SZMEK v Minister for Immigration & Anor
[2008] FMCA 1068
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1068 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Nigeria claiming fear of persecution for reason of his political belief – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424AA – whether it is jurisdictional error not to comply with s.424AA – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 424AA, 474 |
| SZLQD v Minister for Immigration & Citizenship [2008] FCA 739 followed SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 followed. |
| Applicant: | SZMEK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1015 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 July 2008 |
| Date of Last Submission: | 9 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Turner |
| Counsel for the 1st Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1015 of 2008
| SZMEK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Nigeria who asks the Court to review a decision of the Refugee Review Tribunal handed down on 3rd April 2008, affirming the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks the following:
a)A declaration that the decision of the Refugee Review Tribunal was made in excess of jurisdiction and is null and void;
b)A writ of certiorari quashing the decision of the Refugee Review Tribunal;
c)A writ of mandamus requiring the Refugee Review Tribunal to rehear and redetermine the application according to law;
d)Costs.
Background
The background to this matter is that the Applicant arrived in Australia on 19th July 2007. He applied for a Protection (Class XA) visa on 31st August 2007. A delegate of the Minister refused the application for a visa on 16th November 2007.
Application for Review to the Refugee Review Tribunal
The Applicant then applied to the Refugee Review Tribunal on 17th November 2007 for review of the delegate's decision. The Applicant attended a hearing of the Tribunal where he gave evidence to the effect that he is a man of Ijaw ethnicity and a Christian who claimed that he left Nigeria illegally on 12th July 2007 using someone else's passport because he could not get a passport in his own name without arousing suspicion. He sought protection because he had become a member of a political organisation called Movement for the Emancipation of the Niger Delta (MEND), and he claimed that his life was in danger and in fact had suffered gunshot wounds whilst in Nigeria. The Applicant produced a considerable amount of material in support of that claim.
The Tribunal’s Decision
The Tribunal signed its decision on 26th March 2008 and handed down that decision on 3rd April 2008, affirming the decision not to grant him a protection visa.
In the decision record, the Tribunal set out the Applicant's claims and evidence on which he based his application for a protection visa, submissions made by the Applicant's migration agent, an interview between the Applicant and the Minister's delegate on 1st November 2007 and the Applicant's evidence at the hearing.
The Tribunal also considered independent evidence about MEND which was formed out of elements of an organisation called the NDPVF. The Tribunal completed an extensive and detailed summary of the Applicant's evidence given at the hearing which can be found on pages 220 to 230 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 230 to 235 of the Court Book. The Tribunal noted that the Applicant claimed to fear persecution in Nigeria, mainly because of his political beliefs and membership of a group known as MEND. He claimed that police and agents of the Government wished to harm him, and he claimed to have been shot in June 2007.
The Tribunal noted that it had considered the claims made by the Applicant's agent on his behalf, including a submission that the Applicant faced persecution because of, "political opinion and/or ethnicity (Ijaws from the Niger Delta) and his membership of a particular social group (MEND leaders and/or educated males from the Niger Delta)".
The Tribunal said that it had considered the more general claim about persecution, simply because the Applicant was an Ijaw person, living in the Niger Delta. The Tribunal considered the Independent Country Information and noted that the material did not support the conclusion that Ijaws, or people from the Niger Delta generally, were subject to harm amounting to persecution.
The Tribunal also noted that the Applicant's personal evidence did not suggest that he was at risk because of his ethnicity per se, or because he resided in the Niger Delta, rather the preponderance of evidence before the Tribunal indicated that the Applicant was asserting that he was at risk, not because he held particular beliefs or because his ethnicity, education, place of residence or any combination of those, but because he had involved himself in MEND. The Tribunal said:
"The applicant himself has provided no more than scant evidence suggesting that he has faced harm, or would in the reasonably foreseeable future, for any reason other than his claimed involvement in MEND.”[1]
[1] See Court Book at page 231.
The Tribunal found that the Applicant was not at risk of persecution for reasons of:
·his ethnicity as an Ijaw from the Niger Delta, or as an Ijaw generally;
·any political opinion (other than associated with his claimed membership of MEND) whether real or imputed to him;
·his being an educated male from the Niger Delta; or
·Any reason other than his claimed association with MEND.
