into the church and I had to save him.

   MEMBER WILSON: So this is something that happened when you were still in Awka?

   MR NWOBU: It's happened when I was there.

   MEMBER WILSON: When you saw a Muslim trying to attack one of your parishioners.

   MR NWOBU: They actually attacked because what happened was they brought bodies of people from Awka that were killed by the Boko Haram. They brought their bodies back and this youth saw a Housa man who was a Muslim and they attacked him. So he ran into the church and I rescued him.”[29]

   [29]  ibid

4. It is the submission of Mr Markwell, counsel for the applicant, that his client’s evidence that he had personally been involved in saving a person from being attacked, by Boko Haram, was of such moment as to warrant specific consideration by the AAT.  That it did not do so is indicative of a failure of the AAT to exercise the jurisdiction conferred upon it.

5. The same considerations are submitted to apply to the entirety of Ms Nwogbo’s evidence, which Mr Markwell contends raises matters indicative that his client was liable to persecution if returned to Nigeria, particularly the allegory, utilised by him, regarding running back into a fire.

6. The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[30]

   “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.”

   [30]  See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

7. Until his oral evidence, the applicant had not previously raised the issue of him allegedly having assisted a person, who was being subject to attack.  His case was that he was likely to be subject to persecution because of his level of profile as a Christian in the area of Nigeria in which he lived.  This claim was rejected by the Tribunal on the following basis:

   “The applicant claims a well-founded fear of persecution for reason of his Christian religion and religious activities, is political opinion of being opposed to Boko Haram, his membership of a particular group social group comprising his family, his membership of a particular social group of Christians returning from a Western country, and his Igbo ethnicity.

   The Tribunal considers it farfetched that in a country with a population of 173 million, 40% of whom are Christian, the applicant is a well-known Christian who would come to the attention of Boko Haram because he attended a seminary high school 25 years ago and because from 2004 to 2009 he held a number of leadership and committee positions in his local Parish.”[31]

   [31] See Casebook at 299 at [38]

8. The AAT also relied on country information, germane to Nigeria, on which to base its central finding that Boko Haram were not active in the area of Nigeria in which the applicant lived and which contained a majority of Christians.  In this context, the Tribunal make the following finding:

   “The Tribunal has considered the applicant’s religion and religious activities, including leadership roles in his local Parish and speaking against Boko Haram.  The Tribunal accepts he was active in his local Parish, but considers he has exaggerated his level of activities in regards to being a ‘preacher’.  The Tribunal has taken into account country information from DFAT and the UK Home Office that Christians outside of Boko Haram controlled areas are highly unlikely to be targeted.  The Tribunal does not accept the applicant, even as someone who was active in his local Parish, would have a profile that would make him a target of Boko Haram when country information indicates individual Christians in the south are highly unlikely to be targeted.  The Tribunal finds that as a Christian man living in Anambra state, even as an active leader in his Parish, the applicant does not have a well-founded fear of persecution for reason of his religion, his religious activities or political opinion of being opposed to Boko Haram.”[32]

   [32] Ibid at [40]

9. In my view, this passage indicates that the AAT conducted the jurisdictional task conferred on it.  Although the AAT doubted many aspects of the applicant’s evidence, particularly the extent of his profile as an active Christian in the area of Nigeria in which he lived, the Tribunal did not accept that even with such a profile the applicant had a real chance of being persecuted by Boko Haram, given country information indicated that it did not operate in the South of the country.

10. In this context, the issue of the applicant having allegedly assisted a person or indeed the other aspects of Mr Nwogbo’s evidence cannot be considered to be material to his claim, as articulated by him.  Again, it would seem to me that the AAT carefully considered what was the risk of persecution arising for the applicant because of his Christianity, his previous activities in Nigeria and the area of the country in which he lived, which was away from areas in which Boko Haram was active.

11. In these circumstances, in my view, it was not necessary for the Tribunal to allude directly to the claim regarding the applicant having provided assistance to a parishioner given the basis on which it had approached other aspects of his evidence. 

12. In addition, the Tribunal did refer to Mr Nwogbo’s evidence specifically, when it noted that he had not indicated that other members of his family, apart from the late Mr Nwalie had been targeted by Boko Haram.  The Tribunal also summarised other aspects of his evidence prior to reaching its ultimate conclusion regarding the absence of a real chance that the applicant would suffer persecution, if returned to Nigeria.

13. The reasons themselves of the Tribunal are comprehensive and include a detailed account of what he claimed had been his church activities in Nigeria, particularly in his local Parish, over many years.  It also makes reference to an extensive level of country information.  This evidence centred on the applicant’s level of profile, as a Christian, in Nigeria and other information germane to the political and terrorist situation in the country.  In my view, it was not necessary for the Tribunal to allude directly to any other aspect of the evidence in order to acquit its jurisdictional task.

14. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[33] the Full 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.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

    [33]  Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]

15. The applicant claims a significant aspect or integer of his claim has not been considered because there is no specific reference to the parishioner claim.  In my view, it was not necessary for the Tribunal to make a specific finding as to whether it did or did not accept that it had occurred as the applicant had deposed in his oral evidence to it.

16. Rather, any need to make any such specific finding was subsumed by the Tribunal’s more broadly based findings in respect of the applicant’s personal profile in Nigeria and other country information.

17. In these circumstances, in my view, no jurisdictional error arises from the lengthy and considered decision of the AAT.  In these circumstances, the application for review must be dismissed.

18. The Minister seeks costs.  I accept that costs, as calculated by reference to the applicable schedule of the court’s rules, should follow the event.  The appropriate awards of costs is an amount of $7,328.00.

19. 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 ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     12 April 2019