MZYIM v Minister for Immigration

[2010] FMCA 641

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYIM v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 641

MIGRATION – Refugee Review Tribunal – challenge to merits of decision – whether decision so unreasonable that no reasonable decision maker could have made it – consideration of medical evidence – application dismissed.

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
SBMD v Minister for Immigration and Multicultural Affairs [2006] FCA 1433
SZKHD v Minister for Immigration and Citizenship [2008] FCA 112
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387

Applicant: MZYIM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 607 of 2010

Judgment of: Riley FM

Hearing date: 29 July 2010

Date of Last Submission: 29 July 2010

Delivered at: Melbourne

Delivered on: 27 August 2010

REPRESENTATION

Counsel for the Applicant: Nola Karapanagiotidis

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Sharon Burchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application filed on 27 April 2010, as amended on 30 June 2010, be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATMELBOURNE

MLG 607 of 2010

MZYIM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Refugee Review Tribunal.  The applicant is a citizen of Nigeria.  He claimed to have a well-founded fear of persecution at the hands of the authorities and Muslims in Nigeria because of his Christian religion, his ethnicity and his membership of two particular social groups, being Christian businessmen and Christian businessmen who had witnessed crimes.

2. More particularly, the applicant claimed that:

   a)he had been kidnapped by Muslim militants in May 2008 after he had encroached on their camp, Camp 5;

   b)the militants suspected him of spying for the Joint Task Force (“JTF”);

   c)he saw the militants kill three JTF members in Camp 5;

   d)he was able to escape and returned home;

   e)the militants traced him to his home, where they shot him in the leg and beat him;

   f)he hid elsewhere in Nigeria for two months and then hid in China for five months;

   g)he returned to Nigeria in November 2008;

   h)the government launched a military offensive against his home village, Gbaramotu, on 13 May 2009;

   i)his parents were killed in the attack and his wife and children disappeared;

   j)he faces persecution by Muslims because of his Christianity.

3. The Tribunal did not accept that the applicant had been kidnapped, shot or beaten in May 2008 by militants.  The Tribunal did not accept that the applicant had witnessed three JTF operatives being killed.  The Tribunal noted that the applicant’s home region was the Niger Delta area.  The Tribunal noted that country information did not indicate that Muslim militants existed at all in that area.  The Tribunal also considered that the applicant’s account of the kidnapping and related events contained significant inconsistencies. 

4. The Tribunal accepted medical evidence that the applicant had shrapnel in his leg.  However, the Tribunal was not persuaded that the shrapnel was the result of Muslim militants shooting the applicant. 

5. The Tribunal accepted that there was a military offensive in the Delta State on 13 May 2009, which resulted in civilian deaths and displacement.  The Tribunal accepted that the applicant’s parents had been killed in the offensive and his wife and children had disappeared. The Tribunal accepted that the applicant had been traumatised by those events.

6. However, the Tribunal did not accept that the applicant was a target of the attack.  The applicant claimed, and country information indicated, that the attack was against Ijaw people.  The Tribunal found that the applicant was not Ijaw, as the applicant claimed, but Ilaje-Yoruba.  The Tribunal considered that the applicant did not face persecution by reason of his ethnicity, as the Yoruba were one of the most powerful groups in Nigeria.

7. The Tribunal did not accept that the applicant would be caught up in any sectarian violence in his home area.  The Tribunal referred to country information which did not indicate any such violence in the Delta State, although there was such violence in the middle area of Nigeria, between the Christian south and the Muslim north.  The Tribunal considered that the applicant had not been persecuted in the past because of his religion and did not face persecution in the future for that reason.

8. The Tribunal found as a fact that Christian businessmen do not constitute a particular social group in Nigeria.  The Tribunal found that the applicant was not a member of the particular social group consisting of Christian businessmen who had witnessed criminal acts, because he had not witnessed the killing of the JTF members. 

