MZNAD and Minister For Immigration - [2004] FMCA 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZNAD & MINISTER FOR IMMIGRATION

[2004] FMCA 117

MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – whether the Tribunal failed to comply with section 441G of the Migration Act 1958 in circumstances in which strict compliance was required and this constituted a jurisdictional error – whether the Tribunal failed to accord natural justice and its invitation pursuant to section 424A(1) of the Act to the applicant to respond to further information and whether it misled the applicant into believing that the Tribunal identified all matters at the hearing – whether the Tribunal failed to deal with the applicant’s claim or integer of the applicant’s claim to be a member of the OPC automatically as a member of the Yuraba tribe – issues of credibility – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424, 424A, 424C(2), 430, 441G, 474(1), 483A, 484, 494B(4), 494D
Migration Legislation (Amendment) (Judicial Review) Act 2001 (Cth)
Federal Court Rules
Federal Magistrates Court Rules

DCAF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 368
Muin v Refugee Review Tribunal (2002) 76 ALR 966
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 311
Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24
NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 52
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 262
Re Refugee Review Tribunal; ex part Aala (2000) 204 CLR 82
Stead v State Government Insurance Commission (1986) 161 CLR 141
NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 102

Applicant:

MZNAD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 218 of 2003

Delivered on:

17 June 2004

Delivered at:

Melbourne

Hearing date:

30 January 2004

last submissions received 20 February 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr J Hamilton

Solicitors for the Applicant:

G N Nwankwo

Counsel for the Respondent:

Mr E Heerey

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

In accordance with my reasons, I order that the Application be dismissed.
The Applicant pay the Respondent’s costs in default of agreement to be taxed pursuant to Order 62 of the Federal Court Rules having regard to Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ218 of 2003

MZNAD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 11 February 2003 affirming the decision of the Minister's delegate not to grant a protection visa.

Background

The applicant is a 32-year-old male Nigerian citizen. He entered Australia at Sydney on 18 September 2000 on a tourism visa valid until 18 December 2000. The applicant's tourism visa application to the Australian High Commission in Lagos stated that the applicant had a wife, a son aged nine and a daughter aged five. None of the applicant's wife, son or daughter have ever entered Australia. The tourism visa application stated that the applicant wanted to visit Australia for the Sydney Olympic Games and that he had been employed for over

12 years as a "senior accountant" by the Nigerian Federal Ministry of Finance. The applicant lodged various documents in support of that tourism visa application, including a letter of support from the Nigerian Federal Ministry of Finance, and an acceptance of offer of employment by that Ministry. On 30 October 2000 the applicant lodged an application for a refugee visa. In that application the applicant describes his profession as "fitness instructor" and described his past employment [sic] as "Nestle Food Nig Plc" in "quality control" from 1991 to 1994 and "private consultant as a fitness instructor" from 1994 to 1998.
The applicant claimed feared persecution that the authorities would arrest and detain him without trial for participating in a protest and subsequent death of a village chief, or that Hausa militant backed by the military would kill the applicant to avenge the death of their village chief or that Hausa militants and/or the authorities would persecute the applicant for being an "active member" of the Odua People Congress ("OPC").
The applicant was interviewed by a delegate of the respondent on

