SZDOS v Minister for Immigration

[2005] FMCA 121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 121

MIGRATION – RRT decision – Nigerian local leader of banned separatist party – failure to deal with fear from ethnic supporters of government – fears of arrest erroneously called prosecution not persecution – matter remitted.

Federal Magistrates Court Rules 2001, r.12.03(1)

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2)(a), 91R(1)(a), 414, 483A, Part 8

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Regina v Secretary of State for the Home Department; Ex parte Sivakumar [2003] UKHL 14
Samad v District Court of NSW (2002) 209 CLR 140
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant: SZDOS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1451 of 2004

Judgment of: Smith FM

Hearing dates: 2 December 2004, 8 February 2005

Delivered at: Sydney

Delivered on: 28 February 2005

REPRESENTATION

Counsel for the Applicant: Mr J Smith

Counsel for the First Respondent: Ms K Morgan

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Order that a writ of certiorari issue to quash the decision of the Refugee Review Tribunal handed down on 18 July 2002 in matter N00/36532.

2. Order that a writ of mandamus issue to require the Refugee Review Tribunal to determine the matter according to law.

3. Order that the first respondent pay the applicant’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1451 of 2004

SZDOS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under s.483A of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 June 2002 and handed down on 18 July 2002. The Tribunal affirmed a decision of the delegate made on 24 November 2000 which refused an application for a protection visa. The applicant seeks the issue of writs of certiorari to quash the Tribunal’s decision and mandamus to compel a rehearing by the Tribunal according to law.

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present matter, that jurisdiction is its general judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑7], and in subsequent cases, the relief sought by the applicant is available only if I am persuaded that the Tribunal’s decision is affected by jurisdictional error.

3. Before describing the claims for refugee protection made by the present applicant and examining whether and how they were dealt with by the Tribunal, I should note two preliminary matters.

4. First, the matter was originally listed for hearing before me on 2 December 2004, when the applicant appeared in person without an appropriate Edo interpreter and with poor English skills. He had not received any legal assistance, and the applications and submissions which he filed raised grounds which mainly addressed the merits of the Tribunal’s decision. When reading the papers I had concerns as to the adequacy of the Tribunal’s reasoning. I identified my concerns to the parties, adjourned the hearing, gave the applicant leave to amend, and under Rule 12.03(1) of the Federal Magistrates Court Rules 2001 referred the applicant to the Registrar for referral to a member of the Court’s pro bono panel for legal assistance.  As a result, Mr Justin Smith has appeared for the applicant and has addressed an amended application prepared by him.  His submissions have greatly assisted my consideration of the case, as have the submissions in reply of Ms Kate Morgan for the Minister.

5. At the start of his submissions, Mr Smith indicated that he would not address the grounds of review originally pleaded.  Since, as will appear below, I have accepted his contentions, I have not found it necessary to consider those grounds.

6. Secondly, at the commencement of the first day of hearing I raised with counsel then appearing for the Minister, whether it was argued that the Court should refuse relief (if jurisdictional error were made out) on the ground of the applicant’s delay in commencing the present application.  Counsel indicated that this would not be argued.  I therefore need not address that issue.

The issues for consideration

1. The applicant’s counsel accepted that his client must establish jurisdictional error, and addressed his submissions to grounds pleaded in an amended application which rely on two well established species of jurisdictional error:

   a)“failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”)at [63]); and

   b)misconception by the Tribunal of the legal effect of the relevant criteria for the grant of a protection visa, and, in particular, of the considerations required to be addressed when applying the definition of “refugee” in Article 1A(2) of the Refugees Convention (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [47‑51], Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93 at [42‑62]).

2. Counsel for the Minister did not argue that an error by the Tribunal of either of these species would not amount to jurisdictional error, and it is not necessary for me to examine the relevant authorities further.  The argument before me concerned whether the Tribunal’s reasons revealed such errors in the present case.

3. I shall extract substantial parts of the written claims made by the applicant, and then consider how they were addressed by the Tribunal.  It is helpful at the start, however, for me to summarise his claims, and the critical issues facing the Tribunal.

4. The applicant lodged his application for a protection visa on 31 October 2000, very soon after arriving in Australia from his country of nationality, Nigeria.  In his application he indicated that he was aged 29 and had left a wife and son in Nigeria.  He had been granted on 11 October 2000, a visitor’s visa to enter Australia, and had departed from Lagos on 18 October 2000.  As will appear below, this was during a documented episode of rioting or communal conflict in Lagos between members of the minority southern Yoruba ethnic group and members of the northern Hausa ethnic group which supported the government in Nigeria.  The applicant claimed, and the Tribunal accepted, that before his departure he was known to be an active local leader in the Lagos district of Agege of a Yoruba separatist movement called “Odua People’s Congress (OPC)”.  He claimed that he had left Nigeria in hurried circumstances after being warned in advance of likely violence affecting his district and a likely government response against OPC leaders.  The Tribunal doubted whether his account of his preparations for his departure was entirely true.  However, the critical issue for the Tribunal concerned the applicant’s claimed fear to return based upon the responses, after he had left Nigeria, of the government and its Hausa supporters to the rioting.  The government’s response had included a “ban” on the OPC and the arrest and prosecution of its leadership.

