NAIK v Minister for Immigration - [2003] FMCA 400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIK v MINISTER FOR IMMIGRATION

[2003] FMCA 400

MIGRATION – Application for review of Refugee Review Tribunal decision –whether jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407
Kioa v West (1985) 159 CLR 550
Minister v Jia (2001) HCA 17
SCAAv Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FLC 370
Rhandawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA FC188
Craig v South Australia (1995) 184 CLR 163
Re Minister for Immigration & Multicultural Affairs ; Ex parte Miah [2001] HCA 22
Muin v Refugee Review Tribunal [2002] HCA 30

Applicant:

NAIK

Respondent:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ639 of 2003

Delivered on:

1 September 2003

Delivered at:

Sydney

Hearing Date:

1 September 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr JD Smith

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ639 of 2003

NAIK

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal which was handed down on 9 January 2003. The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
In the application filed on 31 January 2003, the applicant claimed that the Tribunal acted in bad faith, that there had been a constructive failure of jurisdiction in that the Tribunal member failed to address the correct legal question and did not apply herself to all the issues she was required to consider, that there was a failure by the Tribunal member to exercise her jurisdiction because she did not reach a state of satisfaction based upon a correct understanding of the law, and further that there was no evidence or other material to justify the making of the decision.
The applicant also swore an affidavit which was filed on 31 January 2003 in which he repeated his claim to refugee status. He did not file written submissions as ordered but made oral submissions in which he raised a number of grounds. As the applicant is self represented I have considered the grounds that he raised and also whether any reviewable error is apparent in the Tribunal reasons and the material in before the Court.

Background

The applicant claimed to be a citizen of Nigeria who feared persecution on account of his homosexuality. He arrived in Australia on 3 November 2000 and lodged an application for a protection visa on 29 November 2000. On 28 December 2000 a delegate of the respondent refused to grant the applicant a visa. The applicant sought review by the Tribunal.
The Tribunal outlined the applicant's claims. It accepted that, as he claimed, he had had sex with men on two occasions but did not accept that he was homosexual or that if he were to return to Nigeria he would engage in homosexual relationships or pursue a homosexual lifestyle. In particular it did not accept the applicant's claims that he had been discovered by his flatmate having sex with a man or that subsequently the former flatmate had used this fact to extort money from him or threaten him or inform the applicant's community of the discovery of his homosexual activities.
The Tribunal considered the independent information before it, the applicant’s claims and the evidence put forward in support of the applicant’s claims, and as well as his demeanour or more particularly what it described as the change in the applicant’s demeanour when giving evidence. In this respect the Tribunal identified in particular how the demeanour of the applicant caused it to conclude that his evidence in relation to the events leading up to his departure from Nigeria, in particular his claims about what his flatmate subsequently did having found him engaging in homosexual practices, was not truthful.
The Tribunal detailed the perceived change in the applicant's demeanour when critical issues were raised: from testimony given freely, decisively and frankly in a flowing manner and without hesitation to testimony which was halting, evasive, vague and filled with long pauses. According to the Tribunal many questions had to be asked three or four times before a direct answer was given. The Tribunal did not accept the applicant’s explanation that he had difficulty remembering dates, and it gave reasons for not accepting that explanation. He was clearly articulate and confident. He did not give the impression of being in the slightest intimidated by his appearance before the Tribunal. Further, the Tribunal was satisfied that if such memory problems had been a concern this would have been raised at the outset, not after a doubt about credibility was raised.
The Tribunal also had regard to the fact that the events in question had occurred relatively recently, and the applicant had provided a written statement setting out details of those events. On that basis the Tribunal did not accept that the applicant could have become so vague and confused about recent events in such a short space of time if he were telling the truth.
It found that the applicant was unable to provide clear and cogent evidence about the period of time between the sexual encounter observed by his flatmate and the flatmate's departure from the flat and also in relation to various other matters which it listed. The Tribunal concluded that it would have expected that if the applicant were telling the truth about those events he would have been able to provide that evidence much more readily and convincingly than he did.
Furthermore, the Tribunal went on to say that even if those claims were true, based on independent evidence it did not accept that there was any real chance that the applicant would be persecuted for his imputed homosexuality either by individuals or by the authorities. It found that his fear of persecution was not well founded. It also found that it was reasonable to expect that the applicant could relocate within Nigeria from the town in which he had been living, Lagos, and change his profession if necessary and that if he did so there would be no real chance that he would suffer persecution.