Grounds of claim

Ground 1

1. Ground 1 of the applicant’s amended application filed on 30 June 2010 is:

   The Tribunal failed to apply a reasonable margin of appreciation to any perceived flaws in the applicant’s testimony and relied upon minor inconsistencies and/or failed to consider the applicant’s claims in their totality

   Particulars

   a.The Tribunal relied upon a minor identified inconsistency, contained in the applicant’s advisers (sic) summary of events, as a critical basis to reject the applicant’s claims.

   b.The Tribunal made no reference to the prior consistencies contained in the applicant’s statutory declaration.

2. The applicant noted that, at paragraph 106 of its reasons for decision, the Tribunal said that:

   106.Additionally, the Tribunal found the applicant’s evidence about purportedly being shot by Muslim militants three or so days after he escaped inconsistent over the course of his visa application and review.  For example, in his representative’s submission to the Tribunal dated 13 January 2009 it is stated that the applicant was beaten and shot outside his house, with his attackers entering his house and going through his belongings afterwards. It states further that he lay there until the ‘gang’ cleared, watched his wife screaming and children crying, and then dragged himself to the forest. However at the first hearing the applicant said his assailants beat and shot him inside his house (after bashing the door in) and he was able to escape via the sitting room window.  He also said his children were sleeping.  Whilst the Tribunal acknowledges that the applicant’s recollection of events may be affected by traumatic experiences to some extent, the Tribunal finds these inconsistencies cast doubt on whether it occurred.  Coupled with the fact that the applicant’s claims in this regard are not supported by country information, the Tribunal does not accept that the applicant was kidnapped by Muslim militants, witnessed the killing of JTF members, was subsequently beaten and shot as claimed.  It does not accept that he has been blamed for the JTF attack on Gbaramotu and surrounding villages on 13 May 2009 nor is ‘wanted’  by Muslim militants as a result.  (bolding added)

3. The applicant firstly noted that the Tribunal had incorrectly identified the applicant’s adviser’s submission as bearing the date 13 January 2010 when it actually bore the date 12 January 2010.  The applicant argued that the Tribunal’s failure to accurately refer to the applicant’s material might found an inference that the Tribunal had not considered the applicant’s claims with the requisite degree of attention.

4. The applicant’s adviser’s submission was dated 12 January 2010.  However, it appears from a fax header on the submission that it was faxed to the Tribunal on 13 January 2010.  I consider that nothing at all turns on the slight discrepancy in the Tribunal’s identification of the date of the submission.

5. The applicant then noted that the applicant’s statutory declaration made on 14 November 2009 (actually, 4 November 2009) was entirely consistent with the applicant’s oral evidence to the Tribunal, but the Tribunal made no reference to the prior consistency. 

6. It is true that the Tribunal did not refer to the statutory declaration in the findings and reasons part of its decision.  However, the Tribunal did summarise the statutory declaration at paragraph 20 of its reasons for decision.  That summary does not mention the facts that were consistent with the applicant’s oral evidence.  However, it is clear that the Tribunal had turned its mind to the statutory declaration. 

7. I do not consider that the Tribunal made a jurisdictional error by not referring to the details of the applicant’s prior consistent statement.  This is not a case where the Tribunal appears to have overlooked a substantial aspect of the claim.  It was not necessary for the Tribunal to note that the applicant had said the same thing on more than one occasion.

8. The applicant argued that the Tribunal failed to give sufficient weight to the fact that the adviser’s submission was not the applicant’s own version of events.  However, the applicant did not seek to disown the whole submission.  On the contrary, the applicant relied on certain aspects of the submission dated 12 January 2010 for the purposes of the current proceeding.

9. The submission is detailed and lengthy.  It was prepared by a solicitor and migration agent.  In all of the circumstances of this case, there seems to be no reason that the Tribunal should have doubted that the submission accurately reflected the instructions that were given to the adviser.  I do not accept that the Tribunal erred by treating the submission as containing the applicant’s claims, or, at least, a version of them.

