SZKMV v Minister for Immigration
[2008] FMCA 1116
•7 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1116 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant’s challenge to Tribunal’s decision principally a challenge to the Tribunal’s findings of fact – review of Tribunal’s factual findings not available in judicial review proceedings – Tribunal does not require evidence contradicting an applicant’s case or for there to be a negative case against the applicant before it can affirm the delegate’s decision – it need only be satisfied that the applicant fails to satisfy the criteria for the grant of a protection visa – Tribunal not required under s.424A to put to an applicant its concerns regarding his/her credibility – Tribunal has no obligation to ask particular questions of an applicant. |
| Migration Act 1958, ss.65, 424A |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 |
| Applicant: | SZKMV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3864 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 25 July 2008 |
| Date of Last Submission: | 25 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr I.N Asuzu |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3864 of 2007
| SZKMV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nigeria where, he claims, he was a member of the now proscribed Movement for the Actualisation of the Sovereign State of Biafra (“MASSOB”). He alleges that while in Nigeria he participated in public speaking, attended rallies, was an on-campus student recruitment officer for MASSOB and was, as a result, expelled from his studies and detained by the police.
The applicant arrived in Australia on 16 May 2004. He claims to fear persecution in Nigeria because of his Ibo ethnicity and his affiliation with MASSOB.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
4 December 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.
The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision on 2 March 2007 which affirmed the delegate’s decision but was quashed by order of this Court on 18 July 2007.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 140 – 146). Relevantly, they are in summary:
Protection visa application
In a statement attached to his protection visa application, the applicant claimed that:
a)he became a member of MASSOB on 14 November 2000 while studying at the Federal Polytechnic OKO;
b)he was a student leader and prefect and participated in public speaking even though he was watched by Nigerian authorities;
c)he was appointed as an underground on-campus recruitment agent for MASSOB and has, as a consequence, been marked for extermination. Two of his recruits were found dead and they would have given his name to the authorities;
d)
federal agents conducted a raid and “netted ring leaders”.
The applicant was arrested and expelled. Two fellow students who were arrested in the raid were found dead in police custody;
e)he relocated to the capital, Abuja, as he thought no one would know him there but he was watched and followed, “perhaps by under cover Federal Police Agents”;
f)he was watched even though he went into hiding;
g)his membership of/identification with MASSOB was the reason that his studies and career came to nothing. He could not get a job in Abuja and became a virtual recluse trying to change his life;
h)without employment his life became intolerable and he had to leave the country;
i)he had to renounce his membership of MASSOB “or face the consequences of what was coming for me”. He narrowly escaped the extra-judicial killings, torture and arbitrary detention that others of his colleagues had encountered;
j)he was arrested several times while attending MASSOB rallies and was beaten and threatened with death if he did not give up his membership;
k)on 20 March 2003 he was arrested while attending a rally in Okigwe. The applicant was taken to Okigwe Police Command where he was tortured. His people paid a bribe to have him released and the applicant went to Lagos with the help of MASSOB. He continues to suffer from trauma and confusion in Australia;
l)if he returns to Nigeria he will be harmed/killed by the Nigerian secret police;
m)he did not “surrender” when he came to Australia because he was afraid;
n)before he joined MASSOB he repeatedly suffered as a student leader as a result of being treated as a second-class citizen;
o)the government wants to keep Ibos downtrodden and the authorities cannot/will not protect them; and
p)he will fight until the Ibo people are no longer marginalised and until the State of Biafra is realised and he can vote.
Application for review
In his application for review the applicant essentially repeated the claims made in his protection visa application. He also provided to the Tribunal:
a)a report referring to an incident on 29 March 2003;
b)a copy of his student identity card;
c)a copy of his MASSOB membership identity card; and
d)a document about MASSOB casualties between 2000 and February 2006.
