SZGID v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1526

FEDERAL COURT OF AUSTRALIA

SZGID v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1526

MIGRATION – No point of principle

SZGID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1433 OF 2005

MOORE J
2 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1433 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGID
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

2 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1433 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGID
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	2 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of 28 July 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 20 July 2001 the appellant applied for a protection visa.  On 6 September 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the appellant the protection visa. On 14 September 2001 the appellant applied for review of that decision and on 4 February 2003 the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa.  The appellant applied for judicial review of that decision on 17 May 2005 to the Federal Magistrates Court.

2. The appellant applied for a protection visa, claiming to fear persecution as a Christian by Muslim supporters of Sharia law.  On 25 September 2002 the appellant was invited by the Tribunal to attend a hearing on 13 December 2002 as, on the material before it, it was unable to make a decision in the appellant's favour.  The appellant sought a hearing on a later date on the basis that his advisor would be out of the country on the nominated date.  The Tribunal declined to defer the hearing to a later date.  The Tribunal contacted the appellant's advisor who said the appellant would attend the hearing on the set date.  The appellant did not attend the Tribunal hearing and failed to contact the Tribunal to explain his absence.

   Background

3. The appellant is a Nigerian national of Catholic faith.  He arrived in Australia on 7 July 2001 on an Australian business visa.  He was born in Lagos, in the south of Nigeria.  When he was a young child, he moved to Kaduna state with his family in 1967 where he lived until 1995.  The following is a summary of the appellant's claims and evidence taken from the Tribunal's decision. 

4. Kaduna is in the northern area of Nigeria.  The appellant moved from Kaduna to Lagos in 1995 for employment reasons but maintained a home in Kaduna.  The appellant claimed to have suffered persecution in Kaduna at the hands of Muslims who persecuted those who would not convert to and follow Sharia law.  His family home was burnt down during religious riots.  He had been attacked on several occasions, beaten, harassed and persecuted by Muslims while living in Kaduna.  The appellant claimed the authorities did not and do not act on reported cases of discrimination and persecution by Muslims.  In 1995 his brother was attacked and killed because he would not convert to Islam. 

5. The appellant claimed to have visited Kaduna following the introduction of Sharia law as the law of the State in Kaduna, and to have been beaten by Muslims wanting him to convert to Islam.  The appellant claimed it is not possible to live in Lagos unless you convert to Islam and abide by Sharia law, that Sharia law has been extended to many areas of Nigeria and that inter-religious conflict persists.  He claimed to have been threatened and beaten in Lagos on several occasions for failing to convert from Christianity and accept Sharia law.  He claimed that the government is unwilling or unable to intervene to protect those who oppose Sharia law.

   The decision of the Tribunal

6. Essentially, because the appellant did not attend the Tribunal hearing, the Tribunal was unable to make findings in the appellant's favour because his claims lacked sufficient detail.  The Tribunal set out a list of those claims.  It found there was no evidence to support the appellant's claim that it is not possible to live in Lagos peacefully unless one accepts Sharia law.  The Tribunal noted that country information did not support the appellant's claims, and that there was no evidence that Christians were persecuted by Muslims in Lagos or that the government failed to protect Christians in Nigeria, who make up forty per cent of the population.  The Tribunal also noted that there was no evidence of Sharia law being applied in southern states and that the appellant was free to live in any part of Nigeria he wished to live in.

7. The Tribunal said it was unable to be satisfied of the appellant's claims of persecution and therefore unable to be satisfied that the appellant had a well founded fear of persecution for reasons of religion in Nigeria now or in the foreseeable future.

   The judgment of the Federal Magistrate

8. The grounds for judicial review before the Federal Magistrate were:

   1.  The Tribunal failed to carry out its statutory function
   2.  The Tribunal applied the wrong test.
   3.  The Tribunal failed to provide the Applicant with procedural fairness.
   4.  The Tribunal failed to take account of relevant material.

9. The appellant deposed that, following the refusal of the adjournment, the appellant's advisor had told him that he would approach the Tribunal again and that he was sure an adjournment would be granted so the appellant need not appear on the set hearing date of 13 December 2002.  The advisor did not approach the Tribunal and it proceeded to decide the matter in the appellant's absence.  The Federal Magistrate found no unfairness in the Tribunal's conduct.

10. The Federal Magistrate noted the appellant's reason for moving to Lagos was employment and that he had not been forced to leave Kaduna as a result of the events in 2001.  His Honour noted that whilst it could be said there was evidence to support a claim that the government was unwilling or unable to offer effective protection in the north, the appellant did not live in a northern state.

11. As to the appellant's submission that the Tribunal failed to consider if he could relocate to Lagos, the Federal Magistrate noted the Tribunal's finding that the appellant's home was in Lagos was correct and therefore the question did not arise.  As to the appellant's claim that the Tribunal erroneously concluded there was no evidence in relation to certain claims, the Federal Magistrate found that "the evidence that he has pointed me to does not really go as far as [he] would like in supporting his assertions". 