10. The applicant then argued that the Tribunal gave undue weight to the inconsistencies, which were said to be very minor, especially as they were relied on by the Tribunal to reject virtually the whole claim made by the applicant. 

11. The respondent argued that the Tribunal did not rely only on the inconsistencies set out in paragraph 106 of its reasons for decision.  That is clear from paragraph 106 itself.  The Tribunal also relied on country information.  That information, which was set out earlier in the Tribunal’s reasons for decision, indicated that Muslim militants did not exist in the Niger Delta region at all.  In summary, at paragraph 105 of its reasons for decision, the Tribunal said:

    The Tribunal does not accept that the applicant was kidnapped, harmed and threatened by Muslim militants as claimed because his claims are not supported by country information and the Tribunal found his evidence inconsistent at times.  For example, whilst country information indicates that there are many militant groups active in the Niger Delta region fighting for locals’ rights to oil revenue, there is no indication that Muslim militant groups exist at all in the Niger Delta region. As well there is no information before the Tribunal that any group or individual has declared the pursuit of jihad or sharia law in the Niger Delta region as a goal.  MEND – the prominent militia active in the Niger Delta whose base was Camp 5 up until May 2009 - is overwhelming constituted by Ijaws (the majority of whom are Christians), not Muslims as the applicant claimed at the first hearing.  The Tribunal found the applicant’s representative’s written response to this adverse country information at times incoherent, and overall unpersuasive.  She also failed to address the issue that there is no country information supporting the applicant’s claim that Muslim militants are active in the Niger Delta in her post hearing response.  Also, the representative’s assertion that the applicant fears persecution from ‘Ijaw Muslims’ in her submission to the Tribunal dated 13 January 2010, is not supported by country information (for example, Minorities at Risk, cited above) which refer to the Ijaw as predominantly Christian.    

12. Additionally, the Tribunal noted in paragraph 107 of its reasons for decision that the applicant’s claims had changed from his visa application, where he said he had been kidnapped by Ijaw militants, to his review application, where he said he had been kidnapped by Muslim militants.  Following this, the Tribunal repeated that it did not accept that the applicant had been kidnapped by Muslim militants or had experienced the consequential events.

13. Taking the Tribunal’s reasons as a whole, I do not accept that the Tribunal erred in the ways alleged.  The Tribunal noted certain inconsistencies in the applicant’s claims but also noted a substantial body of country information.  That information tended to undermine the applicant’s claims. 

14. Subject to Wednesbury unreasonableness, it was for the Tribunal to give such weight to the various aspects of the evidence as it saw fit.  In view of the country information, I do not consider that the Tribunal’s conclusions about the alleged kidnapping and subsequent events were unreasonable in the Wednesbury sense.

Ground 2

1. Ground 2 of the amended application is:

   The Tribunal failed to take into account corroborating evidence and/or overlooked the report of Dr Tsipouras.

   Particulars

   a.The Tribunal made reference to Dr Tsipouras (sic) report “confirming that the applicant ha[d] shrapnel in his leg.”

   b.The report of forensic physician Dr Tsipouras went beyond the ambit identified by the Tribunal and constituting (sic) relevant and important evidence capable of corroborating the applicant’s claims.

2. The Tribunal dealt with the evidence of Dr Tsipouras at paragraphs 65 and 109 of its reasons for decision.  Paragraph 65, which appears in the Tribunal’s summary of the evidence, is as follows:

   At the hearing the applicant submitted a report from Dr Spiro Tsipouras, Forensic Physician, dated 13 January 2010 following an examination of the applicant’s injuries that same day.  The doctor, having also reviewed an x-ray taken of the applicant’s leg in October 2009, found fragmented metallic foreign body in the applicant’s leg and reported that it was “highly suggestive that this injury was the result of a bullet wound.”  The doctor also examined scars on the applicant’s scalp and thumb, concluding that the injuries were non-specific in nature, and may have been caused by various mechanisms.  However the doctor stated that with regard to the scalp scar “the injury was entirely consistent with the allegation of having been struck on the head with an iron bar or rod...” With regard to the scar on the applicant’s thumb the doctor states in his report that the injury “could have been caused by a blunt force blow to the wrist as alleged.”