This Application

In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the High Court held that a decision which involved a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Migration Act 1958 is reviewable. It is not necessary in this case for me to consider the scope of jurisdictional error.
The applicant claimed today that he was not given the opportunity to put his case before the Tribunal. This appears to be a claim that there was a denial of natural justice. However the applicant was invited to a hearing on 15 October 2002. He requested a postponement of the hearing and attached a medical certificate. The hearing was postponed and a new hearing date was set and the applicant attended the hearing on 26 November 2002 and had the opportunity to give evidence. According to the reasons for decision the Tribunal raised with the applicant aspects of independent evidence before it which were relevant to his claims.
Furthermore, while the Tribunal refused the applicant's adviser's request for a further adjournment of the hearing to enable him to provide further information, the Tribunal allowed a further week for the provision of further submissions or documents after the hearing. In these circumstances no lack of procedural fairness is apparent.
In a letter of 26 November 2002 the Tribunal also invited the applicant to provide written comment on documents (which had been discussed with him at the hearing) consisting of independent information in relation to gay bars in Nigeria, the United Kingdom Home Office Report 2002 on the position of homosexuals in Nigeria and information on internal flight. The Tribunal also raised the issue of its concerns about the applicant's credibility. It indicated that there were credibility issues in relation to the applicant's claims of having been discovered, blackmailed and exposed by his former flatmate during 2000. The applicant, through his adviser, was given the opportunity to comment by 3 December 2002.
That opportunity was taken up and the comments of the adviser and a number of documents were provided to the Tribunal on 2 December 2002. His submission addressed the applicant’s claims generally and also the issues raised in the Tribunal letter (in particular the independent information).
The Tribunal considered the comments of the applicant, as is made clear from its description of the material provided, its reference to the marginal relevance of some of that material and the indication that it had taken all of that material (including the contents of the submission) into account. There is nothing in the material before me to suggest that that was not in fact the case. No denial of natural justice is apparent. The applicant had the opportunity to put his case before the Tribunal.
To some extent the applicant is also claiming that he was not forewarned of the possibility that the Tribunal would make a negative decision. However it is not necessary for the Tribunal to advise the applicant of its thinking or to give him an opportunity to comment on its thinking. Nor is it necessary to advise the applicant that the Tribunal may make a negative decision. No error is apparent in this respect. Relevant issues were put to the applicant.
The applicant today also took issue with the Tribunal's treatment of his credibility. The Tribunal's concerns in that respect were raised in the letter of 26 November 2002 and the applicant was given an opportunity to comment. The response from his adviser does not address those matters in the detail that it might have been done, but that does not establish a lack of procedural fairness on the part of the Tribunal. The applicant was given an opportunity to address the Tribunal concerns in relation to credibility. The Tribunal’s findings were open to it for the reasons it gave on the material before it. It cannot be said that there was no evidence to justify its decision. Further, credibility is a matter for the Tribunal (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407)
It is necessary, as was conceded by Counsel for the respondent, for the Tribunal to give the applicant an opportunity to address any relevant material and to address issues which are central to his claim (see Kioa v West (1985) 159 CLR 550). Furthermore, the Tribunal must not mislead the applicant into thinking a decision will go a particular way if that has the effect of leading to a denial of a real opportunity to put the applicant's claim.
In this case the applicant was given an opportunity to respond to the adverse country and other information on which the Tribunal intended to rely and its concerns about his credibility and to address the issues central to his claims and critical to the decision. This is not a case where the Tribunal simply referred to the applicant's demeanour and did not go on to explain how it came to its conclusions in relation to credibility. Nor is it a case where it failed to identify what caused it to conclude that part of the evidence of the applicant should be discarded (see WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA FC188 at [18]). While reliance on demeanour as a determinant of credibility requires the exercise of great care, in this case, in addition to demeanour, the Tribunal indicated the other matters that it took into account in reaching the conclusions that it reached.
Further the Tribunal put to the applicant its concerns and also the independent country information. It cannot be said that there was any denial of natural justice or jurisdictional error in this respect. (cf WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA FC188). Nor was there any breach of s.424A.
The applicant also claimed that the documents that he submitted were not ‘properly looked at’. I have touched on this issue. The documents that he submitted were those documents contained in the bundle of relevant documents accompanying the submission that was made by his adviser on 2 December 2002. The Tribunal does indicate in its reasons that it has taken into account all material and there nothing to suggest that it did not in fact take that material into account. The Tribunal referred to such material as indicated above. On the material before me I am not satisfied that the Tribunal failed to have regard at the material or failed in any way to take into account an integer of the applicant's claim in the sense considered in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. There is nothing before me to suggest that any aspect of the applicant's claim was overlooked or that irrelevant considerations were taken into account. The Tribunal properly stated and applied the law. It addressed the correct legal questions and relevant considerations.
The applicant also referred generally to the decisions of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22 and in Muin v Refugee Review Tribunal [2002] HCA 30. He suggested that they were relevant to his claim that the documents that he submitted to the Tribunal were not properly ‘looked at’. No more particularity was provided in relation to the alleged relevance of those decisions. There is nothing in the material before me to suggest that either of those decisions assists in the applicant.

