SZKPJ v Minister for Immigration
[2007] FMCA 1237
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1237 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Nigeria because of an association with a transport organisation – Tribunal rejecting the factual basis for the claim – whether the Tribunal breached s.425 or s.414 of the Migration Act 1958 (Cth) considered – jurisdictional error established. |
| Migration Act 1958 (Cth), ss.412, 414, 422B, 424, 424A, 425 |
| SZBEL v Minister for Immigration (2006) 231 ALR 592 |
| Applicant: | SZKPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1452 of 2007 |
| Judgment of: | Driver FM |
| Hearing dates: | 30 July and 9 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Rebikoff |
| Solicitors for the Applicant: | Mallesons Stephen Jaques |
| Counsel for the Respondents: | Mr P Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal signed on 5 April 2007 and sent to the applicant on the same day.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1452 of 2007
| SZKPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 5 April 2007 and was sent to the applicant on the same day, apparently on the basis that the decision was not required to be handed down because the applicant was held in immigration detention. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant had claimed persecution in Nigeria. The asserted Convention nexus was based on race, membership of various particular social groups and imputed political opinion. Relevant background facts relating to the applicant’s protection visa claims and the Tribunal decision on them are set out in written submissions filed on behalf of the applicant on 20 July 2007 and also in submissions filed on behalf of the Minister on 27 July 2007. The following statement of background facts is derived from paragraphs 2 through to 34 of the applicant’s submissions and paras.2 through to 15 of the Minister’s written submissions.
The applicant is a citizen of Nigeria who arrived in Australia on 12 October 2006. On 2 November 2006 the applicant lodged an application for a protection (class XA) visa (court book “CB” 12). The application was supported by a statement made by the applicant dated 1 November 2006 (CB 38). This statement is reproduced in the Tribunal’s reasons for decision at CB 248-9.
The applicant claimed to be a Christian of Ogoni ethnicity who was forced to leave Nigeria because he faced a well-founded fear of persecution by reason of:
·his connection with the National Association of Road Transport Owners (“NARTO”), for whom he worked in Onitsha until late 2005, when he was forced to flee Onitsha due to conflict between NARTO, the Movement for the Actualisation of Sovereign State of Biafra (“MASSOB”) and government security forces; and
·his membership of the Ogoni clan from Maonwa village in Bori, Ogoniland, that was excluded from and opposed to a rival Ogoni clan’s involvement with a foreign oil company’s exploration and exploitation of the village’s natural resources, and his activism as a member of the youth council in is village in relation to that issue.
On 14 December 2006 a delegate of the Minister refused to grant a protection visa. On 20 December 2006 the applicant applied for review of the delegate’s decision in the Tribunal.
The applicant attended a hearing and gave evidence before the Tribunal on 24 January 2007. A transcript of the hearing before the Tribunal is annexure A to the affidavit of Jason Mark Pobjoy sworn 19 July 2007.
At the hearing, the applicant gave detailed evidence in relation to his involvement with NARTO. In particular, the applicant gave evidence in relation to the nature of his employment with NARTO (at T4-7), when that employment commenced and concluded and why he stopped working with NARTO (at T5, T10, T11, T17 and T18). The applicant also gave evidence in relation to the events which precipitated his departure from Onitsha (at T10, T11, T16-20) and why he feared persecution because of his involvement with NARTO (at T21-22).
At the hearing, the following exchange also took place (at T22):
LM: So, sir, do you have evidence that you are a member of NARTO?
[The applicant]: We use something like this[1]. But my house in Ogoni was burned. We also have this also for Ogoni youths.
[1] It may be inferred that the applicant was holding some sort of card when he said this.
On 7 February 2007, the applicant’s migration agent provided a submission to the Tribunal in support of his application. In relation to the applicant’s involvement with NARTO, the submission stated (at CB 134-5):
We attach a copy of [the applicant’s] NARTO identity card, which we received by fax on 6 February 2007. We understand it was faxed to Australia by [the applicant’s] partner, with whom he only very recently was able to contact.
We submit that the evidence he provided at the Hearing relating to NARTO was consistent, coherent and credible, and that the Tribunal should accept that he was a senior ticketing officer with NARTO in Onitsha, who left that employment in late 2005.
The Tribunal indicated at the Hearing that it could find no country information concerning violence in Onitsha in late 2005 in relation to NARTO and MASSOB. We have attached a copy of several articles that detail violent incidents concerning NARTO in Onitsha in late 2005. We also note the previous information provided to DIMA concerning the ongoing violence in Onitsha relating to NARTO employees and that ‘State police spokesperson Fidelis Agbo said security agents had launched a manhunt for members of [NARTO and MASSOB].’
We submit that the country information supports [the applicant’s] claims and demonstrates that he could be at risk of harm if he returns to Nigeria because of his connection to NARTO.
The submission attached a photocopy of an Identity Card in the applicant’s name which purported to have been issued by the “National Association of Road Transport Owners (NARTO), Park Management Committee, Anambra State Council” (CB 141). The submission also attached a number of articles referring to ongoing violence in Onitsha in late 2005 and throughout 2006 (CB 150-172).
On 12 February 2007, the Tribunal sent a letter to the applicant under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). In relation to the applicant’s involvement with NARTO, the letter stated (at CB 176-7):
You told the Tribunal the last day you went to work was a Monday in November. The last Monday in November 2005 was 29 November 2005 (according to a 2205 [sic] calendar) and you claim the conflict continued for about 2 weeks (until about 11 to 14 December 2005).
You stated that you fled from work that day because of the clashes at the bus park at Heard Bridge or Bridge Head in November/December 2005 and that this clash escalated over a period of two weeks.
The letter then referred to a number of articles which referred to incidents of violence concerning NARTO and MASSOB on 21 December 2005, January 2006, May 2006 and July 2006. The letter stated (at CB 177):
This information is relevant as it does not suggest that there was a fight between NARTO and MASSOP [sic] for a 2 week period from about 29 November 2005 to about 14 December 2005 at Heard Bridge or Bridge Head. It may lead the Tribunal to conclude that you are not a witness of truth.
The letter also stated (CB 177-8):
Independent evidence from NARTO’s website indicates that to be a member of NARTO you must have a truck. You did not have a truck.
This information is relevant as it indicates you were not a member of NARTO and it suggests that you were not being pursued by MASSOB for being a member of NARTO.
On 19 February 2007 the applicant’s migration agent responded to the 424A letter. In relation to “violence in Onitsha in late 2005 and its causes”, the applicant’s migration agent submitted that there was “no inconsistency with the evidence [the applicant] has provided about incidents in Onitsha involving NARTO, MASSOB and government security forces” (CB 185).
In relation to the applicant’s “NARTO membership”, the applicant’s migration agent referred to the submission dated 7 February 2007 “which provided a copy of [the applicant’s] NARTO card; conclusive proof that he is a member of NARTO” (CB 186, counsel’s emphasis retained). The letter noted that the applicant’s migration agent had not been able to find any mention of the “truck requirement” on the NARTO website and requested the Tribunal provide the applicant with a copy of the webpage containing the material so he could have an opportunity to comment on it. The letter also made some general observations about the possible meaning of the words on the website.
On 23 February 2007 the Tribunal provided to the applicant’s migration agent a copy of the relevant page from the NARTO website (CB 195) and invited the applicant to comment on it.
On 26 February 2007 the Tribunal sent a second letter to the applicant under s.424A of the Migration Act (CB 199). The letter concerned the language spoken by the interpreter used by the Department at the applicant’s airport interview. On 5 March 2007 the applicant’s migration agent responded to the second 424A letter (CB 202).
On 9 March 2007 the applicant’s migration agent responded to the Tribunal’s invitation to comment on the information from the NARTO website. The submission stated (CB 213):
We note that [the applicant] was an employee of NARTO; not a sub-contractor or person who conducted business through or with NARTO. We again submit that it would be absurd for a Nigerian company to expect each of its employees who collect and dispense tickets to bus companies in bus depots, to own a truck. There is no apparent, logical reason for such employees to have a truck. Nigeria is one of the poorest countries in the world and few people can afford to own a truck. We suspect that the ‘truck requirement’ might relate to member or affiliated bus or transport companies, not individual employees engaged in ticketing and bus scheduling. We submit that before an adverse finding or decision can be made on this evidence, the Tribunal must establish the exact meaning of what the NARTO website means when it refers to a ‘NARTO Member’.
We again refer to our submission dated 7 February 2007 which provided a copy of [the applicant’s] NARTO card; conclusive proof that he is a member of NARTO.” (counsel’s emphasis retained)
On 15 March 2007 the Tribunal sent a third letter to the applicant under s.424A of the Migration Act. The letter concerned inconsistencies between the applicant’s airport arrival interview and his subsequent claims (CB 214-6). On 2 April 2007 the applicant’s migration agent responded to the third 424A letter.
The Tribunal’s decision
The Tribunal reviewed the applicable law. It then set out the claims and evidence of the applicant in a very detailed manner. It then examined the independent country information. Finally, it set out its findings and reasons.
