BZAHF v Minister for Immigration

[2014] FCCA 2904

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2904

Catchwords:
MIGRATION – Application for a protection visa – where tribunal did not accept the applicant’s claims – applicant seeks impermissible merits review – application dismissed.

Legislation:  

Migration Act 1958

Applicant: BZAHF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 619 of 2014

Judgment of: Judge Jarrett

Hearing date: 28 November 2014

Date of Last Submission: 28 November 2014

Delivered at: Brisbane

Delivered on: 28 November 2014

REPRESENTATION

The Applicant appearing on their own behalf

Solicitor for the Respondent: Ms Slack

Solicitors for the Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 619 of 2014

BZAHF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. By his amended application filed on 1 October, 2014, the applicant seeks to review a decision of a refugee review tribunal that was made on 29 June, 2014 to affirm a decision of a delegate of the first respondent to not grant to him a protection visa.  He seeks that the orders of the tribunal be quashed and the matter be returned to a tribunal to be determined according to law. 

2. The first respondent opposes the application.  The second respondent submits to the outcome in the proceedings.

3. The decision of the tribunal reveals that the applicant is a citizen of Nigeria.  He claimed in his application for a protection visa that he had left Nigeria because his life was threatened as a result of his failure to accept the kingship of his village in Delta State after his father died in April, 2012. 

4. His application for a protection visa was refused by a delegate of the Minister and he sought a review of that decision before a refugee review tribunal. 

5. The applicant originally came to Australia on 10 September, 2012 on a tourist visa and, on 29 November, 2012 he had lodged his application for a protection visa.

6. In his application, he identified that the reasons he was claiming protection was that his life had been threatened as a result of his decision to turn down his community’s demand that he take over the kingship of his village from his father.  He said that he had been subjected to threats and harm both before and after the death of his father over the issue.  He claimed that, if he returns to Nigeria, he would be killed to enable the local community to transfer their leadership or their “chieftaincy” as the tribunal describes it, to a different family.

7. He argued, before the first respondent’s delegate and the tribunal that he was opposed to taking on the kingship because, as a committed Christian, he could not commit himself to what the kingship required, namely, the taking of multiple wives and an inability to participate in violence, as he saw it.  He told the first respondent’s department in his application for a protection visa that he was afraid for his life if he was returned to Nigeria. 

8. There was an interview conducted by a delegate of the first respondent on 22 March, 2013. He repeated his claims there that he would be killed or harmed if he returned to Nigeria because he would not take over the kingship of his village and his local community. He repeated the reasons why he said that he could not do that.

9. He gave a number of examples to the first respondent’s delegate of the harm that had befallen him as a result of his decision.  They included that he had been attacked before he had left Nigeria, although those claims were further explained and clarified.  He said that, after he had come to Australia, he had discovered that his wife had been killed in Nigeria.  He said that his wife had not been able to travel with him because she had to remain behind in Nigeria to take care of business there. 

10. The first respondent’s delegate put to the applicant that there was information available to the first respondent that suggested that some of the things that the applicant had told the first respondent’s delegate were not true. 

11. In particular, it was put to him that, in January 2006, he had travelled to the United States of America using a different identity with a different date of birth to that which he said in the present application was his date of birth.  The passport upon which he came to Australia used a different name and a different date of birth to that used by him, apparently, in the United States.  It was put to him that he had attempted to deceive the department.  The applicant accepted that he had gone to the United States and had lived there for several years, but he denied any attempt to deceive the Australian immigration authorities.  He accepted that he had travelled and lived in the United States and that while there he had used his name as it existed at that time but that he had changed his name some time ago.  He claimed that he had originally gone to the United States for a visit and he had travelled there on a tourist visa. 

12. The first respondent’s delegate then put to the applicant that he had married in the United States and that he had been given conditional permanent resident status, but that, after his wife in the United States had learned that he already had another wife in Nigeria, she had withdrawn her support for him.  He was thereafter apprehended by the United States authorities.  It was put to him that he had admitted committing visa fraud in connection with his original entry to the United States and that he had been removed from that country.  The tribunal records that the applicant conceded that those things were correct. 