On 15 August 2007 the Tribunal received a further statement from the applicant in which he claimed that:
a)he could not complete his studies at OKO Polytechnic because it was controlled by the federal government and they were prepared to destroy MASSOB members on campus. He was therefore denied an opportunity to obtain a career in Nigeria;
b)his leadership role at OKO included becoming a student official representative member of the Executive Committee in 2001-2002 before he was expelled;
c)he held the position of Secretary General and his picture was published; and
d)he was one of ten students summoned to the Rector’s office but was suspicious and went into hiding. Three students were subsequently handed over to the police and the applicant’s name was given to the authorities, leading to his expulsion. Two of them were found dead and he was informed that one of them gave his name to the police as the MASSOB leader responsible for MASSOB human resources on campus.
The applicant also attached copies of documents relating to his MASSOB membership.
Tribunal hearing
The applicant appeared before the Tribunal on 3 October 2007 and made the following additional claims:
a)he paid a bribe to leave the country by putting money between the pages of his passport;
b)he went “on the run” after he was expelled in August 2002 and relocated to Abuja where he stayed until he came to Australia;
c)he was detained from 20 March – 7 April 2003. After he was released he went into hiding and lived in a “little hamlet” or shelter. MASSOB members brought him food for a year and he remained there until he left for Australia;
d)his parents still reside in the family home in his home state. His two brothers and two sisters are also living in his home state; and
e)he did not apply for protection until 2006 because he was traumatised when he came to Australia and was taken from the queue and searched when he arrived. His head was still full of what happened in Nigeria and he did not remember to seek protection.
The applicant was supported at the hearing by a witness who claimed to have met the applicant at a church in Granville. The witness stated that he himself was Nigerian and a MASSOB member and had been granted a protection visa by the department in 2006.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant “is who he says he is”, however, it did not accept that he left Nigeria and fears to return there for the reasons he claimed, namely that he was harmed/threatened and detained by Nigerian authorities and feared/fears further harm because he is MASSOB and Ibo and has spoken out in support of the MASSOB cause. The Tribunal concluded that these claims were invented by the applicant to assist his protection visa application;
b)the Tribunal did not accept that the applicant left his home state or school in August 2002 for the reasons he claimed, or that he was arrested, detained and mistreated in March/April 2003, or that the authorities have his name, or that he was in hiding for the reasons he claimed before he came to Australia, noting that:
i)he gave little detail of where and how he was living from March 2003 until May 2004 and how he survived during this lengthy period;
ii)it was implausible that the applicant lived in hiding in a little hamlet or grass shelter for over a year prior to leaving Nigeria and that MASSOB members brought him food for that time;
iii)he did not reasonably explain how, if he was of such interest to the authorities as claimed, he was able to travel to and through an international airport in Nigeria and leave there using a passport in his own name. The Tribunal did not accept that the applicant was able to do so for the reasons he claimed, including that he left through Lagos and put money in his passport when he left;
iv)he arrived in Australia in May 2004 but did not apply for protection until late 2006, which was inconsistent with his claim to fear persecution. The Tribunal found that the applicant’s explanation for the delay, namely that he was so traumatised by the death of friends and was afraid because he had been taken from the queue when he entered Australia, was neither reasonable nor plausible;
c)the Tribunal did not accept that the applicant could not complete his education because he was Ibo, supported the Ibo cause, or was/is a MASSOB member, given that he claimed to have joined MASSOB in 2000 but was afforded the opportunity to study until August 2002;
d)the Tribunal found that the evidence of the witness did not assist the applicant’s case because
i)the witness did not know the applicant in Nigeria, having met only him in Australia; and
ii)apart from general evidence about his own experiences in Nigeria and the general situation there, the witness could only repeat to the Tribunal what the applicant had told him;
e)in light of the Tribunal’s finding that the applicant was not a truthful witness, it did not accept that the documents he produced were reliable;
a)the Tribunal noted that there was a reference by the applicant in his review application to attacks on his family. The Tribunal found that there was no plausible evidence before it to support this claim and noted that the applicant told the Tribunal that his parents and siblings continued to live in his home state; and
b)the Tribunal did not consider that the situation in Nigeria would be any different for the applicant than it previously was. The Tribunal found that the applicant lived and studied in Nigeria for many years prior to coming to Australia and that there was no plausible evidence before it that the applicant suffered or will suffer persecution for a Convention reason in the reasonably foreseeable future.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The RRT failed to take into account the degree of the applicant’s political commitment as a member of proscribed group (MASSOB), in assessing whether his inability to express his political opinion in a repressive regime constituted persecution.