At CB 248-274, the Tribunal’s decision reproduces in detail the applicant’s statutory declaration and the various submissions in response to each of the letters issued by the Tribunal under s.424A. The decision also purports to summarise the applicant’s evidence at hearing before the Tribunal.
The Tribunal made its decision based on the following findings[2]:
a)the applicant was not a witness of truth and the applicant’s evidence contained inconsistencies that confirmed the Tribunal’s conclusion the applicant was not a witness of truth;
b)the applicant did not display a deep understanding of Ogoni culture;
c)the applicant was not a member of the NARTO, was not Ogoni, or half Ogoni and had not lived in Ogoniland;
d)the applicant was not involved in the alleged incident in the two week period starting on 29 November 2005 in Ontisha;
e)the applicant did not live in a village in Ogoniland and did not flea from Ogoniland fearing harm or no adverse political opinion was imputed to him in Ogoniland; and
f)the applicant was an Igbo Christian, who married and lived in Ontisha, and there was no evidence that police withheld protection from married ethnic Christian Igbos who resided in Ontisha.
[2] CB at 284 and following.
At CB 284, under the heading “Findings and Reasons”, the Tribunal states that it is satisfied the applicant is an ethnic Igbo and a Christian, and accepts that he lived in Onitsha from February 2006. The Tribunal also states that it accepts, as claimed by the applicant that Nigeria “is one of the poorest, most corrupt and violent places in the world” (CB 285).
At CB 285, the Tribunal states that it rejects the applicant’s claims that he fears harm in Nigeria, and that it is not satisfied the applicant is an Ogoni, or that he was a member of NARTO or that he fled Onitsha after fierce clashes between NARTO and MASSOB and that an adverse political opinion had been imputed to him because of his membership of NARTO or MASSOB. The basis for these conclusions appears to be set out at the bottom of CB 285:
I do not accept that [the] applicant is a witness of truth. I am satisfied he has created his claims in order to obtain the visa sought.
At CB 285-287, the Tribunal provides its reasoning in support of this conclusion. It refers to two claims made by the applicant:
a)the applicant’s claim to have been involved in an incident in Onitsha “on the last Monday in November 2005 (29 November 2005), when he witnessed a clash between NARTO and MASSOB at the Head Bridge or Bridgehead” (CB 285) (“the first claim”); and
b)the applicant’s claim “that he was a member of NARTO” (CB 287) (“the second claim”).
At CB 286, in relation to the first claim, the Tribunal states:
I accept that there have been a number of problems in Onitsha in 2005 and 2006 with MASSOB, NARTO and the Nigerian police and security forces. The applicant has provided a number of articles about incidents that have occurred in Onitsha and these are summarised as follows:
· 7.11.05 – clash between police and MASSOB
· 9.11.2005 – MASSOB leader Uwazuruike and 6 members arraigned by Federal Court;
· 19.12.2005 – clash at Ogbaru Main Market (Onitsha) – NARTO accused of being involved;
· 10.1.2006 – clash at Ogbaru Main Market between NARTO and MASSOB members.
The applicant’s claim, of harm during a clash between NARTO and MASSOB commencing 29 November 2005, is not supported by the independent evidence he has provided to the Tribunal.
At CB 286-7, the Tribunal gives its conclusion in relation to the first claim:
On the evidence before me, I am satisfied there was no incident in Head Bridge or Bridge Head Onitsha between MASSOB and NARTO starting on the last Monday in November 2005 (being 29 November 2005) for 2 weeks as claimed by the applicant. I am satisfied the applicant is not a witness of truth and I am satisfied the applicant was not involved in an incident in Onitsha between MASSOB and NARTO. I find that the applicant has created his claim of being involved in an incident in November 2005 and having to flee Onitsha to Ogoniland and was made in order to enhance his claim to refugee status.
At CB 287, in relation to the second claim, the Tribunal refers to the NARTO website and the statement that to be a member of NARTO “a member must have a truck”. The Tribunal notes that the evidence does not suggest the applicant has a truck.
At CB 287, the Tribunal refers to the “photocopy of a NARTO membership card” provided by the applicant and his claim that it was sent to him by his wife. The Tribunal deals with this evidence as follows (CB 287):
Whilst the photocopy of the membership card is in the applicant’s name, the card does not indicate his date of birth. The applicant told the Tribunal (at hearing) that his membership card was burned in the fire in the village. He has provided no information as to how his wife obtained this photocopy membership card. I place no weight on that copy membership card. On the evidence before me, I find the applicant was not a member of NARTO.
In the next paragraph of CB 287, the Tribunal uses its finding that the applicant was not a member of NARTO as the basis for a finding that the applicant did not work for NARTO as a senior ticketing operator in Onitsha or in a bus park.
At the middle of CB 287, the Tribunal summarises its conclusions in relation to the applicant’s involvement with NARTO as follows:
As I do not accept the applicant was a member of NARTO or that he was involved in an incident in Onitsha between NARTO and MASSOB, I find that no political opinion was imputed to the applicant for his membership of NARTO. It follows I do not accept any adverse political opinion was imputed to him for his employment by NARTO or that he fled Onitsha after being pursued by MASSOB or that he has been imputed with a political opinion as a NARTO supporter/member or that he has been imputed with membership of the particular social group of MASSOB supporters/members or that he has been imputed with a political opinion as a MASSOB supporter/member.
In the next paragraph of CB 287, the Tribunal reiterates that it is satisfied the applicant is not a witness of truth and that he has created his claim of harm in order to obtain the visa sought. The Tribunal goes on to state:
As I do not accept the applicant fled Onitsha fearing harm I do not accept the applicant fled to Ogoniland.
At the bottom of CB 287, the Tribunal uses its finding that the applicant “is not a witness of truth” to find that the applicant is not Ogoni or half Ogoni and that he did not live in Ogoniland. The Tribunal states that there are other inconsistencies that confirm its conclusion that the applicant is not a witness of truth. The Tribunal states while each of these inconsistencies on their own would not lead it to conclude that the applicant’s claims are not truthful, cumulatively they reaffirm the Tribunal’s finding that “the applicant has created his claims of being half Ogoni/Igbo who suffered harm in both Ogoniland and Onitsha in order to obtain the visa sought.”
At CB 287-291, the Tribunal deals with the following inconsistencies in relation to the applicant’s Ogoni ethnicity:
a)the applicant’s apparent difficulty during the hearing providing the name of his neighbouring village in Ogoniland; and
b)the inconsistencies between the applicant’s account of the reasons he fled Nigeria at his airport interview and the account he gave subsequently to the Department and the Tribunal.
At the middle of CB 291 the Tribunal summarises its conclusions in relation to the applicant’s Ogoni ethnicity as follows:
On the evidence before me I find that the applicant is not Ogoni, he did not live in a village in Ogoniland and he did not flee from Ogoniland fearing harm or that he travelled to Lagos and hid in Lagos and other part of Nigeria or that any adverse political opinion was imputed to him in Ogoniland. As I do not accept the applicant is a witness of truth I do not accept the applicant lived in Ogoniland at various times from 2003 to early 2006 or that he suffered harm in Ogoniland. I do not accept that he belongs to the particular social groups the Ogoni claim from Naonwa village in Bori, the Ogoni clan from Naonwa village in Bori that is not involved with the oil company and security forces, the Youth Council of the Ogoni clan from Naonwa village in Bori that is not involved with the oil company and security forces or NARTO workers from Onitsha.
At CB 291-2 the Tribunal deals with a claim that the authorities will not protect the applicant, because he owes a debt, for a Convention reason. At the bottom of CB 291, the Tribunal concludes that:
as I do not accept that the applicant is Ogoni or a member of NARTO or that he has suffered harm in Ogoniland or Onitsha I do not accept that protection will be withheld from the applicant for a Convention related reason.
At CB 292-3, the Tribunal concludes that it is not satisfied the applicant has a well-founded fear of persecution for a Convention reason.
The application
These proceedings began with a show cause application filed on 7 May 2007. The applicant asserted actual notification of the Tribunal decision on 10 April 2007. I find that the application was filed within time. At the time of the trial of this matter on 30 July 2007 the applicant relied upon an amended application filed on 20 June 2007. That application asserted breaches of ss.425 and 414 of the Migration Act and also asserted that the decision of the Tribunal was illogical, irrational or lacking a basis in findings of inferences of fact supported on logical grounds. However, during the course of argument on
30 July 2007 I expressed a view that there appeared to have been confusion before the Tribunal as to whether the applicant was asserting a risk of harm as a member of NARTO or simply as an employee of NARTO. That confusion appeared to me to be a significant issue. With that in mind, I gave the applicant leave to file and serve a further amended application by 6 August 2007, together with further submissions. I invited further submissions and an amended response from the Minister by 8 August 2007 and adjourned the hearing until
9 August 2007.
A further amended application was filed on 6 August 2007. The following grounds are raised by that application:
1) The Tribunal committed jurisdictional error by failing to comply with s 425 of the Migration Act and/or failing to afford procedural fairness to the applicant.