20 December 2000 who decided on 18 January 2001 to refuse the grant of a protection visa.
On 19 February 2001 the applicant lodged an application for review of that decision by the Tribunal. On 2 April 2001 the applicant lodged amended particulars of application for review which were intended to replace fully all earlier particulars.
On 12 November 2002 the Tribunal sent a letter to the applicant inviting him to come to a hearing on 19 December 2002.
On 18 December 2002 the Tribunal sent a letter to the applicant informing him that the Tribunal had information that would, subject to any comments he makes, be the reason or part of the reason for deciding he is not entitled to a protection visa. The letter requested that any comments be in writing and received by the Tribunal by 14 January 2003. In particular, the letter requested the applicant's comments on the following:
a)Information contained in the applicant's tourism visa application, including the claim in the application that he had been a senior accountant employed for 12 years by the Federal Ministry of Finance and related documentation, which conflicts with the employment information provided in the applicant's refugee application and also appears at odds with the applicant's claim that he was wanted by the authorities in Nigeria at the time he left and had to flee because his life was in danger;
b)Country information that the Gani Adams faction is the more militant faction of the OPC, contrary to the applicant's statement that he was a member of the more moderate faction of the OPC, namely the Gani Adams faction, and country information that there is a membership fee for joining the OPC, again contrary to the applicant's claim;
c)Stamps in the applicant's passport that indicate that he travelled in and out of Nigeria on several occasions in 1998 and 1999 which appear at odds with his claim that he feared the authorities in Nigeria since 1998.
The Tribunal heard the matter on 19 December 2002. The applicant's solicitor sent further written submissions dated 3 February 2002 [sic] which were received by the Tribunal on 5 February 2003. Those submissions refer to:
"the hearing of this matter conducted by Member Boddison on 19 December 2002."
The applicant's further submissions dated 3 February 2003 made no substantive response to the matters raised in the Tribunal's letter of 18 December 2002.
On 11 February 2003 the Tribunal made a decision to affirm the decision not to grant a protection visa.

Relevant law

As the application was filed after 2 October 2001, the case is governed by the provisions of the Migration Act 1958 (Cth) ("the Act") as amended by the Migration Legislation (Amendment) (Judicial Review) Act 2001 (Cth). The Federal Magistrates Court has jurisdiction to hear this application under ss.483A and 484 of the Act.
Unless the applicant can demonstrate jurisdictional error, a decision refusing to give a visa is a privative clause decision and is subject to s.474(1) of the Act. (see Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 (S157).
As a result of matters raised at the hearing of this matter I gave leave for supplementary submissions to be made on new points raised and the both the respondent and the applicant filed further written submissions.

The Tribunal's decision

The Tribunal's decision consisted of a consideration of the claims of the applicant made at various times and including the hearing. It considered country information in relation to Nigeria and the internal inconsistencies it found regarding the applicant's claims. The Tribunal's attitude to the applicant's evidence is encapsulated in the following passage at Court Book, page 170:
"The Tribunal notes that there have been many shifts in the applicant's evidence over time and he has given contradictory evidence at different stages of the proceedings which suggests to the Tribunal that the applicant has not been truthful in his claims. Further, the Tribunal refers to the applicant's application for a visitor visa which was lodged at the Australian High Commission in Lagos on 7 September 2000. In that applicant he claimed that he was a senior accountant employed by the Federal Ministry of Finance and Economic Development, and that he had held this position for 12 years. A number of documents from government departments were provided in support of the application. The applicant claimed that this documentation was fake, and that his visa was obtained through his contacts in the special security office. The Tribunal does not accept that all the documents lodged with his visa application are fake. Some of these documents could easily have been checked by the embassy staff in Lagos. The Tribunal finds that the applicant was employed as an accountant with the Federal Ministry of Finance and Economic Development. The applicant's employment with the government confirms the Tribunal's view that he has not been involved in any anti-government activity in Nigeria and he has not been arrested on numerous occasions as a result of that activity."
Having regard to the inconsistencies in his evidence the Tribunal rejected the claims of the applicant and found that there was no real chance that the applicant would be persecuted in the reasonably foreseeable future if he returned to Nigeria and that this fear of persecution is not well founded. The Tribunal found that the applicant did not have a well founded fear of persecution for reasons of his involvement in the OPC nor because he was implicated in the murder of a Hausa chief or because he has applied for refugee status in Australia and that he was not a refugee within the meaning of the Convention and thus not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The applicant's grounds for review

The applicant's grounds for review essentially fall into four headings:
i)That the Tribunal had not complied with the provisions of s.441G of the Act in circumstances in which strict compliance was required and this constituted jurisdictional error.
ii)That the Tribunal failed to accord natural justice or procedural fairness in that its invitation pursuant to s.424A(1) to the applicant to respond to information by letter dated 18 December 2002, was unknown to the applicant at the hearing on 19 December 2002 and he was misled into believing that the Tribunal identified at the hearing fully the matters upon which it intended to rely as its reason or part of its reason in coming to the decision it did.
iii)That the Tribunal failed to deal with the applicant's claim or integer of the applicant's claim to be a member of the OPC automatically as a member of the Yuraba tribe.
iv)Issues of credibility.