5. The Tribunal did not doubt the existence of the applicant’s subjective fears at the time of application and hearing, but said that it was not satisfied that he “has a well‑founded fear of persecution for a Convention reason”.  The issue for me is whether the Tribunal addressed all his claimed bases for this fear, and whether its reasoning shows a proper understanding of the Convention’s test of “well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

6. The applicant’s counsel submitted that the Tribunal had failed to deal with the claim that the applicant feared acts of violence from Hausas for reason of his political opinion which would be condoned or tolerated by the Nigerian government.  He also argued that it failed to deal with all aspects of his fear of direct persecution by the government.  To the extent that the Tribunal did deal with that fear, counsel argued that the Tribunal’s reasons revealed misconceptions of the Convention definition of refugee when applied to a situation where a claimant fears arrest, prosecution and mistreatment under laws banning a political association of which he was a known leader.

The applicant’s claims

1. In his application for a protection visa dated 31 October 2000, the applicant described his claims in response to questions posed by the form (CB 17‑20, 22):

   36.        Why did you leave that country?

   As a student activist, I took part in demonstration conducted under the OPC (ODUA PEOPLES CONGRESS) youth wing.  Our simple objective was the creation of Yoruba land as an independent entity.  This struggle emanated from Northern domination of the political economy in Nigeria.  We campaigned for the natural division of the country into 2 separate countries which was the situation before the amalgamation in 1914 by the British colonising Nigeria for almost 99 years.  For this reason, we the leaders of OPC made various enemies within the Nigerian Police Force and the Military Regime at the time.  My father was beaten up by the army at a check point for no reason.  So he took us and moved to Lagos, in 1995, when it has become very constant assaults whenever the police stopped him.  OPC had been very active, and as a member, I took part in its activities and held office as Assistant Operations Leader effective from 1998.

   37.What do you fear may happen to you if you go back to that country?

   On the month of September 2000, the King of Ilorin in Kwara State was unseated from his throne but for no appropriate reason.  An Hausa person from the North replaced him.  The move was unpredictable and unexplained to the Yoruba tribe.  As to how such position will be usurped by a person not entitled to it by birth or native ascendency, hence the person was not even from the State or tribe.

   So the OPC resolved to intervene so as to reverse the decision.  A resolution was passed that OPC visit Kwara State with 60 car convoy.  However, the Police and Army were mobilised by the State Govt to stop OPC motives.  I was part of the member who was selected to go.  However without warning the Police and Army started shooting at us upon the approach to the capital city of Ilorin.  On this occasion 6 members of OPC lost their lives.  I was lucky to escape with injuries for which I received hospital treatment.

   On the 13 of October the Hausas in Lagos came to Agege for a revenge attack on OPC operatives in that suburb.  My father’s house was selected and completely burnt down.  My mother who was not able to escape was killed in the attack.  I was at my shop nearby while my wife had brought my lunch at the time, so was not harmed with my son.  At this time, I was told that the Hausa mob was looking for me and when they could not locate me, took out their anger on my father’s house by destroying it.  I now fear that my lucky escape could not be repeated should I go back to Nigeria at the moment.  I believe that the killers have not been arrested or charged up till now even though the police know who they are.

   38.Who do you think may harm/mistreat you if you go back?

   The Nigerian Police Force and Secret Police, because they believe the OPC member are outlaws.  That is, they fail to recognise the objectives of the movement or organisation.

   The Hausa mob who are intent on revenge killing of OPC members and either encouraged by the Nigerian Police through their inability to make arrests or charge people who harass or assault or kill our members.

   39.Why do you think this will happen to you if you go back?

   Having lost everything to date, namely my father’s house, the death of my mother, I now know that the leaders of OPC are being sought out for summary execution by secret agents from the Northern region.  I have the information as an executive of OPC and that was the reason why I left the country.  I know my future will be bleak should I attempt to return to Nigeria at this time.

   40.Do you think the authorities of that country can and will protect you if you go back?  If not, why not?

   The Police interchange in Nigeria is currently working against their purpose, in that they fail to make arrest or charge their own people.  For that reason alone, law and order has completely broken down.  If there was any semblance of protection my mother would be alive today, the OPC member who lost their lives in Ilorin would not have been killed, talk less of my father’s house which was equally destroyed.  So my fear is centred on the protection which Australian Govt might give me for now until things settle down before I am able to go back.

   …

   53.Are you in contact with relatives in your home country or any other country?

   Yes.

   Describe how you contact them and give any information which you think is relevant to your claim.

   By phone and had been told that my wife was constantly watched by unknown people suspected of being Hausa.  That OPC operatives are now on the most wanted list of the Northern Nigeria.  That no compensation or arrests of the mob that killed my mother was ever received from the Nigerian Government.