Particulars
a)The Tribunal failed to inform the applicant that the authenticity of his NARTO Membership Card was an issue arising in the review and failed to give the applicant an opportunity to comment on that issue;
b)The Tribunal failed to inform the applicant that the source of his NARTO Membership Card was an issue arising in the review and failed to give the applicant an opportunity to comment on that issue;
c)The Tribunal failed to inform the applicant that whether he was an employee of NARTO was an issue arising in the review and failed to give the applicant an opportunity to comment on that issue;
2)The Tribunal committed jurisdictional error by misconstruing the nature of its function and/or the nature of the review to be conducted under s 414.
Particulars
a)The Tribunal found that the applicant had fabricated his claim of being involved in an incident in November 2005, and having to flee Onitsha to Ogoniland, on the basis that the claim was not supported by “independent evidence”.
b)The Tribunal thereby misconstrued the nature of its fact-finding function by imposing an onus on the applicant to establish by “independent evidence” that the incident occurred, and finding that unless the applicant could produce such evidence, the incident must have been fabricated.
3)Alternatively to 2, the decision of the Tribunal was illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds.
Particulars
a)The applicant refers to and repeats the particulars set out in paragraph 2 above.
The evidence and submissions
I received as evidence the court book filed on 19 June 2007 and the affidavit of Mr Pobjoy filed on 20 July 2007, with the transcript annexed to it.
The applicant’s first outline of submissions filed on 20 July 2007 dealt with the asserted failure to comply with s.425 of the Migration Act in the following terms:
Once a valid application is made under s 412 of the Act, the Tribunal is under an obligation to review the decision. As the High Court noted in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [27], one aspect of that obligation is the duty under s 425(1) to invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, the High Court held that, for the purposes of s 425, “the issues that arise in relation to the decision are to be identified by the Tribunal” (at [35]). Ordinarily, those issues will be the issues which the original decision-maker identified as determinative against the applicant: at [35]. If the Tribunal identifies an additional issue and fails to inform an applicant that it has been identified as an issue arising in relation to the decision under review, and invite the applicant to give evidence and present arguments in relation to it, then “there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness” (at [37]).
In assessing the content of the obligation under s 425, it is also necessary to have regard to the following matters:
(a)section 425 is the means by which the Tribunal discharges its duty to accord procedural fairness to the applicant: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [27];
(b)where the Tribunal finds that documents are not authentic, and that finding does not turn upon the credibility of the applicant (cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59) and there is nothing on the face of the documents themselves to suggest they are forgeries, it is “inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it”: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [54]; WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at [54];
(c)in October 2006 the Tribunal published Guidelines on the Assessment of Credibility which state (at 9.5): “If the Tribunal is of the view that a submitted document is not genuine, and the document is material to the applicant’s claims, the Tribunal should give the applicant an opportunity to address the Tribunal’s concerns.” (The Guidelines are reproduced at Annexure B to the affidavit of Jason Mark Pobjoy sworn 19 July 2007.) Reference can be made to such Guidelines to ascertain the appropriate approach to be adopted by a decision-maker in cases to which they apply: Applicants M16 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 46 at [49].
In this case, it is clear from the Tribunal’s reasons for decision that the two critical findings which formed the basis for its conclusion that the applicant “is not a witness of truth” were its findings that the applicant was not involved in an incident in Onitsha between NARTO and MASSOB, and its finding that the applicant was not a member of NARTO.
The finding that the applicant was not a member of NARTO was wholly dependent on the Tribunal reconciling two pieces of evidence: the statement on the NARTO website that “to be Member of NARTO you must have a truck” (CB 195) and the NARTO identity card provided by the applicant, which clearly stated “the bearer of this ID Card is a certified Staff of Nigerian Association of Road Transport Owners (NARTO) Park Management Committee Anambra State Council” (CB 141).
The Tribunal dealt with that evidence at CB 287 by noting that:
· the NARTO identity card, though it was in the applicant’s name, did not indicate his date of birth;
· the applicant had told the Tribunal at hearing that “his membership card was burned in the fire in the village”; and
· the applicant had provided no information as to how his wife had obtained “this photocopy membership card”.
The Tribunal therefore decided to “place no weight on that copy membership card” and concluded that “on the evidence before me, I find the applicant was not a member of NARTO”. In substance, this can only have been the result of a finding that the NARTO identity card was not authentic.
However, the applicant was not on notice that there was any issue in relation to the source or authenticity of his NARTO identity card. Rather, the applicant (through his migration agent) was clearly under the impression that the only issue arising in relation to his membership of NARTO was the meaning to be attributed to the statement on the NARTO website.
This understanding is reflected in the submissions made by the applicant’s migration agent dated 12 February 2007 in response to the Tribunal’s first 424A letter. In that submission, the applicant’s migration agent dealt with the question of “NARTO membership” by stating:
We refer to our submission dated 7 February 2007 which provided a copy of [the applicant’s] NARTO card; conclusive proof that he is a member of NARTO. (counsel’s emphasis retained)
The submission then went on to advance a possible explanation for the words on the NARTO website which reflected the applicant’s oral evidence as to his involvement with that organisation and the (apparently) undisputed documentary evidence of his NARTO identity card.
Following that submission, the Tribunal sent a further letter to the applicant dated 23 February 2007. That letter referred to the applicant’s 424A response and requested the applicant to “provide the following additional information”. However, the “additional information” was limited to a comment on the statement from the NARTO website. It did not make any reference to the source or authenticity of the NARTO identity card.
Had the Tribunal identified that the source or authenticity of the applicant’s NARTO identity card were issues arising in relation to the decision under review, the applicant would have had an opportunity to give additional evidence or present arguments in relation to those issues in accordance with s 425. That might have included:
· evidence about whether an identity card of this sort would ordinarily bear a date of birth;
· a submission that the applicant had never said his identity card “was burned in the fire in the village”, only that his house in Ogoni was burned (see T23-4); and
· evidence about how his wife had obtained the identity card (as suggested by the Tribunal in its reasons for decision), including, if necessary, provision of the original card rather than a copy.
However, the Tribunal “did not say anything to [the applicant] that would have revealed to him that these were live issues”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [43].
The Tribunal’s failure to notify the applicant that the source or authenticity of his NARTO identity card were issues arising in relation to the decision under review is reflected in the fact that, in responding to the letter from the Tribunal dated 23 February 2007, the applicant’s migration agent did not seek to make any submissions in relation to the source or authenticity of the NARTO identity card, but simply reiterated the substance of the submission that had been made previously in relation to the interpretation of the statement on the NARTO website, including referring again to the applicant’s NARTO identity card as “conclusive proof that he is a member of NARTO.” (counsel’s emphasis retained)
In those circumstances, the Tribunal failed to comply with s 425(1) and thereby failed to accord procedural fairness to the applicant. A failure to comply with s 425 amounts to jurisdictional error: Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553 at [38].
The operation of s 422B of the Act will not preclude such a finding: see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [58]-[59] and the comments of Kenny J in Sok v Minister for Immigration and Citizenship [2007] FCA 413 at [40]
In the light of argument on 30 July 2007, the applicant provided further written submissions on 6 August 2007 concerning the issue of the applicant’s employment with NARTO. Those submissions are:
The applicant has consistently claimed that while he was in Onitsha he was an employee of the Nigerian Association of Road Transport Owners (NARTO), and that he had a well-founded fear of persecution on this basis.
In his application for a protection visa (Form C) dated 1 November 2006, the applicant listed his employer’s name and address “NATO [sic] office in Onitsha, Anambra, Nigeria” and his occupation as “Toll collector/union person (National Association of Transport Workers)” (CB 29).
In his Statutory Declaration made on 1 November 2006 in support of that application, the applicant claimed that in 2003 he was working in Onitsha with NARTO (paragraph [8] at CB 39), and that he was forced to leave Onitsha for good in late 2005 as a result of violence between NARTO and MASSOB, because of which “the government security forces started to arrest and detain NARTO workers” (paragraph [14] at CB 40). The applicant claimed to fear harm “because of my work with NARTO” (paragraph [22] at CB 42).
In a submission to the Delegate of the Minister dated 8 December 2006 (CB 64), the applicant’s migration agent described the applicant’s claims as follows:
He was employed by NARTO, the National Association of Road Transport Owners. In 2005 he fled Onitsha because he feared being beaten and detained because of his connection with NARTO. During 2005 and throughout 2006, violence has reigned in Onitsha due to conflict with MASSOB and NARTO and government security forces.
At CB 65, the applicant’s migration agent characterised these claims as, relevantly, giving rise a well-founded fear of persecution by reason of the applicant’s:
(a)membership of the of the particular social group of NARTO workers from Onitsha; and
(b)imputed political opinion as a NARTO supporter/member.
The applicant’s migration agent referred to country information which described clashes between NARTO and MASSOB, including reports of a manhunt for “members of the two groups” (CB 77) and a report that in June 2006 the governor revealed that “NARTO hirelings” had threatened his life following the official proscription of all militant groups in the state (CB 76).
The Delegate appears to have accepted that the applicant was an employee of NARTO, but dismissed the applicant’s claim to have a well-founded fear of persecution on this basis. At CB 99, the Delegate noted that “the applicant has not been employed by NARTO for more than 12 months and at interview indicated he had no ongoing association with the organisation.” The Delegate therefore concluded:
In the applicants [sic] circumstances I could not be satisfied that if he returned to Onitsha or Anambra State in general that he would be imputed with an adverse profile as a result of his former employment with NARTO, and therefore that he would face arrest from the security forces.