Credibility issues

A number of contentions were directed to the Tribunal's finding that it did not accept that the applicant was a member of the OPC or of the inner circle executive. The applicant contends that he did not claim to be a member of the inner circle or executive. However this is incorrect. The Tribunal's decision records[1] that the applicant explained that he was part of an "executive" "in a group" or "in a circle" of the OPC. Similar claims were set out in the amended application.
[1] See Court Book, pages 164 and 167.
The applicant contends the Tribunal ignored the applicant's claimed fear of persecution contained in his amended application because of his membership of a particular racial group, the Yaruba people, Odua tribe. However the Tribunal set out the applicant's claims at Court Book, page 161:
"The applicant claimed that he had suffered repeated persecution because of his membership of a particular racial group, the Yaruba people, Odua tribe, and his political involvement with the OPC and his political opinions and activities."
The applicant also contends that the Tribunal erred by ignoring the applicant's claim that as a member of the Yaruba tribe the applicant was automatically a member of the OPC and claims that that issue was never addressed by the Tribunal. It is clear from the Tribunal's decision[2] that the Tribunal considered these claims together with independent country information which included reference to the OPC and other separate "more conservative Yaruba movements, such as the Alliance for Democracy and Afenifere". The Tribunal noted at Court Book, page 169:
The applicant's evidence regarding the fact that anybody initially could join the OPC and that there was no joining fees is also at odds with the country information.
[2] See Court Book, page 167.
The Tribunal considered and rejected the applicant's claim that he was automatically a member of the OPC merely by his Yaruba ethnicity. The Tribunal also rejected the claims by the applicant to be a member of the OPC or a member of the inner circle or executive of the OPC due to his
"lack of knowledge of fundamental aspects of the aspirations and aims of the OPC."[3]
[3] See Court Book, page 169.
The applicant contended that the finding by the Tribunal that it was not satisfied the applicant had been arrested in Nigeria for the reasons of being a member of the OPC or for any other reason, was a finding for which it gave no reasons. However at Court Book, pages 169 and 170 the Tribunal gave various reasons to support this finding including:
"The many shifts in the applicant's evidence regarding his arrest, the vague and general nature of his evidence relating to his arrests and the fact that he claimed his arrests were related to his membership of the OPC".
It was open to the Tribunal to make this factual finding on the evidence as identified and the applicant's claims are an attempt to review the merits of the factual finding which is beyond the jurisdiction of the Court.
The applicant contended that the Tribunal's finding that the applicant made two seemingly inconsistent claims concerning the murder of his father's neighbour was erroneous and mistaken, because various factual evidence given by the applicant "leads easily to a conclusion the applicant may be considered the suspect". These contentions failed to identify any relevant jurisdictional error and are an attempt to review the merits of the Tribunal's findings.
The applicant contends that the Tribunal's finding that there was no warrant for the applicant's arrest and that he was not wanted for the murder of his father's neighbour were made without evidence because the applicant did not advise that there was a warrant out for his arrest and further if the matter was considered relevant by the Tribunal the Tribunal should have sought confirmation as to whether a warrant was issued. This contention however is factually incorrect. In the letter dated 3 February 2003 from the applicant's solicitor to the Refugee Review Tribunal at Court Book, page 148, paragraph 2.3 says:
"Notwithstanding being sought after by the authorities in Nigeria due to his membership of OPC, the applicant's matter went from bad to worse when a Hausa village chief who was having a boundary dispute with the applicant's father was found dead during OPC protests. As a result the House [sic] militants vowed to kill the applicant. In addition to threat to the applicant's life by the Hause militants the local police issued a warrant for his arrest."
At Court Book, pages 21 and 22 in his application the applicant claimed:
"I was an active member of OPC which led the Lagos protest against the suppression of the Yarubas by the Hausa dominated government in which the alleged death of the village chief occurred. Despite the fact that the authorities found nothing connecting the death of the village death and the OPC, yet a warrant was issued for the arrest and detention of OPC members that took part in the said protest."
And at Court Book, page 22:
"When I returned in 1998 I was arrested on arrival."
Section 424 of the Act provides that the Tribunal "may" get any information it considers relevant. Having rejected the applicant's claim for a warrant for his arrest, the Tribunal had discharged its function without an error of law and was not required to go beyond the applicant's claims (see DCAF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 368 at [7]).
The applicant contends that not all the documents lodged with the applicant's tourist visa are fake and that the Tribunal should not have found that the applicant was employed as an accountant with the Federal Ministry of Finance and Economic Development without making further inquiries of the Nigerian Ministry of Finance or Nestle Food Nig Plc. Section 424 is not mandatory in its terms and the Tribunal was under no obligation to obtain further information. The Tribunal was entitled to reject some and accept other parts of the applicant's evidence. It was for the applicant to make out his own claim. Procedural fairness does not require the Tribunal to assist him to make his case (see Muin v Refugee Review Tribunal (2002) 76 ALR 966 at [265] - [266] per Hayne J). The contradictory information before the Tribunal were contradictory claims made by the applicant.
The applicant contends that in rejecting the applicant's claim that seeking refugee status in Australia could prejudice him upon his return to Nigeria, the Tribunal ignored relevant material in that the Ministry of Finance in its letter of introduction stated the applicant had leave only until 16 October 2000 and that if the applicant were to return after an absence of three years the authorities might reasonably conclude that he had sought permanent residence in this country for some Refugee Convention reason.
This complaint goes to the merits of the Tribunal's factual findings however the contention is illogical because it is based on the proposition that the applicant was employed by the Ministry of Finance and thus it entirely contradicts the previous contention which suggests the Tribunal should not have found the applicant was employed by that Ministry at all as the applicant contended in his case.
The applicant complains that the Tribunal's finding that he is not a member of the OPC and thus not a refugee "(indistinct)". He contends this finding ignores his claim that he is not only discriminated against on political grounds, but also because of his membership of a particular racial group, the Yaruba tribe which he contends automatically makes him a member of the OPC. However the Tribunal considered and rejected his claimed membership of the OPC including any automatic membership arising from his Yaruba ethnicity.
The contentions of the applicant in relation to these matters do not identify any error by the Tribunal let alone any jurisdictional error and do not thus establish any basis for review of the Tribunal's decision on this ground.

