SXDB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 297

FEDERAL COURT OF AUSTRALIA

SXDB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 297

SXDB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 236 OF 2004

SELWAY J
14 MARCH 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 236 OF 2004

BETWEEN:	SXDB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	14 MARCH 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The Application is dismissed.

2.        The applicant to 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
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 236 OF 2004

BETWEEN:	SXDB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	14 MARCH 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant seeks the issue of writs of certiorari, prohibition and mandamus in relation to an order of the Refugee Review Tribunal (the Tribunal) made on 30 September 2004.  For the reasons given below the application is dismissed.

2. The applicant is a citizen of Nigeria. He arrived in Australia on 31 May 2003. On 17 June 2003, he applied for a protection visa. In order to obtain such a visa the respondent (the Minister) had to be satisfied that Australia owed protection obligations to the applicant: see section 36(2) of the Migration Act 1958 (Cth) (the Act).

3. In general terms the Minister had to be satisfied that the applicant was a person who:

   ‘… owing to 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.’

4. The applicant is a Christian.  He claimed to be the son of a chief in Nigeria.  He claimed that his father was required, in accordance with Nigerian tradition, to appoint a servant of the wife of the Oba.  The Oba would appear to be an important role in Nigerian traditional society.  The applicant claimed that his father appointed the applicant to the position of the Oba’s wife’s servant - a role which, amongst other things, required that the applicant serve and represent the Oba’s wife, including in relation to various traditional non‑Christian religious rites.  He claimed that tradition required that the Oba’s servant be castrated. 

5. The applicant claimed:

   ‘So the fear of persecution that led to my fleeing my country is rooted in the fact that castration is an integral part of the in-house ceremony that a servant-to-be of the Oba’s wife must go through as a persecution to avoiding the nasty historical narrative I made before.  Unfortunately, the government don’t have control over it.  They don’t know exactly when it is done yet it is done.  This makes it very difficult for my government to protect me.’

6. The applicant claimed that the penalty for refusal to undergo the ritual duties and rites was death.

7. The applicant claimed that he escaped from Nigeria because of his well‑founded fear of persecution.

8. The applicant’s claims were not accepted by a delegate of the Minister.  The applicant sought a review of that decision by the Tribunal.  The Tribunal affirmed the delegate’s decision and these proceedings were brought from that Tribunal decision.

9. Both parties accepted that in order to succeed on this application the applicant must show that there was a jurisdictional error in the process, reasoning or decision of the Tribunal which could have affected its decision. 

10. Before the Tribunal the applicant repeated his claims in some detail, and also gave evidence that a number of ritual processes were against his Christian religion.  The applicant’s evidence was corroborated by his uncle.  The Tribunal put to the applicant that there was no independent country information that supported the applicant’s claims in relation to a castration ritual.  It also put to him that the new Oba was a former senior police officer and a former lawyer and that it was difficult to accept that he would permit the rituals to occur.  It also put to the applicant’s uncle that the uncle may not be impartial. 

11. In its reasons the Tribunal said:

    ‘As advised at the hearing, the Tribunal could not find any independent evidence of the applicant’s claim that castration is a current practice in Nigeria.  The Tribunal recognises that just because independent evidence could not be found confirming the practice, it cannot prima facie be concluded that the practice does not happen.  Conversely, it is plausible that the lack of independent corroborative evidence is a reflection that the practice simply does not occur. 

    The applicant gave evidence that the practice is done secretively.  Whilst this is possible, on its own the applicant’s explanation is not convincing.  The fact is the applicant has provided a number of documents none of which supports his claim the practice occurs.  The applicant’s uncle gave evidence that the practice occurs but the Tribunal is not satisfied that the uncle is an impartial witness.  Arguably, the uncle’s paramount consideration is to assist his nephew rather than  assist the Tribunal with its inquiries. 

    Nigeria is a signatory to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which indicates that there is a level of commitment on the part of the authorities not to condone degrading and inhuman treatment such as forced castration.  The new Oba of Lagos ... is a former Assistant Inspector General of Police who has also practised law.

    The Tribunal is not satisfied that a person with such a profile would allow forced castration and or any other forms of ill‑treatment to take place in the palace.  The applicant’s explanation that the Oba would rely on the Oracle to guide his actions is unpersuasive. 

    In light of these comments and on the basis of the evidence as a whole, the Tribunal rejects the applicant’s claim that he would be castrated if employed as a servant in the palace.  In any event, the Tribunal is not satisfied that the applicant who is allegedly the son of a claimed Chief (which the Tribunal accepts as being plausible) and with a Diploma in Engineering, would be forced to become a servant and be subjected to any ill-treatment.

