MZPAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 348

FEDERAL COURT OF AUSTRALIA

MZPAA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 348

MIGRATION – appeal – adverse credibility finding – no error

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 Art 1A(2)

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 - cited
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 – cited
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 - applied

MZPAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 1570 OF 2004

MERKEL J
5 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1570 OF 2004

BETWEEN:	MZPAA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	5 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal.

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	VID 1570 OF 2004

BETWEEN:	MZPAA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	5 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant, a citizen of Nigeria, applied for a protection visa claiming that he is a refugee as defined by Art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”) because he has a well-founded fear of persecution for a Convention reason if he were to return to Nigeria.  His application was refused by a delegate of the respondent and the refusal was affirmed by the Refugee Review Tribunal (“the RRT”).  The appellant then applied unsuccessfully to the Federal Magistrate’s Court (“the FMC”) to review the decision of the RRT.  He appealed to the Court against the dismissal by the FMC of his application for review.

2. The appellant is a member of the Ogoni tribe and stated that he was actively involved in the Movement for the Survival of the Ogoni People  (“MOSOP”).  He claimed that because he was a prosecution witness against the chairman of MOSOP, Ken Saro-Wiwa, who was subsequently executed as a result of that prosecution, he fears retribution from the Ogoni people or MOSOP supporters if he returned to Nigeria.  The appellant also claimed to be at risk on his return because of his involvement with MOSOP.  Finally, he claimed to be a refugee sur place due to the escalation of human rights abuses and the activities of vigilante groups in Nigeria.

3. The RRT concluded that the appellant had fabricated his claim for refugee status.  In particular, the RRT did not accept that the appellant was a member of MOSOP or involved in its political activities nor did it accept that he was a prosecution witness at Ken Saro-Wiwa’s trial as he claimed.  Consequently, the RRT did not accept that the appellant was at risk from the Ogoni people or that he is at risk for having been a member of MOSOP.  In respect of the sur place claim, the RRT accepted that the human rights situation in Nigeria is not good but concluded that, as the appellant was not involved in MOSOP and had not offered resistance to the Government or to Shell (which was a supporter of the Government), there was no Convention reason for him to be targeted by vigilante groups or any other persons if he were to return to Nigeria.

4. It is apparent from the foregoing summary that the RRT’s adverse credibility finding against the appellant proved to be fatal to his claim of having a well-founded fear of persecution for a Convention reason.  Such a finding was referred to by McHugh J in Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] as “the function of the primary decision-maker par excellence” and, while not invulnerable to review, is difficult to overcome. That is particularly so where, as has occurred in the present case, the RRT provided a rational basis for not accepting the appellant’s claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.

5. Before the FMC, counsel for the appellant sought to undermine the RRT’s adverse credibility findings by challenging them on a number of different grounds.  However, each of the grounds was rejected by the FMC, which was unable to find that the RRT fell into jurisdictional error in the manner in which it arrived at its conclusions.  Further, the FMC was not satisfied that there was any denial of procedural fairness or that the RRT took into account any irrelevant material or ignored relevant material.

6. On the appeal counsel for the appellant, who had appeared in the matter before the FMC, relied on grounds that were different to those relied on before the FMC.  The respondent objected to the appellant raising any new grounds on the appeal, but I have not found it necessary to deal with that objection as I have concluded that the grounds now relied upon are without merit.

7. The RRT’s concerns about the appellant’s credibility arose in four areas.  The first was the appellant’s lack of knowledge of MOSOP and the events leading to the trial of the Ogoni nine.  The RRT outlined, in some detail, the matters in respect of which the appellant lacked knowledge, and the findings it made in that regard were plainly open to it on the material.

8. The second area related to the shift between the appellant’s claims made in support of the initial application and those he made in his evidence at the Tribunal.  In the material in support of his initial application the appellant claimed that his fear of retribution, if he were to return to Nigeria, was based upon him having appeared as a material prosecution witness at the Military Tribunal which convicted Ken Saro-Wiwa.  However, after being confronted with a report concerning the trial that did not refer to him as a witness, the appellant claimed before the RRT that he had been forced to make a witness statement but had not been called upon to give evidence before the Military Tribunal.  The RRT described the shift in the appellant’s evidence as being a shift from indicating that he was an actual witness at the Military Tribunal, whose evidence was responsible for the conviction, to being a person who provided a statement but was never called as a witness.  Plainly, it was open to the RRT to find that that had been a substantial and important shift in the appellant’s evidence.  Although, counsel for the appellant sought to contend to the contrary, there was no proper basis for that contention.

9. Ultimately, counsel for the appellant also sought to argue that the RRT failed to comply with s 424A of the Migration Act 1958 (Cth) concerning the appellant’s change of evidence. That ground is also without merit. It is clear that the appellant was informed by the RRT about the issues arising as a result of the shift in his evidence and he was fully aware of its significance. Indeed, it would appear that the shift was a consequence of the delegate’s reliance on the report concerning the trial. In the circumstances, it is difficult to accept that s 424A, or any failure to provide information pursuant to the section, could have had any effect on the outcome.

