SBMD v Minister for Immigration - [2006] FMCA 558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBMD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 558

MIGRATION − Review of RRT decision − where applicant claimed refugee status on grounds of religion and political opinion − where claim made to RRT inconsistent with earlier statements given to Department − where RRT made adverse findings as to applicant’s credibility − whether jurisdictional error in relation to s.424A letter which contained errors as to timing and was missing attachments – whether RRT failed to consider a claim put forward by the applicant.

Migration Act 1958, ss.65, 91R, 424A
Federal Magistrates Court Rules 2001

Applicant:

SBMD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

ADG324 of 2005

Judgment of:

Raphael FM

Hearing date:

5 April 2006

Date of last submission:

5 April 2006

Delivered at:

Adelaide

Delivered on:

5 April 2006

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondent:

Ms K Bean

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG324 of 2005

SBMD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nigeria. He arrived in Australia on 30 August 2005. On 20 September 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 October 2005 a delegate of the Minister refused to grant a protection visa and on 31 October 2005 the applicant applied for a review of that decision. The applicant was represented by a firm of solicitors and migration agents who made submissions to the Tribunal on his behalf. The applicant attended a hearing before the Tribunal on 24 November 2005. On or about 6 December 2005 the Tribunal determined to affirm the decision not to grant the protection visa.
The claims made by the applicant to the delegate and then to the Tribunal which he said supported his argument that he had a well-founded fear of persecution for the convention reasons of religion and political opinion were inconsistent with a statement made by the applicant to officers of the department when he arrived at Sydney Airport on 30 August 2005. At that time he made a statement reproduced by the Tribunal at [CB 184] in the following form:
"The applicant claimed he had wished to travel to Australia since he was a small child, that he had failed to secure a visa to travel to Australia for the 2000 Olympics; that his mother had died in July 2005 after being sick for one month; he explained that his mother had bought a piece of land but the owner had also sold the land to a second person. His mother ‘quarrelled’ with the vendor and the vendor had ‘placed a curse on her’. His mother's leg ‘had [then] become rotten’ and eventually she had died. The applicant claimed this just left him and his younger brothers and he had to look after them. The applicant then claimed that after his mother died he’ stopped being a student’. He commenced ‘learning to be a fire fighter at the Nigerian Petroleum Institute.’ By way of corroboration, the applicant claimed that his ‘friend, Mr John, can tell you that this is true’. When asked why he came to Australia the applicant claimed inter alia ‘it has always been [his] dream to come to Australia. [He] is intelligent and a Christian and it is [his] dream to help this society. [He] wants to be able to send money home to [his] brothers to support them’.”
The claims made to the delegate and later to the Tribunal were much more detailed. The applicant explained that he was a Christian of Igbo ethnicity. He claimed that he was a supporter of MASSOB, the Biafran Freedom Movement. He claimed that he attended MASSOB meetings regularly and that they were sometimes disrupted by soldiers from the Nigerian Army. The applicant also claimed that he was involved in an incident at an election in 2003 when he was manning a booth. He claimed that three men came to the booth with his cousin and required the applicant to change votes and to give them the ballot box. When the applicant refused the cousin was shot dead in front of him. The applicant told the delegate and the Tribunal that he then did what the three people asked and did not report the incident.
The applicant claimed that in 2005, some 2 years after this incident, these five men came to his home and they were the same men who had killed his cousin. They tried to kill him. His mother intervened and she was shot but the applicant escaped. The applicant claimed that his father had been killed in northern Nigeria because he was a Christian pastor who had refused to convert to Islam. The applicant claimed a fear that if he returned to Nigeria the persons who were involved in the election incident would find him and kill him and that as a general matter the Government was opposed to persons who were members of MASSOB and were going about killing members of that organisation.
On 17 November 2005, before the hearing, the Tribunal had faxed a s.424A letter to the applicant's advisers, with a copy to the applicant, expressing its concern at the inconsistency between the applicant's record of interview at the airport and the subsequent story. A copy of the record of interview and a copy of other submissions were sent so that it was clear what the matters of concern to the Tribunal were.
