MZYVP v Minister for Immigration
[2012] FMCA 685
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYVP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 685 |
| MIGRATION – Review of decision by Refugee Review Tribunal – applicant a citizen of Nigeria – applicant claims denial of procedural fairness and failure to apply correct legal principles – application dismissed. |
| Migration Act 1958 (Cth) |
| Applicant: | MZYVP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 193 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 25 July 2012 |
| Date of Last Submission: | 25 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the first Respondent: | Mr Brown |
| Solicitors for the first Respondent: | Australian Government Solicitor |
| Counsel for the second Respondent: | No appearance |
| Solicitors for the second Respondent: | Australian Government Solicitor |
ORDERS
That the Application filed 23 February 2012 be dismissed.
That the Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 193 of 2012
| MZYVP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a Refugee Review Tribunal (“the Tribunal”) decision of 20 January 2012, which affirmed a decision of the Minister’s delegate who refused to grant the Applicant a protection (Class XA) visa. The Applicant seeks an order that the decision of the Tribunal be quashed, and that a Writ of Mandamus requiring the Tribunal to determine the application according to law be issued.
The Applicant is a citizen of Nigeria who arrived in Australia on 5 August 2011 on a tourist visa. On arrival, the Applicant’s tourist visa was cancelled, and he was transferred to the Maribyrnong Immigration Detention Centre (“the Detention Centre”) on 6 August 2011. On 16 August 2011, the Applicant applied for a protection visa. That application was accompanied by a statement in support. The application was refused by a delegate of the Minister on 8 November 2011, on the basis the delegate did not consider the Applicant to be a person to whom Australia had protection obligations.
On 9 November 2011, the Applicant sought a review of the delegate’s decision. He was at that stage represented by legal counsel. The application attached documentation relating to the application for the tourist visa, and a letter from his purported employer in Nigeria. A hearing took place on 15 December 2011, at which the Applicant had the assistance of an interpreter. The Applicant gave evidence and presented arguments in support of his claims. The Tribunal also heard evidence from Mr Michael Fox, a volunteer visitor at the detention centre.
Prior to the hearing, the Applicant’s legal representatives filed submissions in support of his application. On 20 January 2012, the Tribunal affirmed the delegate’s decision, and on 23 February 2012, the Applicant filed this application for review of that decision.
The Applicant’s claims for protection are set out in the statutory declaration dated 16 August 2011, attached to his application. He claims to have been persecuted by virtue of his Christian faith, and because of his imputed political opinion.
His claims are summarised in the Tribunal’s decisions at Court Book pages 162 to 163. They can be summarised as follows:
a)The Applicant grew up in Benin City with his parents and four brothers. His father was an Igbo community leader, and his family belonged to the Igbo tribe. In 2000, his father took the Applicant and one of his brothers to live with his uncle in Jos, as his father believed he was no longer safe in Benin City as an opposing tribe had threatened to kill his father and his family. The Applicant is not sure what happened to his parents and other siblings after he left Benin City.
b)In 2002, fighting occurred between Muslims and Christians in Jos. The Applicant’s uncle was a church leader. The Applicant’s uncle’s house was burned down, killing his uncle and brother and cousins. A Muslim was believed to have targeted his uncle due to his position in the local Christian church. The Applicant and his aunt then fled from Jos to Imo State.
c)In 2006, the Applicant’s aunt married for a second time to a person who was a chief of the All Nigeria Peoples Party (“the ANPP”). In 2008, tensions rose between the ANPP and the Peoples Democratic Party (“the PDP”). The Applicant attended rallies and began to work for the ANPP. One day, PDP followers came and ransacked the house, destroying it, and the Applicant and his aunt fled to Borno State. They did not hear from the Applicant’s aunt’s husband, who the Applicant believed to have been killed in this incident.
d)In 2009, the Applicant’s aunt married a Muslim man. A prominent Islamic group, Boko Haram, with networks all over Nigeria, were taking control in Borno State, and the aunt believed or hoped that this marriage would provide her with protection. Boko Haram began fighting non-Muslims and trying to convert them to Islam. Members of the Boko Haram suspected that the Applicant’s aunt had married a Muslim to act as an informant against Muslims. She was captured and set on fire, resulting in her death.
e)The Applicant rushed to the police to inform them of his aunt’s death but was not believed. He was detained and tortured for 21 days without food and water. A local pastor finally paid money to the police, and the Applicant was released.
f)The Applicant gave evidence that on his way home from work one day, he was stopped at a roadblock by members of the Boko Haram and questioned about whether he was Muslim or Christian. He told them he was Muslim and was allowed to go. Two or three weeks later, he was again stopped by the same members of the Boko Haram at a different roadblock. They told him that they knew he was Christian and said he could only live freely if he converted to Islam. The Boko Haram told the Applicant that they would arrange for him to marry a girl from Borno State. He did not marry the girl, but formed a relationship with her, and she later fell pregnant.