10. The third area of concern related to inconsistencies between the appellant’s evidence before the RRT and the evidence given to the RRT by his cousin.  Apparently, the refugee claims of the appellant and his cousin had been submitted in identical statements in support of their original applications and the appellant’s adviser provided almost identical submissions to the RRT in respect of both of those claims.  However, the RRT found that the evidence given by the appellant’s cousin at his hearing before the RRT was markedly different in significant respects to the appellant’s evidence.  Plainly, the differing accounts are matters which the RRT was entitled to take into account on the issue of credit.

11. However, counsel for the appellant argued that it was not open to the RRT to rely on those inconsistencies unless the RRT had made a finding that the evidence of the cousin was more credible then the evidence of the appellant.  But the RRT was not required to determine whether the appellant or his cousin was telling the truth in respect of the factual issues on which their evidence differed.  Rather, it was required to have regard to the material before it and determine whether it would accept or reject the appellant’s version of the events upon which his claim was based.  Where that version differed markedly from the appellant’s cousin’s version, it was open to the RRT to conclude that that was a matter which it was entitled to take into account in relation to credit issues.  In treating that matter as one of the matters, amongst others, to take into account, the RRT did not fall into any jurisdictional error.  It may, or may not, have believed the account of the appellant’s cousin.  However, the issue of relevance was that a claim, which appeared to be identical to, and corroborated by, the appellant’s cousin, turned out not to be identical and not to have that corroboration in significant respects.  It was open to the RRT to regard the differences that emerged as undermining the confidence that it might have otherwise have had in relation to the appellant’s credibility.  That is particularly so in the circumstances of the present case, where the appellant was given the opportunity to comment on his cousin’s evidence but did not do so.

12. The fourth area of concern related to inconsistencies between the appellant’s account of particular events and the country information available to the RRT. The RRT set out in its reasons certain country information that demonstrated that there was a well-publicised split in MOSOP prior to the killing of the four chiefs which led to Ken Saro-Wiwa’s prosecution and execution. The RRT stated that, as a result of that split, it was well known as to who were the chiefs that were undermining MOSOP. Accordingly, the RRT found that, contrary to the claim of the appellant, there “would be no need for the [appellant] to be required to investigate who the chiefs were who were undermining MOSOP”. Counsel for the appellant claimed that the RRT had erred in not supplying the country information upon which it relied in accordance with s 424A. However, as is now clear, the country information upon which the RRT acted was quite unrelated to the appellant or any particular person and is not required to be disclosed under s 424A: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [114] and [144]. Accordingly, there is no basis for the claim that there was a non-compliance with s 424A.

13. In any event, it appears that the substance of the relevant country information was provided to the appellant.  Counsel for the appellant also raised a question about the report concerning the trial not having been made available to the appellant.  This argument is misconceived as the report was not a reason for the RRT’s decision and, in any event, the appellant was made aware of the relevant aspects of it and of their relevance to his claim.

14. Finally, it was argued that the FMC had erred in not considering the RRT’s finding that the appellant was not a refugee sur place.  Irrespective of whether that was so, the sur place claim could only succeed if the appellant had succeeded in his main claim.  As that claim had failed it had to follow, as was found by the RRT, that the fear from vigilante groups operating in Nigeria while the appellant was in Australia would not be a fear held for a Convention reason.  Put another way, the RRT did not accept that the appellant had a well-founded fear of persecution for a Convention reason as a result of any events that have occurred since his departure from Nigeria.  Accordingly, there is no basis for concluding that the RRT erred in relation to its approach to the sur place claim.

15. It is appropriate to observe that counsel for the appellant has challenged the RRT’s decision on the basis that certain findings were not “open” to the RRT and also on the basis that there were breaches by the RRT of s 424A. Obviously, the transcript of the hearing before the RRT was critical to the success of the first ground (ie the not “open” to the RRT to find ground) and was highly relevant to the s 424A ground, which may fail to result in relief being granted if the relevant matters were raised with the appellant in the course of the hearing before the RRT. Yet counsel for the appellant vigorously pursued the appeal without tendering the transcript or referring to any part of it. Thus, even if I were in error in relation to any of the above grounds, having regard to the absence of the transcript, it would probably not be open to conclude that the appellant was entitled to succeed on any of his grounds of appeal.

16. For the above reasons the appeal is to be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J.

Associate:

Dated:            4 April 2005

Counsel for the Appellant:	Mr JR Hamilton
Solicitor for the Appellant:	Goz Chambers Lawyers
Counsel for the Respondent:	Ms J Macdonnell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 April 2005
Date of Judgment:	5 April 2005