I note in particular the absence of any agreed facts as was the case in the Muin. There is nothing in the material before me to suggest that the principles in Miah assist the applicant in establishing his claim.
The applicant also claimed that the Tribunal was biased and had pre-judged the issue. A party who alleges bias carries a heavy onus. The allegation must be distinctly made and clearly proved (see Minister v Jia (2001) HCA 17, and also Von Doussa J in SCAAv Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 as to the principles which apply to the question of whether a finding of actual bias is made out). It will be a rare case where actual bias can be demonstrated solely on the published reasons of the Tribunal. In this case what is before the Court is the published reasons of the Tribunal and the documentation of the letters and correspondence preceding and following the hearing, in particular the letter that I have referred to inviting comment from the applicant through his adviser on the concerns of the Tribunal.
I am not satisfied that there is any actual bias. Nor is there anything on the material before the Court to suggest that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application; (see in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 and Jia).
The credibility of the applicant was in issue. The decision-maker in those circumstances had necessarily to test the applicant’s evidence and to confront him with adverse matters and inconsistencies. In doing so it did not fall into either actual or apprehended bias. No lack of good faith is apparent.
The Tribunal considered the claims and made findings open to it on the material before it. It gave reasons for its findings. On the material before me, bias either actual or apprehended, is not established. Further there is nothing in the material before the Court to suggest that the Tribunal made an arbitrary or capricious decision (see Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FLC 370 per Einfeld J at 380) or that in any way it was dishonest in the approach that it took to the function given by the Act.
The applicant also raised what described as the error of the Tribunal in finding that he was from the Anambra State of Nigeria. In his protection visa application the applicant stated that he was born in the Ananbra State. However in the submission of his adviser to the Tribunal it is stated that he came from the State of Emo. If there was a factual inaccuracy in the face of the two accounts, it is not an error which is reviewable within the sense considered in the decision in Plaintiff S157 or in any other respect. The Tribunal considered the integers of the applicant’s claims.
The applicant took issue generally with the Tribunal's factual conclusions. The merits of the Tribunal decision are not a matter for review by the court. The manner in which the Tribunal approached its task was in accordance with the requirements of the Act. It properly considered and proceeded on the basis that homosexuals may constitute a particular social group in Nigeria. It considered the factual claims made by the applicant. It made findings about those claims. It considered what the applicant could do on return to Nigeria.
The applicant specifically takes issue with the Tribunal conclusions in relation to relocation but nothing in what he has said or apparent in the material before me demonstrates that there is any reviewable error in the manner in which the Tribunal considered whether or not it was reasonable for the applicant to relocate to another part of Nigeria (see Rhandawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437). The applicant's disagreement with the Tribunal's conclusions in that regard is a disagreement with the merits of the Tribunal decision.
The applicant tendered to the court a letter which he had sent to his solicitor which he claims was not passed on to the Tribunal in response to the Tribunal letter of 29 November 2002. It takes issue with a number of factual considerations that the applicant saw as of relevance. Such factual determinations were a matter for the Tribunal and nothing in the document that has been tendered by the applicant establishes that there was any reviewable error by the Tribunal. In particular this claim does not establish any denial of natural justice by the Tribunal.
The applicant also complained about the accuracy of the independent country information that the Tribunal sought his comment on relation to the availability of gay bars in Lagos in Nigeria. This was a matter put to the applicant as of potential relevance. The applicant's disagreement with such information does not establish an error on the part of the Tribunal. He claimed more generally in this respect that he was not satisfied with the authenticity of material relied upon by the Tribunal. There is no material before me to establish that the material referred to in the Tribunal decision (in particular general country information, advice from the Australian Department of Foreign Affairs and Trade, and the UK Home Office assessment) is not authentic. The weight to be given to such material is a matter for the Tribunal.
On balance, having considered the applicant's claims and also all the material before me it has not been established that there is any jurisdictional error in the Tribunal's decision or that there was any denial of natural justice. In those circumstances I have no alternative but to dismiss the application.

RECORDED : NOT TRANSCRIBED

The Minister seeks that the applicant, should pay his costs. The applicant has been unsuccessful and it is appropriate that he meet the Minister's costs. The amount sought by the Minister is the sum of $3,500 which is at the lower end of the costs sought in cases of this nature. In light of the complexity and nature of this case compared with other cases I consider that it is an appropriate amount and that costs should be set in accordance with Rule 21.02(2)(a) of the Federal Magistrates Court Rules at $3,500.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 1 September 2003