g)In December 2010, the Applicant and Amine, the girl, fled to Lagos, as they feared they would be harmed by the Boko Haram. They left the village at 11 o’clock at night and got to Lagos late the next day. Amine phoned her parents and told them that she was in Lagos and pregnant. Shortly after, she was taken to hospital, and later died in January 2011.
h)The Applicant called Amine’s parents to tell them that she had died, and they shouted at him. While he was at the hospital, the Applicant’s landlord sent someone to the hospital to tell him that a group of boys were in his house. He stated that he did not think the boys were from Borno State because they had only taken an hour and 30 minutes to arrive, but thought that Amine’s parents had told the boys to come and find the Applicant, as they were not happy when Amine told them she was in Lagos.
i)The Applicant claims that members of the Boko Haram found him in Lagos and threatened him, telling him that he must convert to Islam and explain what happened to Amine, or he would be killed.
j)The Applicant claims to fear that if he returns, he will be killed by the Boko Haram and not protected by the authorities.
The Tribunal’s decision
The Tribunal made an express finding that aspects of the Applicant’s evidence were implausible and lacking credibility, and concluded that certain aspects of his evidence should not be accepted.
The Tribunal did accept some of the Applicant’s evidence, in particular:
·that he was a Nigerian citizen, and his family was Christian;
·that due to a land dispute with a neighbouring tribe, and threats to the Applicant’s father, the family were forced to relocate from Benin City;
·that the Applicant was displaced by violence in Jos in 2002, which killed members of his family, and he fled with his aunt to Imo State;
·that the Applicant’s aunt married a member of the ANPP party, and the Applicant worked with local youth to support the party;
·an incident of political violence took place between the ANPP and PDP in or near the house the Applicant shared with his aunt and her husband in late 2008;
·that the Applicant met Amine, who became the Applicant’s girlfriend;
·that they travelled to Lagos together where she became pregnant and later died; and
·that Amine’s parents were angry at the Applicant when he told them about this.
The Tribunal, however, did not accept other aspects of the Applicant’s evidence. It expressed concern over the false nature of documents provided to the Department of Immigration and Citizenship (“the Department”) in support of his tourist visa application, which he later admitted to be false. A number of matters claimed by the Applicant were not accepted by the Tribunal. In particular:
·that his aunt’s second husband, described as a chief of the ANPP, had died in an instance of political violence;
·that the Applicant would be targeted by the PDP if he returned to Nigeria;
·that the Applicant’s Christian aunt had married a Muslim while still married to her previous husband;
·that the aunt had been murdered and the Applicant had subsequently suffered imprisonment and torture;
·that Boko Haram had proposed he marry a Muslim girl;
·that the Applicant had been harassed on the direction of Amine’s parents, following her death; and
·that the Applicant had a profile such that would make him of particular interest of the Boko Haram over and above other Christians in Nigeria, leading them to pursue him to Lagos, or that members of the Boko Haram had entered his house in Lagos.
The Tribunal put to the Applicant potentially adverse information in order to give him an opportunity to respond to those matters. The Tribunal did not accept the Applicant’s claims in relation to Boko Haram. The Tribunal made findings in relation to Boko Haram’s prominence throughout Nigeria on the basis of country information before it. While it had accepted that the Boko Haram were seeking to extend their reach beyond the northern states, the Tribunal noted that the country information did not indicate that they were currently active in Lagos.
The Tribunal did not accept that, in the past, Boko Haram had targeted the Applicant in either Borno State or Lagos. It followed that the Tribunal did not accept that the Applicant was at any greater risk of harm than any other Christian person in Nigeria. As a result, the Tribunal considered that the risk of harm from the Boko Haram was remote and insubstantial, and not real. The Tribunal therefore did not accept that the Applicant faced a real chance of serious harm on the basis of his actual or imputed beliefs if returned to Nigeria now or in the foreseeable future.
Grounds for review
The Applicant’s ground for review dated 23 February 2012 state that ‘the Tribunal failed to apply the correct legal principles, and failed to observe the requirements for procedural fairness’.[1] The Applicant was asked if he wished to address the Court in relation to those matters. The Applicant, in his submissions to the Court, made certain allegations in relation to the lawyers who acted for him. He stated that the lawyers did not provide him with appropriate assistance, and that he relied on his lawyers in relation to the country information and was not aware that he could have submitted country information himself. He was therefore disadvantaged in terms of the country information that was before the Tribunal.
[1] Application filed 23 February 2012.
The Applicant further submitted that the country information relied upon by the Tribunal was not correct, and that the Tribunal did not give sufficient consideration as to what might happen to him should he be returned to Nigeria.
The First Respondent’s submissions
The First Respondent essentially submits that the Tribunal’s credibility findings were open to it upon the material before the Tribunal, and were not unreasonable in the circumstances. The Tribunal itself noted the importance of adopting a reasonable approach when making findings of credibility.