Was there a breach of section 441G?

The applicant asserts a breach of s.441G of the Act and relies upon the decision of the Full Federal Court in VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 311 (VEAN).
The decision on the issue in VEAN arose from the fact that the respondent's department had sent a copy of the delegate's decision by letter addressed to the applicant care of his authorised recipient (his sister) at her address. The Full Court held that the respondent had not complied with the requirement of ss.494B and 494D of the Act which prescribed how the respondent must give information to the authorised recipient. The key passages of the Full Court's decision stated:
"37. … clearly the address is contemplated … in s 494B(4)(c)(i) and (ii) for a despatch by prepaid post are those applicable to the authorised recipient and not some other addresses such as those of the appellant or some other person.
38.The letter of 3 January 2002 was not addressed to the authorised recipient. It was addressed to the appellant, care of the authorised recipient. The factual consequence was that the authorised recipient did not consider the letter was address to her. She notified the appellant of the letter addressed to him at her address, and the appellant in fact arranged the collection of the letter from the post office.
39.We do not consider the letter of 3 January 2002 was, in the circumstances, given to the authorised recipient.

The letter in question in VEAN was the letter containing the delegate's decision to refuse the applicant a refugee visa also dated 3 January 2002. The Tribunal in VEAN proceeded on the basis that the respondent had validly given that document under s.494B(4) as such, s.494C(4) was triggered, so that the applicant was deemed to have received the document seven working days after 3 January 2002, that is, by 15 January 2003[sic].
Section 414(1)(b) provides that an application for review must be filed with the Tribunal within 28 days of the applicant being notified of the decision. If the applicant was deemed to have received the decision on 15 January 2003, then the 28 day period expired on 11 February 2002.
The applicant in VEAN filed a review application with the Tribunal on 26 February 2002. The Tribunal found that it had no jurisdiction to entertain the review application at all, as it had been filed more than 28 days after the applicant had been notified of the decision.
It was accepted by the parties in VEAN that the appellant actually received notification on 6 February 2002, after his brother collected the registered mail article from the post office on that day. If he were found to have been notified of the decision on that date, then his application to the Tribunal would be within time and the Tribunal would have been required to review the merits of the delegate's decision.
As such, it is obvious that in VEAN drastic consequences flowed from whether the respondent had complied with ss.494B and 494D as that issue determined whether the applicant's whole case should or should not have been heard by the Tribunal.
Thus there are several important points of distinction between VEAN and the present case. In the present case the letter in question is the Tribunal's letter of 18 December 2002[4]. That letter was sent pursuant to the requirements of s.424A so that the applicant would have an opportunity to understand and comment on information that the Tribunal considers will be part of the reason for affirming the decision under review. Importantly, the 18 December 2002 letter was not only sent to the applicant care of his authorised recipient (that happened in VEAN) but was also addressed directly to the authorised recipient himself by his own name, Mr Goddson N Nwankwo, in full compliance with ss.494B(4) and 494D.
[4] See Court Book, pages 145-146.
In VEAN, the Full Court relied on the fact that the relevant letter was not addressed to the authorised recipient herself, to find, as a factual consequence, that the authorised recipient did not consider the letter was addressed to her. By contrast, the 18 December 2002 letter was addressed to Mr Nwankwo under his own name, preventing any factual conclusion that he did not consider it was addressed to him.
The circumstances in which the letter of 18 December came to be sent need also to be considered. On 12 December 2002 the Tribunal wrote to the applicant inviting him to a hearing on 19 December 2002 and enclosing a "response to hearing" form. That letter was sent to the applicant care of his authorised recipient's address, and was also addressed to the authorised recipient under his own name and to the applicant at his last notified residential address.
On 29 November 2002 the applicant's adviser returned the completed "response to hearing" form to the Tribunal by facsimile. In response to the question "Do you want to come to the hearing?" The applicant's adviser had ticked the box answering "No". In selecting this option on the "response to hearing" form, the applicant's adviser also indicated to the Tribunal that the applicant consented "to the Tribunal proceeding to making a decision on the review without taking any further action to allow or enable me to appear before it".