Effectively, the Delegate concluded that the applicant’s profile as a former employee was not sufficient to give rise to a well-founded fear of persecution.
Before the Tribunal, the applicant gave detailed evidence in relation to the nature of his employment with NARTO. At T4-7, the applicant described the bus park where he worked for NARTO and the duties that he performed as a ticket officer. The applicant described the role of NARTO as “managing” the bus park owned by the government (see T17.3 and T17.34).
The applicant also gave evidence that he left his employment with NARTO because of clashes between NARTO and MASSOB, and the attitude of the government towards members of each group. At T10.31, the applicant stated:
I worked in the park from 2003 to December, 2005. And then when the park does… NARTO and MASSOB and the government started having problems… because the government was killing members of the different conflict groups, MASSOB and NARTO.
See also T11.23, where the applicant explained the reason he stopped working at the bus park was that “government forces at this time were killing NARTO and MASSOB group members so I absconded to Ogoni.”
Finally, the applicant gave evidence that he himself was also a member of NARTO and feared persecution for that reason. At T18.27, the applicant stated:
They were looking for me, because they know I am a member of NARTO, so they were looking for me and these people that are going… (unclear)… so I sat around in hiding… that was when I absconded to Ogoni.
However, it seems clear that the applicant was articulating a fear of persecution on both bases: because he was a member of NARTO, and because he was a high-ranking employee of NARTO. The distinction between these claims is apparent from the following passage (at T21.30-48):
LM: Why were MASSOB searching for you?
(the applicant): Because I am a member of NARTO.
LM: And that’s the only reason.
(the applicant): And in NARTO I was among the high top-ranking ticket issuing officers, in NARTO.
LM: What do you mean, high rank ticket issuing officer, I don’t understand.
(the applicant): All the tickets, I issue out tickets to all the subordinates as well, all tickets, daily tickets, are in my possession, when others finish, they come to take more from me.
LM: But why would MASSOB be interested in harming you just because you issue people with tickets?
(the applicant): As long as they knew you are a member of NARTO, hold a valued position in NARTO, and of course they know me, you are in trouble.
(counsel’s emphasis retained)
The Tribunal subsequently asked the applicant if he had any evidence that he was a member of NARTO, in a passage which is recorded at paragraph 6 of the Applicant’s Outline of Submissions dated 20 July 2007. By contrast, in relation to his employment with NARTO, the Tribunal raised a separate issue:
Well, sir, I have not been able to locate any information that any forces started to arrest and detain NARTO workers in 2005.
From the applicant’s perspective, therefore, at the conclusion of the hearing the issues arising in relation to the decision under review were:
· Whether he was a member of NARTO; and
· Whether there was evidence that NARTO workers were being arrested or detained in 2005.
However, there was no issue as to whether the applicant had been an employee of NARTO as he claimed.
This understanding is reflected in the post-hearing submission sent by the applicant’s migration agent (at CB 132), which attached the applicant’s NARTO staff identity card. That submission stated that the “Tribunal should accept that [the applicant] was a senior ticketing officer with NARTO in Onitsha, who left that employment in late 2005”, and that the applicant was at risk of harm if he returns to Nigeria “because of his connection with NARTO” (CB 135).
At CB 135, the post-hearing submission sent to the Tribunal by the applicant’s migration agent characterised the applicant’s claims in relation to NARTO as:
· Membership of the particular social group of NARTO workers from Onitsha; and
· Imputed political opinion as a NARTO supporter/member.
In response to the Tribunal’s indication that it could not find evidence in relation to violence between NARTO and MASSOB in late 2005, the post-hearing submission attached a number of newspaper reports which referred to violence as a result of clashes between NARTO and MASSOB (CB 153, 158, 168), disputes between NARTO and MASSOB members (CB 155, 156), as well as broader references to incidents involving “the NARTO boys” (CB 155, 165) and “NARTO people” (CB 156, 166, 167) being chased out of motor parks.
By letter dated 12 February 2007 (CB 175), the Tribunal notified the applicant that “independent evidence from NARTO’s website indicates that to be a member of NARTO you must have a truck. You did not have a truck”. The Tribunal identified the significance of this information as follows (at CB 178):
This information is relevant as it indicates you were not a member of NARTO and it suggests that you were not being pursued by MASSOB for being a member of NARTO. (counsel’s emphasis retained)
However, as noted above, the applicant claimed to have been pursued by MASSOB because he was a member of NARTO and because he held “a valued position” in NARTO.
In response to this letter, under the heading “NARTO membership” (at CB 186) the applicant’s migration agent submitted that:
It would be absurd for a Nigerian company to expect each of its employees who collect and dispense tickets to bus companies in bus depots, to own a truck. … We suspect that the “truck requirement” might relate to member or affiliated bus or transport companies, not individuals.
The applicant’s migration agent repeated these submissions at CB 213 following receipt from the Tribunal of the relevant web page. Significantly, however, the applicant’s migration agent did not seek to address the Tribunal in relation to whether the applicant was a NARTO employee; rather, the submission proceeded from the assumption that there was no issue in relation to his employment and that the only issue “arising in relation to the review” was the applicant’s NARTO “membership”.
In its reasons for decision, the Tribunal dealt with the applicant’s claims in relation to NARTO as follows (at CB 287):
The applicant claims that he was a member of NARTO. NARTO’s website indicates that to be a member of NARTO a member must have a truck. The evidence does not suggest the applicant had a truck. Post hearing the applicant has provided a photocopy of a NARTO membership card and states his wife sent the card to him. Whilst the photocopy of the membership card is in the applicant’s name, the card does not indicate his date of birth. The applicant told the Tribunal (at hearing) that his membership card was burned in the fire in the village. He has provided no information as to how his wife obtained this photocopy membership card. I place no weight on that copy membership card. On the evidence before me, I find the applicant was not a member of NARTO.
As for the applicant’s submission in relation to his membership of NARTO, that it is absurd for a Nigerian company to expect each of its employees who collect and dispense tickets to bus companies in bus depots to own a truck and there is no apparent, logical reason for such employees to have a truck, I accept that there is no evidence before me to suggest that bus ticket operators who work in a bus park in Nigeria have to own a truck in order to be employed. But the applicant claimed that he was a member of NARTO who was employed in the bus park. As I have found the applicant was not a member of NARTO, I also do not accept the applicant worked for NARTO as a senior ticketing officer in Onitsha or that he worked in a bus park.
As I do not accept that the applicant was a member of NARTO, or that he was involved in an incident in Onitsha between NARTO and MASSOB, I find that no political opinion was imputed to the applicant for his membership of NARTO. It follows I do not accept any adverse political opinion was imputed to him for his employment by NARTO or that he fled Onitsha after being pursued by MASSOB or that he has been imputed with a political opinion as a NARTO supporter/member…
(counsel’s emphasis retained)
The Tribunal made no finding in relation to whether the applicant formed part of the social group of NARTO workers from Onitsha, or whether he faced a well-founded fear of persecution by reason of his membership of that social group.
Failure to comply with s 425
It is clear from the material before the Tribunal that the applicant’s primary claim in relation to NARTO was derived from his employment with NARTO as a senior ticketing officer in Onitsha. It is possible to characterise this claim in a number of ways. For example, the applicant may have had a well-founded fear of persecution by reason of his membership of a particular social group, comprising NARTO employees from Onitsha (as the applicant’s migration agent claimed).
Alternatively, the applicant may have been imputed with a political opinion as a supporter or member of NARTO by reason of his status as an employee. From the country information before the Tribunal, it seems clear that there was a real chance of such a profile being imputed to the applicant regardless of whether the applicant was in fact a NARTO member. However, such a claim is conceptually and logically distinct from any claim arising from the applicant’s actual membership of NARTO. Accordingly, in assessing the applicant’s claims the Delegate and the Tribunal were obliged to consider both possibilities.
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61], the Full Court of the Federal Court stated: “the Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it”. It has also been said that “an asylum claimant does not have to pick the correct Convention ‘label’ to describe his or her plight”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49].
There was no issue before the Delegate as to whether the applicant was in fact an employee of NARTO. Rather, the issue before the Delegate was whether, as a former employee with no ongoing association with the organisation, the applicant had a well-founded fear of persecution if he returned to Onitsha. The delegate did not explicitly address any broader claim arising out of the possibility that, as a former employee, the applicant may also be imputed with the profile of a NARTO supporter or member. However, it is possible to characterise the Delegate’s finding – that the applicant’s profile was such that he was unlikely to be persecuted by reason of his former association with NARTO – as extending to any claim arising out of any profile as a NARTO supporter or member which might be imputed to him.
At the hearing before the Tribunal, the applicant repeated his claim to have been an employee of NARTO. The applicant also claimed to be a member of NARTO. However, as the passage cited at paragraph 13 above makes clear, these claims were conceptually distinct: the applicant claimed to fear persecution because of his NARTO membership and because of the valued position he held as a senior ticketing officer. Moreover, as noted above, under the Convention any claim based on the profile imputed to the applicant as a NARTO employee was entirely independent of any claim based on his actual NARTO membership.