2. The delegate refused the application about one month after its lodgement, on 24 November 2000.  It is not necessary to analyse his reasoning, but I note that it follows the same path as was subsequently taken by the Tribunal.  This includes, in my opinion, a failure to address the applicants fears of harm from “the Hausa mob … encouraged by the Nigerian police”, a failure to address a concern that he would be persecuted for his separatist political opinions even if he avoided future involvement in violent political action, and a failure to consider important issues required to be addressed under the Convention definition before concluding that the government’s action against OPC members was “prosecution for a civil offence, not persecution for a Convention reason”.  Although the Tribunal’s reasons do not refer to the delegate’s reasoning, I formed a strong impression that the Tribunal was influenced by it, and that this may account for the Tribunal falling into error in the manner discussed below.

3. Another aspect of the delegate’s reasons is that it set out independent country information which corroborated the applicant’s account of ethnic violence between OPC and Hausa supporters in Lagos, and that the response of the government was directed at suppressing the OPC.  The Tribunal appears to accept this information, although in its reasons it does not identify nor discuss any country information other than some newspaper reports of the October episode which were tendered by the applicant.

4. The information identified by the delegate included information about the OPC prior to the September and October incidents which the applicant claimed to have been caught up in.  This included a UK Home Office report which said that, following clashes between the OPC and Hausas in and around Lagos in November 1999, “President Obasanjo ordered that police shoot OPC members on sight if they did not surrender, as a result the police adopted a confrontational line with the OPC”.

5. The most recent information came from Reuters reports and DFAT information concerning the events of October 2000 (CB 38‑9):

   Lagos, October 26 (Xinhua) – The Nigerian government is allegedly planning to set up a judicial panel of inquiry to probe the recent ethnic clashes in the country’s commercial capital Lagos.  The composition of the panel, which is expected to be made public next week, would consist of representatives from all walks of life across the country in accordance with a directive by President Olusegun Obasanjo.  The bloody ethnic violence between members of the now‑banned Yoruba‑based Oodua People’s Congress (OPC) and Hausa community in Lagos last week has claimed hundreds of lives and caused serious loss of property.

   Following the outbreak of the clashes Obasanjo announced to ban the OPC and other ethnic militant groups of the country, and ordered the arrest of the leadership of the OPC.  OPC founder Frederic Fasheun and about 40 other supporters have been arrested by the police following the ban and have been charged with murder, illegal possession of arms and arson.  Obasanjo warned on Wednesday that his administration would take every possible means to put an end to acts of ethnic violence in the country.  The government would not tolerate violence, anarchy and lawlessness in any part of the country, he said.

   CX46014: Nigeria to probe ethnic clashes: Reuters Business Briefing, sourced from Xinhua News Agency:26 OCT 2000 [B:3]

   ON MONDAY 16 OCTOBER A CURFEW WAS IMPOSED IN TWO OF THE SLUM AREAS OF MAINLAND LAGOS FROM 6PM TO 6AM FOLLOWING ETHNIC UNREST BETWEEN THE YORUBA ODUA PEOPLE’S CONGRESS (OPC) YOUTHS AND NORTHERN HAUSAS.  HOWEVER FIGHTING HAS CONTINUED AND IT IS NOW REPORTED THAT UP TO 100 PEOPLE HAD BEEN KILLED IN THESE ETHNIC RIOTS.

   CX45539: Nigeria – Riots in Lagos: DFAT, CIR No.535/00:18 SEP 2000 [B:4]

   THE SITUATION IN LAGOS FOLLOWING RECENT RIOTS IS NOW CALMER.  POLICE AND MILITARY ARE PATROLLING AREAS OF EARLIER RIOTING.  TO OUR KNOWLEDGE THERE HAVE BEEN NO MAJOR INCIDENTS TODAY 19 OCTOBER.  THE MAIN ROADS INCLUDING TO THE AIRPORT ARE RUNNING SMOOTHLY.  THERE HAS BEEN NO DISRUPTION TO INCOMING OR OUTGOING FLIGHTS.

   THE GOVERNMENT LAST NIGHT BANNED THE ODUA PEOPLE’S CONGRESS (OPC) WHICH WAS LARGELY RESPONSIBLE FOR INSTIGATING THE RIOTING.  THE OVERALL SITUATION REMAINS TENSE AS THE ETHNIC CONFLICT WHICH LIE AT THE HEART OF THE RIOTS PERSISTS.  IT IS POSSIBLE THAT RIOTING MAY AGAIN FLARE UP AS THE POLICE AND MILITARY MOVE TO APPREHEND OPC LEADERS.

   CX45669: Lagos Riots Update: DFAT, CIR No.545/00:25 OCT 2000 [B:5]

6. The applicant’s application for review by the Tribunal included this criticism of the delegate’s reasons:  “decision maker did not appreciate the objectives of OPC.  That is, for a creation of an autonomous and self determination of the Yoruba or South Western Nigeria.  The denial of the freedom of association of this particular group warrants the Convention protection insofar as their right to demonstrate for a better deal”.