As such, it is clear that the Tribunal sent the 18 December 2002 letter in the understanding that the applicant did not intend to appear at the hearing scheduled for 19 December 2002.
However, contrary to the indication on the "response to hearing" form, the applicant and his adviser attended the Tribunal on 19 December 2002. The Tribunal had held a hearing that day despite the earlier indication that the applicant had wanted a decision to be made "on the papers".
That is apparently the reason why the letter in compliance with s.424A was sent to the applicant bearing the date prior to the day on which the hearing was held.
As the 18 December 2002 letter had been addressed directly to the applicant's authorised recipient by name (as well as the applicant) the Tribunal had complied with ss.494B(4) and 494D. As such, s.494C(4) applies so that the applicant may be deemed to have received the 18 December 2002 letter seven working days later, that is by 31 December 2002 (excluding weekends and public holidays on 25 and 26 December 2002).
The 18 December 2002 letter specified that any comments were to be in writing and received by 14 January 2002. The applicant's adviser made further written submissions by letter dated 23 February 2002, pursuant to an extension of time granted by the Tribunal member at the 19 December 2002 hearing.
Insofar as the applicant's adviser's 3 February 2003 letter may have failed to have respond to the information raised in the Tribunal's 18 December 2002 letter, s.424C(2) authorised the Tribunal to make a decision on the review without taking any further action to obtain the applicant's views on the information. Hence, there was no failure by the Tribunal to comply with the requirements of ss. 424A, 494B(4) or 494D.
In any event, even if the Tribunal's letter dated 18 December 2002 had not been given the applicant's adviser in compliance with ss.424A, 494B(4) and 494D, such a failure to comply with a statutory requirement does not necessarily amount to a jurisdictional error, absent a breach of natural justice or procedural fairness (see Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous (supra)).
Once it has been established that in the particular case the requirements of the Act were not meant or there has been a non-observance of the requirements of natural justice, it is only if it is positively concluded that observance of the requirements "could not possibly have produced a different result" that the decision impugned will be allowed to stand (see NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 52, per Lindgren and Stone JJ at [31]). Once a breach has been established it remains for the respondent to show that the observance of natural justice "could not possible have produced a different result". (see NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 262 at [17] (NARV) where the Full Court said:
"It is not clear whether the Minister meant by this submission that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent on the complainant to lead evidence to explain in precisely what way he's been adversely affected by the particular omission. If this is what the Minister means it should be rejected outright. There is no principle which is to this effect. Indeed it is a submission which is contrary to well established principle."
See also Re Refugee Review Tribunal; ex part Aala (2000) 204 CLR 82 at 122; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
In NARV the Full Court went on to say at [18]:
"On the other hand there no doubt will be cases where it is not clear what, if anything, a complainant could have done with the information which has not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, a Court is unable to see how the complainant has suffered "practical injustice" then the complainant may be required to adduce evidence to explain why he has been unfairly treated."
As to this ground, I am satisfied that no practical injustice occurred to the applicant as the letter was received by the applicant's adviser and the applicant and the technical failure to address the letter in the correct manner was a non-jurisdictional error involving a failure to convey the relevant information by the correct method. (see NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 102 where at paragraph [23] the Full Court of the Federal Court, per Carr, Kieffel and Allsop JJ said):
Thus, the relevant inquiry here is whether Parliament intended that breach of the conditions as to the manner of delivery of the relevant substantive information should necessarily spell the invalidity of the Tribunal's decision, even in circumstances where there has been satisfaction of the important substantive requirements of s 424A(1) to give the appellant there contemplated and implicitly an opportunity to deal with it. The "mandatory" language (the word "must") is used in subsection 424A(2) is relevant to, but not decisive of, this inquiry. In our view, it cannot be concluded that invalidity of the Tribunal's decision is the necessary consequence of any failure to comply with subsection 424A(2), irrespective of the absence of any unfairness, whether of a substantive or procedural kind. Thus we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional."