At no stage during the hearing did the Tribunal say anything which would indicate to the applicant that whether he was in fact employed as a senior ticketing officer was an issue arising in relation to the decision under review. Rather, the only issues raised by the Tribunal in relation to the applicant’s association with NARTO were whether the applicant had any evidence of his NARTO membership, and whether there was evidence of persecution of NARTO workers in 2005. This latter question was consistent with the approach to the applicant’s NARTO employment which had been adopted by the Delegate.
The Tribunal confirmed that the applicant’s membership of NARTO was an issue arising in relation to the review by notifying the applicant, in its first 424A letter, that the “independent information” from the NARTO website “indicates that you were not a member of NARTO”. However, neither in that letter nor subsequently did the Tribunal inform the applicant that his employment with NARTO was such an issue. This is confirmed by the fact that, in his submissions in response, the applicant’s migration agent did not address the issue of whether the applicant was an employee of NARTO, but rather argued that the fact of the applicant’s employment with NARTO (as evidenced by his NARTO staff identity card) also supported an inference that he was a member.
In those circumstances, it cannot be said the Tribunal’s 424A letter put the applicant on notice that his status as an employee of NARTO was an issue. Rather, it would have had the reverse effect: see SZITH v Minister for Immigration [2007] FMCA 1162 at [61].
By failing to put the applicant on notice that whether he was an employee of NARTO was also an issue arising in relation to the review, the Tribunal failed to comply with s 425 of the Act. Such a failure is a jurisdictional error.
The Tribunal found that the applicant was not an employee of NARTO because he was not a member of NARTO. The assumption lying behind this reasoning is that to be an employee of NARTO, it is also necessary to be a member of NARTO. However, there is simply no evidence to support this assumption, which in any event was never put to the applicant. In those circumstances, the observations of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [41]-[43] are apposite:
The appellant’s complaint in the present matter can be expressed in different ways. It could be described as being that the Tribunal acted upon unstated assumptions about [NARTO], when it decided that [the applicant could not work for NARTO unless he was also a member]. … The appellant says that he had no notice that the validity or content of the cultural and other assumptions that underpinned his account were in issue.
But closer examination reveals that the appellant’s complaint is more deep-seated than a complaint about the making of unstated … assumptions. It is that he was not on notice that [whether he was an employee of NARTO was an issue] arising in relation to the decision under review.
The delegate had not based his decision on [that aspect] of the matter. Nothing in the delegate’s reasons for decision indicated that [that aspect] of his account [was] in issue. And the Tribunal did not identify [that aspect] of his account as [an important issue]. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that [that was a live issue]. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be [whether there was a real chance that he would be persecuted as a result of his employment with NARTO]. Nothing the Tribunal said or did added [that issue] to the issues that arose on the review.
The applicant’s submissions in relation to the second ground of review are set out in paras.50 to 69 of the applicant’s first written submissions:
It is well-established that proceedings before the Tribunal are inquisitorial, not adversarial in character: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437. Accordingly, in conducting its review of the decision of the delegate under s 414 of the Act, the Tribunal is under a duty to address or deal with the claim actually raised by the material or evidence, and cannot limit its determination just to the case articulated by the applicant: Htun v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 194 ALR 244 at [7], [13].
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63], the Full Court of the Federal Court stated:
It is plain enough, in light of Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error its tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
It is also well-established that in proceedings before the Tribunal, the applicant bears no onus of proof. In Abebe v Commonwealth (1999) 197 CLR 510 at [83], Gleeson CJ and McHugh J stated:
The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail. As Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575-576 makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.
Accordingly, if the Tribunal imposes an evidentiary onus on the applicant, this will amount to an error of law: Ullah v Minister for Immigration and Multicultural Affairs [2002] FCA 60 at [9]; W133/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 395 at [25]; N989/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 434 at [42]; SDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1583 at [21].
Such an error involves a misunderstanding on the part of the Tribunal of the nature of the review which it is obliged to undertake under s 414. It is a jurisdictional error because, by wrongly imposing such an onus, the Tribunal has failed to apply the correct criterion to the determination of whether it could be satisfied that the applicant had a well-founded fear of persecution for a convention reason: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.
As noted above, the two critical findings which formed the basis for the Tribunal’s conclusion that the applicant was “not a witness of truth” were its findings that the applicant was not involved in an incident in Onitsha between NARTO and MASSOB, and its finding that the applicant was not a member of NARTO.
As a preliminary matter, it is submitted that the Tribunal erred in its characterisation of the applicant’s evidence in relation to the incident between NARTO and MASSOB in Onitsha as a claim “that he was involved in an incident in Onitsha on the last Monday in November 2005 (29 November 2005)”.
In his statutory declaration dated 1 November 2006 at [14] (CB 40), the applicant claimed he was forced to leave Onitsha “in late 2005” due to fear that he would be detained and harmed as a result of his association with NARTO.
In evidence before the Tribunal, the applicant stated:
· “(the applicant): I started 2003 and I finished working with NARTO December 2005.” (T5.5)
· “(the applicant): I worked in the park from 2003 to December 2005. And then when the park does… NARTO and MASSOB and the government started having problems … because the government was killing members of the different conflict groups, MASSOB and NARTO.” (T10.30-32)
· “(the applicant): Why I stopped work in December 2005 was because NARTO was having clashes with members of the group called MASSOB.” (T17.25-26)
· “LM: And, what, this happened one day only or it happened over a few days?
· (the applicant): There was a peak of it for two weeks, everywhere was shut down, no markets, no movement of people, that was the peak for two weeks. Even innocent people … (unclear) … on the streets.
· LM: So hang on… am I correct to understand that for a period of two weeks in December 2005, MASSOB and NARTO members were killing each other? Right. Where were you in these two weeks when everybody was killing each other?
· (the applicant): They were looking for me, because they know I am a member of NARTO, so they were looking for me and these are people that are going … (unclear) … so I sat around in hiding … that was when I absconded to Ogoni.” (T18.17-19)
· “LM: … I don’t understand how all of this happened. When was the last day you went to work?
· (the applicant): I can only remember the month.
· LM: Well, what day of the week was it?
· (the applicant): It was a Monday. A Monday in November.
· LM: That was the last day you went to work?
· (the applicant): That was the last day I can remember that I went to work.” (T19.1-T19.12)
It is submitted that the proper characterisation of this evidence is that the applicant claimed to have left Onitsha due to violence between NARTO and MASSOB in late 2005, and to have witnessed an incident in Onitsha in November or December 2005. In particular, at no stage did the applicant claim (as the Tribunal suggested) to have witnessed an incident “on the last Monday in November”.
However, in light of the evidence outlined above, it cannot be said that the applicant identified the date of the incident with sufficient certainty or particularity that the Tribunal was only obliged to consider whether the incident occurred on that specific date and was able to exclude entirely the possibility that the incident occurred later.
Moreover, there was material before the Tribunal which suggested that the specific incidents reported were not isolated incidents but rather were part of an ongoing series of clashes between NARTO and MASSOB in Onitsha. Among the newspaper reports referred to by the Tribunal:
· A report dated 21 December 2005 (“10 Killed at Onitsha Market”, CB 527) referred to a “lingering market crisis” which “dates back to the period when the state government foisted Ihesi in controversial circumstances on the traders after removing Nwokoye who was elected forecefully”. It also referred to market crisis as a “prolonged raging crisis.”
· A report dated 11 January 2006 (“Five killed in Nigerian market fracas”, CB 529) referred to “the latest conflict” in a crisis “which emerged in November last year when the state government reportedly got involved in the market’s internal affairs”.
· A report dated 12 January 2006 (“MASSOB Denies Riot Allegations”, CB 571) described the involvement in a riot in January 2006 of “the vigilante outfit who were alleged to be members of the MASSOB during the last yuletide”;
· A number of reports described the Onitsha market and associated motor-parks as “crisis-ridden” (“Ogbaru Market Crisis Spreads”, CB 570 and “Issues in Onitsha Crisis”, CB 572);
· A report dated 18 June 2006 (“MASSOB, Other Groups Banned – As Onitsha Crisis Escalates”, CB 577) described the situation in Onitsha as “anarchy” while another dated 27 June 2006 (“Mayhem in Onitsha”, CB 580) described it as “mayhem”. The same article reported that “trouble started following attempts by MASSOB to take over Upper Iweka Motor Park controlled by NARTO”.
Accordingly, even if the applicant did limit his evidence to an incident in November, there was sufficient material before the Tribunal to give rise to an obligation to consider the possibility that the incident occurred later. By limiting its consideration to whether there was an incident in late November 2005, the Tribunal failed to conduct the review required by s 414 of the Act. Such a failure is a jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
Moreover, by approaching the question in the limited manner that it did, it is submitted that the Tribunal misconstrued the nature of its function by imposing an inappropriate evidentiary onus on the applicant.
