MZPAA v Minister for Immigration

[2004] FMCA 941

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZPAA v MINISTER FOR IMMIGRATION [2004]FMCA 941

MIGRATION – Application for review of Refugee Review Tribunal decision – where applicant claims to have a well-founded fear of persecution for reasons of political opinion and membership of a particular social group – where applicant claims to have been tortured as a result – where applicant’s migration agent sent the Tribunal a letter which replaced the particulars given in the review application – where applicant was invited to comment on material which outlined the Tribunal’s concerns with the applicant’s change in evidence – where applicant replied to this letter – where Tribunal did not consider the applicant to be a credible witness – whether Tribunal did not take into sufficient consideration the effect of the applicant’s imprisonment and torture in relation to his perceived lack of knowledge of aspects central to his claims – whether Tribunal failed to put to the applicant  its concerns about his change in evidence thus denying the applicant natural justice – whether the Tribunal should have decided between the applicant’s evidence and that of his cousin.

Migration Act 1958 (Cth), ss.36, 65, 424A

NADR of 2002 v MIMIA [2003] FCAFC 167
Kamal v MIMIA [2002] FCA 818

Applicant: MZPAA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 501 of 2003

Delivered on: 29 November 2004

Delivered at: Melbourne

Hearing Date: 29 November 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr R. Hamilton

Solicitors for the Applicant: Di Mauro Solicitors

Counsel for the Respondent: Dr S. Donaghue

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. The applicant to pay the respondent's costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 501 of 2003

MZPAA

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nigeria.  He arrived in Australia on 25 September 2000.  On 6 November 2000 he lodged an application for a Protection (class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 16 March 2001 a delegate of the Minister refused to grant a protection visa and on 12 April 2001 the applicant applied for review of that decision. 

2. The applicant has at all times been represented by a solicitor/migration agent. On 3 May 2001 the agent provided the Tribunal with a letter which was intended to replace in full the particulars given in the application for review of the decision to refuse the protection visa dated 2 April 2001. On 25 February 2003 the Tribunal wrote the applicant a letter which has been described at the hearing as a s.424A letter setting out some matters upon which it invited the applicant to comment [CB 88] – [CB 89]. The applicant's solicitors did comment in a letter dated 12 March 2003 [CB 90] – [CB 91]. On 28 March 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 17 April 2003.

3. The applicant claims to have a well-founded fear of persecution for the convention reasons of political opinion and membership of a particular social group arise in the following way.  He is a member of the Ogoni tribe and claims to have been active member of the Movement for the Survival of the Ogoni People or MOSOP.  He stated that to some extent he fell out with MOSOP because of his antipathy to violence, but notwithstanding this, he apparently accepted an instruction to go with his cousin (who has also made an application for protection) and make inquiries about certain village chiefs who may have had ideas and opinions opposed to the MOSOP hierarchy. 

4. The applicant alleges that he did this and that later when four village chiefs were murdered and the chairman of MOSOP, Mr Ken Saro-Wiwa, was arrested for inciting the violence that caused these deaths, he and his cousin were taken into custody. After being tortured and tutored, gave evidence in the trial of Mr Saro-Wiwa and others which followed later.  The applicant claimed that he and his cousin were then kept in protective custody until 1999 when he was released.  He claimed that after his release there was no protection for persons such as himself and his cousin from vengeance of other Ogoni people and he was required to escape into Australia for his safety.

5. One of the important elements of the applicant's claim was that he was a prosecution witness during the trial of Ken Saro-Wiwa and this is a matter which he raised with the delegate.  At [CB 35] the delegate, at paragraph 3.3.2, says the following:

   "Michael Brinbaum's article is a comprehensive guide and analysis of the trial of Ken Saro-Wiwa and others.  Firstly, it is important to note that the analysis provides a comprehensive list of prosecution witnesses in the trial of Ken Saro-Wiwa and others.  The applicant in this case has claimed that he was a prosecution witness in the trial and as a result of this he now fears for his life from Ogoni MOSOP members.  In my opinion this claim is extremely serious.  On the information available to me, I can not find any evidence that the applicant was a prosecution witness in the trial of Ken Saro-Wiwa.  The country information before me indicates that many witnesses were called, however, the applicant is not listed as such a witness.  Had the applicant been a key witness, as he has asserted, I find it improbable that he would not have been named in this resource."

6. The delegate then goes on to provide other reasons why he believes that the applicant does not fall into the categories of persons referred to in the Brinbaum article and for that reason has his doubts as to the veracity of the applicant's claims. 