13. The applicant produced to the delegate of the first respondent a death certificate indicating that the person that the applicant claimed was his Nigerian wife, had died on 20 September, 2012 in Lagos and that a “medical certificate of cause of death” given by a doctor on 21 September, 2012 stated that she had been suffering from, “Internal bleeding?  Gun shot”.  The cause of death was recorded in the certificate as, “severe internal bleeding ? haemorrhage shock,” and, “cardiopulmonary arrest”.  There were some other documents produced by the applicant to the first respondent’s delegate.

14. The delegate did not accept the applicant as credible and refused his application.  The applicant applied for that decision to be reviewed by a refugee review tribunal.

15. On 2 October, 2013 and after his application for review had been commenced before the tribunal, the applicant informed the tribunal that he had married on 21 September, 2013 here in Australia.  He married a New Zealand citizen who has been living in Australia, according to the material he provided to the tribunal, for 15 years. 

16. The tribunal conducted a hearing and permitted the applicant to make submissions and give evidence in support of his application.  The applicant repeated many, if not all, of his claims.  He did not mention that he had lived in the United States.

17. The tribunal member then put to the applicant a number of matters which the tribunal member thought might be a reason or part of the reason for affirming the decision that was under review.  Those matters are set out comprehensively from paragraph 25 onwards of the tribunal’s reasons for decision. 

18. In paragraph 29 of the tribunal’s reasons for decision, the tribunal set out – and this does not seem to be the subject of any contest – that the tribunal member indicated to the applicant that he was going to give him some information which the tribunal member considered would be the reason or part of the reason for affirming the decision under review.  The tribunal member indicated that he would explain the information to the applicant so that he understood why it was relevant to the review and that he would explain the consequences of the information being relied upon in affirming the decision under review.  The applicant was told that he would be given the opportunity to comment on or respond to the information and that if he wanted additional time to comment on or respond to the information, he could ask for that time and the tribunal would consider whether to adjourn the review to give him that additional time.  The applicant does not suggest that those matters as recorded by the tribunal in its reasons are wrong. 

19. In paragraphs 30, 31, 32 and 33 of the tribunal’s reasons for decision, the tribunal records the matters that the tribunal put to the applicant.  Those matters include the material to which I have earlier referred about the applicant travelling to and living in the United States.  The matters were put, according to the tribunal’s reasons, to the applicant comprehensively.  In paragraph 33 of the tribunal’s reasons, it records:

    … I put to him that as I had mentioned earlier, he was entitled to seek additional time to comment on, or to respond to, the information I had given him in the course of the hearing and I asked him if he needed more time.  He said that he did not.  I asked him if there was anything further he wanted to say before I closed the hearing.  The applicant said that maybe he had got some dates wrong because of what he was going through psychologically.

20. The tribunal considered that the applicant was not a witness of truth.  The tribunal considered that there was much confusion and inconsistency around the applicant’s evidence, and that that confusion and those inconsistencies were attributable to the fact that the applicant was not telling the truth about a range of matters.  The tribunal was correct to observe that there was much confusion and inconsistency about the applicant’s evidence.

21. The tribunal did not accept that the applicant’s failure to tell the tribunal about his visits to the United States and the inconsistencies and confusion surrounding his time in the United States was simply a matter of the applicant having got some dates wrong.  The tribunal thought those issues were clearly relevant to the applicant’s credibility and told against his credibility. 

22. The tribunal considered the documents that the applicant had placed before it.  In particular, it considered the medical certificate concerning the person the applicant claimed to be his wife in Nigeria, and the letters from a person that purported to be the applicant’s lawyers or lawyer.  In paragraph 38 of its reasons the tribunal determined not to give those documents any weight.  It said this:

    … As I put to the applicant, the information available to me indicates that corruption is endemic in Nigeria, that the use of forged documents is widespread, that any printed official document can be forged and that information contained in genuine official documents is often false, inaccurate or cannot be relied upon.

23. The tribunal continues:

    However having regard to the fact that the applicant deliberately concealed his travel to the USA from the Australian authorities and having regard to the inconsistencies in his evidence regarding the problems he claims to have experienced in Nigeria I do not consider that he is a witness of truth.  I place more weight on the view I have formed of his credibility than I do on the documents he has produced.  I do not consider that these documents outweigh the problems I have with the applicant’s credibility.

