MZYXS v MIAC

[2013] FMCA 13

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYXS v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 13

MIGRATION – Categories of visas – refugee and humanitarian visas –determination of refugee status – applications – application dismissed.
STATUTES – Acts of parliament – interpretation – general approaches to interpretation – words to be given literal and grammatical meaning – particular cases.

Migration Act 1958 (Cth), s.36.
Federal Magistrates Court Rules 2001, Sch.1

Anochie v Minister for Immigration and Citizenship [2012] AATA 234; (2012) 126 ALD 611.
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100.
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147.
Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131
Ruddock v Taylor [2005] HCA 48 at 98; 79 ALJR 1534; 221 ALR 32; (2005) 222 CLR 612; 87 ALD 264.
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634; (2007) 81 ALJR 1659; (2007) 97 ALD 1; [2007] ALMD 6400.
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51; (2007) 237 ALR 660; 81 ALJR 1679; 97 ALD 27.
SZNQR v Minister for Immigration and Citizenship [2010] FCA 152SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123; (2011) 276 ALR 247; (2011) 120 ALD 208.

Applicant: MZYXS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 520 of 2012

Judgment of: Riethmuller FM

Hearing date: 23 October 2012

Date of Last Submission: 5 December 2012

Delivered at: Melbourne

Delivered on: 31 January 2013

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Horan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application filed 4 May 2012 and the amended application filed 26 August 2012 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 520 of 2012

MZYXS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

AS CORRECTED

1. The Applicant applies for judicial review of a decision of the Refugee Review Tribunal (RRT), made on 2 April 2012.

Background

1. The Applicant is a citizen of Nigeria.  He was born in 1985 and grew up in Jos, although he spent some time in Lagos. 

2. In 2002 there was a bombing at the church that the Applicant’s aunt and cousins attended.  In 2002 one of his sisters was killed and around the same time his mother and 3 sisters were raped by intruders.  The Applicant was last in Nigeria in 2003.

3. The Applicant says that he last had any significant contact with his family in 2010, when his mother told him that most of his family had been killed.

4. The Applicant did not come directly to Australia.  He says that he spent 6 years in China on a tourist visa.  The Applicant only arrived in Australia on 30 August 2009.  Upon arrival he was arrested for importing over 200 grams of heroin and convicted of that charge.  He was released from prison on 31 December 2011.

Application for protection visa

1. Whilst in prison, the Applicant applied for a protection visa on 13 May 2011.  His application for a protection visa was based upon his claim to be a refugee on the basis of his membership of a family where his father had been active in the Christian Army, that he would be punished if returned to Nigeria under Decree 33 of the Nigerian Law which makes it a crime to bring Nigeria into disrepute, and that by being Christian he would be persecuted by Muslims in Nigeria (as was his family).

2. Alternatively, the Applicant claims a visa under the complementary protection provisions on the basis that he is at a real risk of significant harm even if it is not on the basis of a ground under the Convention for the Protection of Refugees.

3. The Delegate of the Minister refused to grant the visa, finding that he was ‘not satisfied that the applicant…is a person to whom Australia has protection obligations for the grant of a Protection (Class XA) visa’.

Appeal to the Tribunal

1. The RRT found (at para.118 of CB) that it had ‘concerns about the truthfulness of aspects of the applicant’s evidence as to the circumstances in which he came to traffic drugs to Australia’, but that ‘it … accepted the substance of his other claims for protection.’

2. The RRT also accepted that the Applicant would face a real chance of serious harm in the future on the basis of his religion, saying:

   [138.] Country information before the Tribunal indicates that Jos has been the site of recurring ethno-religious biolence with further major outbreaks reported to have occurred in September 2001, November 2008, January and March 2010 and December 2010 continuing into February 2011.  On the evidence before it, the Tribunal accepts that there is a real chance that the applicant will face serious harm on the basis of his Christian religion if he returns to Jos, now or in the foreseeable future.  The Tribunal further accepts that the persecution feared by the applicant involves systematic and discriminatory conduct against him on the basis of his Christian religion.

