SZATP v Minister for Immigration

[2004] FMCA 590

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATP v MINISTER FOR IMMIGRATION [2004] FMCA 590

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Nigeria – no reviewable error shown – application dismissed.

Migration Act 1958 (Cth), s.424A

NAOA v Minister for Immigration [2003] FMCA572
NAOA v Minister for Immigration [2004] FCAFC 214
NAOP v Minister for Immigration [2003] FMCA 573
NAOV v Minister for Immigration [2004] FCAFC 241

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Island Affairs (2000) 103 FCR 593

WACO v Minister for Immigration [2003] FCAFC 171
WAEJ v Minister for Immigration [2003] FCAFC 188

Applicant: SZATP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1076 of 2003

Delivered on: 10 September 2004

Delivered at: Sydney

Hearing date: 10 September 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr R Beech-Jones

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1076 of 2003

SZATP

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 23 April 2003 and handed down on 20 May 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant had made claims of religious persecution in Nigeria.  The background facts relating to his claims and the RRT's examination of them is set out in written submissions prepared by Mr Beech-Jones in paragraphs 1-8. 

   
   

   I adopt those paragraphs for the purposes of this judgment:

   The applicant is a citizen of Nigeria.  He arrived in Australia on 4 February 2001 (court book, page 240.1).  On 22 February 2001, he lodged an application for a protection visa (court book, pages 1-34).  On 23 April 2001, a delegate of the respondent refused the application (court book, pages 38-44).  He sought review by the RRT.  On 20 May 2003, the RRT published a decision made on 23 April 2003 affirming the delegate’s decision (court book, pages 239-262).

   The applicant claimed that he had a well-founded fear of persecution if he returned to Nigeria for reasons of his religion, Christianity.  As a Christian, he claimed that he had opposed the introduction of Sharia (Islamic) law.  His claims were set out in a written statement which accompanied his application (court book, pages 29-30) and evidence he gave at a hearing before the RRT which is described in the RRT’s decision (court book, pages 244-246).  In summary, the applicant claimed:

   i)He was raised as an active Christian and at some time belonged to the Redeemer Christian Church of God in Nigeria and was active in preaching (court book, page 243.6).

   ii)He was born in the Anambra State and lived there until his family moved to Gusau in Zamfara State, Nigeria, in 1983 (court book, pages 243.5 and 4.2).  Anambra State is in South Eastern Nigeria and is predominantly Christian (court book, page 254.6).

   iii)In Zamfara he was involved in peaceful demonstrations against the introduction of Sharia law (court book, page 243.6).  Zamfara apparently employs enforcement agents to look for Christians and activists such as himself and at some point these agents raided his house, attempted to kidnap his colleagues and killed a missionary.  He claimed that they resolved to eliminate him (court book, page 243.9).

   iv)According to his protection visa application, in early 1990 the applicant moved to Osun State and lived there until 1995 (court book, page 4.5). 

   v)He then started a cosmetics business in Zamfara State in 1996 (court book, pages 245.6 and 4.6).

   vi)He was active in his evangelical activities (court book, page 245.7).

   vii)The applicant left Zamfara in 2000 and moved to Lagos where he was again active in his church (court book, page 245.6).  In Lagos, he says he was threatened with violence by unknown people. He left and for three months lived in the eastern states including Onitsha State (court book, pages 245.5 and 246.2).

   At some point the applicant provided the RRT with a letter from his brother to him dated 9 October 2001 (court book, pages 234-235).  The letter recounts that his brother is living in Lagos.  He stated he did not wish to return to the city described as “Jos”.   The letter asserts that there had been killings of Christians in Jos and that Muslim activists were distributing pamphlets with the applicant’s name and picture on them and that they intended to kill him if he returned (court book, page 234.10).

   The applicant also provided a letter dated 25 November 2001 from the Assistant Commissioner of Police in Nigeria which recounted the applicant having approached him saying he and members of his family had been threatened when living in Zamfara (court book, page 75).