(2)The RRT misconstrued the meaning of ‘persecution’ by failing to appreciate that selective discriminatory harassment can constitute persecution, particularly if it results in exclusion from government educational institution.
(3)Constructive failure of jurisdiction under section 424A, as the Tribunal’s decision fell into error because the approach it adopted to implausibility and/or credibility led it into making assumptions that were not warranted on the evidence and it failed to comply with procedural fairness in relation to notification provisions for the purposes of extending invitations to the applicant to comment on adverse credibility information.
When the matter was called on for hearing the applicant’s counsel sought to adduce oral evidence from the applicant concerning matters which he said had been put to the Tribunal but which had not been considered by it or in respect of which it had not questioned him. At the first return date of the application on 11 February 2008, at which the applicant’s counsel was present, an order was made in the following terms:
The applicant file and serve any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 10 March 2008.
Notwithstanding that order, no transcript of the Tribunal hearing had been filed, nor had the applicant filed any additional affidavits.
The applicant did not seek to amend his application to rely on any matters additional to those which were already pleaded and particularized. Leave to adduce oral evidence from the applicant was refused.
The applicant then sought an adjournment in order to obtain a transcript of the Tribunal hearing but that application was subsequently withdrawn and he elected to proceed.
Tribunal failed to take into account relevant considerations
The first ground pleaded in the application was particularized in the following terms:
The RRT held at paragraph 3 on page 11 of 14:
“The Tribunal accepts from the independent country information before it, including some of the information submitted to the Tribunal by the applicant and the material referred to by the delegate, that the leader of MASSOB was arrested by authorities in Nigeria and that there is sometimes violence and human rights abuses by authorities in Nigeria against MASSOB members and Ibo people. It accepts that protection is not available against the violence and abuse which sometimes occur”.
The applicant submitted that the Tribunal merely paid lip-service to its task and failed to consider the material before it. In this connection, the applicant pointed to the Tribunal’s doubts as to his credibility, its alleged failure to consider or take into account whether his degree of political commitment would cause him difficulties were he to return to Nigeria and a general misunderstanding or misconstruing of the facts which he said was central to the Tribunal’s decision to refuse his review application.
It was further submitted that the facts before the Tribunal demonstrated not only the difficulties experienced in Nigeria by MASSOB members and by persons of Ibo ethnicity but also that the applicant himself was at risk and came within the Convention definition of a refugee. Additionally, it was put that the applicant had corroboration for his story.
The first ground pleaded in the application is, in reality, no more than a challenge to the fact finding of the Tribunal which, most importantly, included a negative conclusion as to the applicant’s credibility. Regardless of what the applicant claims was his level of commitment to the MASSOB cause and his degree of involvement in that organisation, the Tribunal rejected it and said that it did not accept his account as a truthful one. The Court cannot review such findings of fact by the Tribunal. Indeed, as McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], a finding on credibility is the function of the primary decision-maker par excellence.
The allegation made in the first asserted ground of review is expressed as if the applicant’s “political commitment as a member of proscribed group” was accepted by the Tribunal. If it had been, then the Tribunal’s conclusion, in light of the circumstances of MASSOB supporters in Nigeria, might have been open to question. However, the Tribunal rejected the applicant’s claims concerning his political commitment and, to this extent, the first asserted ground of review is misconceived.
Tribunal misconstrued meaning of “persecution”
The second ground pleaded in the application is particularized in the following terms:
And at paragraph 4 on page 12 of 14:
“The Tribunal stated does not accept as true the applicant could not complete his education in his country because he was Ibo, supported the Ibo cause, was/is a MASSOB member and was involved in MASSOB activities; it is clear that he was afforded the opportunity to study up to his matriculation in 1998 and then until August 2002, although he claims that he joined MASSOB in 2000. The Tribunal does not accept as true that he had trouble in August 2002 and was expelled from his school at the time because he was/is a MASSOB member and involved in MASSOB activities and that he relocated to the capital for that reason.”
