SBMF v Minister for Immigration
[2007] FMCA 378
•19 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBMF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 378 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, s.91X Federal Magistrates Court Rules 2001, sch.1 |
| R v Australian Stevedoring Industry Board & Anor; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 |
| Applicant: | SBMF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 270 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 March 2007 |
| Date of Last Submission: | 19 March 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 19 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. S. D. Ower |
| Solicitors for the Applicant: | Westside Lawyers |
| Counsel for the Respondents: | Ms. Bean |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
Should a transcript of today’s proceedings be prepared, if the name of the applicant appears in that transcript, that name be replaced with the pseudonym used in the pleadings in these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
SYG 270 of 2006
| SBMF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application dated 3 October 2006 the applicant seeks review of a decision of the Refugee Review Tribunal dated 7 September 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs dated 11 May 2006. That decision refused the applicant’s application for a protection visa.
Section 91X of the Migration Act provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The applicant was born in Lagos. He is of Christian religious faith. He has never married. Before coming to Australia he was a boxer. He lived at the Federal Low Cost Housing Estate in Bauchi from August 1998. The application does not include details in relation to matters such as the applicant’s ethnicity and education. It indicates that he previously worked for the Sports Council in Bauchi. (Court Book (“CB”) page 88).
However, we do know that he is of Ibo ethnicity. (CB 89).
The applicant claims to fear persecution in Nigeria because of his religious beliefs and because of membership of his family.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 16 of the Tribunal’s decision, being pages 88 to 100 of the Court Book. Relevantly, they are in summary:
a)the applicant has been a member of the Deeper Life Bible Church his whole life and went to church every Wednesday and Sunday;
b)in 2006, the applicant left Nigeria for Australia to participate in the Commonwealth Games;
c)the applicant rang home on 20 March and was told that Muslims were killing Christians, and that there were riots in Bauchi. His father was the pastor of the Deeper Life Bible Church in Saso or Bauchi;
d)there was some conflicting evidence as to what the applicant was told when he rang home from Melbourne. He variously said he rang his mother on 20 March and was told his father was missing and had not been seen for 24 hours, that he rang home and next day was told his father was dead and his burnt body had been found, or he only spoke to his mother on 20 March 2006, not subsequently, and he does not know whether his father’s body has been found;
e)since then, he has been unable to reach his mother on the telephone and fears that she may also be dead;
f)the applicant believes that he will be targeted because his father was outspoken in church against Sharia (Sharia law having been introduced in Bauchi, which is a predominantly Muslim area);
g)the applicant fears that he will be killed because he is known to be a pastor’s son and Muslims are after pastors and their families. More particularly as a high-profile boxer, whose father is known to have spoken openly in opposition to Sharia law in northern Nigeria, he would be targeted by Islamic groups if he were to return;
h)the applicant has a son and a girlfriend, but he is uncertain as to their whereabouts and cannot get in contact with them;
i)after the Commonwealth Games ended, the applicant called one of his co-boxers to obtain information about Bauchi. This person told him that, on their arrival at the airport, three members of the Islamic Association of Nigeria had inquired as to the applicant’s whereabouts;
j)at the hearing, the applicant referred to numerous reports on the situation in Nigeria with regard to religious freedom. These included a report from International Christian Response on the violent outbreaks over the publication of caricatures of the prophet Mohammed, a Human Rights Watch report on discrimination by state and local governments in Nigeria against “non-indigenes” and numerous reports from Human Rights Without Frontiers concerning religious violence and the targeting of Christians in Nigeria; and
k)because of his celebrity it would not be possible for him to relocate safely to another part of Nigeria, he says. It was submitted that the applicant did not have friends or relatives in other parts of Nigeria from whom he could expect protection or refuge. The submission argued that the applicant feared persecution for reasons of religion and membership of a particular social group, namely his family.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967.