   The RRT decision

   After setting out the constituent elements of the definition of a refugee (court book, pages 241-242) the RRT summarised the claims and evidence before it (court book, pages 242-244), including the evidence at the oral hearing (court book, pages 244-246) and the “Independent Country Information” (court book, pages 247-256).  In summarising the evidence at the hearing, the RRT specifically noted the letters of 9 October 2001 and 25 November 2001 (court book, page 244).  The RRT then addressed the applicant’s claims in its “Findings and Reasons” section (court book, pages 256-261).  In summary, the RRT found as follows:

   i)It accepted that the applicant was a Christian and a member of the Redeemer Christian Church (court book, page 257.1).

   ii)It did not accept that any enforcement agents from the Zamfara State had followed the applicant outside that territory (court book, page 257.5).

   iii)Having regard to the “country information”, it was not satisfied the applicant was involved in demonstrations against the imposition of Sharia in Zamfara (court book, page 257.9).

   iv)It was not satisfied the applicant had been targeted by Muslim groups because of his opposition to the introduction of Sharia law (court book, page 257.10).

   v)It was satisfied the applicant did not intend to return to Zamfara State (court book, page 258.10).

   vi)It was not satisfied the applicant was attacked and threatened in 2000 when living in Lagos by members of a Muslim group from Zamfara State or from anywhere else or by any other person for reasons of his Christian religion (court book, page 259.2).

   vii)The RRT was satisfied the applicant would not be at risk of harm for reasons of his Christian religion in any of Lagos, Anambra State (his original State) or any southern State of Nigeria (court book, page 259.10).

   viii)The RRT was satisfied that even in the northern States of Nigeria, the  authorities were willing and able to provide him with adequate and reasonable protection (court book, page 260.6).

   Thus, the RRT was satisfied the applicant would not be at risk of harm from members of Muslim groups or any other persons for reasons of his religion if he returned to Nigeria now or in the foreseeable future (court book, page 260.7).

   In relation to the letter of 9 October 2001, the RRT stated as follows:

   The Tribunal does not accept that members of Muslim groups in Jos have threatened to kill the applicant as set out in the letter submitted to the Tribunal.  The Tribunal does not accept that the information set out in the letter is accurate.  The Tribunal is satisfied that the letter was written with the intention of providing support for the applicant’s claims.  Jos is located in the Plateau State in central Nigeria.  At hearing the applicant did not claim to have any connection with persons from Jos nor did he claim that he had ever lived or visited Jos.  … It is not plausible that members of the Muslim community in Jos would have published his name and photo and threatened to kill him in their publications. (court book, pages 258.4-258.8)

   In relation to the letter of 25 November 2001, the RRT found as follows:

   The applicant submitted a letter purportedly from the Assistant Commissioner of the Nigeria Police dated 25 November 2001.  This letter states that the applicant reported that he had been threatened in Zamfara and threatened and trailed by Islamic extremists.  The letter bears the date of 25 November 2001 some 9 months after the applicant left Nigeria and at least 18 months or more since he left Zamfara.  The letter only states what the applicant has reported and the Tribunal is not satisfied that it provides any corroboration of the applicant’s claims.” (court book, pages 258.10-259.3).

2. The applicant relies upon an amended application filed on 27 January 2004.  The applicant had attended a directions hearing before Registrar Hedge on 6 August 2003 at which directions were made in this matter.  Registrar Hedge relevantly ordered the applicant to file and serve any amended application and any evidence upon which he intended to rely on or before 30 October 2003.  The amended application was filed significantly late but no objection on that ground was raised by Mr Beech-Jones.

3. The applicant, from the bar table, confirmed my impression that the amended application had been prepared with the assistance of a legal adviser to whom the applicant was prepared under the Minister's pilot advice scheme.  The amended application is clear and well drafted and it is appropriate that I should deal with it.  No real prejudice was suffered by the Minister by reason of the delay in filing it.

4. In the amended application the applicant raises the following grounds of review.  He asserts that the RRT failed to accord him procedural fairness, first, by indicating to him that the RRT would take into account two letters dated 9 October 2001 and 25 November 2001 (court book, page 244).  The applicant asserts that the RRT did not do so and in reliance upon the statement by the RRT, the applicant did not elaborate on that material.  In those circumstances, the applicant contends that he has been denied a fair hearing.