7. In further support of his appeal, the applicant lodged a statutory declaration sworn on 16 May 2002.  This narrated the events previously described in his visa application, and includes the following claims (CB 55‑8):

   16.My fear is compounded by the fact that between 11 and 13 October 2000, the Hausa people representing the Arewa Peoples Congress (APC) visited Agege part of Lagos for a revenge attack on Yoruba ethnic group.  In particular, they were looking for the Leaders who had participated at the Ilorin incident previously.

   17.On this occasion, my father’s house was selected having been identified through the local residents and completely burnt down.  My mother who was not able to escape was killed in the attack.  I was at the shop with my wife and son having lunch, so we were not harmed although had been compounded by fear of not knowing when we would be harmed in their next attack.

   18.I claim that lack of state protection meant that the State and/or Nigerian Governments condoned the violence towards OPC.  In which case, the objectives of OPC runs contrary to government policies in all respect.  In so far as the resolution of the religious/political conflict which has engulfed these different ethnic communities in my native country.

   19.I submit that OPC was at loggerheads with the government hence that organisation is now banned in Nigeria due to their difficulties with the Nigerian Government.  That is, as an organisation, the OPC is now a “proscribed organisation” and is therefore denied freedom of assembly and association coupled with police brutality in suppression of lawful demonstration against its operatives, who are detained indefinitely without trial.

   20.I claim that while my life had became intolerable in my home town of Benin City, Edo State or any other part of the country, due to the above reasons.  Information which I was able to garner from relatives and OPC operatives, told of constant surveillance of my wife’s apartment and of several visits by unknown people wanting to acquire my whereabouts.

   21.I have strong fears that these people might end up hurting my wife and children, having given birth to my second child during my absence.  Unless, I am able to rescue them before harm could come to them.  As it has become obvious that the APC harbour mostly extremist views within the Islamic conflict resolution abilities.

   22.I claim that having lost my mother in the incident on 11 October 2000.  My father’s house was also burnt down.  All of which is compounded by my narrow escapes from these attacks.  It has become apparent that I must exit the country to save my life, or pay a heavy price.  In which case, as a targeted person, my safety had become the biggest issue for me in particular and my family as a whole.

   23.I claim that after my father was beaten up by the police, we moved from Benin City to Lagos State.  My inability to have a fruitful or happy settlement in Lagos, was due to the constant harassment, before I decided to go overseas.  Hence, that was the only avenue open to me, when all things had failed in my attempts to lead a settled life in any part of Nigeria.

   24.I claim that it could not have been safe enough for me to reside in North, South or other parts of Nigeria, including its neighbouring countries.  However, to try to do otherwise, would have resulted in my immediate return to face a harsh treatment at the hands of the Nigerian authorities, whom the Nation is unable to stop or unwilling to do so.

   25.I claim that the problem with the political system in the country had been dominated by the Northern Housas hold in the military, which influenced the decision making by the politicians.  This had led to the political conflict, for which OPC continues to fight against domination or lack of autonomy or self determination within the Yoruba ethnicity.

   26.I submit that to be the bone of contention that led to my risk of fear of injury, if returned while the conflict had not abated.  It continues to be the case, that lack of limited political participation or the lack of recognition of OPC policies remain the order of the day, hence the proscription of the organisation.

   27.I claim that for the above reason, the OPC and the Yoruba communities detest the nomination and influence of the Northerners and their forever intentions to enslave our people in the republic.  The Nigerian security forces used excessive lethal force against civilian population, including political killings of OPC operatives and deregistration, to instil fear in our Yoruba community not to protest.

   28.I claim that attempt on my life and death threats that were made against me from the police, before I was able to secure my travel documents to depart for Australia, was the reason for my fear.  That continues to be the reason why I fear most of all, that I would most certainly not survive, should I go back now.

   …

   33.I strongly believe that my return to Nigeria without any measures to control government abuse by the Arewa or the police, will amount to attempted suicide at this present time.  No one had been charged in all the incidents which had led to the fracas in the past.  That shows that nothing would be done to protect me in the future.

   34.I submit that my genuine fear of being killed, emanate from the past, as well as my perceived threat to my right to freedom of association or assembly in the one hand and freedom from arbitrary deprivation from life, which is claimed to amount to my persecution.

   35.Equally, I submit that my fear of being attacked or disabled is a threat to my right to protection from cruel, inhumane or degrading treatment at the hands of my detractors, namely, the military, Federal police and the Arewa murder squad, which the Nigerian authorities are doing nothing to stop.

   36.I submit that my perceived fear of serious harm or mistreatment is of sufficient gravity as to constitute persecution under the Convention.  In particular, my wife has also been harassed by unknown people wanting to know my whereabouts, which shows that the persecution has not abated for now.

   37.I submit that I have a well‑founded fear of persecution based on my race and/or political opinion, which is of innate, inalienable or immutable characteristics.  On the account that it is either beyond my power to change or to require me to change such fundamental identity.  Moreover, I am targeted as the Assistant leader within my local branch of OPC.