3. Paragraph 109, which appears in the Tribunal’s findings, is as follows;

   In reaching this conclusion [in relation to the alleged kidnapping by Muslim militants] the Tribunal has considered the report from Dr Tsipouras confirming that the applicant has shrapnel in his leg.  However the Tribunal finds that the doctor’s report is unable to conclusively show the cause of the shrapnel in the applicant’s leg.  Given the concerns with the applicant’s claims as discussed above, the Tribunal does not accept that the shrapnel in the applicant’s leg is evidence that he was shot by ‘Muslim militants’ as claimed. (emphasis added)

4. The applicant submitted that, in addition to confirming that the applicant had shrapnel in his leg, the medical report also said that:

   a)the injury to the applicant’s leg was in keeping with having occurred in the timeframe of the alleged assault on the applicant;

   b)the applicant had a scar on the left of his scalp which was consistent with him being hit by an iron bar in 2008 as he alleged; and

   c)the applicant had a scar on his left wrist:

   i)which could have occurred within the time frame of the alleged assault; and

   ii)could have been caused by a blunt force blow as alleged by the applicant.

5. The applicant argued that the additional matters in the medical evidence were relevant and important to the applicant’s claims, as they were able to corroborate his claims as to the nature, timing and cause of his injuries.  The applicant argued that the Tribunal did not take the medical report into account in any meaningful sense, and thus made the type of error identified by Collier J in SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 at [27].

6. In SZKHD, the applicant claimed that she was a Falun Gong practitioner in China.  She provided evidence from a psychologist who diagnosed the applicant as follows:

   a.  Axis I: Major depressive Disorder, Severe with Suicidal ideation; and

   b.Axis IV: Exposure to persecution, loss of a daughter, negative life events/incarceration, economic problems.

7. The Tribunal in SZKHD said that it:

   is mindful of the applicant’s mental health issues and does not question the conclusions of the treating psychologist.

8. Collier J considered at [27] that the conclusions of the psychologist, which the Tribunal said it accepted:

   were inextricably linked with her acceptance of the factual claims of the appellant concerning the appellants’ alleged incarceration in China.

9. Collier J said that, unfortunately, it was not at all clear from the Tribunal’s reasons for decision what the Tribunal had actually accepted in relation to the psychologist’s evidence.  Her Honour rejected the first respondent’s argument that the Tribunal had accepted the psychologist’s diagnostic formulations but not the factual basis for those formulations, because that would have made “a nonsense” of the psychologist’s report.  Her Honour considered that it was equally likely that the Tribunal had not meaningfully considered the psychologist’s report at all.  On that basis, her Honour found jurisdictional error.

10. The present case is quite different.  Here, the expert did not inextricably link his conclusions with the applicant’s factual claims.  On the contrary, he clearly distinguished between what he saw and what might have been the cause of those things. 

11. The Tribunal, in turn, noted that the doctor had been unable to conclusively determine the cause of the shrapnel in the applicant’s leg.  That was correct.  The doctor had simply said that his observations were “in keeping” with the applicant’s claims.  Presumably, there could have been a number of other scenarios, not involving persecution for a Convention reason, that were also “in keeping” with the shrapnel in the applicant’s leg. 

12. The Tribunal was clearly aware that the medical evidence was consistent with the applicant’s claims.  However, as the Tribunal explained, because of the country information and the inconsistencies in the applicant’s claims, the Tribunal did not accept that the cause of the shrapnel in the applicant’s leg was that he had been shot by Muslim militants in the circumstances claimed by the applicant.  There is no error in that.