24. The tribunal did not accept that the applicant had left Nigeria in September, 2012 because he had been threatened, attacked or assaulted as a result of his refusal to take up the kingship of his village in Delta State after his father died in April, 2012.  Nor did it accept that, after he left Nigeria, his wife was killed or that houses or properties belonging to the applicant were burned down for the same reason.  The tribunal determined that the applicant did not have a well-founded fear of being persecuted for one or more of the five Convention reasons if he was to return to Nigeria, now or in the reasonably foreseeable future.

25. The tribunal considered whether the applicant was entitled to the benefit of the complementary protection provisions in the Migration Act 1958 and determined that matter against the applicant, primarily because of the findings that had previously been made by the tribunal about the applicant’s credit. The tribunal determined in paragraph 40 of its reasons:

    .. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

26. The tribunal, having determined those matters against the applicant, affirmed the decision of the first respondent’s delegate under review. 

27. The applicant applies for a review of that decision to this Court. In this Court, the applicant must establish that the tribunal’s decision is affected by jurisdictional error. It is not the task of this Court, indeed this Court has no jurisdiction at all, to reconsider the merits of the applicant’s claims. This Court cannot undo findings of fact made by the tribunal. It is the tribunal’s task to make the relevant findings of fact. The only function that this Court can carry out is to determine whether the proceedings before the tribunal accorded with the obligations cast on the tribunal by the Migration Act.

28. The applicant raises a number of grounds of review in his amended application.  The first is:

    1.  The second respondent made a jurisdictional error by ignoring relevant material, for example:

    (a)Death certificate of the applicant’s wife, dated 21 September 2012, stating cause of death:  severe internal bleeding from gunshot wound;

    (b)a letter from the applicant’s lawyer, Ms Emma Dibia, dated 24 November.

29. It is certainly the case that a tribunal, such as, a refugee review tribunal in this case, might fall into jurisdictional error by failing to consider relevant material, but the tribunal has not fallen into that error here.  The tribunal considered the “death certificate” of the applicant’s wife and the letter from the applicant’s lawyer.  The tribunal determined that it was not going to place any weight on those documents.  The tribunal was entitled to take that course if it wished to do so.  It is not something in respect of which this Court has any power to interfere.

30. The findings of credibility made by the tribunal, of course, are findings of fact, par excellence, and those findings are not something, absent some significant error by the tribunal, with which the Court can interfere.  Having regard to the tribunal’s statement of reasons, there is no occasion to think that the tribunal’s determination about those matters is affected by error. 

31. The tribunal has considered all of the relevant material before it.  The tribunal has considered the documents which the applicant now suggests the tribunal ignored.  This ground of review fails.

32. The second ground of review is this:

    2.  The second respondent made a jurisdictional error by exercising apprehended bias in relation to the applicant’s credibility.

33. There is something of a difficulty with that ground in that apprehended bias is the appearance of bias, not actual bias, and how the tribunal might exercise apprehended bias – that is, the appearance of bias – is difficult to envisage.  However, notwithstanding the difficulties associated with the drafting of the grounds, it is clear enough that the applicant raises a claim of apprehended bias. 

34. Ordinarily it must be clear from the record of the proceedings before the tribunal that the alleged bias existed.  Ordinarily, a party needs to show some conduct on the part of the decision-maker or the tribunal, apart from the decision-maker’s expression of the reasons and findings of credit against the applicant, which would indicate that the decision-maker had been guilty of prejudgment or was in some way biased.

35. I accept the first respondent’s submissions that the evidence before me does not make out any ground of apprehended bias.  In fact, the way in which the tribunal approached its task in this case clearly indicates that it was attempting to be as even-handed as it could.  It put to the applicant the material that the tribunal had in its possession which caused the tribunal concern.  It gave to the applicant the opportunity to deal with those matters as the applicant saw fit.  It offered to the applicant the opportunity to ask for time to consider those matters and to provide further information to the tribunal if that is what he wished to do.  The applicant did not take up those opportunities.

36. The ground of apprehended bias is not made out.  It raises, however, another matter which is not squarely raised by the amended grounds of review.  On 1 October 2014, the applicant filed an affidavit.  Attached to the affidavit is a report from Priscilla Jettoo, a psychologist, dated 24 September, 2014.  There are also two other reports from a person described as Gary Thornell, counsellor.  The reports the letters from Mr Thornell are dated 22 January, 2013 and 6 August, 2013 respectively. 