   38.I submit that there is a continuing real chance of violent life threatening attacks on myself should I return to Nigeria, as I would continue to be a member of OPC and be politically active.  That the political apparatus denies other citizens, in particular the Yoruba ethnicity the ability to have their policies implemented by government or self determine.  This is achieved by committing serious human rights abuses.

1. The applicant attended a hearing conducted by the Tribunal.  A transcript is not in evidence, but from the Tribunal’s description the applicant gave further details of the claims he had previously made.  According to the Tribunal, the following exchanges occurred at the end of the hearing (CB 91‑2):

   The Tribunal asked the applicant what would happen to him if he went back to Nigeria.  He replied that he would be arrested even at the airport by police who will notice his name on his passport.  He noted that people who were arrested during the riots may have given his name to the police; in any case, he was known before departure by the police as an OPC leader.  If he somehow evaded the police, he would be targeted by Hausa people whose homes were destroyed in the rioting.

   The Tribunal noted that there was large‑scale destruction of houses during the riots and therefore it would be difficult to conclude that the applicant’s house was deliberately targeted because of his OPC leadership.  It also noted that if the police were looking for OPC leaders, consequent actions could be seen as prosecution rather than persecution, as the OPC was believed to have started the riot.  The applicant said that the OPC was a political organisation dedicated to the interests of the Yoruba people and the police targeted it for that reason.  He also said that information heard overseas about the OPC’s criminal activities was malicious and put out by the Nigerian authorities.  The Tribunal put it to the applicant that even local Nigerian press in the articles he himself had submitted referred to “dreaded members of the OPC” and the OPC “being a law unto itself”.  The applicant replied that the press were tools of the government, a proposition that the Tribunal did not accept, noting that there was vigorous criticism of the government in many parts of the Nigerian media.

   The Tribunal asked the applicant why he did not relocate to Benin City or thereabouts in Bendel State rather than Australia, noting that he spoke Edo, the local language, and indeed was an Edo ethnically.  The applicant replied that there was an OPC chapter in Benin City and they would recognise him as a member:  they have special greetings by which they recognise each other.  The Tribunal put it to him that the other OPC members would not harm him; but that if he resumed an Edo persona, then other members of the community would not suspect him of being an OPC member and he would be safe.  The applicant replied that the police in Benin City would already know he was an OPC member and would therefore arrest him.

The applicant’s fear of the Hausa people

1. It is clear from the above extracts from the material that the applicant made clear claims to fear violence at the hands of “the Hausa mob” for his actual and perceived association with the OPC Yoruba separatist movement.  He also pointed to cogent reasons for fearing that this violence would be encouraged or at least tolerated by the Nigerian police and security authorities, and this received some corroboration in independent country information.  In my opinion, it was necessary for the Tribunal to deal with this claim.  I consider that the Tribunal’s reasons show a complete absence of any discussion of this current fear and, certainly, no explanation by the Tribunal as to why these fears did not provide a well‑founded fear of persecution for political opinion or for membership of a particular social group.

2. Considering the Tribunal’s reasons as a whole and in the light of all the material before me, I am persuaded to draw the inference that this part of the claims of the applicant were not taken into account by the Tribunal in the manner required by the authorities cited at [7] above (as to the drawing of the inference from omissions in a Tribunal’s reasons, see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]). I therefore accept counsel for the applicant’s submission that the Tribunal failed to perform a necessary element in its duty under s.414 to “review” the delegate’s decision, and that its own decision is therefore vitiated by jurisdictional error.

3. Counsel for the Minister argued, somewhat faintly, that it was open to the Tribunal to conclude that the applicant’s fears of harm at the hands of the Hausa were not being pressed by him by the time of the Tribunal’s decision in 2002, and therefore that it did not need to make findings which dealt with them.  I do not accept this submission.  I can find no evidence that the applicant said anything which would allow this conclusion, and nothing in the Tribunal’s reasons which show that it thought that these fears had evaporated.

4. Moreover, the Tribunal records at the end of the hearing that the applicant expressed the fear that “if he somehow evaded the police, he would be targeted by Hausa people whose homes were destroyed in the rioting”.  I can find nothing in the Tribunal’s discussion under its heading “Findings and Reasons” which then addresses this fear.

5. Counsel for the Minister also submitted that this was done obliquely by the Tribunal at several points.  First, when it records that it said to the applicant that “it would be difficult to conclude that the applicant’s house was deliberately targeted because of his OPC leadership” due to the “large‑scale destruction of houses during the riots”.  This may have been a rational point, but I cannot conclude that it carries a finding by the Tribunal that it was satisfied that the applicant and his home were not targeted, nor that it was satisfied that he would not be targeted by the Hausa if he returned to Nigeria.

6. Secondly, counsel argued that adverse conclusions by the Tribunal against this fear could be identified in its qualified findings on the applicant’s narrative of what happened before he left Nigeria.  Thus:

   ·Although the Tribunal accepted that the applicant had become Assistant Operational Leader in the Agege branch of the OPC and “would be known by the police in Agege”, it said that “the applicant’s title does not place him within the top‑ranking hierarchy of the OPC to the extent that he would be known by the Nigerian Police Force in general”.