    … In summary, there is no Convention‑related reason as to why this applicant could not return to Nigeria.  On the basis of the evidence as a whole, the Tribunal cannot accept that the applicant has suffered any Convention-related harm, nor can the Tribunal accept that there is a real chance of this happening to the applicant in the reasonably foreseeable future.  Therefore, the Tribunal cannot be satisfied that the applicant has a well‑founded fear of persecution for a Convention reason.’

12. The Tribunal expressly found at first that it did not accept that the applicant would be subjected to castration and second, that it was not satisfied that the applicant would be forced to become a servant and be subjected to any ill‑treatment.

13. The applicant says that the Tribunal failed to identify the correct issue that it had to determine; that is, whether it was satisfied that the applicant had a well‑founded fear of persecution for a Convention reason.  On the face of it, that is exactly the question the Tribunal did address. 

14. However, the applicant says that the bases relied upon by the Tribunal in not being satisfied by the evidence of the applicant and of his uncle, were inadequate.  Those bases were that there was no support for the allegations in the independent country information, that it was difficult to accept those allegations and that the applicant’s uncle was not impartial.  The applicant says that those reasons were inadequate.  Even if this were so, it does not involve any jurisdictional error.  The Tribunal has jurisdiction to determine factual issues, including the jurisdiction to make errors in such factual determinations.  The issue was described by the Full Court in SFGB v Minister for Immigration and Multicultural & Indigenous Affairs [‘SFGB’](2003) FCAFC 231 at [19]-[20].

15. The applicant says that the Tribunal fess into jurisdictional error in making findings where there was no evidence to support it.  That issue is discussed in SFGB.  That discussion may need some reconsideration in the light of the comments of Gummow and Hayne JJ in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [37]-[38], and the comments of McHugh and Gummow JJ in the case of Re Minister for Immigration and Multicultural Affairs ex parte Applicant S 20 of 2002 (2003) 198 ALR 59 at [36], where their Honours drew attention to the importance of the statutory requirement that the Tribunal be ‘satisfied’ with the consequence that the relevant issue may be ‘Wednesbury’ unreasonableness or irrationality rather than the ‘no‑evidence’ principle. In any event, in my view the conclusions of the Tribunal do not involve jurisdictional evidence on the ‘no evidence’ ground.

16. The applicant did complain, however, that the conclusion reached by the Tribunal was ‘Wednesbury’ unreasonable in the sense that no reasonable person could have reached reach it.  However, what was involved in this case was an assertion of secret rituals involving castration, with ritual death for refusing to take part.  As the Tribunal noted, those that were involved and who were responsible for ordering the relevant rituals could properly be described as ‘civilised’.  The applicant said that the Nigerian state would not intervene because it was a traditional ritual, although on other occasions he claimed that it could not intervene because it was secret.  It seems to me that even though the applicant’s claims were supported by his uncle, and even though there was no direct contradictory evidence, it is nevertheless not irrational for someone to fail to be convinced by that claim.  Undoubtedly the claims could be true, but it seems to me that the claims are also inherently unlikely, unless it is assumed that Nigeria is not a civilised country and that strange and violent rituals take place there, which are either officially condoned or officially ignored.  The Tribunal specifically acknowledged that there are continuing human rights issues in Nigeria, but it was not prepared to accept that the Nigerian authorities, or the new Oba, would condone or ignore the alleged practices.  In my view its conclusions were open to it.  They are not so irrational that no reasonable person could reach them. 

17. The applicant also complains that the Tribunal failed to consider the applicant’s claim that it was inconsistent with his Christian religion for him to take part in these rituals, so that even if he were not at risk of castration he was at risk of being killed if he did not take part.  It is true that the Tribunal focussed on the claim in relation to castration.  This is not surprising.  As noted above, this was the focus of the applicant’s own claim.  However, the Tribunal’s conclusion also resolved this further issue.  As already noted, the Tribunal expressly held that it was ‘not satisfied that the applicant … would be forced to become a servant and be subjected to any ill-treatment’.  That disposed of any argument that the Tribunal failed to consider whether or not the applicant had a well‑founded fear based upon his religion.

18. Finally, the applicant argues that there was a reasonable apprehension of bias in the Tribunal.  Without considering the potential effect of section 422B of the Act, it is sufficient to say that there was no material at all which might have suggested that any reasonable person would have apprehended that the Tribunal was biased.  The only arguments put forward for it involve a repetition of the grounds already dealt with, the apparent conclusion being that because the Tribunal had made what are alleged to be factual errors, a reasonable person would apprehend bias.  Such an argument has little substance.  It must be rejected.

1. The application is dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             22 March 2005

Counsel for the Applicant:	PC Charman
Solicitor for the Applicant:	West Side Lawyers
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 March 2005
Date of Judgment:	14 March 2005