Emiantor v Minister for Immigration and Multicultural Affairs

[1997] FCA 1356

FEDERAL COURT OF AUSTRALIA

MIGRATION - Refugee status - review of decision of Refugee Review Tribunal (“RRT”) that it was not satisfied that applicant is a refugee - findings on credibility - fact finding in refugee cases - application of principles from Chan - relevance of findings on past facts to findings as to future - whether RRT required to consider whether its findings as to past and future events might be wrong - whether finding required to be made as to existence of applicants’ subjective fear - whether any failure of RRT to act according to substantial justice and the merits of the case as required by s 420 of the Migration Act 1958 - ‘internal relocation’ - whether relocation reasonable and availability of protection meaningful

ADMINISTRATIVE LAW - whether actual bias on part of RRT - whether constructive failure to exercise jurisdiction - whether findings on credibility in a decision as to satisfaction are reviewable as an error of law.

Migration Act 1958 (Cth) s 36
Migration Regulations1994 (Cth) reg 866.221

Geneva Convention relating to the Status of Refugees
New York Protocol relating to the Status of Refugees

Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 considered
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 applied
Thambythurai v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finkelstein J, 16 September 1997, unreported) considered
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 considered
Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 considered
Noble v Repatriation Commission (Full Court of the Federal Court, 3 November 1997, unreported) applied
Ex parte Hebburn Ltd;  Re Kearsley Shire Council (1947) SR (NSW) 416 considered
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 considered
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 applied

ERIC EMIANTOR v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS 
VG721 of 1996

DENIS OKAH v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS 
VG722 of 1996

MERKEL J
MELBOURNE
3 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY			VG721  of   1996
BETWEEN:	ERIC EMIANTOR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
AND			VG722 of   1996
BETWEEN:	DENIS OKAH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MERKEL J
DATE OF ORDER:		3 DECEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The applications be dismissed.

2. The applicants pay the respondent’s taxed costs of the applications.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG721 of 1997

BETWEEN:	ERIC EMIANTOR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
AND
VG722 of   1996

BETWEEN:	DENIS OKAH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

REASONS FOR JUDGMENT

INTRODUCTION

Denis Okah and Eric Emiantor (“the applicants”) are Nigerian nationals. They arrived in Australia on 25 April 1996 and applied for protection visas on 26 April 1996. The applicants have applied to the Court for the review of two decisions of the Refugee Review Tribunal (“the RRT”) made on 29 November 1996, affirming the decisions of the delegate of the Minister for Immigration and Multicultural Affairs that the delegate was satisfied that each of the applicants was not a refugee and was not entitled to a protection visa. The applications are made pursuant to Part 8 of the Migration Act 1958 (Cth) (“the Act”).

The applicants’ applications to the RRT for review were first heard by the RRT constituted by Ms J Good.  The RRT’s decisions on that hearing were set aside, by consent, by the Federal Court and the matters were remitted to the RRT.  On remittal the applications were heard by RRT Member Mr Brendan Kissane, who was not satisfied that the applicants were refugees and affirmed the delegate’s decisions not to grant the applicants a protection visa.

At the relevant time s 36 of the Act and reg 866.221 of the Migration Regulations (1994) (Cth) governed decisions as to refugee status. Section 36 of the Act provides:

“(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

Under reg 866.221 the criterion for a protection visa is fulfilled where at the time of the decision on an application for a protection visa the Minister is “satisfied” that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Protocol.

Australia has protection obligations towards persons who fall within the definition of “refugee” in the Geneva Convention relating to the Status of Refugees as amended by the New York Protocol relating to the Status of Refugees (collectively, “the Convention”).  A refugee is defined in Article 1A(2) of the Convention, 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...”

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-277 Brennan CJ, Toohey J, McHugh J and Gummow J observed that the requirement that the decision maker be “satisfied” that a person is a refugee:

·   made the decision maker’s satisfaction a condition of the determination;

·   made the decision the subject of review a decision that the decision maker is not satisfied that the person has a genuine fear founded upon a real risk of persecution.

Accordingly, as was pointed out by their Honours at 274, a decision as to satisfaction regarding the status of a person claiming to be a refugee is of a subjective nature which, although not immunising the decision from review, is necessarily of relevance to the issue of whether there has been an error of law.  That will be particularly so when the challenge relates to fact finding aspects of the decision. 

The issue in the present case is whether the RRT’s failure to attain the requisite state of satisfaction was vitiated because it involved error which was reviewable under Part 8 of the Act.

The RRT made a separate decision in respect of each applicant.  In each decision it stated its view of the Convention in the following terms:

“To come within this definition, an applicant must first be outside his or her country of nationality.  Second, the applicant must have a well-founded fear of being persecuted.  Third, the persecution feared must be for one of the five Convention reasons - “race, religion, nationality, membership of a particular social group or political opinion”.  Finally, the applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country.

Whether an applicant satisfies the Convention definition is to be determined upon the facts as they exist at the date when a determination is made (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan’s case) at 386-7, 398-9, 405-6, 408, 414-5 and 432. See also MILGEA v Mok Gek Bouy (1995) 127 ALR 223 at 250). However the circumstances in which an applicant left his or her country remain relevant and these are ordinarily the starting point in ascertaining the applicant’s present status. Therefore if an applicant has established that at the time of departure he or she satisfied the Convention definition of a refugee, the absence of any substantial change in circumstances will point to a continuation of his or her original status. (Chan’s case per Dawson J at 399;  see also Mason CJ at 391.)”

The RRT appeared to treat the substantive issue arising in respect of the applicants as whether, having regard to the circumstances in which they left Nigeria, they had a well founded fear of being persecuted for reasons of political opinion if they returned to Nigeria.  The grounds for review relate substantially to the RRT’s findings of fact in relation to the circumstances upon which the applicants relied to found their application for a protection visa.  It is therefore necessary to give a brief account of the recent political environment in Nigeria, and in particular Ogoniland, with which the applicants claimed to have a political connection and association.

OGONILAND

Since the 1950s Ogoniland has been the site of a large proportion of Nigeria’s oil production, on which the Nigerian economy is heavily reliant.  The Shell Petroleum Development Company Limited (SPDC), the Nigerian subsidiary of the multinational Royal Dutch/Shell Company, was the principal oil company in Ogoniland, producing approximately 40% of Nigeria’s crude oil.  The operations of SPDC and other oil companies in Ogoniland have caused considerable environmental damage, largely resulting from oil spills, from a network of aboveground pipes and air pollution resulting from continually burning gas flares. 

The opposition of the Ogoni people to this environmental damage and the lack of any substantial compensation for the environmental effects of oil production led in 1990 to the formation by Ogoni leaders of the Movement for the Survival of the Ogoni People (“MOSOP”).  In addition to its environmental protection objectives MOSOP sought political autonomy for the Ogoni people within Nigeria.  By 1993 MOSOP enjoyed widespread support in Ogoniland.  The National Youth Council of Ogoni People (“NYCOP”) was a youth organisation closely associated with MOSOP.