Procedural unfairness arising from the timing of the letter

As can be seen form paragraphs 39 to 45 of these reasons, the Tribunal's letter dated 18 December 2002 inviting comments from the applicant on information that it said would be the reason or part of the reason for deciding the applicant was not entitled to a protection visa, was dated the day immediately prior to the hearing which was attended by the applicant and his adviser. As previously stated, the letter was sent in the clear understanding that the applicant did not intend to appear at the hearing scheduled for 19 December.
The applicant contends:
v)That there was a procedural fairness obligation on the Tribunal to put the contents of the letter to the applicant at the hearing on 19 December and it is contended by the applicant that this did not occur.
vi)That when the authorised recipient received the letter he did not seek the applicant's response to the specific issues raised for the reasons that matters addressed at the subsequent hearing were seen to be those of concern to the Tribunal and unfairness arose in this case because the Tribunal failed to fully address matters in the letter of 18 December at the hearing on 19 December. It is contended in particular that the main area in which the relevant letter invited comment concerned perceived conflict between employment information in the applicant's 7 September 2000 visitor visa application and that in his protection visa application.
While the applicant advised that the supporting documentation for the visitor visa was fake, nowhere is there any indication that an explanation was sought for the conflicting information in the protection visa. Having identified this issue as being the reason or part of the reason for deciding the applicant was not entitled to a protection visa the Tribunal was obliged pursuant to s.430 of the Act to set out the findings on this material question of fact going to credibility and it is contended that no such finding is addressed.
I am satisfied that there was in the circumstances of this case the potential for unfairness and the question of whether the applicant had the opportunity to comment on matters raised in the letter needs to be carefully considered.
The letter itself says:
"The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows: on 7 September you lodged an application with the Australian High Commission in Lagos for a visitor visa. In that application you claimed that you were a senior accountant employed by the Federal Ministry of Finance and Economic Development. You had been employed there for 12 years. Your visa application was accompanied by a letter from the office of the Accountant General of the Federation dated 4 August 2000 and an acceptance of an offer of employment with the Federal Ministry of Finance dated 11 September 1989 (copies enclosed folios 60, 63, 69 and 70 of DIMIA file).
This information is relevant because it conflicts with information in your protection visa application and application for review that from 1991 until 1994 you worked for Nestle and from 1994 until 1998 you worked as a fitness instructor and that from 1998 you were only able to perform ad [sic] jobs such as buying and selling on the streets. It also appears at odds with your claim that you were wanted by the authorities in Nigeria at the time you left and had to flee because your life was in danger.
In addition in your application for review you claimed that you were a member of the more moderate faction of the OPC namely the Gani Adams faction. Country information available to the Tribunal from a variety of sources indicates that the Gani Adams faction is the more militant faction of the OPC. Country information also indicates that a membership fee is required for joining the OPC whereas you claimed in your interview with the delegate that there was no joining fee.
Further, your passport has stamps in it that indicate you travelled in and out of Nigeria on several occasions in 1998 and 1999 which appears at odds with your claim that you feared the authorities in Nigeria since 1998.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 14 January 2003."
It is thus apparent that there are four matters upon which the Tribunal was seeking the comments of the applicant:
a)An explanation as to the conflict between the information supporting the application for a visitor visa and the information in support of the protection visa.
b)The claim by the applicant that his membership of the Gani Adams faction was the membership of the more moderate faction of the OPC when country information available to the Tribunal indicated that the Gani Adams faction was the more militant faction of the OPC.
c)That the country information indicated a membership fee for the OPC whereas the applicant claimed that there was no joining fee.
d)The stamps in the passport indicating that the applicant travelled in and out of Nigeria between 1998 and 1999 which appeared at odds with his claim that he feared the authorities from 1998.
As to subparagraph (a) it is clear from the reasons of the Tribunal that these matters were raised directly with the applicant. At Court Book, page 166 the Tribunal states:
"He stated that when he was leaving Nigeria to come to Australia he was arrested at the airport before he went through immigration. An NFS officer arrested him and took him to a room and interrogated him for three hours. He was asked where he was going and he was accused of being a member of the OPC. The arresting officer showed him a list of names and the applicant's name was on it. He gave the officer some money to allow him to go and told the officer that he was only leaving Nigeria for a month.