12. Though finding it difficult to explain the Tribunal's statement that there was no evidence that the government fails to protect Christians in Nigeria, the Federal Magistrate noted that this was not relevant to the applicant's claims which were restricted to the situation in Lagos. The Federal Magistrate dismissed the application, finding no jurisdictional error. His Honour did note that he hoped that an application under s 48B of the Migration Act 1958 (Cth) might be favourably considered, allowing the appellant to lodge a further application.

    The appeal and is disposition

13. The grounds of appeal are:

    1.        The Court erred in finding that the Refugee Review Tribunal (Tribunal) did not fail to carry out its statutory function.

    2.        The Court erred in finding that the Tribunal did not apply the wrong test.

    3.        The Court erred in finding that the Tribunal did not deny the Applicant procedural fairness.

    4.        The Court erred in finding that the Tribunal did not take account of relevant material.

    Those are the same grounds as raised before the Federal Magistrate.  The appellant submitted that for the Tribunal to dismiss the appellant's claims on the basis it did, the Tribunal ignored the appellant's central claim that the Nigerian government is unable or unwilling to offer him protection from Muslim militants and that country information was not adverse to the appellant's claims.  The appellant further submitted that he referred to specific incidents in his written statements and that there was relevant material which the Tribunal failed to take into account.  The appellant claimed that the Tribunal should have determined what part of Nigeria the appellant would return to and that in not doing so, failed to carry out its statutory function.

14. In so far as the appellant alleged that the Tribunal fell into jurisdictional error when dealing with the issue of "relocation", and that the Federal Magistrate erred in not concluding it had, the submission is without substance.  The appellant did not advance his claims for asylum on the footing that he would be at risk of harm in Kaduna because that was where it was probable he would reside were he to return to Nigeria.  His case was advanced on the footing that he had lived in Lagos for a period of five or six years immediately before leaving Nigeria and had been employed there for that period.  The Tribunal appears to have proceeded on the basis that it could assess the appellant's risk of harm on the basis that the appellant would return to Lagos and continue to live there.  It is not apparent to me that there was jurisdictional error attending the Tribunal's consideration of the appellant's claims in this way.  While it is true that the appellant had lived much of his life in Kaduna and maintained a house there, his claims had not involved a contention that for one or a combination of reasons, he would return to Kaduna and endeavour to, subject to the risk of persecution, live and seek employment there.

15. There was one aspect of the Tribunal's approach to the appellant's claims which initially I considered might evidence error, conceivably jurisdictional error.  In a statement made by the appellant when he first sought a protection visa he said:

    It is also not possible to live in Lagos peacefully if one is not prepared to adopt and convert to Islam to abide by the Sharia Law.  Although the Sharia Law originated in the Northern part of the country, the Muslims insist on all non-Moslems to accept, adopt and practice Islam and be guided by the principles of the Sharia Law.  This, I totally disagree.  In Lagos, I was approached and beaten on several times for failing to convert from Christianity to accept the Sharia Law.

    In this statement, the appellant was claiming to have been beaten in Lagos for reasons relating to his religious beliefs and this constituted probative material before the Tribunal that those events had occurred.

16. In its reasons, the Tribunal identified six aspects of the appellant's claims for which no details had been provided and, it appears, left the Tribunal unable to make findings in the appellant's favour in relation to each of them.  The claim to have been beaten several times in Lagos was not one of the identified matters.  The Tribunal did not, in clear terms, reject the appellant's account that he had been beaten, nor did it indicate that there was insufficient material before it to enable the Tribunal to be affirmatively satisfied he had been.  However, the Tribunal did say:

    The applicant claims that it is not possible to live peacefully in Lagos if one is not prepared to accept Sharia Law.  The applicant makes this assertion but provides no evidence or information which would support this very general claim.

    If this passage is read narrowly, it was incorrect for the Tribunal to say that there was no evidence supporting a contention that it is not possible to live peacefully in Lagos if one is not prepared to accept Sharia Law.  There was evidence and it was the evidence of the appellant in his statement.  However, reading the Tribunal's reasons more generously, as the Court is bound to do:  see Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259, it is tolerably clear that the Tribunal did not accept the appellant's account that generally it was not possible to live peacefully in Lagos without accepting Sharia Law and, specifically, that he had been beaten on several occasions for failing to accept Sharia Law. If its reasons are understood this way, the Tribunal's reference to "no evidence or information" in the passage quoted above is not a reference to any evidence whatsoever (thereby ignoring or overlooking the evidence of the appellant which constituted a material part of his claims) but rather is a reference to evidence from other sources such as independent country reports. It was open to the Tribunal to reach this conclusion. Indeed, the solicitor appearing for the appellant was unable to point to any evidence or material before the Tribunal which might corroborate or support the appellant's account of having been beaten for failing to convert to Islam from Christianity and to accept Sharia Law or that such beatings were commonplace or even occurred at all.

17. The appellant has not demonstrated that the Federal Magistrate erred in rejecting the application for judicial review.  The appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             2 November 2005

Solicitor for the Appellant:	Ray Turner Solicitor
Counsel for the First Respondent:	R M Henderson
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	25 October 2005
Date of Judgment:	2 November 2005