MOSOP’s and NYCOP’s demands for compensation, environmental restoration and political autonomy were met with hostility by the oil companies and the Nigerian government, the latter responding by banning public demonstrations and decreeing that demands for self-determination and disruption of oil production would be punishable by death under treason laws.  Mass demonstrations throughout 1993, which were frequently violently suppressed by government troops, resulted in oil companies suspending production in mid-1993.  In November 1995, Ken Saro-Wiwa, the then President of MOSOP, was executed following a trial by a tribunal which was not part of the normal judicial system, ostensibly for having instigated a mob which killed four Ogoni leaders in May 1994.  During the same period successive military governments employed repressive techniques against other minorities outside of Ogoniland, as well as harassment and imprisonment of human rights and pro-democracy activists, and random violence against members of the Ogoni community generally.  The political situation in Nigeria was described in a Human Rights Watch Africa report of September 1996 which was accepted by the RRT.  The report states:

“Human rights violations do not affect only Nigeria’s elite political classes and those involved in protests against military rule.  Nigerian citizens with no political involvement are subjected to arbitrary and brutal actions of the Nigerian government in various forms on a daily basis.  Police and soldiers are better known for extortion, torture and summary executions than for keeping law and order.

....
Ogoniland remains under a strong security force presence.  Although Human Rights Watch Africa was not able to travel to Ogoniland, due to concerns for the safety of our representative and of those we might speak to, we did interview a number of Ogonis who travelled to Port Harcourt to speak with us.  They told us of continuing harassment by soldiers and Mobile Police of anyone perceived to be a MOSOP sympathiser.  Short-term detentions are frequent for student activists and outspoken community leaders.  Meetings by groups perceived to be critical of the government are not permitted.  Church leaders in Ogoniland have also reportedly been warned against ‘political preaching’ by Maj. Umahi.

....”

The RRT quoted from a cable from the Department of Immigration and Ethnic Affairs in Lagos which stated:

“An Ogoni would not risk arrest/execution merely by being a member of MOSOP.  MOSOP currently has over 25,000 active members and many more Ogoni supporters and sympathisers....Ogoni activists, however, would more than likely be punished by the Nigerian authorities if apprehended.

There is a specific military decree which deals with various forms of treason (defined as actions which threaten the sovereignty, territorial integrity, stability and /or cohesion of the Nigerian State.)  The maximum penalty is death. People found guilty of “fighting for the independence of a particular Nigerian ethnic group” and thereby threatening the cohesion of Nigeria would be dealt with under this decree.”

The RRT appeared to accept that persons who were perceived by the Nigerian authorities to be Ogoni activists, such as leaders or active members of MOSOP or NYCOP, would be persecuted for political reasons if they were in Nigeria.

THE APPLICANTS’ CLAIMS

The claims which were put to the delegate and to the RRT by each of the applicants were based on substantially similar circumstances.  Both of the applicants claim some connection with the Ogoni people and Ogoniland. Mr Emiantor’s mother is an Ogoni, and he was born in Bori, in the area of the Niger Delta traditionally recognised as Ogoniland.  Although Mr Okah identifies as a member of the Isoko tribe his maternal grandmother is an Ogoni from Biara in Ogoniland.  He told the RRT that he is accepted as belonging to the Ogoni community.

Both applicants had considerable knowledge of the situation in Ogoniland and had spent time there in addition to living all their lives in Nigeria until they fled in November 1995 following the execution of Ken Saro-Wiwa and other Ogoni activists.

The applicants’ cases were based essentially on the following claims.  They had been politically active, initially with the Social Democratic Party (SDP) which was the main opposition party to the Nigerian military government and, from mid-1993, with MOSOP.  Mr Emiantor held the position of public relations officer for what was described as the Youth Wing of MOSOP until he left Nigeria and Mr Okah was elected to the position of the Bori district leader of the Youth Wing from December 1993.  Both applicants were involved in inter-tribal fighting including fighting between the Ogoni people and the Okrika people at the Port Harcourt waterfront in December 1993.  That involvement assisted in achieving a political profile for them within the Ogoni movement which led to their appointment to significant political positions in MOSOP and NYCOP.  They attended irregular meetings of the organisations and participated in Ogoni Day celebrations in January 1994.  The applicants indicated that the circumstances which led to their flight were related to their participation in organising a demonstration in Bori, in Ogoniland, to protest against the execution of Ken Saro-Wiwa on 10 November 1995.  This demonstration, according to Mr Emiantor, involved about 600 people.  Government property and property belonging to Shell was destroyed before police and soldiers arrived and arrested people.  The applicants fled and eventually met up in Isoko, Mr Okah’s tribal village.  Together they went to Mr Okah’s family home in Warri, where they discovered that people in military uniforms had been searching for Mr Okah and had shot and killed his father.  They fled to Mr Emiantor’s grandmother’s home in Uromi where his uncle showed them that their names were on a list of wanted people in a newspaper and told them that police had gone to Mr Emiantor’s family home looking for him, and had shot his father in the leg, burned down the house and arrested  his younger brother.  They then left Nigeria by crossing into the Benin Republic and reached Australia via Ghana, Egypt, Libya, Turkey and Greece.

The applicants say that they fear that if they return to Nigeria they will be arrested and executed because of their involvement with MOSOP and NYCOP and, in particular,  with the organisation of the protest in Bori on 10 November 1995, in response to the execution of Ken Saro-Wiwa.  Mr Emiantor described his fear in the following terms in the statutory declaration which accompanied his initial application:

“13.     I have not attempted to contact my family since I left Nigeria.  I do not know where they are, but I assume they will have gone into hiding.  Because I am being sought by the government, it would put my family in even more danger if the authorities found out that I have escaped from Nigeria.  We are very afraid of what will happen to us now.  Even in Australia we do not feel completely safe.  We have been told by members of the Nigerian community in Australia that certain Nigerians who live in Australia pass information about other Nigerians to the Nigerian authorities.  We have been told that the Nigerian Government has tried to track down dissidents who have left Nigeria and who have sought asylum in other African countries.

14.      If I were returned to Nigeria now I would be immediately arrested, and probably executed, because of my involvement with MOSOP, and my role in organising the protest in Ogoni against the execution of Ken Saro-Wiwa.  The Central Government in Nigeria have said that the penalty for anyone fighting for ethnic independence is death, and they have promulgated a military decree allowing this penalty.  Nigeria has been the subject of international sanctions, and has been expelled from the Commonwealth, because of its treatment of Ken Saro-Wiwa.”

Mr Okah described his fear in the following terms in the statutory declaration which accompanied his initial application:

“14.     Even before the riot in November 1995, I was known to the Nigerian authorities as a political activist for MOSOP.  Around October 1995 I was interviewed on the radio in Warri, about the arrest of Ken Saro-Wiwa.  I said that the Government has acted unjustly towards our leader, and that the deaths of the 4 Ogonis with which he had been charged were not his fault, and that we would continue to fight to ensure the rights of the Ogoni people were respected.  After this interview, my father was questioned about this, and told that I had been accused of acting against the government.  In fact, it was not until after the execution of Ken Saro-Wiwa that I felt this way.