5. Secondly, the applicant asserts that the RRT did not give him an opportunity to put to it any argument to counter the view formed by the RRT as set out on page 258 of the court book in respect of the letter dated 9 October 2001.  He asserts that at no time during the course of the hearing before the RRT, did the RRT indicate to him that it regarded or considered that the letter dated 9 October 2001 was not accurate, was written with the intention of providing support for the applicant's claims and contained material within it which was not plausible.  It was clear to me from the applicant's oral submissions at the hearing today that he intended this ground to extend also to the letter dated 25 November 2001.

6. Thirdly, the applicant asserts that he had lived in the town of Jos and was known to the Muslim community there.  He asserts that if the RRT had made an inquiry of him in respect of that issue, the RRT would have been informed that it was entirely plausible that members of the Muslim community in Jos had published his name and photo and threatened to kill him in their publications.  I take this argument to be an assertion that, to the extent that the applicant was denied an opportunity to comment on the view formed by the RRT about the letter dated 9 October 2001, the opportunity lost was a real one.

7. The applicant confirmed in his oral submissions that his first concern with the RRT decision is that the presiding member promised to take into account the two letters dated 9 October 2001 and 25 November 2001 and had failed to do so.  The two letters are set out in the court book at page 75 and at pages 234 and 235.

8. This first ground of review must fail.  First, there is no evidence of what, if any, promise may have been made by the presiding member.  The applicant has not filed any evidence as called for by Registrar Hedge’s order.  He has simply made the assertion set out in the amended application.  Secondly, even if such a promise was made as asserted by the applicant, it is clear that the promise was kept.  The two letters are not merely mentioned at page 244 of the court book, they are discussed in some detail on pages 258 and 259 of the court book.  The consideration of the two letters clearly formed part of the reasoning process of the presiding member.  In the circumstances, the two letters were clearly taken into account.

9. The second ground of review advanced by the applicant also fails.  As is pointed out by Mr Beech-Jones in his submissions, I have no evidence of what discussion may or may not have occurred at the RRT hearing.  In some cases it will be clear from the RRT decision and reasons what was or was not discussed.  In other cases the available evidence may enable the Court to draw an inference.  In this case it is a completely open question whether or not the RRT’s views about the two letters in question were discussed at the hearing conducted by the RRT.  In such a case, as was made clear by the Full Federal Court in NAOA v Minister for Immigration [2004] FCAFC 214 at [21], in the absence of transcript, it is not open to me to make a finding of fact that there was no discussion.

10. In addition, it does not appear to me that the two letters in question were rejected by the RRT as being fabrications.  That fact distinguishes this case from the case of WACO v Minister v Immigration [2003] FCAFC 171. In relation to this matter, as Mr Beech-Jones submits the RRT rejected the applicant's claims as to him being targeted by Muslims in the State of Zamfara. While it was plausible that the applicant might have been targeted in the State of Zamfara, the RRT did not regard it as plausible that he would be targeted outside that State. The RRT’s view was formed by reference to country information. Once again, it is not clear whether or not that country information was disclosed to the applicant. In the absence of transcript, I am unable to make any finding on that issue.

11. Even if I were able to make a finding that the country information was not disclosed, it would not necessarily follow that any jurisdictional error resulted. That would have required an analysis of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) and any obligations arising under the general law. Be that as it may, it was apparent that by the time the presiding member came to discuss the letter dated 9 October 2001, the presiding member had already rejected the applicant's claim that Muslim activists from Zamfara were pursuing him outside that State. In the circumstances, the presiding member did not find persuasive the assertion in the letter dated 9 October 2001 that there was a threat to kill the applicant emanating from Jos. The presiding member notes that at the hearing the applicant did not claim to have any connection with persons from Jos, nor did he claim that he had ever lived at or visited Jos. The applicant told me today from the bar table that he had been tense at the RRT hearing and had forgotten to mention that he had visited Jos. That may be so, but the RRT could only deal with the material presented to it.