The reasoning process of the Tribunal in relation to the November 2005 incident, as reflected in its reasons for decision, was as follows:
(a)the applicant claims “that he was involved in an incident in Onitsha on the last Monday in November 2005 (29 November 2005) when he witnessed a clash between NARTO and MASSOB at the Head Bridge or Bridgehead”;
(b)The Tribunal accepts “that there have been a number of problems in Onitsha in 2005 and 2006 with MASSOB, NARTO, the Nigerian police and security forces”;
(c)The applicant has provided a number of articles about incidents that have occurred in Onitsha in November and December 2005 and January 2006;
(d)Other articles refer to incidents in Onitsha in May-July 2006;
(e)The applicant’s claim that there was an incident for two weeks from 29 November 2005 “is not supported by the independent evidence”;
(f)The Tribunal is satisfied that there was no such incident and the applicant has created his claim of being involved in such an incident to enhance his claim for refugee status.
In light of the acceptance by the Tribunal that there were a number of problems in Onitsha in 2005 and 2006 with MASSOB, NARTO and the Nigerian police and security forces, it is apparent that the only basis for the Tribunal’s conclusion that the applicant’s claim was “not supported by the independent evidence” was that there was no specific reference to a clash between NARTO and MASSOB for two weeks from 29 November 2005 in any of the articles referred to by the Tribunal.
However, to require a specific reference in the independent evidence to “an incident … starting on the last Monday in November 2005 (being 29 November 2005) for 2 weeks” in order to be satisfied that the incident occurred is to misconstrue the fact-finding function of the Tribunal.
The function of the Tribunal is to determine whether there is a real chance that the applicant will be persecuted for a Convention reason: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. As the High Court stated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.
In that context, there is simply no basis to require proof by way of “independent evidence” in circumstances where all of the other material before the Tribunal supports the applicant’s claims. To do so is to impose an evidentiary onus which has repeatedly been held to be inappropriate in administrative decision-making. Accordingly, by finding that the incident in November 2005 did not occur solely because of the absence of such independent evidence, the Tribunal fell into jurisdictional error.
Alternatively, to find that the incident did not occur because there was no specific reference to the incident in the “independent evidence”, in circumstances where all of the other evidence before the Tribunal supported the applicant’s claim, was illogical, irrational, and lacking a basis in findings or inferences of fact supported on logical grounds: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Cf SDAE v Minister for Immigration and Multicultural Affairs [2002] FCA 1583 at [57].
The Minister provided the following submissions in relation to the failure to comply with s.425 on 27 July 2007:
In his First Ground, the applicant asserts the Tribunal failed to comply with s425 of the Act.
The applicant cites the High Court decision in SZBEL v MIMIA (2006) 231 ALR 592 (“SZBEL”) and argues, in particular, that he should have been put on notice “that there was an issue in relation to the source or authenticity of his NARTO identity card”.
The alleged NARTO identity card was provided by the applicant to the Tribunal (within the meaning of s424A(3)(b) of the Migration Act) after the hearing at the Tribunal. The hearing at the Tribunal occurred on 24 January 2007. The NARTO identity card was provided (unprompted) under cover of a submission from the applicant’s agent dated 7 February 2007[3].
In SZBEL the High Court held that s425 (which concerned the duties that arose at the hearing before the Tribunal) obliged the Tribunal to identify issues that arise in relation to the decision so that the applicant can be afforded procedural fairness at the hearing and address issues.
As the High Court’s decision in SZBEL concerns issues that arise at the hearing before the Tribunal, it is therefore not relevant to this ground of review. The issue of the NARTO identity card arose after the hearing, and after the applicant told the Tribunal at the hearing that he did not have any NARTO identity evidence. (counsel’s emphasis retained)
The issue of the applicant’s membership of the NARTO was an issue that was put to the applicant both at the hearing[4], and in a letter to the applicant from the Tribunal after the hearing. In the letter to the applicant the Tribunal specifically asked the applicant to comment on the issue of whether the applicant was a member of the NARTO[5].
It cannot be said therefore that the applicant has been denied procedural fairness or that there was a breach of s425 in respect of the issue of the applicant’s membership of the NARTO. On the contrary, the Tribunal was extremely fair with the applicant.
So far as the assertion that the applicant should have been put on notice of the issue that the NARTO identity card was not authentic, such an issue did not arise. The Tribunal did not make a finding that the NARTO identity card was not authentic. This has nothing to do with s425.
The Tribunal considered the NARTO identity card (being information provided by the applicant after the hearing) and assessed it against the evidence of the applicant given to the Tribunal at the hearing on 29 January 2007 concerning his alleged NARTO membership. The NARTO membership card was assessed in terms of the issue of whether the applicant was a member of the NARTO or not. (counsel’s emphasis retained)
The Tribunal concluded that, in view of the evidence of the applicant, and in particular his oral evidence that his evidence of his membership of the NARTO was burned in a fire at his village, it would give no weight to the NARTO membership card provided by the applicant. This was a finding of fact open to the Tribunal.
There was nothing irrational about that finding (cf. S20/2002 (2003) 198 ALR 59), nor is it a case concerning forged documents (cf. WAEJ v MIMIA (2003) 76 ALD 597 at [54]). The Tribunal’s decision to reject the claims of the applicant was one based on its credibility finding concerning the applicant. A decision as to the credit of the applicant is not open to review in this Court. Findings as to credit are a matter for the administrative decision maker par excellence: Re MIMIA; Durairajasingham (2000) 168 ALR 487.
The Tribunal’s published guidelines on the Assessment of Credibility (referred to by the applicant in his written submissions) are not relevant in the present case.
[3] CB at 131.
[4] Affidavit of Mr Pobsoy annexing the transcript ("T") at 22
[5] CB at 178
Those submissions were augmented on 8 August 2007 in the following terms:
The applicant’s claims
The applicant’s Protection Visa application
The applicant claimed, both in his protection visa application (“PVA”) and before the Tribunal, to fear persecution in Nigeria by reason of his race, political opinion and membership of a particular social group, namely the NARTO.
At no time did the applicant ever make separate or concurrent claim based on the claim he was an employee of NARTO as distinct from being a member of NARTO.
In his PVA, in the “Past employment” section[6], the applicant claims in the period “02 – 05” he was a “Toll collector/union person (National Association of Transport Workers)”. He claims for this period under “employer’s name and address…” “NATO (sic.) office in Ontisha…”. In the subsequent period (“02.06 – 10.06” he states he was “unemployed”.
[6] CB at 29.
According to the applicant’s PVA therefore at the time he fled Nigeria he was not employed by NARTO, rather he was unemployed. He had worked for NARTO in Ontisha in the period 2002 to 2005.
In his statement attached to the PVA the applicant states he feared harm because he “worked with NARTO”[7].
[7] CB at 42.
What this meant was clarified by the applicant’s agent in a submission made to the Department in support of his PVA dated 8 December 2006. In that submission the applicant articulated the basis of asylum claims on page 65 of the [court] Book under the heading “[the applicant’s] claims”.
In that submission the applicant claims risk of harm from[8]:
[8] CB at 65-66
his membership and involvement with his Ogoni clan and also his connection with NARTO
In the subsequent paragraph the applicant cites a number of reasons for his fear including:
…
Membership of the particular social group of NARTO workers from Ontisha
Imputed political opinion as a NARTO supporter/member
…
The delegate in his decision found[9]:
[9] CB at 99.
I do not accept that a NARTO worker or member would be at risk of arrest…
It is clear therefore that so far as the applicant’s claims in his PVA were concerned, at no time did the applicant ever treat the his claims of employment and membership of NARTO as two distinct claims.
The delegate treated the applicant’s NARTO claim as the one claim. The applicant never asserted in his PVA that his past employment was a distinct basis for claiming asylum as opposed to his claim to be a member of NARTO by reason of his work for NARTO in the period 2002 to 2005.
The claims made in the Tribunal
So far as the way the applicant presented his case to the Tribunal, the way in which he framed his claims did not change from the way they had been presented in his PVA. The following references in the Green Book support this submission.
In a submission by the applicant’s agent in support of the applicant’s application for review of the delegate’s decision, the applicant reasserts what was contained in the submission quoted in paragraph 11 above[10].
[10] CB at 132.
The agent then goes on to submit, “it is feasible that his name is on a list of NARTO workers who fled Ontisha…”[11]. The agent then goes on to assert his client’s claim for asylum in the following terms:
[11] CB at 136.
…if he ever approached authorities for protection in relation to the harm he fears in Ongiland, there is little doubt he would not receive assistance if they suspected he is a member of NARTO…”
The Tribunal treated the claim based on his membership of NARTO in terms of the single claim. This was no doubt as a consequence of the way in which the applicant made the claim.
In the s424A letter, the Tribunal sought comment on the claim made that he was a member of NARTO[12]. In response to the s424A letter the applicant drew no distinction between a claim based on employment and/or membership (in the sense of being a union member) of NARTO. In his agent’s letter dated 19 February 2006 (being the response to the s424A letter from the Tribunal), the applicant answered the invitation to comment on the allegation he was not a member of NARTO by referring to the earlier submission dated 7 February and to the identity card as being “conclusive proof that he was a member of NARTO”.
[12] CB at 177-178.