15.      I have not attempted to contact my family since I have arrived in Australia.  I contacted my mother once, when I was in Libya, but my mother told me they were being monitored, and I should not try to contact them again.  Because I am being sought by the government, it would put my family in even more danger if the authorities found out that I have escaped from Nigeria.  I am very afraid of what will happen to me.  Even in Australia I do not feel completely safe.  I have been told by members of the Nigerian community in Australia that certain Nigerians who live in Australia pass information about other Nigerians to the Nigerian authorities.  I also know that the Nigerian Government has tried to track down opponents who have left Nigeria and who have sought asylum in other African countries.  If I were returned to Nigeria now I would be immediately arrested, and probably executed, because of my involvement with MOSOP, and my role in organising the protest in Ogoni against the execution of Ken Saro-Wiwa.”

The solicitor acting for the applicants lodged a thirty page submission with the RRT on the rehearing of the applicants’ application for refugee status.  The submission concluded as follows:

“1.      At the time of their flight, the applicants were politically active in MOSOP and its youth wing (however styled);

2.        That involvement was at a sufficiently high level to bring them to the attention of the Nigerian authorities;

3.        Each of the applicants came from families resident in the Niger Delta, with backgrounds of political activism;

4.        The applicants took part in a demonstration on the evening of Saro Wiwa’s execution;

5.        Their involvement in the demonstration further brought them to the attention of the authorities, and caused reprisals to be carried out against their families (including the execution of Denis’ father);

6.        These events caused the applicants at great personal risk to flee and to make quite elaborate arrangements to do so, fleeing through Ghana, Egypt, Libya, Turkey and Greece;

7.        The applicants made no attempt to disguise themselves from Australian authorities upon arrival;

8.        Nigerian officialdom at the highest level has subsequently taken a sinister interest in the applicants, knows they do not have valid Nigerian passports and at least suspects they are from the Niger Delta area.

In my submission, these salient facts and the evidence as a whole proves a compelling case that the applicants have a well founded fear of persecution.

In urging this conclusion upon the Tribunal I ask it to take into account the alternative hypothesis.  The likelihood of the applicants fleeing Nigeria for any reason other than a Convention related ground is so implausible as to be fanciful.  There can be no other reason for 2 relatively wealthy, healthy and educated young men to flee their homeland and to take such elaborate steps to do so other than having a well founded fear of persecution.

Minor inconsistencies simply add to the strength of the applicants’ case by indicating that they have not connived to concoct a story.  In all important aspects for the purposes of these applications the applicants are consistent.  This corroboration is a rare situation to have before this Tribunal, and ought assist the Tribunal to eliminate any doubts it might otherwise have.

In light of the above, in my submission the Tribunal should accept my clients’ account of these events.  If their credibility is established, then it must follow that there is a real chance that they will face persecution if returned to Nigeria.”

Clearly, subject to the issue of credibility, the applicants’ material raised a compelling case of political persecution.  A crucial issue in such cases is whether “certain behaviour or actions on the part of the applicant are or have been perceived by the authorities in power as political opposition”:  see Professor Hathaway in the Law of Refugee Status (1st ed, 1991) at 153 and Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 160 per Beaumont J.

THE RRT’S DECISIONS

The RRT accepted that it was plausible that Mr Emiantor has a connection with Ogoniland as a consequence of his mother being Ogoni.  However it made the following adverse findings of fact which were contrary to the evidence given by Mr Emiantor in relation to his political activities:
(a)       he is not a member of or the holder of any office in MOSOP or NYCOP;
(b)       he is not a political leader;
(c)       he was not sought by nor did he hide from the security forces;
(d)      he did not have any profile in either MOSOP or NYCOP;

(e)he gave false examples of political activity and involvement in tribal fighting in order to “concoct” political involvement as required and adjusted his story as he saw the need;

(f)he did not have any involvement in, let alone leadership of, any demonstration in Bori in Ogoniland on the day of Ken Saro-Wiwa’s execution;

(g)the police were not after him as a result of any involvement by him in any demonstration in Bori;

(h)there was no demonstration in Bori on the date of the execution;  accordingly, it was not plausible that the security forces were seeking him, killed Okah’s father or shot his father in the leg as a consequence of his involvement in organising the demonstration;

1. he was not wanted by the authorities nor was he named in a local newspaper as being wanted by the authorities;

(j)his claim that he was named in a newspaper as being wanted by the authorities was another attempt to create a profile he did not have;

(k)as he was not involved in MOSOP or NYCOP and is not being sought by the authorities there is no impediment to him returning to his father’s country which is to the north of Ogoniland;

(l)although there is random violence by the authorities in Ogoniland and anyone returning there faces potential difficulties, as he does not have the political connections or profile claimed by him there is no information available to the RRT which would indicate he would face a real chance of persecution for a Convention reason if he returned to his grandmother’s in Uromi, where he lived before he departed from Nigeria.

The RRT accepted that it is plausible that Mr Okah’s grandmother is Ogoni and that as a result of visits to her in Bori from time to time he has some connection with Ogoniland.  However, it made the following adverse findings of fact which were contrary to the evidence given by Mr Okah in relation to  his political activities:

(a)his principal connection is with the Isoko people and his main place of residence has been in Warri, which is not in Ogoniland;

(b)he was not a member of MOSOP or NYCOP let alone the leader of the youth wing in the Bori area and did not have any involvement or profile in either MOSOP or NYCOP;

(c)he concocted evidence that he, together with Mr Emiantor, was sought by and had hidden from security forces as a result of his connections with MOSOP or NYCOP;

(d)he was not involved in tribal fighting and therefore his claim that such involvement was a reason for his election as a leader of a local NYCOP group and gaining a political profile in the Ogoni movement was also rejected;

(e)he did not have any involvement in, let alone leadership of, any demonstration in Bori in Ogoniland on the day of Ken Saro-Wiwa’s execution;

(f)the police were not after him as a result of any involvement by him in any demonstration in Bori;

(g)there was no demonstration in Bori on the date of the execution;  accordingly, it was not plausible that the security forces were seeking him, killed Mr Emiantor’s father or shot his father in the leg as a consequence of his involvement in organising the demonstration;

(h)he was not wanted by the authorities nor was he named in a local newspaper as being wanted by the authorities;

1. his claim that he was named in a newspaper as being wanted by the authorities was another attempt to create a profile he did not have;

(j)although his father may have been killed in the manner claimed on the day of Ken Saro-Wiwa’s execution this was not a result of Mr Okah’s involvement in any demonstration as claimed;

(k)although there is random violence by the authorities in Ogoniland and anyone returning there faces potential difficulties, as he does not have the political connections or profile claimed by him there is no information available to the RRT which would indicate he would face a real chance of persecution for a Convention reason if he returned to his grandmother’s in Warri or his father’s Isoko country which is to the north of Ogoniland.

The applicants’ claims for refugee status were bound up with their claims to membership of and political involvement in MOSOP or NYCOP and their role in organising the demonstration on 10 November 1995.  The claims for refugee status were refused as those claims and the factual sub-stratum relied upon by the applicants to support them were rejected by the RRT.  In its conclusion in both cases the RRT said:

“Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for the grant of a protection visa.”

THE LAW

A number of matters can now be taken to have been well established by the decisions of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567.