13. In relation to the matter mentioned in paragraph 26(a) above, it is true that the Tribunal did not specifically note that the medical evidence indicated that the injury had occurred in the timeframe alleged by the applicant.  However, the doctor actually said that the injury could have occurred “several months or years earlier”.  That evidence was so open-ended that there was no error in the Tribunal not specifically referring to it. 

14. In relation to the matters mentioned in paragraphs 26(b) and (c) above, it is true that the Tribunal did not note in its findings that the applicant had scars on his scalp and wrist that were consistent with him being hit with an iron bar and blunt instrument respectively.  However, the Tribunal did refer to that evidence in detail at paragraph 65 of its reasons for decision, in the context of its summary of the evidence.  In addition to noting the passage that supported the applicant’s claims, the Tribunal also noted in paragraph 65 that the medical report expressed the opinion that the scars on the applicant’s scalp and wrist were:

    non-specific in nature and may have been caused by various mechanisms.

1. It is also noteworthy that the medical report said that the scar on the applicant’s wrist:

   could have occurred months to years earlier.

2. In all the circumstances of this case, I do not consider that there was any reviewable error in the Tribunal not mentioning the scars on the applicant’s scalp and wrist in the findings part of its reasons.  The Tribunal’s conclusion in relation to the shrapnel applied equally to the applicant’s other scars.  It was open to the Tribunal to consider that the country information and inconsistencies in the applicant’s evidence more than offset the medical evidence, which, at its highest, was that the applicant’s scars were “in keeping” with his allegations.

3. In my view, the Tribunal did give meaningful consideration to the medical evidence.  However, in the light of the other evidence in the case, the Tribunal was not persuaded of the truth of the applicant’s claims.

Ground 3

1. Ground 3 of the amended application is:

   The Tribunal failed to consider the applicant’s claims as against the ethnicity that he had identified and/or made a positive finding that was so unreasonable that no reasonable person could have made it

   Particulars

   a.The Tribunal failed to take into account the identity that the applicant embraced and had throughout his application, identified;

   b.On the evidence, it was not open to the Tribunal to have allocated the ethnic identity of Ilaje Yoruba to the applicant with the degree of certainty that it acted upon; and/or

   c.There was no reasonable foundation upon which the Tribunal could allocate to the applicant one ethnic identity in preference to the other.

2. The Tribunal said the following in relation to the applicant’s ethnicity:

   123.The Tribunal has considered the applicant’s claim for protection based on his ethnicity.  At the first hearing he claimed to belong to the Ilaje ethnic group, part of the Yoruba tribe, which is supported by country information.  When asked why he claimed to be Ijaw in his visa application, the applicant said that Ijaw come under the Yoruba tribe.  At the second hearing he stated that he is from the ‘Ijaw Ilaje’ group, and explained that both are Yoruba sub-groups, reiterated in his representative’s post-hearing submission.  In her submission his representative also argued that Nigerian people and their cultures have common distant roots and their ‘pasts’ can be anchored on the heritage of the three main language families.

   124.Country information cited above indicates that the Ilaje are one of approximately 25 linguistically related groups that together constitute the Yoruba.  However the Ijaw are an unrelated ethno-linguistic group (as noted by Minorities at Risk, 2003, cited above).  The Tribunal is willing to accept that there may have been inter-group migration in the ‘olden times’ and that such groups have common distant roots as submitted by the applicant at the hearing and his representative post hearing. However, based on country information the Tribunal does not accept that Ijaw are a sub-group of the Yoruba tribe.  On this basis the Tribunal accepts that the applicant belongs to the Ilaje-Yoruba ethnic group, but not the Ijaw group. 

