SZFJU v Minister for Immigration
[2007] FMCA 473
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFJU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 473 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 476 |
| Applicant S70 of 2003 v Minister for Immigration [2004] FCAFC 182 Anthony David Craig v The State of South Australia [1995] HCA 58 M55 v Minister for Immigration [2005] FCA 131 Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487 NAHI v Minister for Immigration [2004] FCAFC 10 NBKT v Minister for Immigration [2006] FCAFC 195 SZEEU v Minister for Immigration & Anor [2006] FCAFC 2 SZECD v Minister for Immigration [2006] FCA 31 SZEPZ v Minister for Immigration [2006] FCAFC 107 SZGYN v Minister for Immigration [2006] FMCA 1412 |
| Applicant: | SZFJU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1502 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | Mr R Turner of Ray Turner Solicitor |
| Advocate for the Respondents: | Ms K McNamara of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 24 May 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1502 of 2006
| SZFJU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 May 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 3 April 2006 and handed down on 27 April 2006, affirming a decision of the delegate of the first respondent made on 29 June 2004 (Court Book "CB" 36), refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFJU”.
The applicants seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 as requested by the applicant and set the matter down for final hearing.
A Court Book prepared by the respondent solicitors was filed on 5 July 2006. I marked that document as Exhibit “A” and read the contents into evidence.
The following affidavits were filed in these proceedings:
a)the affidavit of the applicant sworn on 24 May 2006, to which is annexed a copy of the Tribunal decision of 3 April 2006;
b)the affidavit of Raymond Charles Turner, solicitor, affirmed on 29 January 2007 (affidavit of Mr Turner) to which is annexed a transcript of Tribunal hearing held on 23 February 2006.
These documents were read into evidence.
Background
The Tribunal decision of Ms L Nicholls, reference N06/52975, provides the following background material. The applicant, who claims to be a citizen of Nigeria, arrived in Australia on 16 March 2004. On 26 March 2004, the applicant applied to the Department of Immigration for a protection visa. On 29 June 2004, a delegate of the Minister refused to grant a protection visa and on 15 July 2004 the applicant applied to the Tribunal for review of the delegate's decision. The Tribunal, differently constituted, affirmed the delegate’s decision on 10 November 2004 and the applicant applied to the Federal Magistrates Court for review of that Tribunal decision. The Court set aside the first Tribunal decision by consent and remitted the matter to the Tribunal to be determined according to law. The second Tribunal, presided by Ms Nicholls, affirmed the delegate's decision to refuse the applicant a protection visa. It is the second Tribunal decision which is now subject to review by this Court.(CB 196)
The following details are contained in the applicant's protection visa application and accompanying statement lodged on 26 March 2004. The applicant claims to be a citizen of Nigeria and was born in Umuahia, Abia State, and educated in Umuahia and Lagos. At the time of the application he was 37 years of age. He speaks English and Igbo, is of Igbo ethnicity and is a Christian. He was employed as a security officer. He has never married and his mother and siblings live in Nigeria.(CB 199)
In the applicant's statement, he claims that after the civil war in Nigeria the Igbo were known as Biafrans and have been targeted by every administration of Nigeria. Since the civil war no Igbo has become president and a leading Igbo figure, Okadigbo, was killed by police during a rally. The applicant claims that security authorities were implicated in his death. The main reason the applicant left Nigeria was that he revealed the secret planned assassination of the Governor of Abia State. The applicant claims he overheard state security officers discussing the assassination plot whilst in the compound of a hotel. When they saw him and realised that he had overheard them, they asked for his identity card and had his photograph taken. He was warned not to pass on what he had heard. The applicant states that as the men were deadly, he applied for an Australian visa.
The applicant claims he wrote to the Secretary of the Abia State to inform the Governor of the plot in December 2003. Following the attempted assassination of the Governor of Benue State, the Governor of Abia wrote to the United Nations and the President about a plot to kill him. After reading discussion of the plot and other political matters in the newspapers, the applicant decided to leave Nigeria.(CB 199)
Tribunal’s findings and reasons
A convenient summary of the Tribunal's reasons was contained in the respondent's written submissions prepared by Ms McNamara, and I adopt paragraphs 8 to 14 of those submissions:
(8) The RRT made the following findings:
8.1 The applicant is of Igbo ethnicity.
8.2 He worked as a security guard for the Australian High Commission in Lagos for the major part of his working life in Nigeria.
8.3 He was held in high esteem by his employers, as indicated by the written references they provided for him. The RRT observed that the references were given in relation to a United States visa application for employment purposes. However it still weighed the references together with other evidence, and nevertheless rejected the majority of the applicant's evidence.
(9) The RRT rejected that the applicant had overheard a plot to assassinate the Governor of Abia State in November 2003 and that he disclosed that plot to the Governor's Secretary in December 2003:
9.1 The applicant's evidence regarding the circumstances in which he overheard this plot was highly implausible.
9.2 If, as the applicant claimed, he had been photographed, identified and questioned by the State Security officers, the RRT did not accept that he would not have taken the opportunity to leave Nigeria with the visa he obtained in November 2003.
(10) In his submissions to the RRT dated 2 November 2004, the applicant stated that he had omitted the claims relating to his membership of MASSOB from his PVA because he was unsure about the security of information in Australia and was only confident to disclose the information once he had been in Australia for some time. The RRT rejected this explanation for the following reasons:
10.1 The RRT found the applicant to be an intelligent and articulate witness, with a good knowledge of Nigerian current affairs. He worked for the Australian High Commission for many years. He also had a friend currently living in Sydney. In these circumstances, the RRT thought that the applicant would have been aware of the stable system of government and law in Australia and would have been able to get advice on his rights to seek protection from friends and former colleagues.
10.2 It was difficult to understand why the disclosure of his claimed MASSOB membership and sponsorship would have been dangerous when he had been prepared to disclose his role in notifying a plot by the State Security officers to assassinate a state governor.
(11)The RRT did not accept that the applicant was a member of MASSOB:
11.1 The applicant made this claim after his PVA was refused for the reason that his fears did not have a Convention nexus. After this refusal, the applicant claimed membership of MASSOB, a political group which had suffered some mistreatment from Nigerian government authorities. The RRT thought this claim had been added to give the applicant's claim a Convention nexus.
11.2 The RRT accepted that the applicant was sympathetic to the aims of MASSOB but did not accept that he was a member. The applicant admitted he was not an active member of MASSOB and had only ever attended one rally. He did not claim to have any role other than as a financial supporter.
(12)The RRT did not accept that the applicant was a financial supporter of MASSOB:
12.1 The applicant claimed this had brought him to the adverse attention of the State Security. The RRT did not accept that the State Security would be aware of his financial contributions through mobile phone records, as claimed.
12.2Country information indicated that members of MASSOB who are detained or harassed by police are active members of the organisation who have been involved in public demonstrations or made public statements in support of MASSOB.
12.3The RRT thought that the reason the applicant claimed to be a financial sponsor was because he would be unable to give evidence consistent with active involvement.
(13)The RRT did not accept that the applicant was advised by a friend in State Security to leave Nigeria in March 2004 because his name was on a wanted list:
13.1 The applicant left in March 2004 without restriction on a passport in his own name. He had had a visa to Australia since November 2003.
13.2 If the applicant had been of serious adverse interest to the authorities the RRT did not think he would have been able to depart without questioning or arrest.
13.3The RRT did not accept the applicant's explanation that he was warned before he was sought out by officials. The applicant himself claimed that state security officials had taken his name and photograph in November 2003.
(14) The RRT did not accept that the applicant faced a real chance of persecution if returned to Nigeria for reasons of his Igbo ethnicity:
14.1Since the end of the civil war and the failure to establish the State of Biafra, Igbos have continued to participate in the culture and life of Nigeria without mistreatment or discrimination for reason of their ethnicity.
14.2 There was no country information that indicated that membership of the Igbo ethnic group had given rise to targeting harm by state authorities in recent years.
14.3Nigeria has suffered various instances of inter-communal violence sometimes involving Igbo people; however there was no information to suggest that the current government condoned such violence or was unwilling or unable to provide a reasonable level of protection to citizens on a non-discriminatory basis.
Application for review of the Tribunal’s decision
On 24 May 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. On 11 July 2006, the applicant filed an amended application and on 25 January 2007 the applicant filed a further amended application which contained the following amended grounds:
(1) Failed to take account of relevant material.
Particulars
(a) The Tribunal found at CB 211
"There is no country information to suggest that membership of the Igbo social group had given rise to targeted harm by state authorities in recent years."
There was evidence of such harm at CB153-155, 426.
(b) The Tribunal found at CB211:
"Nigeria had suffered many and various incidents of inter-communal violence and conflict, sometimes involving members of the Igbo tribal group, however, there is no information which suggests that the current government condones such violence or that it is unwilling or unable to provide a reasonable level of protection to its citizens on a non-discriminatory basis".
There was such evidence at CB361-362, 373-374, 426-427.
(2) The Tribunal took account of irrelevant material.
Particulars
(a) The Tribunal took account of passport controls in 1997, CB280 and 211.
The Applicant departed Nigeria in March 2004.
(3)The Tribunal failed to comply with the Migration Act 1958 s.424A.
Particulars
(a) The Tribunal relied upon the inconsistency in the claims made in the protection visa application and to the Tribunal. The Tribunal failed to give the Applicant particulars in writing of this information, explain why it was relevant and give the Applicant the opportunity to comment upon it.
Submissions and reasons
In respect of the first ground, Mr Turner, solicitor for the applicant, referred the Court to the following passage of the Tribunal's findings and reasons:
I have considered the applicant's situation if he returns to Nigeria as a person of Igbo ethnicity. Nigeria has a large number of tribal and ethnic groups, the main four groups being the Hausa/Fulani in the north and the Yoruba and Igbo in the south. The Igbo’s are the dominant group in the south east of Nigeria and many Igbo’s were involved in a civil war seeking to establish a separate Biafran State in which many Igbos died. However since the end of the civil war and the failure to establish the State of Biafra Igbo’s have continued to participate in the culture and life of Nigeria without mistreatment or discrimination by reasons of ethnicity or tribal grouping. There is no country information to suggest that membership of the Igbo tribal group has given rise to targeted harm by state authorities in recent years. Nigeria has suffered many and various instances of intercommunal violence and conflict sometimes involving members of the Igbo tribal group however there is no information which suggests that the current government condones such violence or that it is unwilling or unable to provide a reasonable level of protection to its citizens on a non discriminatory basis (UK Home Office Country Assessment 2005). The applicant claims that he faces harm in return to Nigeria as an Igbo however he has not provided any information which would support such a claim other than his own speculative assertion.(CB 211)
Mr Turner stated it is clear from the extract above that the terms "Igbo" and "Biafran" are interchangeable.Further, that the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) is a movement based on the Igbo tribal group. The Tribunal did not say that the applicant’s evidence was insufficient or that it preferred one set of information to another. Mr Turner submits that the Tribunal stated in three places in the passage above that there was no information. If there was information in support of each of the claims but the Tribunal stated there was not, then the Tribunal failed to take into account relevant information. Mr Turner referred to a Human Rights Watch report about Nigeria which states:
More recently, on 11 September 2004, fifty-three people were arrested at a football match organised by MASSOB in the Ojo area of Lagos. The match was part of a "Biafran Freedom Tournament". Eyewitnesses described how police attempted to break up the crowd, fired tear gas and arrested participants and spectators. According to the lawyers and press reports, those arrested included a thirty-eight-year-old woman and teenage girl who, along with thirty-four others who claimed they were not members of MASSOB. The fifty-three were detained at the state police command at Panti, Lagos for nearly one week before being charged with treasonable felony for conspiring to "levy war against the Federal Republic of Nigeria […] by participating in the launching of a Biafran Freedom Football Tournament". Lawyers acting for the accused told Human Rights Watch about their clients' alleged ill-treatment in police custody. They described how during detention at Panti, the male suspects were stripped naked and beaten with batons and gun butts. Several of the suspects were reportedly held at gunpoint and forced to admit membership of MASSOB and sign confession statements. Human Rights Watch researchers interviewed a MASSOB member who was present at the football match and witnessed the arrest, but we have not spoken with the victims directly.(CB 154-155)
Mr Turner then referred to an article which appeared in the Afrol News on 12 January 2006:
On Monday in the sporting trading town of Onitsha – a separatist stronghold – troops and police used teargas and fired in the air to disperse crowds of MASSOB supporters who poured onto the streets in support of the movement.
In other key cities in the region inhabited mainly by Igbos – the cities of Unugu-Aba, Owerri, Abakaliki – businesses and schools shut down and many workers could not reach their offices as transporters stayed home, paralysing the areas.(CB 175.6)
Mr Turner then went to a “Vanguard” article entitled "MASSOB and Nigeria" and dated 30 January 2006:
Easterners, especially the Igbo, have felt marginalised by Nigeria which has gerrymandered them into an official minority in the course of the years…The government's approach of hunting and killing and framing members of this organisation, which has vowed to used pacifist means to achieve self-determination, is counterproductive. MASSOB is a symbol that must be dealt with by compromise.(CB 174)
And then a BBC News article dated 26 May 2000 entitled "Biafra Violence Fear":
The Movement for the Actualisation of a Sovereign State of Biafra (MASSOB) has attracted thousands of young Ibos from eastern Nigeria who feel they have been discriminated against and should have their own country.(CB 184.5)
A further Human Rights Watch report dated 13 July 2004 from the Information and Refugee Board, Ottawa, contains the following:
Human Rights Watch (HRW) indicated in its December 2003 "Nigeria: Renewed Crackdown on Freedom of Expression" report that MASSOB members were persistently harassed by police acting on orders from the Federal Government. The most serious incident occurred on 29 March 2003 when, in Imo State, the police blocked the road before opening fire on a convoy of MASSOB members. (HRW December 2003; BBC 31 March 2003; country report 2003 25 February 2004, s.2(b)) The number of deaths quoted by sources range from seven to some 50.
Concerning state protection available to MASSOB members, the Nigerian Inspector-General of Police, Tafa Balogun, said recently that since ethnic militias were not allowed to operate under the Constitution, activities of ethnic militants, including the MASSOB, are no longer tolerated on Nigerian soil.
Information on the documents that the MASSOB issue to its members was limited amongst the sources consulted by the research directorate. In his list of objects seized during the arrests of MASSOB members on 29 and 30 May 2004 in Imo and Anambra States, respectively, the Nigerian Inspector-General of Police, at a press conference in Abuja, included "MASSOB identity cards", "MASSOB application forms", "MASSOB calendars", and "MASSOB stickers" (The Guardian 2 July 2004).
Quoting an Ido State police commissioner, a “Vanguard” article on 1 July 2004 indicated that, upon arresting MASSOB members in their home in Bening City, the police found items including "identity cards, maps, badges and calendars" with the words "Biafra" on them. Neither The Guardian nor the Vanguard provided further description of the documents seized.
Mr Turner submits that from this report, it appears that the Nigerian government was of the view that if one declared oneself Biafran or Igbo, one was prima facie connected in to MASSOB and therefore a target the government.
In the Home Office Science and Research report published October 2005 on Nigeria the following references are made about MASSOB:
6.106 … however, MASSOB is very much a fringe group, but because the government overreacted to it, has gained support. The government is strongly opposed to MASSOB and several members and supporters have been arrested and detained for months even though MASSOB insists that it is a non-violent movement.
6.106 … in spite of this large number of suspected MASSOB members or sympathisers as detained in Abuja and the government has refused to release them on bail … Lesser prominent people who are affiliated with MASSOB could be targeted as well in order to intimidate others.(CB 426-7)
The same Home Office report under the heading "Internal Security" reads:
5.41 … Police were unable to control ethno-religious violence on numerous occasions during the year [2004], and the government continued its reliance on the Army in some cases. While civilian authorities generally maintained effective control of the security forces, there were some instances in which elements of the security forces acted outside the law. Security forces committed several serious human rights abuses.(CB 361-2)
Also further in that report:
6.02 The government's human rights record remained poor, and the government continued to commit serious abuses. Nationwide local government elections held during the year were not generally judge-free and fair and therefore breached a citizen's right to change their government … Impunity was a problem … Security forces continued to arrest and detain persons arbitrarily, including for particular reasons.
6.03 The persistent failure of the Nigerian government to persuade the perpetrators of serious human rights violations has contributed to a devastating cycle of inter-communal conflict.(CB 373-374)
Mr Turner submits that by finding that there was "no information", the Tribunal has failed to take into account the relevant materials set out above and fell into jurisdictional error: Anthony David Craig v The State of South Australia [1995] HCA 58.
Ms McNamara submits in response to the first ground that the evidence referred to by the applicant specifically relates to past treatment of members of MASSOB. Ms McNamara submits that this information is irrelevant because the Tribunal did not accept that the applicant was a member of MASSOB. In respect of the allegation that there was evidence before the Tribunal to show that the Nigerian government had condoned inter-communal violence and was not prepared to stop it,
Ms McNamara suggested two answers to this contention.
First, it is submitted that the evidence referred to by the applicant does not support this conclusion. In fact, the Tribunal expressly found that there "is no information which suggests that the current government condones such violence or that it is unwilling or unable to provide a reasonable level of protection to its citizens on a non discriminatory basis".(CB 211.7) The High Court considered that the Ukraine state in that instance was "obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system": Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487 at [26] per Gleeson CJ, Hayne and Heydon JJ. It is submitted that the Tribunal in this case clearly reached the same conclusion.
Secondly, as a matter of construction of the Convention definition of a refugee, once the Tribunal was not satisfied of the existence of a well-founded fear of persecution, it became unnecessary, as a matter of law, for it to consider whether the state was unwilling or unable to protect the applicant.
Ms McNamara agreed that Mr Turner was correct in saying that MASSOB is a movement based on the Igbo tribal group and that the Tribunal accepted that the applicant was of Igbo ethnicity. However, it did not accept that he was a member of MASSOB or a financial supporter as claimed. Consequently, the Tribunal was not required to look at country information pertaining to the treatment of MASSOB members. In respect of the information cited by Mr Turner at [12] – [22] above, Ms McNamara submits that the Tribunal decision should be considered as a whole. There was country information before the Tribunal which allowed it to reach its conclusions. First, that non-members of MASSOB were generally not affected, and, secondly, that the government did not condone inter-ethnic violence. Ms McNamara referred to a 2002 United Kingdom Home Office Nigerian assessment under the subheading "Ethnic Group":
7.42 There are over 250 ethnic groups with different languages and dialects in Nigeria, which account for cultural diversity. In descending order the Muslim Ausa-fulani centred on the north, the Yoruba centred in the south-west, the predominantly Christian Ibo (or Igbo) centred on the south-east are the largest ethnic groups consisting around 7 per cent of the population. Yet no single tribe encompasses the majority of the population. There is no federal policy of discrimination against any of the Nigerian ethnic groups and legislation is designed not to favour one group over another. This is largely respected provided that a group does not pursue separatist demands.
7.43 An alleged dominance in the military and government is occasionally levelled at the Hausa-Fulanis, with the converse claim that other ethnic groups are discriminated against. Ibos formed the Biafran rebels during the 1967-70 civil war but have since gained prominence in the professions and commerce, and became government ministers, without encountering government repression.(CB 243-244)
The article follows on to talk about instances of ethnic violence but it does not have any information specifically regarding violence against Igbos.
The same report reads:
5.69 The Nigerian authorities had generally acted rapidly to curb violence between ethnic groups, and in such conflict have been generally even-handed, trying to restore order and mediate between the groups in conflict.(CB 267)
And under the subheading "Movement for the Actualisation of the Sovereign State of Biafra (MASSOB)":
5.84 MASSOB is a mostly Ibo (or Igbo) group who advocate great autonomy for the south-east of Nigeria, where most of the Ibo population lives. MASSOB appears to be generally able to pursue some of its political objectives without interference from the authorities. However, the authorities have acted against members of MASSOB involved in politically motivated criminal activities.
It is submitted that the above report specifically speaks about members of MASSOB but fails to make any reference to people who may be sympathetic towards it. The Home Office Science and Research Group report also referred to by Mr Turner at [21] above under the heading "Internal Security – Overview" reads:
5.41 … Police were unable to control ethno-religious violence on numerous occasions during the year [2004], and the government continued its reliance on the Army in many cases. While civilian authorities generally maintained effective control of the security forces, there were some incidents of which elements of the security force acted outside the law. (CB361-362)
In the same Home Office report, under the subheading "Human Rights – Specific Groups – Ethnicity and Societal Discrimination", is an extract from a global security report dated April 2005:
6.54 The diverse groups of Nigeria generally coexist peacefully in mixed ethnic neighbourhoods throughout the country's urban areas. Nevertheless, members of the different ethnic groups often look with suspicion on one another. They remember the violence of the past, and remain sensitive to slights, insults, and unfair advantages.(CB 400)
The same report under the subheading "Movement for the Actualisation of Sovereign State of Biafra (MASSOB)" the British-Danish FFM report states:
6.106 According to senior representatives of the IGP, the NPF and the political opposition parties, including the separatist movement MASSOB, are not regarded as a serious threat or problem and there has never been any violence involved in their activities. The BHC (British High Commission) confirmed that political opposition groups such as MASSOB are in general free to express their views, although those that take part in demonstrations may face detention.(CB426)
6.107 … Normally anonymous sympathisers of MASSOB do not draw the attention of the NPF. More prominent leaders of MASSOB are at risk of persecution and also persons affiliated with those leaders could be at risk of persecution and detention. Less prominent persons who are affiliated with MASSOB could be targeted as well in order to intimidate others. (CB427)
Ms McNamara submits that this information was specifically cited in the Tribunal decision even though the Tribunal is not bound to take into consideration any country information. The Tribunal is not obliged to comment on every item of information before it and say why it rejects each item. Ms McNamara submits that it is clear that the Tribunal clearly understood that it had to review the totality of the evidence before making a finding of fact. This finding of fact cannot be impugned on judicial review.
I believe it is well-established that the weight to be given to country information is a matter to be decided by the Tribunal as part of its fact-finding function. The Tribunal did have regard to the independent information before it and then reached a conclusion open to it on that information. In this case, there was evidence which went both ways and the Tribunal reached the conclusion that there was no real chance that the applicant would suffer persecution because of his Igbo ethnicity. This is a finding of fact and a matter for the Tribunal that should not be disturbed by this Court. I am not satisfied that the first ground can be sustained.
In respect of the second ground, Mr Turner referred to the Tribunal decision under the subheading "Departure Controls":
Research compiled by the Canadian Immigration and Refugee Board on 27 August 1997, stated
“all applicants for Nigerian passports in Nigeria are subject to background checks, and the signatures and thumbprints are taken at the time the applications are submitted”(CB 208)
Mr Turner submits that Nigeria is a volatile country and relying upon a report which is seven years prior to the applicant’s departure raises the issue of the relevance of that report. Mr Turner then referred the Court to the Tribunal’s decision:
If the applicant had been of serious adverse interest to authorities, I do not accept that he would have been able to leave Nigeria without questioning or arrest. I do not accept his explanation that he was warned before he was actively sought by state authorities. According to his own evidence, he claimed that the state security officials had taken his name and photograph in November 2003 and I would have expected, if his story was truthful, that he would not have been allowed to leave Nigeria in March 2004 as claimed.(CB 211.2)
Mr Turner submits that to take into account irrelevant material is a jurisdictional error: Anthony David Craig v The State of South Australia.
Ms McNamara, in response to the second ground, relies on NAHI v Minister for Immigration [2004] FCAFC 10 (“NAHI”) at [11]-[14] and Applicant S70 of 2003 v Minister for Immigration [2004] FCAFC 182 for the proposition that the weight to be given to country information, its interpretation and accuracy, all lie outside the purview of judicial review. The conclusion reached by the Tribunal about the applicant's ease of travel out of Nigeria are findings of fact and any invitation by the applicant to review that finding is an impermissible merits review of the Tribunal decision.
In NAHI at [11], Gray, Tamberlin and Lander JJ stated:
… By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on "country information". The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to "guidance", as the applicant submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first applicant submits, an error of law, or a jurisdictional error, for the Tribunal to base a decision on "country information" that is not true. The question of the accuracy of the "country information" is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of the "country information", it would be engaging in merits review.