1. The definition of a refugee involves a mixed subjective and objective test.  The decision maker must be satisfied that the applicant for refugee status:

   ·has a genuine fear of being persecuted for a Convention stipulated reason (the subjective element); and

   ·that the subjective fear is “well founded” (the objective element).

2. The definition will be satisfied if an applicant can show genuine fear founded on a real chance of persecution for a Convention stipulated reason if he or she returns to the country of nationality.

3. The objective element of the test necessitates speculation in the sense of prediction, in other words an assessment of the future is implicit in the formulation “real chance”.  However, conjecture or surmise has no part to play in determining whether a fear is well founded.  A fear is well founded when there is a real substantial basis for it.  As was said in Guo by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 577:

   “A fear is ‘well-founded’ when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”

1. The real chance test is epexegetic of and not a substitute for the Convention term “well-founded fear”.  In determining whether there is a “real chance” or “well founded” fear of persecution the tribunal will usually have to consider:

   ·the past events relied upon by the applicant to give rise to his or her fear of persecution; and

   ·the probability - high or low- of their recurrence.

In Guo at 578-9, after stating that the course of the future is not predictable but that the degree of probability that an event will occur is usually assessable, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said:

“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.  In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty.  In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.  In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.  But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.   It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

In Guo  at 587 Kirby J said:

“Because the future can never be told with certainty, particularly perhaps in the variable and sometimes unpredictable matter of persecution, this court endorsed a test which both permits and requires rational speculation and denies the necessity of the proof of affirmative certainty.”

In Wu Shan Liang at 294 Kirby J said:

“There is no suggestion in Chan that this Court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood.  The process of determination involves the delegate’s making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to the assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned to China.” (footnotes omitted)

1. When conflicting material or evidence relating to some past event is before the RRT a finding that one version of events is more probable than another on the balance of probabilities is not inconsistent with the correct application of the “real chance” test.  The correct application of that test may in some, but not other, circumstances make it appropriate for the tribunal to consider the possibility that any of its findings as to past events were inaccurate.  In Guo at 579-580 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ explained the situation as follows:

   “It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.

   In the present case, however, the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded  fear of persecution for a Convention reason would have been irrational.  Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong.”

The present matter involves an application of these principles to the applicants’ case.

GROUNDS OF REVIEW

Ultimately, the applicants relied on four statutory grounds to review the decisions of the RRT:

• the decisions involved an error of law, being an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the RRT (s 476(1)(e));

• there was no evidence or other material to justify the making of the decision (s 476(1)(g));

• the RRT breached its statutory duty under section 420(2)(b) of the Act by failing to act according to substantial justice and the merits of the case and thereby failed to observe the procedures that were required to be observed in connection with the making of the decisions (s 476(1)(a));

• the RRT’s decisions were affected by actual bias (s 476(1)(f)).

I should say at the outset that there was no basis for the allegation of actual bias.  I am not satisfied that the RRT had a closed mind to the issues raised or was not open to persuasion:  see Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, North J, 24 June 1996, unreported) at 4 and 9 and Singh v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Lockhart J, 18 October 1996, unreported) at 5-11.  On the material before me I am not satisfied that Mr Kissane, constituting the RRT, applied his mind with preconceived prejudice or bias one way or the other to material placed before him or made his determination in respect of the applicants’ claims other than fairly and impartially on the basis of that material.  In the review process he was entitled, and indeed obliged, to make findings as to credit and express the findings in the manner he deemed appropriate.  The expression of such findings in strong language does not afford a basis for alleging bias.  The fact that he considered and in many instances arrived at conclusions similar to or even the same as those arrived at in the earlier RRT decision does not establish that he did not bring his own mind to bear on the issues and their resolution.  The RRT was conducting an inquisitional hearing.  That necessitated the questioning of the applicants by the RRT and a generally pro-active approach to the material and the hearings which I note took place over two days and occupied over 120 pages of transcript.  The applicants were represented at the hearings and did not allege actual bias.  In my view a fair reading of the transcript before the RRT and its reasons in each case does not support the allegation of bias.

If the applicants are to succeed it must be on the basis of the other grounds which were refined by senior counsel appearing for them in the course of the hearings.  These grounds are that:

• the RRT’s decision involved a reviewable error of law because it had failed to decide the real question in the case, being whether the applicants had a well-founded fear of persecution, which failure constituted a constructive or actual failure to exercise jurisdiction, or because the RRT had failed to apply correctly the “real chance” test as stated in Chan.   This was said to be an incorrect interpretation of the applicable law and an incorrect application of the law to the facts found, pursuant to s 476(1)(e);

• the RRT had failed to accord substantial justice as required by s 420 of the Act by failing to have regard to all of the relevant material in determining the real issues in the case. This failure was said to be reviewable as a non-observance of a procedure required by the Act under s 476(1)(a); and

• there was no evidence to justify the making of the decision (s 476(1)(g)).

In arguing these grounds strong reliance was placed by the applicants on the decision of the Full Federal Court in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 and in particular the judgments of Foster and Einfeld JJ. After the conclusion of the hearing the High Court handed down its decision unanimously allowing the Minister’s appeal against the decision of the Full Court. As a consequence of that decision the parties filed supplementary submissions. In the submissions counsel for the applicants reformulated their principal submission as follows:

“Having considered the judgment of the High Court in Guo, the submission is maintained on behalf of the Applicants that the Tribunal in this case failed to exercise jurisdiction constructively or actually by:

(a)      failing to ask the right question;

(b)      alternatively, if it did ask the right question (i.e. how high a political profile the Applicants had in MOSOP or NYCOP) it did not consider all the evidence or take into account the cumulation of the Applicants’ activities to determine the issue.”

The failure to ask and determine the right question, it was submitted, constituted an error of law with the result that the matter should be remitted to the RRT for rehearing.  In their earlier written submissions counsel for the applicants formulated the question which they contended that the RRT failed to address, in accordance with law, as follows:

“The tribunal had to address the question of whether there was a real chance the Applicants would be persecuted because of a perception by the Nigerian authorities that when regard was had to the whole of their activities they might be found to be activists on behalf of the Ogoni cause.”

In their supplementary submission that question was reformulated, in the light of the High Court’s decision in Guo, as follows:

“Whether there was a real chance that the conduct of the Applicants supporting the Ogoni cause (whether through membership of MOSOP or not) and fleeing Ogoniland on the evening after Ken Saro-Wiwa’s execution either alone or in combination with earlier events such as their membership of the pro-democratic SDP might result in the attribution of the profile of Ogoni activist to them and if yes, the real question was whether there was a real chance that the Applicants might be persecuted by reason of such a profile.”

Counsel for the applicants relied upon detailed oral and written submissions in support of the grounds of review.  Detailed references were made to the extensive material which was before the RRT.  In the final analysis the case put on behalf of the applicants sought to challenge the fact finding process undertaken by the RRT on the ground of error of law.  In doing so the applicants drew a fine line between review on the merits and review on an error of law.  Many of the detailed factual submissions seemed to stray across that line and impermissibly treat the review as if it were an appeal on questions of fact and the merits of the case.