The applicant submitted that the Tribunal’s misconception of the meaning of persecution was evident from its conclusion set out in that quoted passage.
The applicant’s submissions confuses the issue of the Tribunal’s rejection of the applicant’s factual claims with the issue of a proper understanding of the Convention criteria as modified for the purposes of Australian domestic law by the Migration Act 1958 (“Act”).
The Tribunal’s decision record discloses at pp.2 – 4 (CB 138 –140) that it did understand the tests which it had to apply. The applicant’s disagreement with the Tribunal’s factual conclusions cannot alter this.
The applicant also submitted that the documentary evidence before the Tribunal supported the applicant’s claim and that there was no evidence before the Tribunal on which it could base its decision to refuse the applicant. However, the Tribunal does not require evidence contradicting an applicant’s case, or for there to have been a negative case established, before it can affirm the delegate’s decision. Its task under s.65 of the Act is to determine whether it is satisfied that an applicant meets the criteria for the granting of a protection visa. If, on the material before it, the Tribunal is not so satisfied, then s.65 obliges it to affirm the delegate’s decision. Consequently, the fact that there might be, as the applicant submits, “no evidence upon which the Tribunal decision to refuse the case before it could be based” does not point to error on the Tribunal’s part.
The applicant further submitted that the Tribunal:
… completely failed to “consider” the totality of the applicant’s claims. In particular, when the persecutor in our case is the Federal authorities while the victim/persecuted falls within the particular social group, the Tribunal failed to recognise that the triggers for Convention related protection are enlivened.
The Tribunal’s decision record discloses that it did, in fact, identify Nigerian federal authorities as those whom the applicant allegedly feared and it also identified and acknowledged his claims to Ibo ethnicity and MASSOB membership and activity. What the applicant complains of in this aspect of his submissions is that the Tribunal did not accept his factual claims. Its rejection of those claims was logically and reasonably open to it on the evidence and does not disclose error on its part, let alone a failure to consider the details of his claims or a failure to identify correctly the tests which it had to apply.
Overall, the applicant’s submissions in support of the second ground of the application dwelt heavily on the facts of his claim. It appears that the applicant’s assertion is that the Tribunal’s failure to acknowledge those asserted facts as evidencing the bases of a well founded fear of persecution for a Convention reason demonstrates that it misconstrued the meaning of persecution. However such an assertion presupposes that the Tribunal accepted the applicant’s factual allegations as correct. As already noted, it did not and to the extent that this is the nature of the allegation being made by the applicant, it is misconceived.
For these reasons, the second asserted ground of review does not disclose error on the Tribunal’s part.
Constructive failure of jurisdiction under s.424A
The third ground pleaded in the application is particularized as follows:
At paragraph 1 on page 13 of 14:
“Because the Tribunal does not consider that the applicant is a truthful witness it does not consider that these documents produced by the applicant to support his claims, including his MASSOB membership card, are reliable evidence of the facts in those documents; it does not accept as true that the applicant is a MASSOB member and was involved in the MASSOB activities that he claims.”
It appears that the applicant alleges that the Tribunal should have notified to him, pursuant to s.424A(1) of the Act, that it doubted his credibility and the genuineness of the documents he produced to support his claims. Section 424A(1) provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Section 424A requires the Tribunal to notify an applicant of certain “information”. However, subjective appraisals, thought processes or determinations are not “information” as that term is understood by the section: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18]. Consequently, none of the Tribunal’s concerns as to the applicant’s credibility or as to what the applicant’s counsel described in submissions as the Tribunal’s concerns about the “concoction” of the applicant’s case, were required by the section to be put to him. Thus no jurisdictional error arising out of s.424A is disclosed on this account.
It was also submitted that the Tribunal should have asked the applicant questions about why certain things happened. The Tribunal has no obligation to prompt or stimulate an elaboration which the applicant chose not embark on: Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 451 [58] and jurisdictional error is not demonstrated in this connection.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 August 2008
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