The Tribunal accepted at the hearing that the 424A letter may well have contained an incorrect period of time by which the applicant was to respond. The Tribunal raised this matter at the hearing and said that it would send a further letter thereafter. Although the first letter may well have been incorrect as to timing the applicant's advisers had responded to it. A further letter was faxed to the advisers on 25 November 2005 and required a response by 5 December. This is a date in excess of the minimum time required under the Act. The letter is in the same terms as the letter of 17 November and it was also responded to by the applicant's advisers.
At the hearing the applicant made much of the fact that he had not received a copy of this letter. Even accepting that this occurred I would have to say that there was no obligation upon the Tribunal to send the applicant a copy, although the letter indicated that that had occurred, because the applicant had nominated his adviser as the designated recipient of correspondence in his application for review which commences at [CB 112].
The applicant suggested that the Tribunal had told him that any representations made in response to the second 424A letter would be taken into account. He pointed out that if one looked at [CB 160] it would appear to indicate that the response was faxed on 6 December and received on the 8 December and therefore it could not have been taken into account in a decision that purports to record that it was signed on 6 December. This might have been a matter of concern to me but at [CB 196] the Tribunal makes specific reference to the letter of 5 December and goes on at [CB 197] to analyse its responses to that information. I am therefore satisfied that the letter was received by the appropriate person, the applicant's authorised representative and was responded to and taken into account by the Tribunal when coming to its decision. I cannot find any jurisdictional error as alleged by the applicant in relation to this 424A letter.
The only other matter in relation to that letter which was raised by the applicant was his concern that the documents alleged to have been attached to the second letter were not attached. In this regard I would say two things. Firstly, there is no evidence that would satisfy me that the documents were not attached when they were claimed to have been attached and secondly, these were the same documents that were attached to the letter of 17 November. I do not believe it would be appropriate even if I had found that the letters were not attached to exercise my discretion to refer the matter back to the Tribunal if I had come to the conclusion that the failure to attach those documents constituted a jurisdictional error.
The Tribunal in a well argued and carefully set out set of reasons came to the view that the credibility of the applicant was such that it could not accept the later claims that he had made. The Tribunal made a number of adverse credibility findings. It based the first on the inconsistencies which I have already discussed, and it concluded that the applicant had made those claims for the sole purpose of enhancing his claims to invoke the protection obligations of Australia.
The Tribunal then dealt with the applicant's alleged membership of MASSOB. Again, it found some inconsistencies in the applicant's statements, particularly in regard to his attendance at meetings. The Tribunal took the view that the applicant was prepared, when problems with his story were pointed out to him, to provide what it describes as "better and even inconsistent claims by way of later submission."
In relation to the applicant's membership of MASSOB the Tribunal argued that it did not really accept that the applicant was a member of this organisation or that persons of Igbo ethnicity were imputed with that membership. But giving the applicant the benefit of the doubt it also took the view that at the low level of activity claimed by the applicant he was not a person likely to be persecuted should he return.
The Tribunal says at [CB 200]:
"I am satisfied the present applicant has fabricated his claims to be involved in MASSOB in Nigeria or elsewhere. I therefore do not even accept the applicant was a member of MASSOB. However, even giving the applicant the benefit of the doubt, and assuming that he even had some sympathies for MASSOB in Nigeria, based on his claims, I am satisfied that if he suppressed his sympathies should he return to Nigeria, in order to avoid a well founded fear of persecution for a Convention reason, firstly this would not constitute persecution for the present applicant; and secondly, there is no real chance the present applicant may give voice to his alleged political or other sympathies and come to the adverse attention of the authorities or anyone else when he returned to Nigeria.”
As Ms Bean says in her helpful written submissions:
"In relation to the Tribunal's findings as to the applicant's involvement with MASSOB the Tribunal's reference to the applicant “suppressing his sympathies” should he return to Nigeria is on a first reading reminiscent of reasoning which was criticised by the High Court in Appellant S395/2002 v Minister for Immigration (2003) 203 ALAR 112. On more careful consideration however, it becomes apparent that the relevant finding is in fact directed to the issue discussed by Madgwick J in Win v Minister for Immigration (2001) FCA 132. That is, the Tribunal's finding is clearly directed to the question of whether, in respect of this particular applicant, not being able to freely express his political opinions on return to Nigeria would amount to persecution in itself. That construction of the Tribunal's reasons is supported by the discussion by the Tribunal of this issue at page 20 of its reasons (CB 200).”