The applicants’ evidence was simple and, if accepted, compelling.  They claimed that by reason of their active political involvement with MOSOP or NYCOP between 1993 and 1995 and the demonstration on 10 November 1995 they had a well founded fear of persecution on the ground of their political opinion if they were returned to Nigeria.  There can be little doubt that if their evidence as to that involvement was accepted by the RRT a finding of refugee status in their favour would be almost inevitable given the unchallenged evidence of the persecution including imprisonment, torture and possible execution, in Nigeria of persons perceived by the military authorities to have an active political involvement in MOSOP and NYCOP.

Evidence of the actual political activities engaged in by the applicants and the persecution of the applicants prior to their flight from Nigeria, which they allege resulted from these activities, was critical to their case that there was a real chance of political persecution if they returned. Notwithstanding the extensive and detailed material placed before the RRT as to the situation in Nigeria, understandably, each applicant only had the other applicant to support his claim of a well founded fear of political persecution upon their return to Nigeria.  Consequently the outcome of the claim for refugee status was critically dependant on the RRT’s acceptance or rejection of that evidence.  Given the horrific political environment in Nigeria which they left there was nothing inherently improbable or unlikely about their version of events.  However there remained the fundamental question of the credibility of the applicants.  An adverse finding against credibility on a material aspect of their claims does not relieve the RRT from making its findings in respect of each material aspect of their claims.  But ultimately the RRT is the arbiter of fact and the credibility of the applicants was an issue for it to determine as a question of fact.

The scope, if any, for error of law in a fact finding process which relates to a state of “satisfaction” is limited.  Even on an appeal from a decision of a tribunal or a Court on questions of fact and law it is well established that a Court should not disturb a finding of fact based on the assessment of the credit or credibility of a witness unless the tribunal or court below did not take advantage of its opportunity to see and hear the witness or the conclusions that that it reached were inconsistent with an overwhelming body of evidence or were glaringly improbable:  Abalos v Australian Postal Commission (1990) 171 CLR 167, 178-9; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 and Warren v Coombes (1979) 142 CLR 531, 537, 552-553. These cases demonstrate the difficulties confronting an appellant challenging a finding of fact particularly when based on credit. However even when the challenge is successful, in general, such matters are errors of fact not law: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-360. Further, Part 8 not only substantially limits appeals to legal error but also:

• limits factual error to the ground that there was “no evidence or other material to justify the making of the decision” (ss 476(1)(g) and 476(4)(a) and (b));

• does not permit review on the ground that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power (s 476(2)(b)).

As the credit issues lie at the heart of the RRT decision and were the subject of a comprehensive challenge by counsel for the applicants it is necessary to consider them at the outset.  Before doing so, in the light of the applicants’ submissions, it is apposite to reiterate the caution expressed by the High Court in Wu Shan Liang against:

• an unwarranted use of administrative review procedures, to achieve a review upon the merits; and

• construing the reasons of the administrative decision-maker unfairly or finely with an eye keenly attuned to the perception of error.

Also, as was said by Kirby J in Wu Shan Liang at 291-2:

“The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.  The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submission.  Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material.” (footnotes omitted)

THE CREDIBILITY ISSUES

In Guo in the Full Federal Court Foster J made certain observations on the issue of the credibility of an applicant for refugee status in the RRT.  At 191 Foster J said:

“Serious concerns about the creditworthiness of an applicant’s testimony can, of course, be fatal to a favourable finding on the balance of probabilities. However, a finding that he or she has failed to establish fact A on the balance of probabilities because, in all the circumstances, including matters of demeanour, the decision-maker is not prepared to accept the applicant as a credible witness does not, as a matter of logic, necessarily mean that the possibility of the applicant’s correctly asserting the existence of fact A has been entirely excluded.  Mere doubts or concerns as to the applicant’s credibility would not be sufficient to exclude the possibility. For this result, a positive state of disbelief would be required on the part of the decision maker.”

And at 194 his Honour said:

“I would also make the observation that even the most experienced decision-maker can encounter considerable difficulty in assessing the credibility of a witness, especially where that witness is disadvantaged by problems of language and lack of familiarity with the situation in which he or she is placed.  It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected.  Exaggeration or even fabrication of parts of a witness’s testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony.  Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence.  However, in cases where only a real possibility need be shown, care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”

These observations are significant in the present case.  Senior counsel for the applicants recognised the difficulties raised by the RRT’s adverse findings in relation to the credibility of the applicants but nevertheless made a concerted attack on those findings.  It is relevant to observe that:

• the relevant findings make it apparent that the RRT reached a positive state of disbelief in respect of the key aspects of the applicants’ claims to which I have referred in my summary of the RRT’s reasons for decision;

• the findings were based on the RRT’s opportunity to see, hear and question the applicants, compare their oral evidence with that given or put forward orally and in writing on prior occasions and on the RRT’s rejection of the applicants’ explanations of the inconsistency between evidence given on different occasions and their failure to disclose important and relevant matters on an earlier occasion;  and

• the findings and the bases for them were carefully explained by the RRT in its reasons for decision.

In spite of these matters I have serious concerns as to the extent to which the RRT was able, in a relatively short hearing, to reject so overwhelmingly the evidence of the applicants on the key aspects of their claims.  Obviously, the applicants were disadvantaged by problems of language and lack of familiarity with the situation in which each was placed.  Some of the RRT’s findings may have been assisted by some further explanation.  Two such findings, which were relied upon in part to reject the applicants’ claims of active involvement in MOSOP and NYCOP, were that there was no demonstration in Bori on 10 November 1995 and that the extensive and detailed knowledge the applicants had of the situation in Ogoniland was said by the RRT to be no greater than would be expected from a person from that region of the world.  However, I am not satisfied that such findings were not open to the RRT.  Some of my concern is ameliorated by the facts that:

• the applicants had legal assistance and representation in the presentation of their case;

• the applicants’ counsel, who was present throughout the hearing, was permitted by the Tribunal Member to participate;

• the applicants had initially failed to volunteer key aspects of their evidence when it could reasonably be expected that they might do so and they had offered inconsistent versions at different times on other aspects;

• it was a matter for the RRT to accept or reject the explanations offered by the applicants for those matters.

In the final analysis it was a matter for the RRT as to whether it reached a state of “satisfaction” as to the factual matters which were material to determining whether the applicants were refugees.

The applicants’ counsel made detailed submissions in relation to the material before the RRT in order to demonstrate that in rejecting the applicants’ evidence the RRT must have erred in the sense discussed in Devries at 479.  In substance, the applicants were contending that the rejection was so inconsistent with the facts established on the totality of the material before the RRT and was based on a view of events which was so glaringly improbable that the RRT must have erred in law in arriving at its decisions.

Given the denial of review on the ground of unreasonableness under s 476(2)(b) and the stringent parameters for review under ss 476(1)(g) and 476(4)(a) or (b) in relation to evidentiary matters I doubt that the suggested basis for review is available under Part 8 of the Act. However assuming, without deciding, that some analogous ground of review might be available under s 476(1)(a) by reason of s 420 (see for example Thambythurai v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finkelstein J, 16 September 1997, unreported) at 8-10 and 11-12) in my view the requisite factual foundation for the submission is lacking. 

As I have pointed out the applicants gave a version of events of political activity and persecution on their part which led to their flight from Nigeria.  The task of the RRT was to make findings in respect of the events relied upon by the applicants in support of their claims for refugee status in so far as they related to material questions of fact and, in its reasons, set out the findings and refer to the evidence or any other material on which the findings were based:  see s 430(1)(c) and (d). 

Earlier in these reasons I set out the adverse findings made by the RRT on the key issues of fact relied upon by it in arriving at its decisions.  In its reasons for the decisions the RRT explained the basis upon which it arrived at those findings.  Prior inconsistent statements, the earlier failure to state important aspects of the applicants’ version of events, the applicants’ failure to identify NYCOP and to recognise immediately significant aspects of Ogoni Day and the unacceptable explanations proffered by the applicants as to those matters were among the reasons given by the RRT for rejecting the applicants’ version of the events that led them to flee Nigeria. 

The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility.  In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground.  That conclusion is important to the outcome of the review as it must follow that the findings of the RRT as to the past events relied upon to support the claims for refugee status must be accepted as the starting point for the application of the “real chance” test.

DID THE RRT FAIL TO APPLY THE CHAN TEST CORRECTLY?

A central plank of the applicants’ submissions was that the RRT did not correctly apply the Chan test.  First it was contended that the RRT failed to consider whether its fact findings against the applicants might be wrong.  Particular reliance was placed on the judgment of Einfeld J in the Full Federal Court in Guo  at 171-5 and 178-9  where his Honour held that the RRT, in failing to ask whether the facts as found might be wrong, had wrongly applied a balance of probabilities test because it had “shunned speculation, weighed the probabilities and therefore avoided the ‘real chance’ test.”

The High Court in Guo rejected the approach of Einfield J.  In particular the Court made it clear that the “What if I am wrong?” approach to fact finding:

• is relevant to facts found on the basis that they are “slightly more probable than not”;

• is neither rational nor necessary when the RRT has no real doubt that its findings are correct;

• has a varying applicability in cases lying between the two situations stipulated above.

In his written supplementary submissions senior counsel for the Minister set out the findings of the RRT that he relied upon to demonstrate that the RRT appears to have taken the view that the probability of error in its findings was insignificant.

The findings relied upon include:
Mr Emiantor:

(a)“....the Tribunal does not accept that the Applicant chose not to recognise the name because of a dream that he had.  In the Tribunal’s view it is clear that the Applicant did not recognise the name [NYCOP] because he was not a member of this group or indeed was not a member of MOSOP.”;

(b)“.... in the Tribunal’s view this failure to know the name of the youth wing, together with his failure to recognise Ogoni day, are fatal to his claim to membership of MOSOP and NYCOP.”;

(c)“The Tribunal is also confirmed in the view that the Applicant was not a leader in Bori by the Applicant’s account of being able to leave whenever he wished.”;

(d)“The Tribunal accepts that the Applicant has considerable knowledge of the situation in Ogoniland.  He has also obviously been there.  However in the Tribunal’s view the Applicant has no more knowledge than would be expected for a person from that region of the world.”;

(e)“Accordingly the Tribunal is satisfied that the Applicant had every opportunity to state accurately his involvement in tribal fighting in 1993 and 1994 and his failure to do this leads the Tribunal to the conclusion that he was not so involved.  This failure to set out his claimed involvement in tribal fighting confirms in the Tribunal’s mind that the Applicant does not have the political profile that he claimed and is prepared to concoct involvement as required.”;

(f)The applicant “could not have been leader of a demonstration [in Bori on 10 November 1995] as claimed”;

(g)“..... the Tribunal is satisfied that there was no demonstration on 10 November 1995 [in Bori] as described by the Applicant.”;

(h)“....the Tribunal does not accept that the Applicant was wanted.”;

1. “The Tribunal does not accept that the Applicant or his friend were named in the newspaper as claimed.  The Tribunal considers this another attempt to create for themselves a profile that they did not have.”;

(j)“...... the Tribunal considers that there is no impediment to the Applicant returning to his father’s Ishan country which is to the north of Ogoniland.”.

Mr Okah:

(a)“...... the Tribunal has no doubts that the Applicant’s principal connection is with the Isolo and that his main place of residence has been in Warri.”;

(b)“The Tribunal is satisfied that the Applicant was not a member of NYCOP as claimed let alone the leader of the Bori area.”;

(c)“In the Tribunal’s view the failure to recognise this name [NYCOP], together with the lack of knowledge of Ogoni Day, is fatal to his claim of membership of MOSOP and NYCOP.”;

(d)“The Tribunal is also satisfied that the Applicant was not a leader in Bori by the Applicant’s account of being able to return to Warri whenever things became difficult.”;

(e)“.... the Tribunal does not accept that the Applicant was being sought at this time.  It confirms the Tribunal’s view that he was never the leader of the youth wing in Bori and was not a member of NYCOP.  The Tribunal is satisfied that the Applicant did not have any profile in either MOSOP or NYCOP”;

(f)“.... the Tribunal does not accept that this [the killing of the Applicant’s father] was as a result of the Applicant’s organising any demonstration as claimed.”;

(g)“.... the Tribunal’s view that the Applicant was not wanted and was not named in any newspaper.”;

(h)“...... the Applicant was not wanted as claimed.”;

1. “.... the Tribunal considers that there is no impediment to the Applicant returning to Warri or to his father’s Isoko country which is to the north of Ogoniland.”;

(j)“..... the Tribunal is satisfied that there is no real chance that he will face persecution should he return to this [Warri] area.”;

(k)“... the Tribunal has not accepted that the Applicant has the profile that he has claimed.”.

In my view senior counsel for the Minister was correct in his submission that having made such findings the RRT was not obliged to consider whether its findings might be wrong as, put in terms of Guo at 579-580, the RRT appears to have had no real doubt that its findings both as to the past and the future were correct. 

Finally, there is nothing in the description by the RRT of its understanding of the Convention or the manner in which it applied the Chan test to the facts that suggests that it erred in law in applying the test.  Indeed its approach to and analysis of the facts was analogous to that of the RRT in Guo.  In Guo, and in the present case, the RRT:

• made findings in relation to the material facts relied upon to establish a real chance of political persecution on the applicants’ return to their country and made an assessment that, on the basis of those findings, there was no real chance of political persecution if they return to their country; and

• had no real doubt that those findings both as to the past and present were correct.

Accordingly, subject to a second aspect of the submission to which I will now turn, there is no substance in this aspect of the applicants’ contentions that the RRT did not decide the real question in the case or that it did not correctly apply the Chan test.

A second aspect of the submission in relation to the Chan test has caused me concern.  As already pointed out the Chan test involves both a subjective and an objective element.  Logically, it is only after the subjective fear is ascertained that an inquiry can commence as to whether, objectively, the fear held is well-founded. 