The Tribunal’s decision was based on the following findings and reasons. At page 105 of the Court Book:
The Tribunal does not accept that the applicant is a member of the DLBC -
the acronym of the church –
and that his father is a pastor in the church. In making this finding the Tribunal attaches significant weight to the fact that the applicant could not name the church’s founder and theologian. As noted above, other aspects of the applicant’s evidence, in particular his description of attitudes towards his relationship –
namely his de facto and not de jure marriage to the mother of his child –
were inconsistent with his claimed background. This reinforces the Tribunal in its finding.
The Tribunal does not accept that the applicant’s parents or brother, or anyone else in his family, were harmed or disappeared following his departure from Nigeria. The applicant’s evidence in this regard contains a number of significant inconsistencies.
Continuing in the Court Book at page 107:
The Tribunal does not accept that members of the applicant’s family were harmed or disappeared in Bauchi in March 2006. The applicant claims that this stemmed from his father’s statements against the Sharia. The Tribunal does not accept that the applicant’s father was targeted by Muslims in Nigeria for reason of having spoken out against the Sharia or for any other reason. As set out above, the Tribunal does not accept that the applicant is the son of a pastor of the DLBC who grew up as a member of that church. Further, the applicant has been unable to provide consistent evidence even as to his contact with his mother at the time he claims his father disappeared, or as to his father’s fate. The applicant claimed in his protection visa application that when he phoned home on 20 March Muslims were killing Christians. He gave evidence at the hearing that both his father and mother were killed in the riots. However, he was unable to provide convincing and consistent evidence as to the situation in Nigeria around that time, even though he claimed to have spoken to his mother.
At page 108:
The Tribunal does not accept that the applicant’s family was targeted or in any way harmed by Muslims following his departure. The applicant’s evidence in this regard is lacking in credibility. The Tribunal does not accept that the applicant’s father, mother, brother or anyone else in his family has suffered harm at the hands of Muslims since his departure.
…
The Tribunal does not accept that members of the Islamic Association of Nigeria or anyone else with an adverse interest in the applicant were looking for the applicant at the airport. The applicant did not mention this in his protection visa application.
On page 109, moving to the relocation issue:
Even if the Tribunal were to accept that the applicant faced a real chance of suffering Convention-related persecution in Bauchi in the reasonably foreseeable future as a result of this generalised religious violence in the north, it considers that he could find safety from such harm by relocating within Nigeria, and it would not be unreasonable to expect him to do so.
Going to page 110:
The applicant has suggested that people who are not indigenes face difficulty in living in other parts of Nigeria, and that he is lacking in family support. Nevertheless, the Tribunal considers the applicant’s profile –
he was a national boxing champion for four years from 2003 –
is such that he would be in a strong position to make a life for himself in another part of Nigeria, even if he were to go to a place to which he is not indigenous and where he does not have family support … The Tribunal accepts that the applicant’s contacts in other parts of Nigeria might be limited to friends he has met through the sport of boxing. However, the Tribunal considers that the applicant has many attributes that would assist him in relocating, even in the absence of direct family contacts. In particular, he has achieved success as a boxer which, as the Tribunal has put to the applicant, has been described as the second most popular sport in Nigeria. In all the circumstances, the Tribunal does not accept that it would be unreasonable for the applicant to relocate within Nigeria, if he did not wish to return to Bauchi. In coming to its conclusion on the reasonable relocation, the Tribunal has carefully considered all the relevant circumstances.
The essence of the Tribunal’s decision is found in the paragraph at the top of page 111:
The Tribunal does not accept that the applicant or members of his family have ever suffered harm for reasons of religion or that they have ever come to the adverse attention of Muslims in the past. It notes that there has been religious violence in Bauchi during the applicant’s time in Australia, although it does not accept that this has affected the applicant’s family in the way he claims. It considers that, if the applicant does not wish to return to Bauchi, he can genuinely and meaningfully access internal safety, and it would not be unreasonable to expect the applicant to relocate within Nigeria, for instance to a place like Lagos. If he were to do so, there is no real chance that he would suffer persecution for the reason of his religion, his membership of his family or for any other Convention reason.