No where in that response is it asserted expressly that the Tribunal had misunderstood the claim(s) being made, or that what was being asserted was two distinct claims, one based on his past employment with NARTO (in the period 2002 to 2005 as a toll collector) and one based on his membership of NARTO.
On the contrary, the applicant presented his claim to the Tribunal on the basis that he would be at risk if he returned to Nigeria because:
a) of his membership of NARTO; and
b) of his activities in his father’s Ogoni village.
This is the way the Tribunal treated and dealt with the claims made by the applicant. For the reasons that follow the Tribunal did not commit jurisdictional error by deciding the review application in this way.
The Tribunal’s decision
On page 285 of the [court] Book, the Tribunal rejected the claims that the applicant feared in Nigeria. In particular, the Tribunal (amongst other things):
a)was not satisfied the applicant was Ogoni; and
b)was not satisfied the applicant was a member of NARTO, or that that an adverse political opinion had been imputed to him because of his membership of NARTO (a reference to the way the claim was put by the applicant’s agent)
The Tribunal made very clear and starke findings as to the credit of the applicant – it found the applicant was wholly untruthful. This was the basis for its rejection of the applicant’s claims, including his claim to be a member of NARTO (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59).
At page 287 of the [court] Book, the Tribunal specifically deals with the NARTO membership claim. The Tribunal summarised the claim as follows:
…the applicant has claimed he was a member of NARTO who was employed in the bus park.
This is consistent with the way the claim was made in the submissions made to the Tribunal and the way the applicant presented his claim (so far as it relates to NARTO) in his oral evidence to the Tribunal (see T18.27 and TT21.30-48). That is a claim made on the basis that he was member of NARTO by reason of his past employment with NARTO. The applicant saw no distinction between the two concepts (employment and membership) so far as the basis for his claim was concerned.
The claim for asylum not made on the basis of two distinct claims, one based on the assertion that he was a former employee and the other based on the assertion he was a (union) member of NARTO. Such distinct claims were never articulated, nor are they apparent on the material that was before the Tribunal.
On the claims made by the applicant to the Tribunal, the applicant was not believed and the comprehensive findings made about his credit meant that his application for review failed.
No jurisdictional error was committed
The Tribunal is required to deal with ‘the case raised by the material or evidence before it’ (seeNABE v MIMIA (2005) 144 FCR 1 (“NABE”) at [58] citing Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157).
The Tribunal is not limited to the ‘case’ articulated by an applicant if evidence and material, which it accepts, raises a case not articulated. A claim ‘not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal’ (see NABE at [58]). In NABE, at [59], the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it. However, ‘[t]he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it’ (at [61]). (counsel’s emphasis retained)
The Court inNABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’ and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ‘can only deal with the claims actually made’. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ‘whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it’.
If the Tribunal makes an error in misunderstanding or misconstruing a claim advanced by the applicant, that can amount to jurisdictional error because of a failure to consider a claim. However, the claim must, ‘emerge clearly from the materials before the Tribunal’ (seeNABE at [68]).
NABE is not authority for the proposition that the Tribunal is required to consider a claim not made before it. If a claim does not arise, or is not advanced, the Tribunal is entitled to take the view (as it has done in the present case) that the applicant did not make the claim now asserted in the Court. This is especially so where, as in the present case, the applicant was legally represented: see SZEIV v MIMIA [2006] FCA 1798.
At no time did the applicant advance a claim for persecution on two distinct bases, one on the basis of his past employment with NARTO and a separate claim on the basis he was a member (in the sense that he belonged to a union). Consequently, the Tribunal was not obliged to consider such distinct claims.
Contrary to the applicant’s submissions, nor were such distinct claims apparent on the material before the Tribunal.
The Tribunal has committed no error by rejecting the expressly articulated claim made to it by the applicant and not considering some other way the claim could have been formulated.
In Dranichnikov v MIMIA (2003) 197 ALR 389 (“Dranichnikov”) the High Court held that where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (see 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]). No such failure occurred in this matter.
Contrary to the applicant’s submissions, it is not open to the applicant to present facts to the Tribunal and then leave it to the Tribunal to search for any available or theoretical basis for upholding a claim for asylum. The High Court has expressly rejected that approach: see Kirby J in Dranichnikov at 405.
The applicant’s further ground or judicial review should be rejected.
In relation to the second ground of review the Minister submits as follows:
In his Second Ground, the applicant asserts the Tribunal misunderstood the claims made by the applicant. The applicant asserts in his written submissions that the Tribunal did not deal with a claim that was available on the material and evidence before the Tribunal. This, the applicant asserts, was a breach of its obligation under s414 of the Act.
In Dranichnikov v MIMIA (2003) 197 ALR 389 (“Dranichnikov”), the High Court held that where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (see 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]).
Their Honours said (at 394 [26]):
‘... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.’
In NABE v MIMIA (2004) 144 FCR 1 (“NABE”) the Full Federal Court applied Dranichnikov. It held that it was not enough that a claim might have been seen as arising on the material before the Tribunal, rather it had to be a claim that was a ‘substantially clearly articulated argument relying upon established facts’. In other words, the Full Court in NABE held that in order to establish jurisdictional error the applicant had to establish that the Tribunal misunderstood or misconstrued a claim that was expressly made to the Tribunal. (counsel’s emphasis retained)
The nature of the review function under s414 of the Act was described by Allsop J (with whom Spender J agreed) in Htun v MIMIA (2001) 194 ALR 244 at 259 (“Htun”)[42]:
The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
Contrary to the applicant’s submissions, it is not open to the applicant to present facts to the Tribunal and then leave it to the Tribunal to search for any available or theoretical basis for upholding a claim for asylum. The High Court has expressly rejected that approach: see Kirby J in Dranichnikov at 405.
In the present case the applicant claimed to the Tribunal that he was involved in an incident in Ontisha when he witnessed a clash between the NARTO and the MASSOB at the Head Bridge beginning on the last Monday in November 2005[13]. The applicant never claimed to have witnessed or been involved in any of the incidents referred to by the applicant in his written submissions at paragraph 61, including any incident later in 2005.
The Tribunal rejected the claim articulated by the applicant before the Tribunal[14]. There was no misunderstanding of that claim. The Tribunal consequently exercised its jurisdiction according to law: see Dranichnikov, NABE and Htun. The Tribunal found this claim to be inconsistent with the independent country information. This was a conclusion that was open to the Tribunal. The Tribunal has not committed any jurisdictional error.
[13] CB at 252; and CB at 285 and T19.
[14] CB at 286.
Reasoning
In my view, there was confusion in the review process as to precisely what the applicant was claiming in relation to his association with NARTO. The applicant now asserts through his counsel that his claim was based on employment, as a particular social group claim, with the issue of membership being relevant only in relation to imputed political opinion: ie he could be taken to be a member or supporter because he was an employee even if he was not a member or supporter. Conversely, the Minister asserts that the applicant’s claim was one of membership of NARTO, with employment being incidental.
The applicant’s statement accompanying his protection visa claims and reproduced at CB 38-42 describe that association at paras.14 and 22 as one of employment. The applicant refers to his “work” with NARTO. However, in a submission to the Minister’s delegate dated
8 December 2006[15] the applicant’s migration agent described the applicant’s claim in relation to his connection with NARTO on two bases:
a)membership of a particular social group of NARTO workers from Onitsha; and
b)imputed political opinion as a NARTO supporter/member.
That description of the applicant’s claims was repeated in a submission to the Tribunal dated 7 February 2007[16].
[15] commencing at CB 64
[16] CB 135
It followed that there were three possible arms of the applicant’s claim in relation to NARTO. First, membership of a particular social group of NARTO employees from a specific place, secondly, imputed political opinion as a NARTO member/supporter and thirdly, imputed political opinion as an assumed NARTO member/supporter. The agent provided a further submission to the delegate which relevantly dealt with the applicant’s association with NARTO in the page reproduced at CB 78. That submission referred to the applicant’s “membership” of NARTO but also referred to “NARTO workers”. Further, it referred to NARTO and MASSOB members and sympathisers. The submission thus left unresolved the three possible arms of the applicant’s claims.
The delegate in his decision[17] described his understanding of the applicant’s claims in relation to NARTO and dealt with them in the following terms:
The applicant states that he now fears to return to Onitsha due to the problems with MASSOB, NARTO and the security forces. Reports indicate that both NARTO and MASSOB have clashed with the authorities in recent times and have both been banned by the state governor (5.7). Recent information indicates that a dusk to dawn curfew has been in place in Onitsha, and troops have been deployed to the area following the violent clashes in June-July 2006 (5.12, 5.7). Reports indicate that in the period since more than 60 members of NARTO have been arrested due to their membership of a proscribed organisation (5.11). However the applicant has not been employed by NARTO for more than 12 months and at interview indicated that he has no ongoing association with the organisation. In the applicants circumstances I could not be satisfied that if he returned to Onitsha or Anambra State in general that he would be imputed with an adverse profile as a result of his former employment with NARTO, and therefore that he would face arrest from the security forces. I also note that the applicant willingly returned to Anambra state during 2006 to obtain a passport. On balance I find that there is not a real chance of him suffering serious harm on return to Onitsha, and accordingly I am not satisfied that his fears are well founded in relation to this region.