   125.The Tribunal has therefore considered whether there is a real chance that the applicant would be persecuted on the basis of his Ilaje-Yoruba ethnicity if he returned to Nigeria now or in the reasonably foreseeable future.  At the hearing the applicant did not make any specific claims to have been persecuted in the past for reasons of his ethnicity.  He explained that his ethnicity was relevant with respect to relocation, arguing that on this basis (and given he speaks a different dialect) he would be easily identifiable as an outsider by Muslim militants seeking revenge and ‘others’ for human sacrifices.   However, as the Tribunal has found that there is no real chance that the applicant would be targeted by Muslim militants, it is unnecessary to consider the reasonableness or otherwise of relocation in the applicant’s case.  With respect to possible discrimination or harm the applicant might face belonging to the Yoruba ethnic group, country information cited above indicates that Yorubas do not endure any significant discrimination in Nigeria for ethnic reasons alone and that Yorubas (and Hausas) are actually the most politically and economically powerful and advanced groups.  Given this country information, and the Tribunal’s finding that that (sic) the applicant has not been persecuted in the past for reasons of his ethnicity alone, the Tribunal considers the chance that he would be persecuted on the basis of his ethnicity if he returned to Nigeria now or in the reasonably foreseeable future to be remote. 

3. The Tribunal was under no obligation to accept that the applicant had the ethnicity that he claimed, just as the Tribunal is under no obligation to accept that a particular applicant is a practitioner of Falun Gong or a Christian.  Having found that the applicant was not a member of the Ijaw tribe, the Tribunal had no obligation to consider whether the applicant faced persecution as a member of the Ijaw tribe.

4. It is not accurate to say, as the applicant claimed in ground 3(a), that the Tribunal failed to take into account the identity that the applicant embraced and had throughout his application identified.  The Tribunal considered the applicant’s claim to be a member of the Ijaw tribe and squarely rejected that claim. 

5. In relation to ground 3(b), there was evidence in the form of country information that the Ijaw were a distinct ethnic group in Nigeria: see paragraph 73 of the Tribunal’s reasons for decision.  When asked whether he identified with the Ijaw or the Yoruba ethnic groups, the applicant said that the Ijaw and the Ilaje are the same thing under the Yoruba tribe.  Obviously, the Tribunal preferred the country information to the applicant’s evidence on this issue.  It was open to the Tribunal to do so, and to do so with a substantial degree of confidence.  Accordingly, this was not a case in which the Tribunal was required to formally ask, “What if I am wrong?” 

6. In relation to ground 3(c), the unreasonableness ground is only made out where the unreasonableness reaches “a high level indeed”: SBMD v Minister for Immigration and Multicultural Affairs [2006] FCA 1433. Gummow J said in Minister for Immigration and Multicultural Affairs  v Eshetu (1999) 197 CLR 611:

   137.…where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

   …

   147.… [The Tribunal’s] decision was not based on findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds. That other decision-makers may have reached a different view, and have done so reasonably, is not to the point.

7. In the present case, the evidence was not all one way.  The applicant’s claims about his ethnicity were not entirely consistent.  The country information suggested that some of the applicant’s claims about his ethnicity could not have been true.  There was probative evidence, in the form of country information, which supported the Tribunal’s conclusion about the applicant’s identity.  In all the circumstances, I am not persuaded that the Tribunal’s decision about the applicant’s ethnicity was so unreasonable that no reasonable decision maker could have made it.

Ground 4

1. Ground 4 of the amended application is:

   The Tribunal failed to deal with an integer of the applicant’s claim and/or misconstrued the requirements of a particular social group

   Particulars

   a.The Tribunal erred in finding that the postulated group “Christian businessman” did not constitute a particular social group for the purposes of the Convention.

2. In relation to the particular social group issues, the Tribunal said:

   118.The Tribunal has considered the applicant’s representative’s claim that the applicant also fears harm of persecution on return to Nigeria because he belongs to a particular social group of ‘Christian businessmen’ and ‘Christian businessmen who have witnessed criminal acts on others.’ 

   119.The definition of ‘particular social group’ has been the subject of much judicial consideration.  The meaning of the expression ‘for reasons of…membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S.  In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

   …First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”...