The proceedings in this Court
The application has two grounds:
1. The Refugee Review Tribunal erred in law by failing to correctly apply the definition of “refugee” according to Article 1A(2) of the UN Convention.
2. The Refugee Review Tribunal failed to take into account relevant considerations.
Those grounds were unparticularised, but particulars have been supplied by means of the applicant’s outline of submissions. In paragraph 1 of the outline counsel for the applicant has particularised those allegations in the following terms:
The Refugee Review Tribunal (“the Tribunal”) failed to exercise its jurisdiction or exceeded its jurisdiction in making the decision as it applied the wrong test or was not in reality satisfied of whether it was reasonable in the circumstances for the applicant to relocate in Nigeria.
The question therefore resolves into a fairly narrow issue: did the Tribunal approach its consideration of the relocation issue correctly? It is true that relocation, as an issue, is a separate question to that concerning whether or not the applicant has a well-founded fear of persecution for a Convention reason.
A quick reading of the Tribunal’s decision would suggest that the Tribunal came to the conclusion that the applicant did not have a reasonable fear of persecution for a Convention reason, or for any of the reasons which he has articulated, by reason of the events which have occurred in Bauchi. However, counsel for both the applicant and respondent agreed that that would not be a correct reading of the Tribunal’s decision, and I think that they correct in doing so.
It seems to me that the Tribunal has edged towards that sort of conclusion, but at the end, did not make the finding that the applicant did not have a well-founded fear of persecution for a Convention reason, by reason of the events in Bauchi, if only because he is a Christian. I think the conclusion which the Tribunal arrived at at page 109, where it says:
Even if the Tribunal were to accept that he faced a real chance of suffering Convention-related persecution in Bauchi, as a result of generalised religious violence in the north -
does indicate, coupled with the previous paragraphs, that it was not bringing itself to come to that conclusion.
Therefore, the issue is: did the Tribunal fall into error in concluding that the applicant could reasonably relocate within Nigeria?
The applicant has submitted that a proper reading of the Tribunal’s decision indicates that it has not properly applied the test which is relevant to relocation. I was taken by counsel for the applicant to the High Court decision of R v Australian Stevedoring Industry Board & Anor; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100, where the following passage appears at page 120:
The inadequacy of the material is not itself a ground for prohibition. But it is a circumstance which may support the inference that the Tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the Tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not arise in law or fact.
Was there a paucity of material to support the Tribunal’s conclusion?
I think the answer to that is that there was not a paucity of information to support the Tribunal’s conclusion. As counsel has indicated to me, the Tribunal had before it the decision of the delegate, which quoted information it had had supplied to it by the applicant, and it had the results of its own inquiries. Further, I think that the detail in which the Tribunal discusses the issue suggests that it had adequate information with which to reach its conclusions, so that the conclusion it has reached is not indicative of having so little information that it has asked itself the wrong question or was not, in truth, sufficiently satisfied to have arrived at the conclusion at which it arrived.
When one talks of what the correct test is, the parties were agreed that the appropriate starting point is the case of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. In that case, the following passage of Black CJ is appropriate, and is found at page 442:
In the present case, the delegate correctly asked whether the applicant’s fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the applicant could relocate to another area of India but whether he could reasonably be expected to do so.
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to their country will remain well-founded with respect of their country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law, the practical realities facing the person who claims to be a refugee must be carefully considered. Moreover, the range of realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeals Tribunal; Ex parte Jonah [1985] Imm AR 7.
Continuing the quotation at 443:
If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to that country from which he or she has fled to relocate to another part of the country of nationality, it must be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.
The parties also, each of them in their own way, drew comfort from the decision of the Full Federal Court in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37. In that case, Branson J discussed the decision of the Tribunal, North J agreeing at paragraph 73. In that case, it is clear that the Tribunal’s consideration of the issues was not extensive. One issue was significant, and that is to be found at paragraph 22, where her Honour said this:
However, the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no one in Fiji “to look after her,” causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji.
The parties agreed that practical realities were the important thing to take into account. In this case, what were the practical realities?
