SZKMV v Minister for Immigration and Anor

[2015] FCCA 1586

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZKMV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1586

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider the full integers of the applicant’s claim, failed to consider the risk of harm faced by the applicant and made an unreasonable decision.

Legislation:

Migration Act 1958, ss.36, 91R, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Border Protection v SZSWB [2014] FCAFC 106
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: SZKMV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 270 of 2015

Judgment of: Judge Cameron

Hearing date: 25 May 2015

Date of Last Submission: 25 May 2015

Delivered at: Sydney

Delivered on: 15 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A. Markus of Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 270 of 2015

SZKMV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nigeria who arrived in Australia on 16 May 2004 as the holder of a visitor visa.  On 7 November 2006 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Nigeria because of his political opinion.  On 4 December 2006 the applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that he was not a person to whom Australia had 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”).  That decision was affirmed the second respondent (“Tribunal”) on 22 March 2007.

2. On 18 February 2010 the applicant was arrested and charged with attempting to import a border controlled substance, namely drugs. In April 2012 he was convicted of the offence and sentenced to a term of imprisonment. When the applicant was released on parole he was placed in immigration detention and on 26 March 2014 he lodged a second protection visa application alleging that he feared harm in Nigeria from the people who supplied him the drugs and also from the Nigerian government on the basis of his criminal conviction and his political opinion. Although the applicant ostensibly sought to have his application considered against the complementary protection criteria in s.36(2)(aa) of the Migration Act1958 (“Act”), his allegations also raised issues which post-dated the first Tribunal decision and which raised the possibility that he would face Convention-related persecution were he to return to Nigeria.  A second delegate of the Minister refused the second application on 28 October 2014.  The applicant then applied to the Tribunal for a review of the second delegate’s decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision on his second application.

3. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly claimed that:

   a)a drug cartel had approached his family in Nigeria in an attempt to locate him, saying they had sent him a package of illegal drugs for which he had not paid them.  The drugs had been worth approximately $2.8 million and had been seized by the police when he was arrested.  He could not afford to repay the drug cartel and so they would harm him;

   b)his father had informed the Nigerian police of the drug cartel’s interest in him over the drugs and so the Nigerian police would investigate him if he returned to Nigeria.  He feared that he would be detained and maltreated.  He also feared that he would be prosecuted under Nigerian Decree 33 for bringing the country into disrepute and sentenced to a term of imprisonment, made to live in poor conditions and suffer maltreatment.  His family’s assets and properties would also be seized; and

   c)if he was investigated and prosecuted by the Nigerian authorities they would discover that before he left Nigeria in 2004 he had been politically active in MASSOB, an organisation seeking the creation of the Biafran state.  He was wanted by the Nigerian authorities in relation to those activities and had previously been arrested and maltreated.  If the Nigerian authorities uncovered his past activities he would face a greater risk of harm.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found that the applicant was not a witness of truth and that the account of events on which his protections claims were based was false.  It stated that the documents which the applicant had submitted in support of his claims did not outweigh its concerns about his credibility and it did not give those documents evidentiary weight.  The Tribunal’s concerns about the applicant’s credibility led it to disbelieve all his claims.  In that regard, it noted that:

   i)it had serious concerns about aspects of the applicant’s evidence concerning his father telling the police that the visits from the drug group were drug related;

   ii)the applicant gave inconsistent evidence about when the drug group first visited his family, saying that they first visited in August 2010, whereas earlier documents from his father stated that that they first visited in October 2010 and later documents referred to August 2010;

   iii)the applicant’s evidence about the drug group’s interest in him was unconvincing.  The Tribunal noted that the applicant claimed that after his arrest in February 2010 the drug group visited his family on six occasions between August 2010 and January 2011 and that after his father reported the visits to the police in March 2011 the drug group watched his family home but did not approach his family.  The applicant claimed that in January 2014 the drug group again visited his family and threatened them so his parents moved to live with his mother’s family four miles away.  He also claimed that in August 2014 the group visited his parents at his mother’s family home looking for him and shot dead one of his relatives.  The Tribunal found that if, as he claimed, the applicant had told one of the members of the drug group about his personal and family background, it was highly improbable that they would have waited six months to contact his family at their home or another six months to contact them after they moved; and

   iv)it had previously, albeit differently constituted, disbelieved the applicant’s claims in relation to his claimed involvement with MOSSAB.  As first constituted, the Tribunal had not accepted that the applicant had been of adverse interest to the Nigerian authorities because he had left Nigeria through an international airport using a passport in his name.  It had found the applicant’s account of being in hiding for approximately a year before leaving Nigeria highly improbable and had also found that his delay in applying for a protection visa suggested he had not been genuinely in fear of harm.  The Tribunal agreed with those findings made in its first decision;