3. Ultimately, the RRT found that the Applicant could relocate within Nigeria and avoid the risk of harm that was founded on the basis of his religion, the RRT saying:

   [159. ] On the basis of the independent country information referred to earlier and the Tribunal’s assessment of the applicant’s particular circumstances and past experiences, the Tribunal is of the view that it is reasonable in this matter for the applicant to relocate within Nigeria and that the applicant’s risk of being harmed by Boko Haram or other Muslim extremists in parts of Nigeria other than Jos and the northern parts of Nigeria is remote and, accordingly, not well-founded.

4. The relevant provision of the Migration Act 1958 is s.36, which provides:

   36. Protection visas

   (1)  There is a class of visas to be known as protection visas.

   Note:          See also Subdivision AL.

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)  a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)  a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

   (b)  a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i)  is mentioned in paragraph (a); and

   (ii)  holds a protection visa; or

   (c)  a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i)  is mentioned in paragraph (aa); and

   (ii)  holds a protection visa.

   (2A)  A non‑citizen will suffer significant harm if:

   (a)  the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)  the death penalty will be carried out on the non‑citizen; or

   (c)  the non‑citizen will be subjected to torture; or

   (d)  the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)  the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)  However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)  it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)  the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)  the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   Ineligibility for grant of a protection visa

   (2C)  A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

   (a)  the Minister has serious reasons for considering that:

   (i)  the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

   (ii)  the non‑citizen committed a serious non‑political crime before entering Australia; or

   (iii)  the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

   (b)  the Minister considers, on reasonable grounds, that:

   (i)  the non‑citizen is a danger to Australia’s security; or

   (ii)  the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

   Protection obligations

   (3)  Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

   (4)  However, subsection (3) does not apply in relation to a country in respect of which:

   (a)  the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

   (5)  Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

   (a)  the country will return the non‑citizen to another country; and

   (b)  the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)  Also, subsection (3) does not apply in relation to a country if:

   (a)  the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.

   Determining nationality

   (6)  For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.

   (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

5. The RRT summarised the law, saying:

   [170.] The applicant’s representative has submitted that in the absence of domestic jurisprudence to interpret key terms such as ‘substantial grounds’ and ‘real risk’, international jurisprudence should be considered, submitting that the standard of proof does not require that the risk of torture be highly probable or likely to occur, but that it must go beyond mere theory, suspicion, or possibility.  It is submitted that in this case, there is a probability that the applicant will suffer a violation of human rights as a natural and foreseeable consequence of his return to Nigeria pursuant to being prosecuted under Decree 33.

   [171.] The Tribunal accepts that the standard of proof does not require that the risk of torture be highly probable, but that the risk must go beyond mere theory, suspicion, or possibility, considering that to be consistent with the Explanatory Memorandum.  However the Tribunal does not accept that in this case there is a real risk of significant harm to the applicant as a necessary and foreseeable consequence of his removal to Nigeria due to his potential prosecution under Decree 33.

6. Following this, the RRT made the following findings:

   [172.] For the reasons set out in detail above, the Tribunal has not accepted that there is a real chance that the applicant will be detained, arrested or jailed on his return to Nigeria pursuant to Decree 33 now or in the reasonable foreseeable future on the basis of his conviction in Australia for drug offences.  This is because the country information before the Tribunal indicates that there have been no prosecutions under this law since at least 2005.  For the same reasons, the Tribunal does not have substantial grounds for believing that there is a real risk that the applicant will be arrested, detained or jailed on return to Nigeria pursuant to Decree 33 on the basis of his conviction in Australia for drug offences.

   [173.] The Tribunal has also considered whether the applicant faces a real risk of significant harm if he returns to Nigeria on the basis of his Christianity.  For the reasons set out above, the Tribunal has found that the applicant faces chance of serious harm for reasons of his religion if he returns to Jos now or in the reasonably foreseeable future on the basis of his Christianity and the Tribunal further accepts that there are substantial grounds for believing that as a necessary and foreseeable consequence of his or her removal from Australia to that part of Nigeria where he previously resided, he faces a real risk of significant harm for the same reason, such significant harm including torture or cruel or inhuman treatment or punishment pursuant to s36(2A)(c) and (d).

   [174.] However, s.36(2B)(a) of the Act provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied  that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.  That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan agreeing.