7. It follows from the above that the question of whether or not the applicant was a witness at the hearing was firmly a matter in contention and the evidence that would suggest that he was not had been clearly stated to him.  When the applicant came to the Tribunal he no longer argued that he was a witness but instead indicated that he had given a statement which may have been read out at the hearing. 

8. In the s.424A letter, the Tribunal says, at [CB 89]:

   "In addition, your claim that you made a statement regarding what Ken Saro-Wiwa said at the meeting but you were not called as a witness before the military is at odds with the country information.  From reports of the evidence given at the trial this would have been crucial evidence and you would have been a leading prosecution witness."

9. The problem concerning the applicant's apparent change of evidence was therefore highlighted even before the Tribunal’s decision and the applicant was able to comment on the matter in the letter which his solicitors wrote on 12 March.  The response which the solicitors made, and which is found at [CB 91] is in the following form:

   "The Tribunal argued under paragraph 9 of the letter that the applicant's claim that he made a statement regarding what Ken Saro-Wiwa said at the meeting but was not called as a witness before the military is at odds with the country information.  We submit that this statement is vague as the applicant has not been provided with the country information referred by the Tribunal.  In the absence of any reliable country information confirming that all members of MOSOP who gave statements to police in Ken Saro-Wiwa's trial were called before the military, the  Tribunal should accept the applicant's evidence as presented."

   This response elides from the real complaint, which was that the applicant's statements were inconsistent, and does not in any way seek to respond to it. 

10. The Tribunal sets out its decision between [CB 109] – [CB 113].  At [CB 109] it summarises its grounds for concern in the following way:

    "The Tribunal had a number of concerns regarding the applicant's credibility.  These concerns arose from four areas; the lack of knowledge of MOSOP and the events leading to the trial of the Ogoni nine, the shift in the applicant's claims from his initial application to his evidence at the Tribunal , inconsistencies with his evidence and the evidence of his cousin given to the Tribunal, and finally, inconsistencies between the applicant's account and the information available to the Tribunal  from other sources."

11. The Tribunal then goes on to expand on these grounds before coming to a firm and conclusive opinion about the applicant.  It says at [CB 111] – [CB 112]:

    "Due to the applicant's knowledge of MOSOP and its activities and the key people involved in the trial and death of the four chiefs, the shift in his evidence from the time of application to the  hearing, the inconsistencies between his account and his cousin's account, and the fact that much of his claims are inconsistent with the country information, the Tribunal concludes that the applicant has fabricated his claim for refugee status. The Tribunal does not accept that the applicant was a member of MOSOP, nor does it accept that he was requested by MOSOP to investigate who was undermining MOSOP.  It does not accept he was arrested after the death of the four chiefs in 1993, nor does it accept that he was a prosecution witness and kept in protection for five years.  Consequently the Tribunal does not accept the applicant is at risk from the Ogoni people or that he is at risk for being a member of MOSOP."

12. In the face of this, for the applicant, devastating finding, he argues that the Tribunal fell into several forms of jurisdictional error.  I will pass over the applicant's initial application and move straight to a document entitled “Applicant's Contentions of Fact and Law” filed on 6 November 2003 to which his counsel Mr Hamilton spoke.  The areas of concern adumbrated by Mr Hamilton are set out in paragraph 3 on page 4 of that document, and in particular, between 3.2 and 3.7.  Mr Hamilton also spoke to these matters and to some extent what he said to me was a bit different from what appears in the written document. 

13. The first matter raised in the written document was a submission that the Tribunal did not take into sufficient consideration the possibility that the applicant's lack of knowledge about MOSOP and the trial of the Ogoni nine may have been due to imprisonment, torture and the passage of time since the events.  Mr Hamilton told me in oral submissions that he did not press this matter although he did not withdraw the claim. 

14. The second matter was an attack upon the Tribunal's conclusions concerning the shift in the applicant's evidence concerning whether or not he was actually a witness at the trial of Mr Ken Saro-Wiwa. Mr Hamilton argues that this matter was not put to the applicant and that as it was a reason or part of the reason for coming to a conclusion unfavourable to him it should have been. He was denied natural justice in this regard. This is a submission which I am unable to accept for a number of reasons. The first is that I am satisfied that the Tribunal brought to the applicant’s attention in the s.424A letter the fact of the inconsistency and the change in the applicant's story and that the applicant had a full opportunity to deal with it. The fact that his advisers chose to elide from the accusation being made against him is his and their decision and does not reflect badly upon the Tribunal. It cannot be doubted that the applicant did make a change in his story. It may not appear to some people to be a particularly significant change but it was considered as such by this Tribunal. To the extent that change went to the Tribunal's finding of credibility it was entitled to make that finding. As the full bench said in NADR of 2002 v MIMIA [2003] FCAFC 167 at [9]:

    "The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court.  It would have been in contravention of MIEA v Wu Shan Liang (1996) 184 CLR 259 at 272 for the Court to have engaged in merits review."