   ·The Tribunal said that it “notes that despite what the applicant claims as his long and dedicated service to the OPC, he had not been in any trouble with the police or the authorities generally until 2000”.

   ·Although it was “prepared to accept that the applicant was involved in an OPC convoy that was stopped outside of Ilorin sometime in September.  It is not prepared to accept that he personally was the target of the road block nor that he suffered any consequences from his involvement”.

   ·The Tribunal rejected “as implausible and contrary to the evidence the claim that the applicant was warned on 11 October 2000 that he was in imminent danger from Hausas and the police and that he should leave Nigeria”.  It found that he had “decided at an earlier stage to go to Australia”.

   ·It concluded that “at the time that he applied for a visa for Australia – some time, even a short time, before 11 October 2000 – the applicant was not wanted by the police”.

7. I am unable to find in these findings an indication that the Tribunal addressed and properly considered the applicant’s current fear of harm from the Hausa arising from the events of September and October 2000.  They all addressed the applicant’s past experiences, and did not answer his concerns as to the future of his likely dealings with the Hausa.  They are, in many respects, more significant for what they accepted or did not reject from the applicant’s claims.

8. Thus, they did not reject his claim that his home and parents had been “targeted” during the riot, and in the circumstances of the riot and his known leadership in the Agege branch of the OPC this claim has an inherent cogency.  They did not address the inherent likelihood that, after the riot, he was likely to have been identified by the Hausa as an OPC leader implicated in the communal violence.

9. The Tribunal’s findings concerning the applicant’s departure to Australia do not go so far as to deny any effect of the rioting on his departure.  Given that the applicant undoubtedly left in the middle of the riot and before the government moved against the OPC, in the absence of further discussion it is difficult to see how the Tribunal could have been satisfied that his departure was unaffected by fears of persecution.  Moreover, his fears of the Hausa and of the government substantially related to their responses in the aftermath of the communal violence and after his departure.  In effect, he made “sur place” claims which, in my opinion, required specific attention by the Tribunal.  As the reasoning set out below shows, the Tribunal’s reasons “as to the future” addressed the applicant’s situation if he returned at times after October 2000 only in relation to his fears of persecution by the government.  It did not consider whether, if he returned, he had reason to fear violence from “the Hausa mob” supporting the government in its outlawing of the OPC.

The applicant’s fear of the Nigerian authorities

1. The Tribunal’s reasoning which addressed the position of the applicant in relation to the government was extremely brief (CB 94‑5):

   The Tribunal is satisfied that no harm amounting to persecution has befallen the applicant for a Convention reason in the past.  It is satisfied that the applicant was not adversely regarded by the government at the time of his departure.  As for the future, the Tribunal notes that in the wake of the October 2000 riots (the one in progress as he left the country), the OPC has been declared a proscribed organisation.  If the applicant, in the full knowledge of this fact, decides on his return to Nigeria to continue his OPC activities, then he may be arrested.  However, the Tribunal is satisfied that actions taken by the Nigerian government against members of the banned vigilante groups could rightly be called prosecution rather than persecution.  In any case, it will be the applicant’s choice whether to continue his voluntary membership of the OPC or not.

2. The brevity and ambiguity of the Tribunal’s reasoning causes difficulty in discovering whether it has fully addressed all the bases for the applicant fearing persecution by government agencies, and also whether it has addressed them with a proper appreciation of the Convention definition.  I have attempted to give it full allowance in accordance with the High Court’s direction in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291. However, I have concluded that on any reasonable reading of the above paragraph, the Tribunal has failed in its duty to apply the definition of “refugee” to the claimed circumstances of the applicant which it had accepted or not rejected.

3. It is clear that the Tribunal has addressed the applicant’s situation if he “continues his OPC activities” and has decided that “he may be arrested” if he does.  It then takes this response out of the Convention by characterising it as “actions taken by the Nigerian government against members of banned vigilante groups” and “calling” it “prosecution rather than persecution”.

4. An initial difficulty with this reasoning is whether the reference to the applicant “continuing his OPC activities” is intended to refer to all elements of his future association with OPC, i.e. including peaceful political activities of membership and non‑violent political action for legitimate political objectives as well as participation in unacceptable violent political action.  If the Tribunal’s reasoning is read as addressing only the hypothesis that the applicant would participate in OPC activities which would be characterised as “vigilante” activities deserving of criminal prosecution, then the Tribunal has failed to address the applicant’s position on the alternative hypothesis.  That is, that he would not be involved in political activities which would not receive protection under the Convention, but would face prosecution merely for attempting to express his political opinions through peaceful membership of a proscribed political association.  A failure to address this hypothesis would, in my opinion, amount to jurisdictional error under the NABE line of authorities cited above.

5. The alternative reading is that the Tribunal envisaged that the applicant “may be arrested” if he resumed any of his activities as a member of OPC.  This was the reading adopted by both counsel.  They then differed in their submissions on whether the Tribunal’s labelling of such an arrest as “prosecution rather than persecution” revealed legal error.  This requires investigation of what needs to be considered before this characterisation can, on a proper reading of the Convention definition, be given to police action following the outlawing of the expression of political opinion through membership of a political association.

