SBKC v Minister for Immigration and Citizenship

[2011] FCA 533

FEDERAL COURT OF AUSTRALIA

SBKC v Minister for Immigration and Citizenship [2011] FCA 533

Citation:		SBKC v Minister for Immigration and Citizenship [2011] FCA 533
Appeal from:		SBKC v Minister for Immigration & Anor [2010] FMCA 984
Parties:		SBKC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		SAD 216 of 2010
Judge:		MARSHALL J
Date of judgment:		19 May 2011
Catchwords:		MIGRATION – Appeal from the Federal Magistrates Court – appellant claims entitlement to a protection visa – claims fear of persecution on grounds of political opinion, ethnicity and religion – appellant claims the Refugee Review Tribunal should have arranged for him to undergo a medical examination under s 427(1)(d) – whether the Refugee Review Tribunal should have raised concerns regarding the appellants credibility
Legislation:		Migration Act 1958 (Cth) s 91R(3), s 424A(3)(a), s 425, s 427(1)(d)
Cases cited:		SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Plaintiff M61/2010E v Commonwealth (2010) 272 ALR 14 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Date of hearing:	19 May 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr P d'Assumpcao
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 216 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SBKC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	19 MAY 2011
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 216 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SBKC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	19 MAY 2011
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of the Federal Magistrates Court which dismissed his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed the decision of a delegate of the respondent Minister that the appellant was not entitled to a protection visa.

2. The appellant is a citizen of Nigeria, who is currently serving a term of imprisonment in South Australia.  He is a Christian of mixed Isoko and Ogoni ethnicity from the Delta State.  The appellant claimed to fear persecution if returned to Nigeria in the reasonably foreseeable future by reason of:

   ·his anti-government political opinion;

   ·his imputed political opinion due to the political activities of his parents;

   ·his ethnicity; and

   ·his religion.

3. Whilst in Australia, the appellant claims to have spoken out against Nigerian authorities here and also in New Zealand and to have been the subject of media coverage concerning his Tribunal and Court cases regarding his claim for a protection visa and criminal matters.

4. The Tribunal did not accept that the appellant had a high profile as a political and human rights activist.  It did not accept that he was specifically targeted by the Nigerian government, Muslims or anyone else.  It also did not accept that he was frequently arrested, tortured, had his life threatened or was detained.  The Tribunal did not accept that the appellant’s parents were high profile human rights activists.  It also did not accept that he was harmed because of his parents’ political opinion.  The Tribunal did not accept that scars on the appellant’s body were evidence that he had experienced brutality and torture.

5. The appellant claimed that secret agents from the Nigerian government visited him in jail in South Australia, seeking details of his release date.  He claimed the officials told him they would be waiting for him and that he would disappear.  The Tribunal accepted that two officials from the Nigerian High Commission visited the appellant at Yatala prison in March 2008.  It accepted that the officials asked about the appellant’s release date.  It did not accept that the officials were secret agents who would cause him to “disappear”.

6. Importantly, the Tribunal found that, if returned to Nigeria, the appellant did not face a real chance that he would suffer serious harm because of his anti-government political opinion, whether imputed or actual.  It also found that there was no real chance the Nigerian government would use “tabu” as a disguise to kill him on his return to Nigeria.

7. On the topic of religion, the Tribunal accepted that restrictions were placed on the appellant’s preaching activities in Nigeria but that those restrictions did not amount to serious harm. The Tribunal did not accept that certain claimed instances of the appellant publicly standing up against Muslims actually occurred.  The appellant also raised the existence of current human rights violations in Nigeria based on religion.  The Tribunal relied on country information to form the view that the appellant did not face a real chance of persecution by reason of his religion should he return to Nigeria.

8. On the topic of race and ethnicity, the Tribunal did not accept that the appellant was a high profile political activist for Ogoni rights or the rights of any other marginalised group.  It did not accept that he was persecuted on the basis of his race or ethnicity or that there was a real chance that he would be so persecuted in the future.

9. The appellant contended before the Tribunal that his activities in Australia have given rise to sur place claims.  The Tribunal noted that a person can acquire refugee status sur place where he or she has a well founded fear of persecution arising from events which have occurred since leaving their country of origin. The Tribunal referred to s 91R(3)(b) of the Migration Act 1958 (Cth) (“the Act”). That provision requires a decision maker considering an application for a protection visa to disregard any conduct engaged in by the person in Australia unless :-

   the person satisfies the Minister that the person has engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee…

10. The Tribunal found that the appellant engaged in conduct in Australia otherwise than for the purpose of strengthening his refugee claim. It did not accept that the appellant’s conduct in Australia and conduct in New Zealand came to the adverse attention of the Nigerian authorities to the extent that there is a real chance of the appellant being the subject of serious harm amounting to persecution, because of his engaging in that conduct.

11. The Tribunal also considered whether the appellant would face harm from the authorities and the community in Nigeria because of his conviction in Australia on child sex charges.  The appellant gave evidence that he did not fear harm arising from the convictions but from the leniency of his sentence. The Tribunal found that the appellant had no subjective fear of harm by reason of his conviction on child sex charges and did not have a well founded fear of persecution on that basis.

12. After considering all claims made by the appellant the Tribunal was not satisfied that he was a person to whom Australia has protection obligations under the Refugees Convention.

13. The appellant sought judicial review of the Tribunal’s decision before the Federal Magistrates Court.  Federal Magistrate Simpson dismissed the application.