In the present case the RRT in its decisions did not draw a distinction between the two elements;  it purported to proceed to ascertain whether the applicants’ alleged fear of political persecution was well-founded.  The RRT concluded that the applicants’ fear was not well-founded without expressly making a finding as to the fear allegedly held by the applicants and determining whether that fear was genuinely held.  The issue thus arising might be said to be akin to that considered by the Full Federal Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. In that case the Tribunal had found that the applicant had a strong subjective fear of persecution for reasons of race or political opinion, but did not accept the applicant’s account of having been detained and tortured. It found that the applicant did not fall within the Convention definition because he faced no more than a remote chance of persecution. Davies J (at 632) with whom Burchett J agreed (at 642) said:

“...by failing to identify when Mr Eshetu’s ‘strong subjective fear’ developed and by failing to make findings as to whether that fear developed whilst Mr Eshetu was in Ethiopia and whether it was because of that fear that Mr Eshetu left Ethiopia, the tribunal failed to deal with crucial issues which the definition required to be examined.”

Davies J  (at 633) found that the failure to come to a view of other aspects of the applicant’s story relating to past political involvement and persecution constituted

“... an error of approach due to a misunderstanding of the meaning and operation of the term ‘well-founded fear’.

It follows that the RRT’s decision involved an error of law, being an error involving an incorrect application of the applicable law.”

As already indicated in the present case the RRT did not expressly make a finding as to whether the applicants held a genuine fear of political persecution.  A finding that the applicants did not have any subjective fear of persecution is one which, if made, could be expected to have been made expressly:  see Mason CJ in Chan at 387. A number of aspects of the applicants’ account of their flight, which were not rejected by the RRT, could support the existence of a subjective fear. The aspects include the shooting of both applicants’ fathers, a radio interview after Ken Saro-Wiwa’s arrest, random violence of the security forces in Ogoniland, the applicants’ political association with the SDP and sympathy for the Ogoni cause. The RRT’s findings related primarily to the applicants’ political activities and affiliations with MOSOP and NYCOP and the other political activities that were said to have been likely to attract the attention of the authorities. In making those findings the RRT appeared to have proceeded on the basis of assuming the existence of the alleged fear in the applicants’ favour and, on that basis, determining whether it was well-founded.

Provided that the RRT identifies the fear it is assuming in favour of the applicants, i.e. the subjective element, then for it to proceed in that manner is permissible and no error of law arises by doing so.  In my view, in its reasons for decision the RRT appears to have assumed in the applicants’ favour, but without deciding, that they feared they were and would on their return be, sought by the military or governmental authorities by reason of their involvement in and association with MOSOP or NYCOP and the organisation of the demonstration against the execution of Ken Saro-Wiwa in Bori on 10 November 1995. 

I have been troubled by the failure of the RRT to specifically and expressly identify the fear that it appears to have assumed.  However, it is important to have regard to the context in which this issue has arisen.  The applicants had legal assistance throughout.  Their statutory declarations in support of their application for refugee status and their written submission to the RRT, to which I have referred, claimed refugee status on the basis of their political involvement in MOSOP, NYCOP and the 10 November 1995 demonstration in Bori.  I was not taken to any passages in the material which discloses that the applicants departed from or changed the basis for their claim to refugee status as put in their statutory declaration and written submissions.  A fair reading of the RRT’s reasons in that context makes it implicit that the RRT was accepting and assuming that the claim with which it was dealing was one which was put on the same basis.

For these reasons, although the RRT did not make express findings on the subjective element of the Chan test I am satisfied that it did so implicitly on the basis of the assumptions set out above.

Accordingly, I am not satisfied that an error of law was made by the RRT in applying the subjective and objective elements of the Chan test.

SECTION 420 OF THE ACT

An alternative submission put by the applicants was that the RRT failed to make findings in relation to the whole of the material before it and accordingly did not act according to substantial justice and the merits of the case as required by s 420: see s 476(1)(a) and Eshetu at 624 per Davies J, and at 634-640 per Burchett J.Although the precise content of the duty imposed by s 420 may not be clear it has been said to include:

• that a decision actually be made in respect of the significant issues posed in the case with the consequence that substantial justice will not have been accorded if issues necessary for the proper determination of an application are clearly raised and left undecided:  see Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 198 per Foster J.

• a duty to adopt and apply all those procedures that are  necessary to ensure, so far as may be possible, that a decision maker is able to arrive at a decision that is both just and in accordance with the merits:  see Thambythurai at 9 per Finkelstein J.

The substantive submission of the applicants based on s 420 is that the RRT failed to also decide whether there was a real chance that membership of the pro-democratic SDP, the applicants’ support for the Ogoni cause including Mr Okah’s radio interview after the arrest of Ken Saro-Wiwa and the questioning of Mr Emiantor by the military prior to May 1994 might result in the attribution of an Ogoni activist profile to them with the consequence that there was a real chance of political persecution by reason of that profile. It was contended that the RRT failed to make its findings in relation to the “totality of the circumstances” (Guo at 581) or “the cumulation of the various activities” (Guo at 597) which could bring them to the attention of the military authorities. 

In my view the submission confronts a number of difficulties.  First, the applicants put their claims for refugee status on the basis of their active involvement as members and officials of MOSOP and NYCOP and in organising the demonstration on 10 November 1995.  It was that involvement rather than any previous involvement with the SDP, their personal sympathies for the Ogoni cause or their other incidental activities that was said by the applicants to have given them the political profile that made their fear of political persecution well-founded.  In that context:

• the RRT is an inquisitorial tribunal which is under a duty to “arrive at the correct and preferable decision in the case before it according to the material before it” (Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J) but in doing so the RRT was entitled to be guided by the issues put before it by legally represented applicants for its consideration: Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489 and Noble v Repatriation Commission (Full Court of the Federal Court, Beaumont, Branson and Merkel JJ, 3 November 1997, unreported) at 16.

• it was open to the RRT, as the arbiter of fact, to have regard to the case put to conclude, after consideration of the whole of the material before it, that it was not satisfied that the applicants were entitled to refugee status:  see Noble at 16.

In my view that is precisely what has occurred in the present case.  I would add that the matters set out above have particular significance in a case such as the present where the applicants had legal representation throughout, filed detailed statutory declarations and written submissions and were  afforded every opportunity to put their case at the hearing before the RRT.

Secondly, the case put by the applicants, and in particular the applicants’ own evidence, was that their involvement in MOSOP and NYCOP and the 10 November 1995 demonstration gave rise to the political profile upon which they relied for their refugee status.  Their prior involvement with the SDP, their sympathies with the Ogoni cause and other incidental activities were relevant by way of background but were not proffered as the reason for the applicants’ fear of political persecution.  In that regard the reasons I have given for concluding that the RRT did not incorrectly apply the subjective and objective elements of the Chan test also afford an answer to the s 420 submission.

Thirdly, it is implicit in the reasoning of the RRT that it rejected the applicants’ claim to have any political profile with the Nigerian authorities.  Accordingly, putting the claim of apprehended persecution by reason of a political profile on a broader basis may assist in the subjective element but it will not assist in the objective element as it is implicit in the RRT’s rejection of any political profile that such a claim would not be “well-founded”. 

Fourthly, in its conclusion the RRT states that in arriving at its decision it has considered “the evidence as a whole”.  There is nothing in its reasons or before me that entitles me to conclude that it has not done so.