The applicant was asked how he arranged his visa to come to Australia. He said that he had an informant who told him that his life was in danger and through his help he obtained his visa. It was put to him that his visitor visa application stated that he was employed by the Federal Ministry of Finance and Economic Development as a senior account and that the application had been supported by various documentation. He stated that his informant obtained the visa for him and that these were all fake documents that he used to enable him to get a visa."
The Tribunal made a specific finding about this issue at Court Book, page 170:
The Tribunal notes that there have been many shifts in the applicant's evidence over time and he has given contradictory evidence at different stages of the proceedings which suggests to the Tribunal that the applicant has not been truthful in his claim. Further, the Tribunal refers to the applicant's application for a visitor visa which was lodged at the Australian High Commission in Lagos on 7 September 2000. In that application he claimed that he was a senior accountant employed by the Federal Ministry of Finance and Economic Development, and that he had held this position for 12 years. A number of documents from government departments were provided in support of the application. The applicant claimed that this documentation was fake, and that his visa was obtained through a contact in the special security office. The Tribunal does not accept that all of the documents lodged with his visa application are fake. Some of these documents could have been easily checked by the embassy staff in Lagos. The Tribunal finds that the applicant was employed as an accountant with the Federal Ministry of Finance and Development."
On this issue the discrepancy in the information in support of the visas was clearly brought to the attention of the applicant and he was given an opportunity to comment upon it at the hearing. In fact the letter which was subsequently responded to gave him a further opportunity and clearly pointed out that this was a matter which was of concern to the Tribunal. In this case in fact the applicant had two opportunities to put further material before the Tribunal on this issue if he had wished to and I cannot see how it can be said that any practical unfairness arose, indeed the contrary appears to be the position.
The second matter concerns the militancy of the Gani Adams faction as compared to the moderacy claimed by the applicant. During the hearing the Tribunal notes at Court Book, page 165:
"The applicant was asked the difference between the Gani Adams faction and the Sasehun faction."
It does not appear from the reasons of the Tribunal that it was directly put to the applicant at the hearing that at his interview with the delegate that his description of the Gani Adams faction was that of a more moderate faction. The delegate in fact put to the applicant that the Adams faction was the more violent faction of the OPC[5]. The issue does not appear to have been raised other than in a general sense at the hearing however again the applicant has failed to establish any unfairness to him as upon receipt of the letter following the hearing it came to his intention that this was a matter which the Tribunal was concerned about and he was afforded the opportunity of responding to it.
[5] See Court Book, page 160.
In any event, even if this was a matter which the applicant did not respond to because of confusion about whether the letter was redundant as a result of the hearing, the decision did not rest upon this factor. It must be seen in the context of a decision in which there were many inconsistencies and shifts in the evidence of the applicant and it could not be fairly said that this one issue was a crucial aspect of the Tribunal's decision without which, it might have come to a different conclusion.
The third matter concerned the discrepancy between the evidence by the applicant that there was no joining fee and the country information indication a membership fee for joining. The applicant at the hearing clearly stated that whoever wanted could join the group and there was no money to join. At page 60 of the Court Book, the Tribunal notes that the applicant said:
"The applicant stated that whoever wanted could join the group and you did not have to pay any money to join."
The reasons of the Tribunal do not record that the country information was at odds with his evidence regarding the fact that anybody could join the OPC.
However, again the applicant had the opportunity subsequently to address this issue when the letter from the Tribunal was responded to. It needs also to be seen in the context of the finding by the Tribunal that it did not accept that he was a member of the OPC or a member of the inner circle or executive of the OPC "due to the applicant's lack of knowledge of fundamental aspects of the aspirations and aims of the OPC". That appears to have been the basis upon which the Tribunal concluded that the applicant was not a member of the OPC and there was adequate reason for the Tribunal to come to that conclusion. As such it could not in any event be reasonably argued that the joining fee issue was a reason or part of a reason for denying the visa or for the Tribunal's decision to refuse a protection visa.