7. The Tribunal concluded by rejecting the Applicant’s application for a protection visa.

Appeal to the Federal Magistrates Court of Australia

1. The Applicant applied to the Federal Magistrates Court of Australia on 4 May 2012.  The Amended Application, filed 26 August 2012, lists four grounds of appeal.  I will consider them each in turn.

Ground 1

1. The Applicant’s first ground claims:

   1. The Tribunal erred by applying the wrong and/or failing to identify the standard of proof against which to assess whether there are ‘substantial grounds for believing’ that there is a ‘real risk’ of ‘significant harm’ to the Applicant, within the meaning of s36(2)(aa) of the Migration Act 1958 (Cth)(“the Act”).

2. The Applicant’s argument on this ground turns upon a careful reading of a phrase in the first sentence of paragraph 171 of the RRT’s reasons.  The Applicant notes that the Tribunal Member stated ‘the risk must go beyond mere theory, suspicion, or possibility, considering that to be consistent with the Explanatory Memorandum’. The Applicant developed the argument that this phrase should be read as indicating that the Member thought that the risk must go beyond either ‘mere theory, suspicion or possibility’.  Counsel for the Applicant eschewed the possibility that a fair reading of the paragraph was that the risk must go beyond mere theory, mere suspicion or mere possibility.  This is a particularly important point in this case as a possibility of harm is sufficient, in some circumstances, to satisfy the test required under the legislation.  The test in the legislation simply requires a finding that there is ‘a real chance’ of harm, as opposed to a possibility that is no more than remote or insubstantial or far-fetched.

3. The ‘real chance’ test has been well established under the provisions relating to the Refugee Convention, although for reasons that are less than clear the Government has used different words in s.36 than those that appear in the Refugee provisions. However the test appears to be substantially the same: see generally Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147.

4. There was much detailed grammatical dissection in arguments before me, particularly focusing upon the use of the commas, (and the so-called ‘oxford comma’).  However, as is said in the 3rd edition of Fowler’s Modern English Usage, with respect to the use of the comma, ‘wide variation can be seen in the work of many contemporary writers and, even more so, in that of earlier centuries’ (page 162.12).

5. The use of the word ‘mere’ as a qualifier for the word ‘possibility’ occurs in academic literature in this area.  For example, McAdam, J ‘Australian Complementary Protection: A Step-By-Step Approach’ (2011) 33 Sydney Law Review 687 at 716 says “The threat of torture does not have to be ‘highly improbable’ or ‘highly likely to occur’ but must go ‘beyond mere theory or suspicion’ or ‘a mere possibility of torture’.”  The author relies upon UN Doc CAT/C/19/D/28/1995 (10 November 1997) Committee Against Torture EA v Switzerland No 28/1995 at [11.3].

6. It is also important to note that the use of the word ‘mere’ as a qualifier for the word ‘suspicion’ is also common.  Perhaps the best example is the discussion by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100 and again in the migration context in Ruddock v Taylor [2005] HCA 48 at 98; 79 ALJR 1534; 221 ALR 32; (2005) 222 CLR 612; 87 ALD 264, and when quoting the Full Court of the Supreme Court of South Australia at para.80.

7. Earlier on in the decision (at paragraph 16) the Tribunal Member, with respect to the standard of proof for refugee claims, notes:

   16.… A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

8. At paragraph 20, when discussing the complementary protection provisions, the Tribunal Member notes the terms of the section and the use of the phrase ‘real risk’ appears.

9. When reading the decision of the RRT as a whole, I am not persuaded that, at para.171, the Tribunal Member was saying that the risk must go beyond a possibility, but rather intended to convey that the risk must go beyond a ‘mere possibility’.  Thereafter, the Tribunal Member applied the ‘real risk’ test as set out in second sentence of the paragraph.

Ground 2

1. The second ground of the Applicant’s amended application was: “On its assessment of the Applicant’s complementary protection claim, the Tribunal erred by asking itself the wrong question, namely whether Decree 33 would be ‘carried out’ in relation to the Applicant.” 