   b)the Tribunal acknowledged that Nigeria had a law known as Decree 33 which provided that any Nigerian found guilty of a drug offence in a foreign country would be guilty of an offence and liable to five years’ imprisonment.  However, on the evidence before it, the Tribunal found that it was not clear that, in the process of returning to Nigeria, the applicant’s drug offence in Australia would become known to the Nigerian authorities.  It found that even if the Nigerian authorities became aware of the applicant’s offence, information from the Department of Foreign Affairs and Trade indicated that there had been no prosecutions under Decree 33 since 2003.  It also referred to country information indicating that returnees did not suffer harm for seeking asylum abroad but usually underwent a brief interview to confirm their identity.  The Tribunal considered that if there was a real chance that the applicant would suffer harm if questioned about his drug conviction, there would be more reliable, substantiated country information demonstrating that.  Accordingly, it found that the risk of the applicant suffering harm in Nigeria because of his drug conviction in Australia was remote.  It also found that the fact that he would return after being away from the country since 2004 would not increase his risk of suffering harm;

   c)the Tribunal accepted that the applicant was an Igbo and a Christian from a state in south eastern Nigeria.  However, it found that the risk of the applicant suffering harm because of his Igbo ethnicity, his Christian religion and at the hands of Boko Haram was remote.  In that regard it referred to country information indicating that in south eastern Nigeria, and in the applicant’s home state, the Igbo people were the dominant group and Christians constituted the majority.  It also referred to country information stating that Boko Haram was based in the north of the country and carried out most of its attacks there;

   d)the Tribunal noted that the applicant had claimed that his Australian-born daughter would be deprived of knowing him and of her Nigerian heritage, a claim which the Tribunal considered was based on his claim to fear serious harm under Decree 33.  The Tribunal noted that it had already found that the risk of the applicant suffering harm under Decree 33 was remote.  It found that if the applicant’s Australian wife and daughter did not join him in Nigeria, it would be because the applicant did not have a right to remain in Australia permanently and that any harm or distress from that separation would not be for a Convention reason or amount to significant harm; and

   e)the Tribunal accepted that the applicant had been diagnosed as being HIV-positive.  It acknowledged, based on a United States Department of State report, the possibility that the applicant might not receive healthcare in Nigeria because of discrimination against people with HIV/AIDS but it did not consider that there was a real chance that that would occur to the applicant.  It considered that if the applicant was unable to access healthcare it would be more likely to be because of the inadequate provision of healthcare by the Nigerian government generally.  The Tribunal also noted that the applicant had said that his medical treatment had finished and that his only continuing treatment was attending check-ups, suggesting that his condition had been dealt with.  It therefore found that the risk of the applicant suffering serious or significant harm in Nigeria, either from discrimination or an inability to access healthcare because of that discrimination, was remote.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal made a legal error in failing to consider the full integers of my claim with respect to the complimentary protection criteria.

   Particulars

   a)At [44] the Tribunal erred in failing to consider the real risk to my liberty posed by the application of Nigerian criminal law.

   2.The Tribunal made a legal error in failing to consider the real risk of harm faced by me.

   Particulars

   a)At [48] the Tribunal erred in making a qualitative assessment of the serious harm faced by me, beyond a de minimus consideration of the harm I faced.

   3.The Tribunal made a legal error by making an unreasonable decision.

   Particulars

   a)At [43] the Tribunal made an unreasonable decision by failing to consider the guidance on the assessment of credibility with respect to expert evidence when determining the effect of Decree 33 and my risk of being detained.

   b)The Tribunal erred in relying upon the report of DFAT and treating the report as expert opinion as to the effect of Nigerian law when there was no basis upon which to make this assumption.

   c)The Tribunal acted unreasonably in relying upon an assessment undertaken by a non-expert as to the effect of Nigerian law.

   d)Furthermore the Tribunal failed to undertake steps establish proof of the content of the foreign law through the admission of expert evidence by a qualified expert in Nigerian law.

   e)The Tribunal further erred by failing to interpret and apply the foreign law consistently with the law of the forum after failing to establish the effect of the foreign law.

   4.The Tribunal made a legal error in failing to consider the real risk of harm to me under s91R(2)(d).

   Particulars

   a)The Tribunal erred in failing to consider the risk of me facing significant economic hardship that would threaten me and my family’s capacity to subsist and also the threatening and violence of this drug members.

   b)Furthermore the Tribunal erred in failing to consider the interest of daughter in Australia and the psychological impact of a minor child in Australia.

   5.The Tribunal made a legal error in failing to consider the real risk of serious harm to me under s91R(2)(f).