The fourth issue related to the passport stamps indicating that the applicant travelled in and out of Nigeria on several occasions in 1998 and 1999 at a time when he claimed that he feared the authorities. At the hearing the applicant was asked specifically about this matter:
"The applicant was asked about his trips in and out of Nigeria in 1998 and 1999. He confirmed that he had entered and left Nigeria on many occasions. He stated that when things got difficult and there were problems he would leave Nigeria and when he heard that things had calmed down he would return. He stated that although he had a visa to go to France he never went there because at that time President Abacha died and things calmed down in Nigeria and there was no need for him to leave. The applicant was asked what had changed in 2000 that caused him a problem that he needed to leave. He stated that a man was murdered and he was accused of this murder. It was put to the applicant that he had given evidence this occurred in 1998 and it had been his claim until this time."
It is clear that this matter was clearly raised with the applicant during the hearing and the applicant responded directly to it by effectively changing the story that he had previously given. There is no demonstrated unfairness to the applicant on this issue.
In any event, in general terms the Tribunal had a wealth of other material on which to base its ultimate decision that the applicant had been an employee of the Nigerian Federal Ministry of Finance (as claimed in his tourist visa application), was not a member of the OPC and had given inconsistent versions of events which had occurred to him.
The letter which was written by the applicant's adviser subsequent to the hearing[6]it is true, does not specifically refer to the letter of 18 December and says:
"We thank your Honour for allowing an extension of time to make further submissions in support of the applicant's case."
[6] See Court Book, pages 147-150.
General submissions including matters previously raised by the applicant were presented. The applicant's oral evidence is referred to and it could be reasonably expected that the applicant in fact had a further opportunity to put material to the Tribunal even if not directly in response to the letter of 18 December, on matters which by reason of the questions at the hearing and the letter of 18 December he could reasonably have anticipated were of concern to the Tribunal.
Accordingly, I am not satisfied that there is any breach of natural justice or procedural fairness which would lead to jurisdictional error and the application must be dismissed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 17 June 2004