I would also note that at [CB 190] paragraph 2, the Tribunal makes reference to this matter but it says:
"During the course of the Tribunal hearing I put to the applicant words to the effect that I understood that in an appropriate case, an applicant may well have eg, strong political or other convictions, the disregard of which might constitute persecution for that applicant.”
I am of the view that a careful reading of what the applicant has said at [CB 201] indicates that it had clearly in mind the decision of the High Court in S395 and was not suggesting that the applicant should suppress his sympathies but considering whether persecution could be found by his so doing.
The Tribunal gave consideration at [CB 201-202] to the applicant's claims relating to religious persecution. It noted that the applicant lived in the southern part of Nigeria, which was substantially Christian, and whilst there were problems with Christians in the north of Nigeria, this did not seem to involve the applicant. It considered the one example of possible persecution on the grounds of religion put by the applicant and came to the view on the evidence that this, the difficulty the applicant might have in walking around his area on a Friday when Muslim worshipers may be worshiping in the street, did not constitute persecution within the meaning of s.91R of the Migration Act 1958 (the “Act”).
The Tribunal then went on to consider the May 2003 polling booth incident and alleged consequences and analysed the applicant's evidence and came to the conclusion that it was unable to be satisfied that the incidents had occurred as stated. This is a credibility finding which it is well known is the duty of the Tribunal par excellence.
The applicant in his affidavit sworn on 21 December 2005 includes eight grounds of application. The first ground deals with a concern that the applicant had that the Tribunal based part of its credibility findings on a misunderstanding about the applicant's ability to recall the name of the interviewer at the airport. It is clear from the court book that whilst the Tribunal may have initially misunderstood the situation, it was clarified for it by the applicant's advisers. I accept the submission made by Ms Bean that any residual doubt about this matter that the Tribunal may have held was not a material factor in its decisions upon the applicant's credibility.
The second matter raised by the applicant concerned the 424A letters which I have already discussed in some detail and would merely say that I am satisfied that no jurisdictional error has occurred. The third matter alleges that the Tribunal did not consider the facts that the persecution he suffered from was well founded due to his belonging to MASSOB. I am quite satisfied that the Tribunal gave detailed consideration to the MASSOB claims, both those coming from the applicant himself and his advisers and also the information provided to the Tribunal in the independent country information about that organisation.
The fourth matter is a claimed misunderstanding by the Tribunal about attendances at MASSOB meetings. The applicant explained to me that he had said words to the effect that he was standing before a bus whereas the Tribunal had misunderstood him and appeared to believe that he was standing in front of speakers at meetings. I do not see that this mistake, if such occurred, was material to the Tribunal's views about the applicant's credibility. It appears to me to be no more than a permissible mistake of fact and not one to which prerogative writs would attach.
The fifth claim relates to the letter of 5 December 2005 which I have already discussed and I am satisfied that it was considered by the Tribunal. The sixth ground of application refers to the death of the applicant's mother. This was considered by the Tribunal, although the stories put by the applicant in relation thereto were the subject of criticism. The seventh matter raised by the applicant is:
"The Tribunal did not consider that I am outside my country of nationality and also that my claim is in one of the reasons enumerated in the convention definition which is in my claim.”
I think it is clear from the Tribunal's reasons for decision that it most certainly considered all the matters raised by the applicant, even if it did not consider that all of them were credible. Finally, the applicant argues that the Tribunal did not consider that his life would be in great danger if he was to return to Nigeria. The Tribunal considered that claim but came to the view that it was not one that the applicant had substantiated to the degree of satisfaction required by s.65 of the Act.
For the reasons given above, I am unable to make a finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. The application is dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: