MZPAB v Minister for Immigration

[2004] FMCA 942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZPAB v MINISTER FOR IMMIGRATION [2004] FMCA 942

MIGRATION – Application for review of RRT 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 after the hearing the Tribunal wrote the applicant a letter setting out information which, subject to any comments by the applicant, would be part of the reason for declining his application – where inconsistencies existed between the applicant’s evidence, that of his cousin, and country information – where Tribunal did not consider the applicant to be a credible witness – whether the Tribunal’s comments that the applicant’s claims were implausible amounts to an error of law – whether it was necessary for the Tribunal to have specified what the inconsistencies were – whether the Tribunal should have disclosed to the applicant that it did not believe that he was involved with the MOSOP group as claimed.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001

NACB v MIMIA [2003] FCAFC 235
Dranichnikov v MIMA (2003) 197 ALR 389
SBBA v MIMIA [2003] FCAFC 90
Commissioner for ACT State Revenue v Alphaone (1994) 49 FCR 576
Ex parte Palme (2003) 201 ALR 327
Ex parte S154/2002 (2003) 201 ALR 437

Applicant: MZPAB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 508 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: Ms J. Macdonnell

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. The applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 508 of 2003

MZPAB

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 was at all times represented by a firm of solicitors/migration agents. 

3. The Tribunal advised the applicant that it was unable to make a favourable decision on the information provided in the papers by way of letter dated 3 January 2003 and provided him with an opportunity to attend a hearing, which took place on or about 12 February 2003. Following that hearing the Tribunal wrote the applicant a letter which the parties have accepted as a letter written pursuant to s.424A Migration Act 1958 setting out information that would, subject to any comments that the applicant might make, be a reason or part of the reason for deciding that he was not entitled to a protection visa.  That letter was responded to by the applicant's solicitors on 13 March 2003.  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.

4. The background to the applicant's claim to have a well‑founded fear of persecution for the Convention reason of political opinion and membership of a particular social group was that he is a member of the Ogoni tribe and joined the Movement for Survival of Ogoni People (MOSOP).  He claimed that he and his cousin were selected to complete an assignment to report to the president of MOSOP, Ken Saro‑Wiwa, on which village heads supported the federal government in a dispute between some of the Ogoni people and the federal government.  It transpired at some time after the applicant had undertaken this task that, as a result of incitement from Mr Saro‑Wiwa, four village chiefs were burnt to death.  Following this occurrence a number MOSOP members were arrested and the applicant claimed that he and his cousin were two of them.  He claimed that he was placed into military detention, he was tortured and required to give evidence against Mr Saro‑Wiwa, who was later tried and executed for inciting the murders.

5. The applicant claimed that between about 1995 and 1999 he was held in protective custody by the Nigerian army but that ended in 1999 and he felt it unsafe to return home.  He stayed in Lagos for a few months.  He went to Ghana for a few days.  He returned to Nigeria, and then made arrangements to travel to Australia and seek asylum here.  He claimed that he would be in trouble if he returned to Nigeria because he was a person responsible for the conviction of Ken Saro‑Wiwa and that some other persons in a similar situation to him had been released from detention and murdered.  The applicant also had a sur place claim that appeared to revolve around the continued existence of vigilante groups in the area of the country in which he had lived.  His fear that they may target him as a result of what occurred in 1995.

6. The s.424A letter pointed out a number of inconsistencies between the applicant's claims and certain documentation which he had provided in the course of his application for protection. In particular it states at [CB 110]:

   "Your protection visa application form indicated that from 1969 until 1990 you lived in River Province, Nigeria, and from 1990 to 2000 you lived in Kano Province.  From 1994 until 1996 you attended the Kano Poly. Institute and in 1996 you obtained an OND Business Administration.  From 1996 until 2000 you were self employed."

   This information appears inconsistent with the idea that the applicant participated in the MOSOP meetings, the investigation of the chiefs, and the trial of Mr Ken Saro-Wiwa.  It is totally inconsistent with the applicant having been kept in protective custody from 1995 until 1999.

7. The s.424A letter also deals with certain inconsistencies between the applicant's evidence and that of his cousin and with certain inconsistencies based upon country information. In that regard the letter says:

   "In addition, your claim to have been given an assignment to see which chiefs were collaborating with the government is at odds with country information which indicates that there was a split in the leadership of MOSOP that was public and well known.  Ken Saro‑Wiwa clearly knew who the people were in the other faction.  They would not have needed to send you and your cousin to investigate."

8. At the hearing the Tribunal questioned the applicant on his claims and tested his knowledge of the membership of MOSOP and its philosophy. It asked him questions concerning the persons who he had allegedly investigated.  The Tribunal also utilised certain country information which had been before the delegate and which had been referred to in the delegate's decision concerning the trial of Mr Saro‑Wiwa which indicated at [CB 50] that if the applicant had been a prosecution witness in that trial he would have been identified in a report made by Michael Birnbaum QC which is discussed at [CB 49].

9. In its findings and reasons at [CB 138] the Tribunal says:

   "The Tribunal had a number of concerns regarding the applicant's credibility.  These concerns arose from a number of areas; a 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 between the applicant's account and the information available to the Tribunal from other sources and finally inconsistencies with his evidence and the evidence of his cousin given to the Tribunal."