6. As I understood them, both counsel accepted that a Tribunal would need to assess the circumstances in which the political association was outlawed, and whether the government action was justifiable and proportionate when measured against the human rights values which the Refugee’s Convention addresses.  Both counsel saw an issue in the present case as being whether the Tribunal had appreciated this, and had conducted the requisite assessment of the Nigerian government’s outlawing of the OPC.

7. Counsel for the Minister submitted that questions to be addressed by the Tribunal in the present situation could be identified in the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 (“Appellant S395”) at [45]:

   If a person claims refugee status on the ground that the law of the country of his or her nationality penalises homosexual conduct, two questions always arise.  First, is there a real chance that the applicant will be prosecuted if returned to the country of nationality?  Second, are the prosecution and the potential penalty appropriate and adapted to achieving a legitimate object of the country of nationality? (Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258).  In determining whether the prosecution and penalty can be classified as a legitimate object of that country, international human rights standards as well as the laws and culture of the country are relevant matters.  If the first of these questions is answered:  Yes, and the second:  No, the claim of refugee status must be upheld even if the applicant has conducted him or herself in a way that is likely to attract prosecution.

8. She then sought to persuade me that the Tribunal in the present case had, indeed, considered whether the Nigerian Government’s outlawing of OPC and the prosecution of its members was a penalty “appropriate and adapted to achieving a legitimate object of the country of nationality”.  I have great difficulty finding any such consideration in the Tribunal’s terse reasons extracted above, particularly in the absence of any previous demonstration in the Tribunal’s reasons that it had investigated and considered country information which assessed the justification and implementation of the banning of OPC.

9. However, I consider that there is a clearer omission in the Tribunal’s reasoning. In my opinion, in the context of a feared exercise of government enforcement powers in support of laws which have an overtly discriminatory effect on the expression of political opinion through membership of a political association, it is essential for the Tribunal to explore the “reasons” for the likely actions of government agents. It is not enough to only identify them as government action serving objectives of criminal law enforcement. Even if they might partly be viewed as not being motivated “for reason of” a desire to suppress particular political opinions or membership, it is necessary for a Tribunal to consider and exclude such a motivation. The Tribunal must consider whether the outlawing is in whole or part directed at impeding the dissemination of political opinions antipathetical to the government in power, or is justified purely on non‑political grounds of national security. If suppression of political opinions formed an “essential and significant reason” (c.f. s.91R(1)(a) of the Act) for the proscribing of the party and the punishment of its past or present members, then that punishment would amount to “persecution” for a Convention reason falling within s.36(2)(a) of the Act, and it would be irrelevant that it could also be called “prosecution”.

10. This aspect of the present case differs from a claim to refugee protection for fear of the imposition of a criminal law of the type discussed in Appellant S395 (supra).  This is because the proscribing of a political party and the prosecution of a person for belonging to it prima facie will appear to be “for reasons of” the person’s political opinion, and will always have a discriminatory effect on the holders of the political opinions espoused by the proscribed party.  To escape from a conclusion that this is “persecution” for the Convention reason, a decision‑maker may need to identify exceptional characteristics of the political opinions or how they are pursued by the party which takes their punishment out of scope of “persecution” protected by the Convention.  The decision‑maker may need to consider the social and governmental context in which the proscribing laws have been made, to consider whether, in fact, Convention motivations can be excluded.

11. I consider that the above approach arises from the language of the Convention definition and has the support of good authority.

12. In his discussion of “persecution” in Applicant A v Minister for Immigration & Ethnic Affairs (1996) 190 CLR 225 at 258-9, McHugh J recognises the prima facie starting point:

    However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory.  It is therefore inherently suspect and requires close scrutiny (c.f. Shapiro v Thompson (1969) 394 US 618 at 634; City of Cleburne v Cleburne Living Center Inc (1985) 473 US 432 at 440). In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.

    In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws.  Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason.  Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow.  Punishment for expressing such opinions is unlikely to amount to persecution.  Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution.  It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified.  One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime. (emphasis added)

1. McHugh J’s analysis was examined and adopted in the House of Lords in Regina v Secretary of State for the Home Department; Ex parte Sivakumar [2003] UKHL 14 (“Sivakumar”), in a situation where a suspected member of a separatist party had been tortured by government agencies.  The special adjudicator said that this was “not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism”.

2. Lord Steyn at [17] approved the analysis of Dyson LJ , who held:

   Where a person to whom a political opinion is imputed or who is a member of a race or social group is the subject of sanctions that do not apply generally in the state, then it is more likely than not that the application of the sanctions is discriminatory and persecutory for a Convention reason.

3. His Lordship considered that the special adjudicator was in error for taking the view that the mere fact “of being suspected, however, unjustly, of involvement in violent terrorism” took the case outside the terms of Article 1A.