37. The suggestion by the applicant in the course of this hearing was that one of the explanations for his poor performance – they are my words, not his – before the tribunal member was that he was suffering from post-traumatic stress disorder and that affected his ability to properly recall dates and to provide a proper chronology in respect of his claims.  Again, they are my words.  He did not articulate his case in exactly that fashion, but, in my view, taking a fair view of what he has said and what he has placed before this Court, that is, essentially what his case amounts to in this respect.

38. The report of Ms Jettoo, first of all, should be seen as an attempt at advocacy on the part of the applicant.  Her conclusion set out on page 8 of the report is really a plea to the authorities in Australia to grant the applicant “asylum in Australia”.  Her report records that the applicant was referred to her on 10 July, 2014 by his doctor, and he has participated in nine counselling sessions since that time.  She sets out in her report some background information and then records some claims made by the applicant about threats to his life.  See, for example, page 3 of her report.  Those claims go over to the middle of page 4 of the report.  She then records that, on 8 September, he travelled to Australia and arrived here on 10 September.  She then provides this statement:

    His grief, sadness and emotional overwhelm is about his guilt and shame.  Refugees suffer survivor guilt and terrible nightmares.

39. Then, under the heading, “War In Nigeria”, she records some things that the applicant told her about Nigeria.  Then under the heading, “Medical Diagnosis”, on page 6 of her report, she proffers the opinion that the applicant:

    … has suffered longer and has chronic PTSD.  He suffers

    ·increased arousal (difficulty sleeping, irritability, poor concentration, hyper-vigilance, exaggerated startle response, motor restlessness).

    ·Marked anxiety symptoms that interfere with his ability to function normally either occupationally or socially

    ·emotional overwhelm  and tension

    ·profuse crying and appetite problems

    · difficulty verbalising his psychological pain

    ·Nightmares and fear

    · flashbacks, humiliation, shame and shattered trust 

40. She then refers to the DSM-IV and under the heading, “Possible Extenuating Data”, records that the applicant:

    ·... is gainfully employed and an asset to this country. 

    ·He helps financially to support his wife …

    · His partner has many serious health problems …

    ·He complies with legal requests, and is honest and diligent.

1. She then makes certain recommendations including the recommendation that he be granted asylum in Australia. 

2. However, what the report does not do is provide any explanation for what I have earlier described in these reasons as the applicant’s poor performance before the tribunal and the first respondent’s delegate.  It provides no explanation for the inconsistencies in the matters that he told the tribunal member or the inconsistencies in his claims generally.  She speaks in no part of her report about any difficulty with recollection or with any inability on the part of the applicant to properly articulate his claims or experiences.

3. The evidence is of no particular value and, to the extent that in the course of this hearing the applicant sought to raise a further ground of review, namely, perhaps that there had been some form of lack of procedural fairness because he was not given an opportunity by reason of his psychological condition to properly articulate his case, that ground must fail.  He was given that opportunity and, as Ms Slack pointed out for the first respondent, there was a considerable period between the hearing before the tribunal and the delivery of the tribunal’s reasons.  It was certainly the case that there was sufficient time for the applicant to place before the tribunal, before its decision, whatever he wished to place before the tribunal that bore upon his psychological state.  For reasons best known to the applicant, he chose not to do so.

4. The third ground of review articulated in the amended application is that:

   3.  The second respondent made a jurisdictional error by failing to consider the applicant’s claims as made.

5. In my view, the tribunal made no such error.  The tribunal identified and set out in its reasons each of the claims made by the applicant and it dealt with each of them.  It determined each of those claims against the applicant.  This ground seeks nothing more than merits review, something that this Court cannot undertake.

6. The fourth ground set out in the amended application:

   4.  Please refer to attached comprehensive professional report for this data.

   is not a ground of review.  There was nothing attached to the amended application and, to the extent that what the applicant intends to refer to there is the document to which I have already referred and which is attached to his affidavit filed on 1 October 2014, I have dealt with that matter.

7. In my view, the applicant does not establish that the tribunal’s decision is affected by jurisdictional error.  His amended application filed on 1 October 2014 must be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. In applications such as this costs ordinarily follow the event unless there are special circumstances for a different order for costs to be made.  There are no special circumstances attending this case.  Costs ought to follow the event. 

2. I order that the applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $5800 which I note is less than the amount provided for in the scale of this Court for applications of this nature.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 28 November 2014.

Associate: 

Date:         12 December 2014