I accept the submissions made by Ms McNamara that the same principles apply here. The relevance and accuracy of that report was a matter for the Tribunal. When an applicant is claiming that he/she has come to the adverse interest of the authorities and had to leave a country, it is entirely logical that if the applicant left legally and without hassle, the Tribunal would have doubts as to the seriousness of the applicant's claims. I am not satisfied that the second ground of review can be sustained.
In respect of the third ground, Mr Turner submits that the Tribunal relied upon inconsistencies between the evidence given in the protection visa application and the evidence given to the Tribunal in relation to his membership of MASSOB. The applicant’s evidence was that he was a member insofar as he was a financial supporter when he held a well-paid job as a security guard in the Australian Embassy. The following passage is recorded in the Tribunal's findings and reasons:
In his submissions to the Tribunal received 2 November 2004, the applicant stated that his original claim for protection had not included claims regarding his membership of MASSOB and his fear of persecution which had arisen for that reason. He stated that he had not included this claim because he had been unsure of the security of information in Australia and only became confident about disclosing this information after he had been in Australia for some time. I do not accept this explanation. I found the applicant to be an intelligent and articulate witness with good knowledge of current affairs of Nigeria. He had worked for many years in the Australian High Commission and was a trusted employee. He also had a friend he met through the High Commission currently living in Sydney. I do not accept that the reason he did not claim to be a member of MASSOB in his original application was because he was unsure of security situation in Australia. I consider that he would have been aware of the stable system of government and law in Australia and would have been able to seek advice on his rights to seek protection from former colleagues and friends. If he had been a member of MASSOB, as he now states, this would have made a significant difference to the way in which his original claim was considered. Further, it is difficult to understand why the disclosure of his claimed MASSOB membership and sponsorship would have been dangerous when he had been prepared to disclose his role in notifying a plot by the state security authorities to assassinate a state governor.
I do not accept that the applicant was a member or a financial sponsor of MASSOB. The applicant made this claim after his application for a protection visa was refused for the reason that his fear was not Convention-related. After refusal he then claimed that he was a member of MASSOB, a political group which had suffered some mistreatment by government authorities in Nigeria from time to time. I consider that he added this claim to establish that his fears arose for one of the reasons set out in the Convention, that is, political opinion. I accept that he was sympathetic to the aims of MASSOB as are many Igbos. However, I do not accept that his involvement was that of a member. He admitted that he was not an active member of MASSOB and had only ever attended one rally in 2002. He did not claim to have any role in the organisation other than as a financial sponsor.(CB 209-210)
Mr Turner submits that the above passage discloses that the reason the Tribunal did not believe the applicant was a member or a sponsor of MASSOB (although it did believe he was a sympathiser), was that he did not mention it in his protection visa application. The Tribunal relied upon the inconsistency as part of its decision which is consonant with SZEEU v Minister for Immigration [2006] FCAFC 2 (“SZEEU”).
Mr Turner referred to SZEEU at [20] per Moore J who said:
In my opinion, the flight information was "information" for the purposes of s.424A(1). What the Tribunal did was to note what the applicant said in the written statement made at the time he applied for a protection visa. The Tribunal therefore gained knowledge of what the applicant had said at that time about his experience in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the applicant and assessing the veracity of the accounts given by the applicant to the Tribunal. I do not accept that, by adopting the statement at the hearing before the Tribunal, information was transformed into information provided by the applicant in his application for review. In my opinion, the approach by Jacobson J in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 was correct. If the Tribunal comes to know of what was said by an applicant at a point before an application for review was made the view that was said at that time is material to its assessment of what was later said by the applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (the relevant information in the present appeal) being comprehended by s.424A(3)(b).
This was approved by Weinberg J in SZEEU at [144].
Mr Turner submits that the Tribunal was in effect relying upon the inconsistencies between what was put in the protection visa application and what was later said to both Tribunals and it was that inconsistency which led to the rejection of his claim of being more than just a sympathiser of MASSOB.