14. The first ground raised in the court below was a submission that the Tribunal should have advised the appellant that it had concerns about his credibility.  The Federal Magistrate rejected that ground of review.  There is no specific ground of appeal challenging that rejection. However, the appellant has raised that issue in his written submissions on appeal. Subject to matters concerning the appropriateness of raising submissions not relating to an appeal ground as discussed later at paragraph [20], the Court makes the following observations. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at paragraph [48], the High Court noted that the Tribunal was not obliged to provide “a running commentary” on an applicant’s evidence. This means that the Tribunal is not under an obligation to inform an applicant that it has concerns about the credibility of evidence given by an applicant at the time when that evidence is being heard by the Tribunal. Further, as counsel for the Minister submitted in written submissions, the appellant’s credibility was a critical issue before the delegate. The appellant must be taken to have expected it to be a live issue before the Tribunal and to have raised whatever matters he considered necessary to attempt to allay any concerns that the Tribunal might reasonably have had about his credibility.

15. The second ground of review was that the Tribunal considered country information without offering the appellant an opportunity to make submissions about the country information. As the Court below noted, s 424A(3)(a) of the Act is a complete answer to that submission. See Plaintiff M61/2010E v Commonwealth (2010) 272 ALR 14 at paragraph [91]. The country information was not specifically about the appellant but was just about a class of persons of which the appellant is a member. This ground is repeated as a ground of appeal. It has no substance and is rejected as contrary to s 424A(3)(a) of the Act.

16. The third ground of review concerned the fact that the Tribunal gave little weight to medical evidence concerning the appellant’s scars. Under this ground the appellant contended that the Tribunal should have exercised its powers under s 427(1)(d) of the Act, which provides the Tribunal with a power to require the secretary of the respondent Minister’s department to arrange for a medical examination that the Tribunal thinks is necessary with respect to the review.

17. Section 427(1)(d) of the Act provides the Tribunal with a discretion and does not oblige it to arrange for a medical examination at a claimant’s request. So much was made clear by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at paragraph [43], where their Honours noted that s 427 imposes no duty or obligation on the Tribunal to obtain a medical report but confers a power to do so. The Tribunal complied with its duty under s 425 of the Act to invite the appellant to appear before it, give evidence and present arguments relating to the issues relevant to the review of the decision of the delegate.

18. This ground of review was repeated as a ground of appeal.  It is a ground without merit.

19. The remaining grounds below contended that the Tribunal failed to ask relevant questions and either ignored or failed to take into account relevant material.  These grounds appear to have been a thinly disguised attempt at merits review.  The Court below was not satisfied that the Tribunal engaged in jurisdictional error as alleged by the now appellant.  It was correct to form that view.  Similar criticisms have been made by the appellant in the grounds of appeal before this Court.  They include an alleged failure to put certain matters to the appellant, erroneous findings, mistaken conclusions, failure to make obvious inquiries about known facts and other complaints about the merits of the Tribunal’s decision.  None of those matters identify any jurisdictional error in the approach of the Tribunal but rather are a catalogue of complaints about findings of fact and other matters going to merit not jurisdiction.

20. On appeal the appellant has sought to agitate the sur place issue despite the fact that it was not dealt with or raised below in the grounds of review.  This appeal is from the Federal Magistrate’s judgment.  Appealable error cannot be revealed by reference to something which was not before the Federal Magistrate. However, given that the appellant is unrepresented the Court will deal briefly with the grounds of appeal which raise this new issue.

21. Ground seven alleges that Federal Magistrate Simpson erred in law and fact by not finding that the applicant was ‘a refugee sur place”. This mis-states the effect of the Tribunal’s decision. The Tribunal found that s 91R(3) did not apply to the appellant but that his local activities were not such as to come to the adverse attention of the Nigerian authorities to a sufficient extent to render him liable to serious harm as a result.  This ground is misconceived.

22. Ground ten alleges that the Court below erred by not dealing with media articles concerning the sur place claim. Given his Honour’s approach to s 91R(3) it was unnecessary to do so.

23. Another new ground raised was that of an alleged denial of natural justice due to the Tribunal not putting all adverse matters to the appellant. There is no substance to this ground. There is no complaint that the Tribunal conducted the review unfairly. It was a matter for it to raise with the appellant the issues it wished to ventilate in conformity with the provisions of the Act.

24. A further new ground concerned the Tribunal’s failure to find that the appellant faced a real chance of persecution as a result of his child sex criminal convictions.  He took issue with the finding of fact that he did not have the requisite subjective fear.  That is a finding of fact which was open to the Tribunal.  The appellant has not demonstrated that there was no evidence to support that finding.

25. The appellant also complains that the Court below did not permit him to present his oral submissions in the way he desired. The appellant has not demonstrated that this proposed ground has any merit.

26. The appellant also contends that the Tribunal breached s 429 of the Act by not hearing the review in private. The review was conducted by video link. The breach of privacy was said to be the attendance of prison guards at the hearing. Those guards assisted when a problem occurred with the video link from the prison to the Tribunal. This belated submission, not having been raised below, is without merit. Attempts by prison guards to help rectify problems with a video link in order to assist the Tribunal do not constitute a breach of privacy.

27. Finally, the appellant wishes to contend that the Tribunal’s decision was beyond power and not made under the Act. That ground did not transcend a basic assertion and is without merit.

28. For the foregoing reasons the appeal must be dismissed with costs.    

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        19 May 2011