   120.In Applicant S the High Court emphasised the relevance of cultural, social, religious and legal factors or norms in a particular society in determining whether a posited group is a particular social group in the society.  In Khawar (MIMA v Khawar (2002) 210 CLR), for example, McHugh & Gummow JJ stated:

   The membership of the potential social groups which have been mentioned earlier in these reasons would reflect the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships.  The alleged systemic failure of enforcement of the criminal law in certain situations does not dictate the finding of membership of a particular social group. 

   121.Therefore whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country.  However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared for reasons of the person’s membership of the particular social group.

   122.The Tribunal has considered country information in assessing the applicant’s claims on this ground.  In country information consulted such as the US Department of State report on religious freedom, and on human rights practices from the same source, there is nothing to suggest that people with these characteristics – i.e. Christian and businessmen – are a group distinguishable from society at large in Nigeria.  On this basis the Tribunal finds that ‘Christian businessmen’ does not constitute a particular social group for purposes of the Convention.  Whilst individuals who have witnessed criminal acts may be considered to belong to a particular social group, as the Tribunal does not accept that the applicant witnessed the killing of JTF members as claimed, it does not find that the applicant belongs to a group of people who have witnessed criminal acts.  His fear of persecution on return to Nigeria on this ground is not well-founded. 

3. The Tribunal rejected the claim that the applicant was a member of a particular social group consisting of Christian businessmen who have witnessed criminal acts on others on the basis that the applicant did not in fact belong to a group of people who have witnessed such acts.  That conclusion necessarily followed from the Tribunal’s rejection of the applicant’s claims relating to his alleged kidnapping in May 2008.  There was no error in relation to that aspect of the particular social group question.

4. In relation to the alleged particular social group of Christian businessmen, the Tribunal set out the law correctly.  The Tribunal then considered whether Christian businessmen constituted a particular social group in Nigeria for the purposes of the Convention.  The Tribunal concluded, as a matter of fact, that Christian businessmen did not constitute a particular social group in Nigeria. 

5. The Tribunal’s approach to this issue differed somewhat from the steps described by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. At [26] of that decision, their Honours said:

   At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.   

6. It is implicit in the Tribunal’s reasons for decision that the Tribunal accepted, in general terms, that Christian businessmen are capable of constituting a particular social group.  However, the Tribunal did not accept, as a matter of fact, that such a particular social group existed in Nigeria. 

7. The Tribunal’s approach in this case appears to be consistent with the approach described by Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [34] and [35]:

   34.There is no reason in principle why cultural, social, religious and legal norms cannot be ascertained objectively from a third-party perspective. Communities may deny the existence of particular social groups because the common attribute shared by members of the group offends religious or cultural beliefs held by a majority of the communityhttp:// - #. Those communities do not recognise or perceive the existence of the particular social group, but it cannot be said that the particular social group does not exist.

   35.The third-party perspective is a common feature in the decision-making by the Tribunal and by the delegates of the Minister. Decisions made by these decision-makers may rely on "country information" gathered by international bodies and nations other than the applicant's nation of origin. Such information often contains opinions held by those bodies or governments of those nations. From this information it is permissible for the decision-maker to draw conclusions as to whether the group is cognisable within the community. Such conclusions are clearly objective. However, as accepted by McHugh J in Applicant A, subjective perceptions held by the community are also relevant.  (emphasis added)

8. That is, the Tribunal considered country information, and drew conclusions from it about whether a group consisting of Christian businessmen was cognisable within Nigerian society.  The Tribunal found as a fact that Christian businessmen were not a group cognisable or distinguishable in Nigerian society.  That finding was open on the evidence.  It meant that the group, Christian businessmen, if it existed at all in Nigeria, was merely a social group, and not a particular social group, within the meaning of the Convention: Applicant S at [36].

9. The Tribunal did not expressly follow the steps described in Dranichnikov.  However, the Tribunal’s decision does follow the approach described in Applicant S, which was decided more recently than Dranichnikov.  For these reasons, ground four is not made out.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: 

Date:  27 August 2010