The finding as to credibility is a function of the primary decision-maker, in this case, the Tribunal. It is for the Tribunal to determine what weight it places on the information before it, and on the appropriateness of the information it should rely upon. The First Respondent contends that the Tribunal did put to the Applicant particular information that could be reason or part of the reason for affirming the decision, and gave him the opportunity to respond to those matters. The Tribunal noted that the Applicant did not seek further time to respond to the Tribunal’s request for further information.
The Tribunal clearly put the Applicant on notice that it had concerns about the plausibility of some of his events and claims. The First Respondent refers to various paragraphs in the decision of the Tribunal where this occurred. There were clearly concerns in relation to the Applicant’s credibility, particularly arising from his submission of false documents in support of the application. The Tribunal did not accept that the Applicant had been identified by Boko Haram as being a Christian or that this organisation had arranged or attempted to arrange for his marriage to Amine.
Further, the Tribunal did not accept that Amine’s parents or any other person had arranged for members of Boko Haram to go to his house within hours of her death. While the Tribunal put to the Applicant at the hearing that country information suggested the Boko Haram confined their activities to the Borno State and rarely conducted activities outside of northern Nigeria, subsequent inquiries led the Tribunal to accept that this organisation was seeking to extend its reach beyond the northern states. However, the Tribunal went on to conclude that the country information did not indicate the Boko Haram were currently active in Lagos, or that the Applicant’s profile was such as to make him of particular interest to the Boko Haram, so that they would pursue him to Lagos.
The findings of the Tribunal were therefore based on its assessment of the country information that was available to it, and also its assessment of the credibility of the applicant himself and the evidence which he provided. On the basis of that information, the Tribunal came to the view that the Applicant would not be exposed to ‘serious harm’, as defined by the Convention, should he return to Nigeria.
Conclusions
The Applicant, in his original application, did not specify how the Tribunal failed to apply the correct legal principle or failed to observe procedural fairness in the way it dealt with his claim. In his oral submission, he seems to suggest that he was denied procedural fairness because his lawyers failed to advise him that he could have provided additional country information himself to the Tribunal. That is not a matter that can be laid at the foot of the Tribunal itself. If he was poorly advised by his lawyers, that is not a matter that can be considered to have been an error on the part of the Tribunal.
Secondly, I am satisfied that the Tribunal did put matters to him about which it had concerns, and, appropriately, put to him that he could respond to those matters. Division 4 of the Migration Act 1958 (Cth) (“the Act”) deals with how the Tribunal must conduct a review. The Court Book shows that the Applicant was invited to appear before the Tribunal, in accordance with the provisions of the Act. At the request of his legal representatives, the original hearing was postponed. A written submission was made to the Tribunal on his behalf, and he participated in the hearing. Those are all matters which go to the question of the procedural fairness of the Tribunal.
The Tribunal clearly put to the Applicant matters concerning his claims which questioned his credibility. In particular, it put to him information they had about Boko Haram, and the evidence that he had provided false information with respect to his visa applications. At paragraph 73 of its decision, the Tribunal deals with the issue of the adverse information put to the Applicant, and the way that that was dealt with, and I quote paragraph 73:
During the hearing, the tribunal put to the applicant, pursuant to the procedures set out in section 424AA of the Act, information that would be the reason or part of the reason for affirming the decision to refuse a protection visa. The information put to the applicant was particularised as follows...[2]
[2] Court Book, pages 173-174, at paragraph 73.
The Tribunal then goes on to deal with the issue of the information concerning the bogus documents used to obtain the visa, and also, the letter pertaining to his employment. The Tribunal put to the Applicant that he had not been truthful in his evidence, that his claims lacked credibility, and that the Tribunal might therefore doubt that he had a well-founded fear of persecution if he returned to Nigeria. The Tribunal explained to the Applicant that he could request further time to respond to the information, and the Applicant did not seek to do so. He then went on to provide the explanation that he sought to the Tribunal.
I am therefore satisfied that the Applicant was on notice that the issue of his credibility and information that he had provided to the Tribunal was a matter of concern to the Tribunal, and he was given the opportunity to respond to it. In my view, it is clear that the Tribunal did consider the claims made by the Applicant. It did not accept some of those claims. In doing so, it gave reasons why it did not find some of those claims to be credible. The Tribunal acted on the evidence before it. Its findings were open on the evidence, and could not be said to have been based on no evidence at all, or to be so unreasonable as to disclose an error.
It is not the role of this Court to come to a view about the facts that are before the Tribunal. It is the role of this Court to determine if, in reaching its conclusions, the Tribunal acted within the law and in accordance with its jurisdiction. It is within the jurisdiction of the Tribunal alone to be satisfied on the evidence before it that an Applicant meets the requirements of the Convention. On the material before it, the Tribunal came to the view that the Applicant did not. I am satisfied in reaching that conclusion that the Tribunal acted within jurisdiction. For those reasons, the application is dismissed.
As the Applicant has been entirely unsuccessful, the First Respondent is entitled to claim costs, and I therefore make an order that the Applicant is to pay the First Respondent’s costs in the sum of $6471.00.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 7 August 2012
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