2. The Applicant argued, that the Tribunal erred in failing to consider the risks to the Applicant in the initial stages of custody.  Counsel referred to the passage in the Tribunal member’s reasons at 167, where the Tribunal member said:

   [167.] It is submitted that there are two possible consequences of the enforcement of Decree 33 giving rise to claims under complementary protection – firstly, that the applicant may be killed, tortured or assaulted or otherwise mistreated in the initial stages of police custody, pre-trial detention and sentence by police or other law enforcement officials and secondly, that the conditions of detention and incarceration may amount to cruel or inhuman treatment.

1. Counsel for the Applicant submitted that this initial stage of police custody was not dealt with in para.172, where the Tribunal referred to detention, arrest or jail.

2. It appears to me that a fair reading of the Tribunal decision indicates that, when referring to detention or to a person being detained in para.172, the Tribunal member was clearly discussing the initial stages of police custody as referred to in para.167.

3. The Applicant argues that a proper reading of s.36 is to the effect that s.36(2)(A) defines significant harm by reference to the laws in force in the country, subject only in cases involving the death penalty to the consideration of whether or not the death penalty will be carried out. Thus, the argument goes, if the laws of a country would result in torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, then whether or not that law would be carried out is irrelevant. It does not appear to me that this is the proper reading of s.36(2)(A). Various forms of significant harm are listed in that section.

4. Sections 36(2)(A)(a) and (b) are unusually drafted to deal with the particular problem that arguably the imposition of the death penalty is not an arbitrary deprivation of life. It appears to me that the wording of this section is to avoid the consequence that the imposition of the death penalty (even it would not be carried out) would be considered to be ‘significant harm’.

5. The substantive finding of the Tribunal with respect to Decree 33 was that there had been no prosecutions under that law since at least 2005 and that there was no real risk that the Applicant would be arrested, detained or jailed under that decree.  Whilst the possibility of the death penalty is not explicitly referred to in para.172 of the decision, clearly arrest and jail are precursors to such a penalty.

6. In the circumstances, the Tribunal was clear and rejected the Applicant’s case pursuant to Decree 33.

Ground 3

1. The Applicant’s third ground is that:

   3. The Tribunal erred by failing to take the most recent information into account, namely a cable of the Department of Foreign Affairs and Trade dated 29 March 2012 regarding Decree 33.

2. The Applicant relied upon a decision by Senior Member Toohey of the Administrative Appeals Tribunal (AAT) of 24 April 2012 in Anochie v Minister for Immigration and Citizenship [2012] AATA 234; (2012) 126 ALD 611. In that case, the AAT concluded that there was a real chance that a person convicted of importing a marketable quantity of cocaine and sentenced to 8½ years in Australia would be detained should he be deported to Nigeria and, as a result, face ‘a real chance of suffering torture, or cruel inhuman or degrading punishment’ [at para.31]. In reaching this conclusion, Senior Member Toohey noted:

   [65.] The Department of Foreign Affairs and Trade (DFAT), in a cable dated 29 March 2012, has advised that the Nigerian Federal High Court has reached opposing views in two cases, both of which are now on appeal to the Court of Appeal.

3. Senior Member Toohey relied upon the Department of Foreign Affairs and Trade (DFAT) cable of 29 March 2012 and various other reports at paras.68-72 of the reasons.  The Senior Member concluded that there was no information before the AAT about the outcome of any of these prosecutions or even whether any person detained had come to trial.

4. Importantly, in this case the RRT does not refer to the DFAT cable relied upon in Anochie v Minister for Immigration and Citizenship [2012] AATA 234; (2012) 126 ALD 611, even though it was dated 4 days before the RRT decision. There is no evidence that this particular cable was before the Tribunal at the time of its decision. The obligation upon the Secretary of the Department is to provide all of the materials at the time of the application to the RRT. This obligation is not an ongoing obligation: see SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123; (2011) 276 ALR 247; (2011) 120 ALD 208.

5. As a result, there was no obligation on the Secretary to provide this material to the Tribunal member and there can be no error by the Tribunal member for not having regard to material that was not before the Tribunal.

6. There are significant difficulties with the argument concerning the cable. It was ultimately produced, although the copy produced from the respondent, whilst initially dated 29 March 2012, has a distribution date that appears to be dated 3 April 2012. There is no evidence that the cable was before the Tribunal at the time of the decision.    