The applicant has drawn my attention to two things. The first thing which I will refer to is the letter from the applicant’s agents to the Tribunal, dated 24 August 2006, which commences at page 71 of the Court Book. At page 72, the following passage appears:
We point out that the Country Information relied upon by the delegate in this regard –
being the possibility of the applicant’s relocation to another part of Nigeria –
indicated that generally Nigerians will have family members, or members of their tribe, in other parts of Nigeria from whom they can secure protection. [The applicant] does not have friends or relatives in other parts of Nigeria from whom he could expect protection or refuge.
That passage drew, without specific reference, to – but nevertheless can be seen to have built on – the reports of the United Kingdom Home Office and the UNHCR 2002 Origin of Country Information Seminar report, each of which is reproduced in the delegate’s decision and found at page 45 of the Court Book. The applicant has submitted that the Tribunal has failed to consider the information which was there.
However, a consideration of the Tribunal’s decision leads me to a different conclusion. Firstly, it is important to record that, of course, the Tribunal does not have to refer to every piece of evidence which was put before it, nor should one be overly fastidious in picking over a Tribunal’s decision to identify arguable shortcomings. It is, after all, a Tribunal and not a court of law.
However, consideration of the Tribunal’s decision at page 110
indicates that the Tribunal did have regard to what the applicant’s agent put to it, and what had been contained in the country information referred to in the delegate’s decision. If one looks at page 110, part of the quotation which has already been read into these reasons, the Tribunal says:
The applicant has suggested that people who are not indigenous face difficulty in living in other parts of Nigeria, and that he is lacking in family support.
The Tribunal goes on to say:
However, the Tribunal considers that the applicant has many attributes that would assist him in relocating, even in the absence of direct family contacts.
I think those passages, even though they do not make explicit reference to the submissions which went before, are clear enough evidence that the Tribunal did give consideration to the submissions which had been put to it by the applicant.
Then there comes the issue of whether or not the Tribunal has considered other issues. In arriving at its conclusion, did the Tribunal have a sufficient basis on which to conclude that the applicant could relocate? Firstly, it found, as is recorded at page 109:
The Tribunal does not accept that Islamic groups have any interest in him such that they would seek him out, for instance in Lagos or in any other parts of Nigeria. In these circumstances, and looking to the reasonably foreseeable future, the Tribunal finds that there is no real chance that the applicant would suffer Convention-related harm if he were to live in a place such as Lagos.
Going to page 110:
The Tribunal does not consider that it would be unreasonable to expect the applicant to relocate to Lagos or another place in the south with a large Christian population. He informed the Tribunal at the hearing that he has attended secondary school. As evidenced by his oral evidence at the hearing, he speaks English.
The Tribunal goes on to describe the applicant as a successful boxer. It goes on to say this:
It has been put to the Tribunal that the applicant is a high-profile, highly paid boxer and something of a celebrity in Nigeria. The Tribunal is willing to accept this.
And it cites the applicant saying that he agreed at the hearing that boxing was a high-profile sport in Nigeria. Further down that page, the Tribunal said this:
Given the applicant’s high profile as a boxer, his obvious skill in this area and his success in the past, the Tribunal finds that the applicant would have no difficulty sustaining himself as a boxer if he were to relocate within Nigeria.
I think what these passages indicate is that the Tribunal did give serious and proper attention to the practical realities associated with the relocation by the applicant from Bauchi should that have been his wish.
Given that, in my view, the Tribunal has not misunderstood the question, has not asked itself the wrong question, has applied the test correctly and articulated the evidence upon which it based its conclusion in a way that is understandable and logical, I am not satisfied that jurisdictional error on the part of the Tribunal has been demonstrated, and the application will be dismissed.
RECORDED : NOT TRANSCRIBED
In this matter, I think that costs should, as they do in the ordinary course, follow the event. There is no reason why they should not follow the event on this occasion and I will award the Minister his costs in the sum sought, which is $5,000, being the amount set out in paragraph 1(c) of pt.2 of sch.1 to the Rules of this court.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 19 March 2007
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