   Particulars

   a)The Tribunal erred in failing to consider the risk of the applicant facing serious harm through the denial of capacity to earn a livelihood of any kind because of the discrimination in Nigeria against people with my medical condition in so many ways even up to medical assessment.

   b)The at (36) failed to investigate the mistaken death of my relative and as a result subject me to the same death position after failing to acknowledge and examine the evidences before the tribunal.  I was interviewed on the 23^rd of December 2014 and decision was made and published the following day.

   c)The tribunal’s inductive assumption was based on the fact that I have made an unsuccessful claim in the past which was not believed by the old tribunal therefore any decision can be made against me having been posed as not a witness of truth.

   (errors in original)

2. The applicant made additional allegations in his written submissions, which will be considered below.  Further allegations were also made in the applicant’s affidavit filed in support of the initiating application but no reference was made to them at the hearing of this application or in the applicant’s written submissions which formed the substance of the applicant’s presentation to the Court.

Ground 1

1. The first ground of the application alleged a failure by the Tribunal to consider all the integers of the applicant’s claim for complementary protection.  The applicant particularised this by reference to para.44 of the Tribunal’s decision which said:

   The Tribunal discussed this country information [concerning the application of Decree 33] with the applicant at the hearing in general terms and put to him that on the basis of this information the risk of the applicant suffering serious harm in Nigeria because of his drug conviction in Australia was remote.  This was because according to available country information there have been no prosecutions under Decree 33 since 2003.  The Tribunal can acknowledge the possibility that there is the risk of officials using this law to extort money from someone in the applicant’s position and also he could undergo a brief interview on return to confirm his identity.  However, the Tribunal considers that if there was a real chance of the applicant suffering serious harm in this process there would be country information which says precisely that.  The Tribunal has set out above what available country information there is in this respect and it does not assert that Nigerians returning to their country after seeking asylum abroad or who have been convicted of a drug offence in another country suffer serious harm (either when interviewed on return to confirm their identity or with respect to Decree 33).

2. Consideration of that paragraph discloses that it was concerned with Convention-related issues, not complementary protection issues, and so the allegation as particularised cannot be made out.

3. Further, in paras.60 and 61 of its decision the Tribunal did consider the applicant’s complementary protection claim based on Decree 33 with the consequence that the allegation is not made out more generally.

Ground 2

1. Referring to para.48 of the Tribunal’s decision, the applicant alleged in the second ground of his application that the Tribunal had failed to consider the risk that he would face harm if returned to Nigeria.  Paragraph 48 of the Tribunal’s decision stated:

   In his protection visa application the applicant said that his removal from Australia would reveal his drug conviction to Nigerian authorities and that would lead to him being handed over to the drug law enforcement agency and being prosecuted again for his drug offence in Australia.  The applicant has not explained how removal from Australia somehow reveals to Nigerian authorities that he has a drug conviction in Australia.  There is no credible evidence before the Tribunal that Nigerian authorities are even aware of this conviction.  In the decision to refuse the application the delegate stated there was conflicting information as to whether foreign governments provided the Nigerian government with information about the conviction of Nigerian nationals overseas when they are deported (those sources being issued in 2007 and 2008 and, therefore, very dated).  The delegate also referred to the advice from DFAT mentioned above where DFAT stated that the Australian Federal police did not advise host governments of ‘the details of forced repatriation’.  The applicant submitted to the department a statement from the Nigerian Drug Law Enforcement Agency issued in June 2013 stating that Nigerian law required the Ministry of Foreign Affairs (informed by the heads of Nigerian diplomatic missions abroad) to provide statistics of Nigerians in jail abroad for drug offences and complaining that the ministry was not complying and western countries were not cooperating.

2. What the Tribunal was saying in that passage was that the evidence did not support a finding that the Nigerian authorities knew of the applicant’s drugs conviction, which was a necessary pre-condition to the success of his claim to face a risk of harm because of that conviction. 

3. Whether the applicant would face serious harm in Nigeria because of his Australian conviction was considered by the Tribunal in paras.43 to 48 of its reasons and in para.49 the Tribunal expressed its conclusion that such a risk was remote.  In para.60 the Tribunal reached a similar conclusion in the complementary protection context.

1. For those reasons, the second ground of the application does not demonstrate jurisdictional error on the part of the Tribunal.

Ground 3

1. The third ground of the application alleged that the Tribunal’s decision was unreasonable by reference to the five paragraphs of particulars set out above at [7]. Dealing with them in turn:

   (a)the first particular referred to “the guidance on the assessment of credibility with respect to expert evidence”.  Although the Minister’s submissions referred to an internal Tribunal guidance document, the applicant did not identify the guidance to which he referred or why its application was mandatory.  In those circumstances, any breach of duty said to have occurred in connection with such “guidance” has not been proved;

   (a)-(d)the meaning and operation of Decree 33 were factual matters and the Tribunal was free to inform itself on those matters as it chose.  Further, I infer from paras.43 to 49 and 60 of its reasons, referred to above at [13], that the Tribunal considered the information before it.  The facts therefore do not point to reviewable error on the Tribunal’s part; and

   (e)no principle or law required the Tribunal to “apply the foreign law consistently with the law of [Australia]” and so the final particular does not support a finding of error by the Tribunal.