[17] relevantly at CB 99
Both the issues of the applicant’s work with NARTO and his membership were discussed with him at the hearing conducted by the Tribunal. However, there was nothing in that discussion to put the applicant on notice that the conclusion of the delegate that the applicant had been (at least for a period) an employee of NARTO was subject to question.
The Tribunal’s letter of 12 February 2007 issued pursuant to s.424A of the Migration Act put the applicant on notice that the Tribunal entertained doubt that the applicant was a member of NARTO. Relevantly, the letter stated[18]:
Independent evidence from NARTO’s website indicates that to be a member of NARTO you must have a truck. You did not have a truck.
This information is relevant as it indicates you were not a member of NARTO and it suggests that you were not being pursued by MASSOB for being a member of NARTO.
[18] CB 177-178
The agent’s response reproduced at CB 186 made the obvious point that it was unlikely that an employee of NARTO would be required to own a truck. Thus, at least implicitly, the applicant, through his agent, was continuing to maintain his distinct claim based on employment and leaving open the issues of actual or assumed membership of NARTO. The issue was followed up by the agent in his letter dated 9 March 2007[19] wherein he submits:
… before an adverse finding or decision can be made on this evidence, the Tribunal must establish the exact meaning of what the NARTO website means when it refers to a “NARTO Member”.
[19] CB 213
Somewhat unhelpfully, the agent repeated a submission made earlier on 7 February 2007 that the copy of the applicant’s NARTO card was “conclusive proof that he is a member of NARTO”. The card was nothing of the sort. It provided no indication that the applicant was a member of NARTO. Rather, it provided an indication that he was an employee of NARTO.
The Tribunal was not satisfied that the applicant was a member of NARTO when he resided in Onitsha or that he fled Onitsha after fierce clashes between NARTO and MASSOB. The Tribunal was also not satisfied that an adverse political opinion had been imputed to the applicant because of his membership of NARTO or any adverse political opinion imputed to him that he was a member or supporter of MASSOB[20]. The Tribunal’s lack of satisfaction on these matters was based upon an adverse credibility finding that the applicant was not a witness of truth. The Tribunal dealt with the claim of NARTO membership in the following terms[21]:
The applicant claims that he was a member of NARTO. NARTO’s website indicates that to be a member of NARTO a member must have a truck. The evidence does not suggest the applicant had a truck. Post hearing the applicant has provided a photocopy of a NARTO membership card and states his wife sent the card to him. Whilst the photocopy of the membership card is in the applicant’s name, the card does not indicate his date of birth. The applicant told the Tribunal (at hearing) that his membership card was burned in the fire in the village. He has provided no information as to how his wife obtained this photocopy membership card. I place no weight on that copy membership card. On the evidence before me, I find the applicant was not a member of NARTO.
As for the applicant’s submission in relation to his membership of NARTO, that it is absurd for a Nigerian company to expect each of its employees who collect and dispense tickets to bus companies in bus depots to own a truck and there is no apparent, logical reason for such employees to have a truck, I accept that there is no evidence before me to suggest that bus ticket operators who work in a bus park in Nigeria have to own a truck in order to be employed. But the applicant has claimed he was a member of NARTO who was employed in the bus park. As I have found the applicant was not a member of NARTO, I also do not accept the applicant worked for NARTO as a senior ticketing operator in Onitsha or that he worked in a bus park.
As I do not accept the applicant was a member of NARTO or that he was involved in an incident in Onitsha between NARTO and MASSOB, I find that no political opinion was imputed to the applicant for his membership of NARTO. It follows I do not accept any adverse political opinion was imputed to him for his employment by NARTO or that he fled Onitsha after being pursued by MASSOB or that he has been imputed with a political opinion as a NARTO supporter/member or that he has been imputed with membership of the particular social group of MASSOB supporters/members or that he has been imputed with a political opinion as a MASSOB supporter/member.
[20] CB 285
[21] CB 287
It cannot be said that the Tribunal failed to consider any element of the applicant’s claims in relation to his association with NARTO. Those claims were inconsistently and confusingly presented by the applicant and his agent and the Tribunal was left to sort out as best it could what the elements of the claims were. The issue of membership of NARTO was squarely addressed. The Tribunal also dealt with the issue of employment, albeit on the basis that the applicant was not employed because he was not a member of NARTO. There may be a want of logic in the reasoning that employment was dependent upon membership of NARTO but that want of logic, of itself, does not establish jurisdictional error. The Tribunal also found that no political opinion was imputed to the applicant, either because of his membership or employment with NARTO. It is implicit in the reasoning of the Tribunal that as the applicant was neither a member or employee of NARTO, no political opinion would be imputed to him as a supporter (or for that matter, an assumed supporter) of NARTO. It was also implicit in the Tribunal’s reasoning that it did not accept the particular social group claim because, if a particular social group as described by the applicant existed, the applicant was not a member of it.
The difficulty with the Tribunal’s approach arises because the delegate had accepted that the applicant was an employee of NARTO and, at least implicitly, accepted the applicant’s membership of a particular social group comprised of NARTO workers from Onitsha. The delegate reasoned that the cessation of employment removed the risk of harm. While the applicant was put on notice by the Tribunal that his claim based on membership of NARTO was doubted because he did not own a truck, he was not put on notice that his claim based on employment was similarly doubted. I reject the Minister’s contention that no separate claim based on employment existed. The claim was made in the written submissions before the Tribunal as the particular social group claim, although it had been obscured by the claim of membership. It is implicit in the applicant’s agent’s response to the Tribunal that the issue of truck ownership could not bear on the claim based on NARTO employment because it would be absurd to expect simple employees of NARTO to own a truck. This was especially the case in relation to the applicant’s employment as a “ticket collector”.
There is nothing to indicate that the Tribunal took up the applicant’s agent’s request to investigate what the NARTO website meant when it referred to NARTO “membership”. The Tribunal’s illogical reasoning that employment was dependent upon membership which was in turn dependent upon ownership of a truck suggests that it did not do so and I so find.
In SZBEL v Minister for Immigration [2006] 231 ALR 592 the High Court found that a hearing opportunity may be unfair so as to give rise to a conclusion that the Tribunal failed to meet its obligations under s.425 of the Migration Act if the Tribunal, without notice, departed significantly from a delegate’s decision. Here, there was a favourable element of the delegate’s decision in that the applicant’s claim of employment, and implicitly, membership of a particular social group, was accepted. The claim based upon that particular social group membership failed before the delegate because of the temporal limitation on that employment. While the Tribunal sought and obtained information from the applicant in relation to his employment at the Tribunal hearing, the delegate’s finding was not called into question. If anything, the s.424A invitation sent to the applicant exacerbated the problem by raising only the issue of NARTO membership. That bore only on the applicant’s claim of imputed political opinion, not the particular social group claim. Further, although there was detailed and extensive correspondence between the Tribunal and the applicant through his agent, the Tribunal did not respond to the obvious point made by the agent that the issue of ownership of a truck could not logically bear on the applicant’s status as an employee.
It is true that the presiding member accepted that there was no evidence before her to suggest that bus ticket operators who worked in a bus park in Nigeria have to own a truck in order to be employed but that concession was divorced from the issue of association with NARTO. The Tribunal proceeded on the express assumption that the applicant’s claim of employment was dependent on his claim of membership of NARTO and thus fell away once the claim of membership was disposed of. That assumption could not be clearly derived from the applicant’s claims and was never put to the applicant.
It follows, and I find, that the hearing opportunity afforded the applicant was unfair leading to the conclusion that the Tribunal failed to meet its obligations under s.425 of the Migration Act.
The applicant is thus entitled to relief in the form of the constitutional writs of certiorari and mandamus.
It is strictly unnecessary to deal with the other issues raised by the applicant. However, in my view, no jurisdictional error is established in relation to those issues. I am satisfied that the question of the Tribunal’s decision on the authenticity of the NARTO membership card was open to it on the material before it. The card was supplied after the Tribunal hearing and was clearly not proof of membership of NARTO as the applicant’s agent had claimed. Section 425 of the Migration Act did not require that the applicant be put on notice about the Tribunal’s doubts about the authenticity of the card, for the reasons given in the Minister’s submissions set out at [44] above.
I am also satisfied that the Tribunal was entitled to conclude that the applicant was asserting involvement in an incident at the end of November 2005, based upon his evidence at the hearing that he worked for NARTO up to December 2005 and that the last working day he could remember was a Monday in November. Logically, that must have been 29 November 2005 and the Tribunal was entitled to proceed on that basis. In the absence of any evidence of an incident over the two week period identified by the applicant, the Tribunal was entitled to conclude that it was not satisfied that the incident occurred. In any event, the applicant had the opportunity to clarify any misunderstanding in his response to the invitation to comment sent to his agent on 8 February 2007.
The Tribunal was not requiring the applicant to produce independent evidence of the incident in the sense of imposing on the applicant an onus of proof. The Tribunal was simply not satisfied on the basis of the information provided by the applicant and its own inquiries that the incident occurred as claimed.
I will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 August 2007
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