   The Tribunal then goes on to provide particulars of these matters.  Although it is fair to say that in regard to the alleged inconsistencies with country information all it does say is at [CB 140]:

   "Due to the applicant's lack of knowledge of MOSOP and its activities, and the key people involved in the trial and the death of the four chiefs, the shift in his evidence from the time of application to the Tribunal hearing, the inconsistencies between his account and his cousin's account and the fact that much of his claims are inconsistent with country information the Tribunal concludes that the applicant has fabricated his claim for refugee status." (emphasis added)

10. At [CB 140] the Tribunal considers the sur place claim and whilst accepting that the human rights situation in Nigeria is not good was unable to draw any connection between the claim and a Convention nexus other than the applicant's membership of MOSOP and his part in the events which have been discussed.  Because the Tribunal came to the opinion that the applicant had never been a member of MOSOP and had not taken part in any of these activities it could not see any continued claim or any sur place claim. 

11. Mr Hamilton, who appears on behalf of the applicant, raises a number of matters upon which he says that Tribunal fell into jurisdictional error.  Firstly he says that the Tribunal's findings of implausibility are illogical.  The difficulty with this assertion is that want of logic does not of itself suffice to constitute error of law, still less jurisdictional error: NACB v MIMIA [2003] FCAFC 235 at [30].

12. Next, Mr Hamilton asserts that it is wrong for the Tribunal to have made a decision on the basis of alleged inconsistencies with the country information. Firstly he says any such inconsistencies that might have existed were very slight. But at no stage is there any identification with what these inconsistencies might be. Mr Hamilton argues that the identification of one inconsistency in the s.424A letter is not sufficient to justify the statements of the Tribunal which seemed to indicate a considerable burden of inconsistencies existing. I did ask counsel for the Minister whether she could point me in the direction of any other inconsistencies that were found between the statements and the country information provided in the court book, but she was unable to do so. What she did point out, however, was that the phraseology of the paragraph in the s.424A letter, which I had already set out, would allow for a person to consider that the matters referred to there were more than one inconsistency, with examples, and that this appears to have been the way in which that paragraph was treated by the applicant's solicitors in their response at [CB 114].

13. I think this approach to the Tribunal's reasoning is capable of being taken, although I am also of the view that the use of words "much of his claims are inconsistent with the country information" would tend to indicate something more than just those matters referred to at [CB 111].  I am inclined to the view that the Tribunal was possibly boosting its reasons by use of this phraseology.  The fact that the Tribunal did that does not, to my mind, lead it into jurisdictional error when there are substantial other grounds upon which it could have made the finding, which it did, that the evidence of the applicant was not credible.  I have already addressed some of these and I do not think that it is necessary to go very much further.  I would accept the submission of counsel for the Minister that the Tribunal was entitled to take into account the inconsistencies between the evidence of the applicant and the evidence of his cousin as just one factor leading it to a total view that the applicant had failed to satisfy it that he had a genuine well‑founded fear of persecution.

14. Having accepted that the Tribunal was entitled on the evidence to come to a finding that the applicant had not been a member of MOSOP and had not taken part in the events which he described, it must therefore have been reasonable for the Tribunal to have come to a conclusion in regard to the sur place claim that any such claim had no convention nexus without any reference to later information.  Mr Hamilton argues that the latest information utilised by the Tribunal in relation to this matter was from 1996.  The decision was made in 2003 and is meant to be based upon information relevant to the situation in 2003. A sur place claim must also have a Convention connection and if the only connection was that the applicant might be considered to have been a member of MOSOP and had taken part in some of these activities but had been found not to be, then I cannot see what the necessity is to have considered anything else in relation to the situation in 2003.  The law is clear that it is for the applicant, without being required to address any burden of proof, to satisfy the Tribunal and to put to it his evidence which would assist it to do that.  As the High Court said in Dranichnikov v MIMA (2003) 197 ALR 389 per Kirby J at [78]:

    "The Tribunal acts in a generally inquisitorial way.  This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the act provides for relief.  This court has rejected that approach to the Tribunal's duties.  The function of the Tribunal, as the delegate, is to respond to the case that the applicant advances."

    These views were echoed by the full bench of the Federal Court in SBBA v MIMIA [2003] FCAFC 90 where the Court said:

    "It is, however, no part of the Tribunal's function ‘to make a good case, which the applicant has not articulated, only because there is some evidence of elements of a claim’: Parra v MIMA [2000] FCA 85 at [13]."

15. Finally Mr Hamilton argues that the Tribunal erred in not putting to the applicant that it did not accept that he was a member of MOSOP.  This is an argument that I cannot accept.  The fact that the applicant was not a member of MOSOP was a deduction that the Tribunal came to after hearing all of the evidence.  The Tribunal has no duty to keep the applicant abreast of its thought processes. And if they lead to an inevitable conclusion that the story that he has given is untrue, then that is no more than the product of its process of reasoning and as such not a matter to be put: Commissioner for ACT State Revenue v Alphaone (1994) 49 FCR 576 at 591-592; Ex parte Palme (2003) 201 ALR 327 at [22]; Ex parte S154/2002 (2003) 201 ALR 437 at [48] and [54].

16. It follows that I am unable to find any grounds upon which the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions in this case. I must dismiss this application, which I do. I order that the applicant pay the respondent's costs, which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  9 December 2004