Ground 4

1. The fourth ground of the application, that the Tribunal failed to consider whether the applicant faced a real risk of harm in the form of significant economic hardship which would threaten his capacity to subsist drew on the former s.91R(2)(d) of the Act, now repealed and replaced, and was particularised by reference to three matters. The first of those matters was a repetition of the allegation but the applicant had not contended to the Tribunal, or to the Minister’s department in association with his application for a visa, that he feared harm of that sort and such a claim did not clearly arise on the material before the Tribunal either: Minister for Immigration & Border Protection v SZSWB [2014] FCAFC 106 at [5].

2. The second matter particularised concerned the threats which the Nigerian drug group had allegedly made in respect of the applicant but, as the Tribunal did not accept that a drug group had made such threats, it did not need to consider how s.91R might apply to them.

3. The third particularised matter concerned the psychological impact which the applicant’s removal from Australia might have on his daughter.  Contrary to the burden of the applicant’s allegation, the Tribunal was required to consider his situation not his daughter’s and it did consider the former issue at para.52 and 58 of its reasons, as [6(d)] above records.

4. For the above reasons, ground four of the application is not made out.

Ground 5

1. In the fifth ground of his application, drawing on the former s.91R(2)(f) of the Act, the applicant alleged that the Tribunal failed to consider whether he faced a real risk of harm in the form of a threat to his capacity to subsist arising out of a denial of the capacity to earn a livelihood of any kind.

2. The allegation was particularised by reference to four matters quoted above at [7]. The first concerned the discrimination the applicant said he would confront in Nigeria because of his HIV-positive status. Contrary to the applicant’s allegation, at paras.53 to 56 of its decision the Tribunal did consider that question.

3. The first element of the second particular concerned the Tribunal’s alleged failure to investigate the death of one of the applicant’s relatives.  The applicant did not identify why the comparatively rare duty to make inquiries (Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123) arose in this case and it is not apparent that it did.

4. The second element of the second particular implied prejudgment on the part of the Tribunal in that it published its decision the day after hearing from the applicant and allegedly after having failed to consider all the evidence.  However, the Tribunal’s reasons did not reflect a failure to consider the evidence cited in this particular, namely the evidence of the death of the applicant’s relative.  Additionally, the fact that the Tribunal was able to produce its decision quickly is not, of itself, demonstrative of a closed mind.  Indeed the content of the Tribunal’s decision indicates a careful and considered weighing of the applicant’s evidence and claims, not prejudgment.

5. The third particular asserted that the Tribunal had not believed the applicant because he had been disbelieved when previously before the Tribunal in connection with his first protection visa application.  However, the reasoning of the Tribunal as secondly constituted did not evidence any predisposition of that sort.  The relevant allegations were discussed in para.31 to 35 and 38 of the Tribunal’s reasons where the Tribunal undertook a second evaluation of relevant matters.  I am not persuaded that the Tribunal did not approach the relevant issue afresh.

6. The fifth ground of the application is not made out.

Ground 6

1. Drawing on the former s.91R(2)(b) of the Act, in para.5 of his written submissions the applicant alleged that the Tribunal failed to consider whether he faced a real risk of harm in the form of significant physical harassment were he to return to Nigeria. He particularised this allegation by reference to para.36 of the Tribunal’s decision, where the conclusion was expressed that the applicant’s factual allegations could not be believed. The applicant said that the Tribunal should have inquired into his relative’s death, but failed to do so. In a second particular of the allegation the applicant repeated his assertion of bias in the form of prejudgment.

2. The allegation is not made out by reference to the first particular because it has not been demonstrated that the Tribunal erred in making its adverse credibility findings or that it should have made an inquiry as the applicant asserted: see [23] above.  Nor, for the reasons given above at [24] and [25] is the allegation made out by reference the second particular.

Ground 7

1. In para.6 of his written submissions, drawing on the former s.91R(2)(c) of the Act, the applicant alleged that the Tribunal erred by failing to consider whether he faced a real risk of harm in Nigeria in the form of significant physical ill-treatment. He particularised this allegation by a repetition of the matters concerning his HIV-positive status considered above at [22] and by reference to information which was not before the Tribunal. The allegation that the Tribunal failed to consider the applicant’s claim by reference to the particulars of his medical condition fails for the reasons given above at [22] and the Tribunal did not err by not considering information which was not before it.

2. The applicant also made a further allegation in the particulars – that the Tribunal should have made enquiries into the discrimination suffered by people in Nigeria living with HIV/AIDS.  This allegation was not supported by argument or evidence which would lead to a finding that the circumstances of this case were such that the Tribunal was obliged to make the inquiry propounded.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been made out.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 15 June 2015