Ground 4

1. The fourth ground of the Applicant’s amended application is that:

   4. The Tribunal’s decision is affected by jurisdictional error in that it failed to apply the correct test under s36(2B)(a) of the Act, namely whether there was less than a ‘real risk’ of ‘significant harm’ of the Applicant in Nigeria.

2. This ground relates to the operation of 36(2B)(a), which is set out above.

3. The Applicant argues that the Tribunal erred in drawing guidance from relocation cases in relation to refugee protection such as SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 237 ALR 634; (2007) 81 ALJR 1659; (2007) 97 ALD 1; [2007] ALMD 6400 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51; (2007) 237 ALR 660; 81 ALJR 1679; 97 ALD 27, as the test is different. It was argued that, under the Refugee Convention, adequate or reasonable state protection is sufficient in protection cases rather than a perfect or absolute protection. Thus, in the refugee context, when the state meets reasonable or adequate standards of protection a person would not be covered by the Refugee Convention even if they otherwise have a real chance of ‘significant harm’. Under s.36, however, relocation must be sufficient to show that there is no longer a real risk of significant harm following relocation.

4. Whilst the reasons for the persecution may differ in different cases, it seems to me that the High Court authorities on relocation, referred to by the Tribunal Member, do offer some degree of guidance and that it was not an error by the Tribunal Member to refer to them.

5. With respect to the Refugee Convention issues, the Tribunal found that the Applicant could relocate, saying:

   [158.] The applicant gave evidence that he attended primary school in Nigeria and that after arriving in China at age eighteen, he lived first in Guandong province for about five years where he studied Chinese and worked in lots of jobs including in a warehouse before moving to Shanghai to Chinese language studies at Liverpool University.  Given that the applicant has found employment and supported himself in a foreign country from a young age and for a considerable period, the Tribunal considers that the applicant is a resourceful person who will be able to similarly access employment and accommodation to support himself on his return to Nigeria.  There is no medical evidence before the Tribunal indicating that the applicant suffers from any medical condition.

6. As a result of this finding the Tribunal concluded, with respect to the Convention-based risks, as follows:

   [159. ] On the basis of the independent country information referred to earlier and the Tribunal’s assessment of the applicant’s particular circumstances and past experiences, the Tribunal is of the view that it is reasonable in this matter for the applicant to relocate within Nigeria and that the applicant’s risk of being harmed by Boko Haram or other Muslim extremists in parts of Nigeria other than Jos and the northern parts of Nigeria is remote and, accordingly, not well-founded.

7. This is not a case where it was thought that the relocation would provide the Applicant with greater access to state protection. Thus the argument with respect to the relevance of state protection when relocating for the Refugee Convention-based issues would not be relevant here.

8. Finally, it was argued that the finding set out in para.158 of the Tribunal’s reasons (see above) omits reference to the fact that the Applicant now has a drug conviction in Australia, and therefore does not give consideration to his true circumstances.   It does not appear to have been put to the Tribunal that the drug conviction would have any significant effect on his capacity to find employment or live in other parts of Nigeria.  Nor can this be said to be a case where the Tribunal are unaware of the circumstances of that drug conviction.  The Tribunal is not required to refer to any fact or circumstance in making a decision.  It is axiomatic that many people in the community with drug convictions do find employment and manage to support themselves.

9. I am not persuaded that the Applicant has identified a reviewable error in this regard.

Conclusion

1. As I am not persuaded that the Applicant has succeeded on any of the grounds set out, I must therefore dismiss the application.

Costs

1. In an email sent to the Court on 30 October 2012, the parties agreed for costs to follow the event, in the scale amount set out in Schedule 1 to the Federal Magistrates Court Rules 2001. 

2. I therefore make orders accordingly.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date:  29 January 2013

CORRECTIONS

1. On page 1, the Federal Magistrates Court Rules 2001, Sch 1 was added to the list of legislation referred to.

2. On page 2, a costs order was added in the form of Order 2.

3. On page 15, the heading ‘COSTS’ and paragraphs 50-51 were added to address the question of costs.  Further, the number of paragraphs was changed to reflect the new number of paragraphs.