NAEV v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 953

FEDERAL COURT OF AUSTRALIA

NAEV v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 953

APPLICANT NAEV OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 235 OF 2002

HILL J
19 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 235 OF 2002

BETWEEN:	APPLICANT NAEV OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	19 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 235 OF 2002

BETWEEN:	APPLICANT NAEV OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	19 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nigeria. He seeks relief under s 39B of the Judiciary Act 1903 (Cth), which subject to the provisions of s 474(1) of the Migration Act 1958 (Cth), is made relevant as a means of challenging decisions of the Refugee Review Tribunal (“the Tribunal”). He claims that the Tribunal made a jurisdictional error in rejecting his claim to be granted a protection visa.

2. The Minister relies upon the provisions of s 474(1) to deny the jurisdiction of the court in the present case. The question of the meaning of s 474(1), its effect and constitutional validity are the subject of appeals to a Full Court of this Court which have been argued but not decided. At the outset of the present application I advised the parties that I did not propose at this stage to consider the issues that have been argued before the Full Court but would consider the present application only on the ground whether the applicant had shown that relief would otherwise be available to him under s 39B of the Judiciary Act. If in the circumstances of the present case such relief would not be available then I would dismiss the application. If it were of the view on the other hand that such relief would be available I would adjourn the present proceedings until a decision had been given by the Full Court on the consequences of s 474(1) of the Act.

3. In the application filed with the Court the applicant alleged that the Tribunal had ignored relevant evidence and that its finding in the face of contradicting independent evidence indicated actual bias.  It was also alleged that the Tribunal had breached procedural fairness in arriving at its decision.  However, the application did not suggest any other example of procedural fairness being breached than the bias which it was alleged the Tribunal had.

4. Generally speaking it may be said that a person will be entitled to a protection visa if that person is a person to whom Australia owes protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (“the Convention”).  Article 1A(2) of the Convention defines a refugee to be a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. It was the applicant's case before the Tribunal that he was of Ibo ethnicity and a Christian.  He claims that at least since the age of two he had lived in Kaduna in Nigeria.  Sharia, that is to say, Muslim law was introduced there.  Neither he nor his parents became Muslim and he claims in consequence their house was burned and the parents killed.  In essence his claim was that were he to return to Nigeria he would be killed by Muslim people because of his Christian religious beliefs.  It was part of his evidence before the Tribunal that he had lived in Kaduna for almost 30 years, having only left there in March 2000. 

6. The Tribunal in the course of the hearing asked the applicant a number of questions concerning the geography of Kaduna.  The applicant's answers were, apparently, not correct having regard to information contained in the Lonely Planet Guide to West Africa.  The applicant sought to explain his lack of knowledge of the city in which he had said he had lived for some 30 years by saying he did not move around it but merely went to work there.

7. It was also part of the applicant's claim that he had led a peaceful protest which had turned violent and that, at least in part, this was a reason why he would be killed if he returned to Nigeria. 

8. The Tribunal accepted that the applicant was a Nigerian citizen of Ibo ethnicity and a Christian, however, it formed the view as a result of the difficulty the applicant had in answering questions about Kaduna that he was not a credible witness in relation, particularly, to the claim that he had lived in Kaduna until early 2000.

9. The Tribunal noted that it was not satisfied that he had in fact lived in Kaduna, worked there, or participated in a demonstration there in regard to Sharia law.  The Tribunal also noted that a claim the applicant had made that there had been an outbreak of fighting between Christians and Muslims in relation to Sharia law in mid-April 2000 conflicted with the independent country material that the Tribunal had before it and to which it referred in its reasons.  That independent evidence was that there was violent sectarian conflict in Kaduna in February 2000, not mid-April 2000 as the applicant said.

10. One might pause to wonder at whether such a small discrepancy in time was, of itself, necessarily a sufficient reason to disbelieve an applicant.  However, as I have noted it was not the only matter which caused the Tribunal to disbelieve him and in any event, generally speaking, matters of credibility are for the Tribunal and not for this Court.

11. The Tribunal in fact formed the view that the applicant had fabricated his claims in order to create for himself what the Tribunal referred to as "the profile of a refugee".  It noted also that Ibo Christians in the south of Nigeria were, in any event, not at risk of persecution there.  It concluded that any chance that the applicant would face persecution in Nigeria whether by reason of ethnicity or religion was remote and insubstantial.

12. The applicant was not represented before me although he had the assistance of an interpreter.  In his oral address to the Court, the applicant said that the Tribunal had not considered what would happen were he to be returned to Nigeria.  He pointed out that the Tribunal itself knew nothing about conditions in that country in comparison with the applicant who did because he had lived there.  The Tribunal had decided the case on hearsay despite its lack of personal knowledge.  He emphasised that, should he return, the Muslim people in Nigeria would "go after" him and that his life was threatened and it was certain that if he went back that he would be killed.  So the basis of his appeal was his life itself.

13. I am conscious of the difficulty that an applicant untrained in law has in seeking to show that a Tribunal has made a jurisdictional error.  That difficulty is compounded when an applicant does not have English as his or her first language.  For this reason I have carefully considered the Tribunal's reasons.  There is nothing on the face of the reasons to demonstrate that the Tribunal has approached the matter with a closed mind so as to constitute actual bias.

14. There is nothing in the Tribunal's reasons which would suggest that for that, or any other reason it had denied to the applicant procedural fairness.  Nor can I see in the Tribunal's reasons any jurisdictional error.  Ultimately unless the Tribunal believed the applicant there was no reason why the evidence would suggest that he had a well founded fear of persecution for a Convention reason.

15. As I have already indicated, the Tribunal did not believe the applicant but rather formed an adverse view as to his credibility.  It is for this reason that it found that he had not lived or at least not for a long time lived in Kaduna as he had alleged.  Once they had made this finding they also then rejected the applicant's participation in a demonstration.  It was left with independent country evidence that persons of Ibo ethnicity who are Christians, at least who lived in the south of the country, had no reason to fear persecution.

16. Simply there is nothing on the face of the Tribunal's reasons which suggests that it failed to consider any relevant matter.  In the circumstances I have no alternative but to dismiss the application. 

17. I order that the application be dismissed and the applicant pay the respondents costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             1 August 2002

The Applicant appeared in person
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 July 2002
Date of Judgment:	19 July 2002