15. And as the court said in Kamal v MIMIA [2002] FCA 818:

    "It is not for the court, on reviewing a decision of the Tribunal, to form its own views as to whether it would have given the perceived inconsistencies the significance attributed to them by the  Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made.  Those evaluative processes are for the Tribunal.”

16. The question of inconsistency raises itself again.  There is the alleged inconsistency between the applicant's statement and certain country information.  This is referred to by the Tribunal  at [CB 112] where it says:

    "And the fact that much of his claims are inconsistent with the country information."

17. In this regard I accept Mr Hamilton's criticism that the Tribunal could have been clearer in indicating exactly what country information the applicant's claims were inconsistent with. But it is not difficult to see this from the information set out in the court book and in particular the Brinbaum report. Dr Donaghue who appears for the Minister accepts that the Brinbaum report is a document which would not fall within the exemption to s.424A(1) because it fell within s.424A(3). But he argues, and I so find, that the existence and findings of the Brinbaum report were so clearly made available to the applicant and so clearly a matter in issue that any procedural failure in regard to it would not found a jurisdictional error.

18. But the real difficulty which I have with accepting Mr Hamilton's arguments concerning the vagueness of the reference to country information is that in reality this was only a very small area in the Tribunal's general consideration of the applicant's credibility.  Once the Tribunal had come to a view that the applicant was not credible and then to the view which it took that because he was not credible it could not accept that he had any part whatsoever in any of the matters which he had argued constituted his grounds for a well-founded fear of persecution, the fact that what he might have said about some of those matters being inconsistent with country information has no effect.  The Tribunal came to its views on credibility because of the matters to which I have already alluded not those inconsistencies. 

19. There was one other important matter raised by Mr Hamilton. That was the alleged inconsistency between the applicant's evidence and the statements of his cousin, given not as evidence in the applicant's case, but in his own case. Again, Mr Donaghue readily accepts that if the Tribunal had not put these matters to the applicant then the applicant would not have had an opportunity of dealing with an important element of the case against him and he would have been denied procedural fairness. But this did not occur. The Tribunal clearly put to the applicant that his statements and the statements given by his cousin were inconsistent the one with the other. Mr Hamilton argues that a finding should have been made by the Tribunal upon the statements, one to be believed and one not to be believed. I do not consider that that is the duty of the Tribunal. The Tribunal's duties clearly out in s.65 of the Act are to reach a state of satisfaction concerning certain claims that have been made in accordance with s.36. In this case the Tribunal was unable to reach such a state of satisfaction and the reason for that inability was that it could not accept the evidence of the applicant. One of the reasons for that inability was the applicant's evidence was inconsistent with other evidence.

20. The evidence of the cousin was so closely aligned to that of the applicant that it had to be a relevant matter for the Tribunal to take into consideration.   The cousins claimed to have both been in the same organisation, to have both been asked to make inquiries about the chiefs, to have both been arrested, to have both been tortured, to have both given evidence at the trial of Ken Saro-Wiwa.  The Tribunal's duty to obtain relevant information from all sources clearly extended to the obtaining of information from the cousin and to taking that into account when considering the efficacy of the applicant's evidence. 

21. In all the circumstances I am unable in this case to find that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions.  I am not satisfied that there was any denial of procedural fairness or that the Tribunal took into account any irrelevant material or ignored relevant material and therefore the application must be dismissed.  I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000. A significantly greater sum has been requested by the respondent for two reasons. Firstly because he does not consider $5,000 to be an adequate compensation for all the work that he has put into preparing his case, and this may well be true. Secondly because he considers that the applicant should pay for the fact that proceedings had to be adjourned on the day originally fixed because of the illness of a Federal Magistrate. The illness of a judicial officer is a rare occurrence but it seems to me unreasonable to ask an applicant to have to foot the bill for it. I am disinclined to make an order for those reasons. I believe that based upon comparable figures awarded and accepted in other states the sum of $5,000 is more than a reasonable amount to pay for the hearing.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: 10 December 2004