Ms McNamara submits that the applicant provided the information to the Tribunal for the purposes of the application, thereby bringing it within the exception contained in s.424A(3)(b). The first Tribunal decision recorded that on 2 November 2004, it received a letter from the applicant.(CB 120) The letter criticised the delegate's decision and that he did not reveal anything to the Department because he did not know how secure information is in Australia.(CB 51-56) The real reason he left Nigeria was because of his membership of MASSOB. Ms McNamara submits that it is clear that the applicant provided the information for the purposes of his application, and accordingly no s.424A error is established.
Ms McNamara submits that the information in question is that the applicant did not put forth claims about MASSOB because when he filed his protection visa application, he was unsure about the security of information supplied to Australian authorities. The first Tribunal did not accept this as a reasonable explanation for why it was not disclosed earlier. Ms McNamara submits that this information did not require disclosure under s.424A(1) of the Act because it was information that was put forward by the applicant himself in the form of a handwritten submission provided to the first Tribunal on 2 November 2004 and was before that Tribunal hearing:
However, the issue is that I can't reveal much to DIMA because I don't know how secure my information could be. I did not even send any documents to DIMA because I didn't know the security involved. I want to say the real matter here, but I ask the information be highly secure because I won't want anything to hinder our social and political group from achieving our goals. We have gone far. Nothing would stop us. We left Nigeria for Australia. I am a member of one of the sponsors of a social and political group in Nigeria called MASSOB, meaning Movement for the Actualisation of the Sovereign State of Biafra.
The first Tribunal asked the applicant, as it was entitled to, why he did not put this information in his protection visa application. This was the first time the information was revealed to it. Accordingly, it is submitted that the second Tribunal was entitled to rely on a statement the applicant gave the first Tribunal: SZECD v Minister for Immigration [2006] FCA 31 at [32] per Bennett J. In that decision, Her Honour discussed the likelihood of jurisdictional error where a second Tribunal adopts reasoning applied by the first Tribunal in the same matter. Her Honour found that in the circumstances, there would be an obligation to disclose pursuant to s.424A. Ms McNamara argues that this case can be distinguished from SZECD v Minister for Immigration as the second Tribunal did not rely on reasoning or conclusions of the first Tribunal. The second Tribunal merely relied on evidence given by the applicant to the first Tribunal. Ms McNamara submits that this approach has been accepted in this Court, in particular by Smith FM in SZGYN v Minister for Immigration [2006] FMCA 1412.
Ms McNamara submits that the applicant provided the information for the purpose of his application and accordingly no s.424A error is established. In M55 v Minister for Immigration [2005] FCA 131 at [25], Gray J said:
That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A (3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A (1) and (2).
Justices Gyles, Stone and Young said in NBKT v Minister for Immigration [2006] FCAFC 195 at [63]:
Furthermore, by filing written submissions with the Tribunal that expressly referred to and incorporated the statement of grounds which was attached to her visa application, the appellant invited the Tribunal to refer to her protection visa application. As in M55, there can be little doubt that the appellant intended that the Tribunal should look at her protection visa application and its attachments. This is a sufficient basis to find that the appellant gave the date of her protection visa application to the Tribunal for the purposes of the review application.
SZEPZ v Minister for Immigration [2006] FCAFC 107 considered a situation where a first Tribunal decision was quashed and a second Tribunal was constituted to consider the application. The question of the status of material submitted to the first Tribunal was discussed at [39] per Emmett, Siopis and Rares JJ:
In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
I am satisfied that the decision was not based on an inconsistency between what was said in the protection visa and what was said in the Tribunal. The Tribunal’s reasons reproduced at [38] above clearly state that the submission received from the applicant on 2 November 2004 identified the disclosure. That explanation was not accepted by the Tribunal. I am further satisfied that the quashing of the first Tribunal decision does not destroy or in any way damage the information supplied in the 2 November 2004 submissions. That information remained available to the second Tribunal member. Ground three cannot be sustained and must be rejected.
Conclusion
Solicitors for both the applicant and the respondents provided the Court with detailed written submissions supported by oral arguments in support. I thank both solicitors for the preparation and presentation of their submissions and arguments. I am of the view that none of the arguments of the alleged jurisdictional error on the part of the decision-maker can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 3 April 2007
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