12. It was open to the RRT to form the view that the assertion about a threat from Jos was not plausible based upon the material before the RRT.  In the circumstances, it seems to me that the RRT accepted the letter for what it purported to be: that is, a letter prepared by someone known to the applicant to assist him with his protection visa claim.  I take the same view concerning the letter dated 25 November 2001.  If anything, the conclusion is stronger in relation to that letter.  The letter, on its face, appears to be a self-serving document.  It appears to be a letter prepared at the request of the applicant or someone on his behalf for the purposes of supporting a claim for refugee status.  As is noted by the presiding member (court book, page 259), the material in the letter is simply a repetition of what the applicant presumably told the Nigerian police.

13. In the circumstances, in my view, whether or not the presiding member discussed her views concerning the letters with the applicant at the RRT hearing, there was no jurisdictional error.  There was no rejection of the letters themselves as fabrications.  The presiding member did not find the contents of the letters persuasive and considered that they did not assist the applicant.  That was simply part of the RRT’s proper function of assessing the evidence before it.  In that regard, for completeness, I agree with and adopt paragraphs 11-13 of Mr Beech-Jones's written submissions:

    The second ground is the assertion that the RRT did not give the applicant the opportunity to put any argument to counter the “view formed by the Tribunal” in relation to the letter dated 9 October 2001 and, in particular, did not advise the applicant that it “regarded or considered the letter dated 9 October 2001 was not accurate, was written with the intention of providing support for the applicant’s claims, and contained material within it which was not plausible”.  It is further contended that the applicant lived in Jos and that had the RRT made inquiry of that fact it would have been informed that it was entirely plausible that members of the Muslim community in Jos had published his name and photo and had threatened to kill him in their publications.

    It is submitted that this contention also fails for four reasons.  First, it is necessary to properly characterise what the RRT’s finding was in relation to the letter of 9 October 2001.  The RRT did not find that the letter was not “genuine” or that it was “fraudulent” in the sense that it was not what it was purported to be, i.e. a letter from the applicant’s brother.  What the RRT did not accept was that its contents were true.  In that sense, the RRT’s finding regarding the contents of the letter were no different than had the applicant’s brother given evidence before it and the evidence rejected.  The finding of the RRT is thus qualitatively different from a finding that the document was a forgery or fraudulently obtained or in some other way was a concoction:  cf.  WACO v Minister for Immigration [2003] FCAFC 171. Thus, on the proper analysis of the material, all that occurred was that the RRT simply rejected the contents of the document. The RRT is not obliged to inform an applicant of its preliminary conclusions about the material before it: see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Island Affairs (2000) 103 FCR 593 at 555-557; NAOV v Minister for Immigration [2004] FCAFC 241 at [27].

    Second, on a proper analysis of the RRT’s reasons, without regard to the letter, it had rejected the critical elements of the applicant’s claims.  It had rejected his claim that he had been an active opponent of the imposition of Sharia law in Zamfara State or that anyone was pursuing him by reason of that opposition.  Once it had reached that point, the suggestion that the level of interest in him had reached all the way to Jos city had implicitly been rejected in the RRT’s findings. Thus, by the time the RRT came to consider the contents of the letter, the applicant’s evidence had been “so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis” : see WAEJ v Minister for Immigration [2003] FCAFC 188; NAOA v Minister for Immigration [2003] FMCA 572 at [23]-[24] and NAOP v Minister for Immigration [2003] FMCA 573 at [11]-[13].

1. The third ground advanced by the applicant is simply an extension of the second and must fall with it. 

2. There is no other basis advanced by the applicant or apparent to me on which I might conclude that there is a jurisdictional error in the decision of the RRT. 

3. I find that there is no jurisdictional error in the decision of the RRT.  In the circumstances, the decision is a privative clause decision.  I must dismiss the application.

4. On the question of costs, Mr Beech-Jones sought an order in the sum of $7,500.  The applicant submitted that costs either in that amount or in the reduced amount of $5,000 that I consider appropriate would be excessive having regard to his ability to pay.  However, as I pointed out to the applicant, impecuniosity is not a reason for not making a costs order or for reducing it below a level to reflect what is reasonable to recompense the Minister for the legal work undertaken.  My assessment is that on a party and party basis a costs order fixed in the sum of $5,000 is properly called for.

5. I order that the application be dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 September 2004