Accordingly, I do not accept that the decisions are reviewable in reliance on ss 420 and 476(1)(a).

NO EVIDENCE

The applicants contended that there was no evidence or other material to justify the making of the decision.  In particular it was contended that there was no probative evidence to support the findings that the applicants were not members of MOSOP or NYCOP, that there was no demonstration in Bori on 10 November 1995 and certain other incidental matters giving rise to the main findings.  There may be a number of legal difficulties confronting the “no evidence” ground under ss 476(1)(g) and 476(4)(a) and (b):  see Doan v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court of Australia, Olney J, 9 April 1997, unreported), Ratnayake v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Goldberg J, 6 May 1997, unreported) and Fernando v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finn J, 5 November 1997, unreported) in respect of s 476(4)(a) and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 in respect of the ground referred to in s 476(4)(b). See also Thambythurai at 11-13.

However it is unnecessary to consider these difficulties as in my view the ground is misconceived and without substance.  The substantive case of the applicants was entirely dependent on the acceptance or rejection by the RRT of the key aspects of their evidence to which I have referred earlier in these reasons.  As explained it was open, as a matter of law, to the RRT to reject the applicants’ evidence on those aspects . 

In its reasons the RRT provided a rational basis for rejecting the evidence and did so in reliance upon material which was logically probative of the issue it was determining.  Further, the reasons I gave for rejecting the applicants’ submissions on the credibility issues afford a complete answer to the no evidence submission.  In these circumstances there is no basis for contending that anything in the reasons for decision of the RRT was capable of giving rise to the “no evidence” ground set out in ss 476(1)(g) and 476(4).  I would add that it is difficult to see how a “no evidence” ground can apply to the adverse findings, based on credit, which were made by the RRT.  Once such findings are properly made then the “evidence” that is rejected or not accepted on that basis can no longer be relied upon to support the applicants’ claims.  In such circumstances, subject to the “what if I am wrong” aspect of the Chan test, any “no evidence” principle works against, not for, the applicants.

CONSTRUCTIVE FAILURE TO EXERCISE JURISDICTION
The applicants also contended that there was a constructive failure, on the part of the RRT, to exercise jurisdiction as it:

• did not apply itself to the question which the law prescribed or has misunderstood the nature of the opinion which it is to form in giving a decision in exercise of its jurisdiction:  see Ex parte Hebburn Ltd;  Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ; and

• misconceived its duty in that it did not really address the correct legal question committed to it and did not apply itself to all the matters that the legislation required it to consider with the consequence that there was a purported but not real exercise of its functions:  see Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480 per Barwick CJ and at 483 per Gibbs J.

In substance this ground relied upon the same submissions which I have not accepted on the other grounds.  In particular, it depended upon whether the RRT had applied itself to all the matters it was required to consider.  In that regard the applicants relied strongly on the judgment of Beaumont J in the Full Federal Court in Guo at 165-6.  However on appeal in Guo the majority of the High Court, in a passage which is apposite to the present case said at 581:

“Nevertheless, the tribunal did not regard the totality of these circumstances as giving rise to a real chance of persecution for reason of an imputed political opinion.  There was no logical or legal error in its approach.

Accordingly, the tribunal did ask itself and did decide the real question in the case.”

The reasons I have given for rejecting the applicants’ submissions on other issues enable the same comment to be made in the present case.

THE INTERNAL PROTECTION PRINCIPLE
The RRT concluded its reasons by referring to the ability of the applicants to relocate within Nigeria, outside of Ogoniland.  The RRT stated in respect of each applicant:

“Even though the Tribunal has not accepted that the Applicant was involved in MOSOP or NYCOP the Tribunal accepts that, as there has been random violence on the part of the authorities in the past, even though this statement refers to sympathisers, anyone returning to Ogoniland faces potential difficulties.  However the Tribunal does not accept that the Applicant would have to return there.”

The RRT then concluded in respect of Mr Emiantor:

“He could for example return to his grandmother’s in Uromi.  Given that the Tribunal has not accepted that the Applicant has a political profile as claimed there is no information available to the Tribunal which would indicate that if he returns to this place he would face a real chance of persecution for a Convention reason.  It is close to where he attended school.  His grandmother lives there.  Once the Tribunal has rejected his political connections it is not unreasonable in the Tribunal’s view that he could live in Uromi which is on the Applicant’s story the last place he lived before he departed the country.”

And in respect to Mr Okah:

“There is his home in Warri and also his Isoko tribal country and, given that the Tribunal has not accepted he had a political profile, the Tribunal is satisfied that there is no real chance that he will face persecution should he return to this area.”

In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 270 Black CJ, having noted that the Convention definition does not give refugee status to those who, although having a well-founded fear of persecution in their own region, could avail themselves of real protection elsewhere in the country of nationality, held that

“...notwithstanding that real protection from persecution may be available elsewhere with in the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to that country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.  In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”

The availability of real protection elsewhere in an applicant’s country of nationality will, of course, depend on the nature and basis of the persecution feared in the context of that country’s particular circumstances.  Where the particular persecution feared is from the security forces of the State, although that persecution may have a regionalised focus, the extent to which it will be possible to access the protection of the country of nationality simply by relocating to a different part of the country may be limited.  An assessment of whether real protection from persecution was genuinely available would require a determination of the likelihood, having regard to the nature of the activities or status which gave rise to the persecution and to the available evidence as to the past practice of the security forces in dealing with its opponents, of the security forces pursuing an applicant even if she or he was in another region of the country.

In the present case the relocation issue arose in response to the applicant’s fall-back position that anyone returning to Ogoniland faces random violence on the part of the military authorities.  I am satisfied that the RRT, having found that the applicants did not have the political profile claimed by them, did not err in applying the principles set out above in relation to relocation at places outside of Ogoniland but accessible, in real sense, to them.

CONCLUSION

For the reasons set out above the applicants have not established that the RRT decisions are reviewable on the grounds upon which they relied and accordingly, their application to the Court must be dismissed with costs.

Before departing from the present case I would draw attention to the final matter referred to by the RRT in its decisions.  The claim was made by the applicants that their return to Nigeria without appropriate travel documents would invite suspicion and an investigation by the Nigerian authorities.  In rejecting this ground the RRT said, inter alia, that it did not accept that appropriate arrangements cannot be made in that regard.  I would expect that the Australian authorities will take appropriate steps to give effect to the RRT’s expectation that there was no real risk to the applicants in relation to this aspect of the matter.

I certify that this and the preceding
thirty-two (32) pages are a true copy
of the Reasons for Judgment herein of
the Honourable Justice Merkel.

Associate:
Dated:

Counsel for the Applicants:               Mrs S Crennan QC with Mr A Flower
Solicitors for the Applicant:               Freehill Hollingdale & Page

Counsel for the Respondent:             Mr R Tracey QC
Solicitors for the Respondent:  Australian Government Solicitor

Dates of Hearing:  2, 3 and 4 June 1997

Date of Written submissions              16 and 24 June 1997 and
after the hearing  17 and 24 July 1997

Date of Judgment:  3 December 1997