4. Lord Hutton at [33] also agreed with Dyson LJ’s opinion, “provided that it is recognised that what the adjudicator or tribunal or court has to decide on the facts of the individual case is whether the sanctions which do not apply generally in the state are applied to the particular applicant for reasons of race or membership of a particular social group or political opinion”.  His Lordship considered that the special adjudicator had erred, not by concluding that the applicant was arrested and detained because he was suspected of involvement in violent terrorism, but in “failing to go on to consider whether the acts of torture to which the applicant was subjected were inflicted by reason of his race or membership of a particular social group or political opinion as a Tamil”.

5. Lord Rodger of Earlsferry at [40-1] and [45] made the point that a careful assessment of the reason or reasons for the ill‑treatment was necessary:

   Of course, there may turn out to be more than one “real reason” [for the persecution].  The evidence may show, for instance, that an applicant was ill‑treated both because he belonged to a particular ethnic group and because he was suspected of taking part in terrorist crimes that were the work of members of that ethnic group … In such a case the appropriate inference may be that, if the applicant returned home, he would be ill‑treated for a combination of Convention and non‑Convention reasons.  If so, the person considering the claim for asylum will properly conclude that the applicant has a well‑founded fear of persecution for that combination of reasons.

6. In the present case, I consider that the Tribunal has failed to perform the necessary assessment of the reasons which motivated the banning of the OPC in Nigeria and which would motivate the arrest of the applicant which was envisaged by the Tribunal as a possibility if he returned and continued his membership of that party.  Instead, I consider that it has fallen into the error which was found in Sivakumar (supra), of thinking that his prosecution for involvement in OPC was taken out of Article 1A because a reason for banning the party was that it was blamed for the October 2000 communal violence due to “vigilante” activities.  The Tribunal held the erroneous opinion that, if it could make a “criminal law enforcement” classification of government action against a political party and its members so as to be able to call it “prosecution”, then it did not need to consider whether there were also Convention related reasons for the banning and prosecution.

7. In the present case, the applicant had clearly claimed that there were Convention “reasons”, and that the Nigerian government was motivated when pursuing OPC members, at least in significant part, to suppress the promotion of separatist Yoruba political opinions.  I consider that the Tribunal failed to address these aspects of his claim, and that its failure amounted to jurisdictional error.

8. Counsel for the applicant also submitted that, even if the Tribunal correctly dealt with the applicant’s feared ill‑treatment if he continued as a member of OPC, it failed to address the possibility that if he ceased his membership on return he would still be perceived to have a continuing association with the banned party by reason of his past involvement in OPC, and would risk ill‑treatment by Nigerian authorities for that reason.  I am inclined to think that there is substance in this submission, but due to the other errors I have found in the Tribunal’s reasoning I do not need to reach a conclusion on this submission.  It would require analysis of the applicant’s claims to see whether the applicant put forward this fear with sufficient clarity to require it to be specifically addressed.  The focus of his statutory declaration had been to the contrary, since he claimed that he would “continue to be a member of OPC and be politically active”.

9. This brings me to consider the last sentence in the Tribunal’s critical reasoning about “the future”.  This was: “In any case, it will be the applicant’s choice whether to continue his voluntary membership of the OPC or not”.I consider that this must be read as an alternative reason put forward by the Tribunal in the event that it was wrong in dismissing the threat of arrest as a member of OPC as “prosecution rather than persecution”.

10. In my opinion, this sentence reveals a clear misconception of the effect of Article 1A.  The error was described by Gleeson CJ in Appellant S395/2002 (supra) at [11] of “concluding, or assuming, that persecution does not exist if a person, by concealing opinions or behaviour likely to attract retribution and serious harm, can avoid such retribution” (see also McHugh and Kirby JJ at [35] and [39-43], and Gummow and Hayne JJ at [80-3]).

Relocation

1. Counsel for the Minister submitted that, even if the Tribunal erred in the ways identified above, its errors should be treated as immaterial and relief should be denied due to a finding expressed in the Tribunal’s last paragraph of its reasoning (CB 95):

   The applicant has a number of alternatives to continuing his past life in Lagos.  He has completed secondary education, he has been self‑employed for a number of years, and he speaks English, Yoruba and Edo.  He has a wife and child in Lagos and a father in the family’s village outside Benin City.  These factors give him a range of locations within Nigeria within which he can reasonably be expected to settle.

2. I reject this submission.  The finding is not expressed by the Tribunal as a “what if I was wrong” alternative conclusion, but reads as a continuation of its previous reasoning.  I cannot be confident that the finding was unaffected by the errors made by the Tribunal (c.f. Samad v District Court of NSW (2002) 209 CLR 140 at [42-46]). Indeed, I consider that it was probably affected by the Tribunal’s overlooking of the applicant’s fear of retribution from the Hausa, and by its erroneous characterisation of his anticipated prosecution by the Government as an actual or perceived supporter of OPC.

3. I consider that the applicant is entitled to the relief sought.

4. The parties have agreed that costs should follow this outcome.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  28 February 2005