The Tribunal then considered the substance of the Applicant's claims regarding his fears of persecution in Nigeria because of his membership of MEND. The Tribunal accepted the Applicant's claim of Nigerian citizenship but was not satisfied as to his true identity.
The Tribunal made these comments:
"He travelled to Australia on what seems to be a genuine passport in one identity, and presented a medical certificate showing he had medical treatment under that identity. Though he has submitted other documentation in support of his claim that he has a different identity to that shown in the passport, the Tribunal is unable to make any confident finding as to which of the two identities is his. A fraudulent driver's licence, for example, could just as easily be obtained as a fraudulent passport, so the Tribunal does not accept a driver's licence as proof of his true identity, particularly as the licence indicates it has never been replaced or renewed, in contrast with the applicant's oral evidence that he had been driving in Nigeria for a number of years.
Similarly, the Tribunal does not consider that it should give much weight to the copy of what is said to be an affidavit dated 15 February 2005 by the applicant's father, as evidence of the applicant's true identity. As discussed at the hearing, this document would be relatively easy to fabricate and, in any event, there is nothing about it to indicate that the person who signed the document was who he claimed to be."[2]
[2] See Court Book at page 231.
The Tribunal noted the Applicant's claims to have been involved with the group MEND, including having been personally involved in holding all the workers hostage and in planning arson attacks which took place on 16th May 2007. However, the Tribunal found:
"On the basis of the evidence before it, the Tribunal is not satisfied that any adverse interest the authorities may have, or have had, in him on the basis of his claimed membership of MEND would amount to persecution as opposed to legitimate police action in response to the crime.
Therefore, even if the Tribunal were to accept that the applicant had been a member of MEND, and had been involved in criminal activities he described, it would not be satisfied that the applicant faces persecution for a Convention reason. However, for the reasons which follow, the Tribunal does not accept that the applicant ever was a member of MEND.”[3]
[3] See Court Book at page 232.
The Tribunal then set out its reasons for those findings. The Tribunal noted that the Applicant had produced an identity card which appeared to have a fictitious address on it, and which the Tribunal found was not genuinely issued by MEND and that it had been fabricated, especially and specifically to support the Applicant's claims. The Tribunal gave that card no weight and considered that the presentation of the card further undermined the Applicant's overall credibility.
The Tribunal also considered a document entitled "Freedom Journal for the Emancipation of the Oppressed", which he said was published by MEND and which mentioned him by name. The Tribunal went on to find, however:
"However, as discussed with the applicant at the hearing and has set out above in independent evidence, the document bears an ISSN which in reality is associated with a Korean language music journal. The Tribunal has considered the possibility suggested by the applicant's agent, that those who produced the journal had randomly selected an eight digit number to give the publication the appearance of a significant journal with an ISSN. However, as discussed with her at the hearing, there is a standard algorithm by which the first seven digits of an ISSN are used to derive the eighth. The chances that a randomly chosen eight‑digit number would have its final digit the same as a checked digit obtained by following the ISSN procedure is, 1 in 11, or just over 9%”[4]
[4] See Court Book at page 233.
The Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason in Nigeria. It acknowledged in making that finding that it had left open the question of how the Applicant came to be shot but went on to say:
"However, being confident in its finding that he was not a member of MEND, or regarded as such, it is equally confident that he could not have been shot because of any such association. In these circumstances, it is not necessary for the Tribunal to speculate as to the particular circumstances in which he was shot. It is sufficient to conclude that he was not shot for the reason he claims to have been.”[5]
[5] See Court Book at page 234.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention and did not satisfy the criteria set out in sub-section 36(2)(a) for a protection visa.
Application for Judicial Review in this Court
The Applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 22nd April 2008. He filed an amended application on 24th June 2008. In that application he seeks the issue of constitutional writs.
In the amended application, the Applicant sets out four grounds. However, his solicitor, Mr Turner, told the Court at the hearing that ground 2 was not pressed. The Applicant's grounds of review upon which he relies are:
Grounds of Review
Ground 1
The Tribunal misapplied the provisions of the Migration Act 1958 s.424AA, the particulars of which are that the Tribunal had information which it provided to the applicant and failed to comply with the provisions of s.424AA(b)(i) – (iv).
Ground 2
Ground 2 was not pressed.
Ground 3
Ground 3 alleges that the Tribunal failed to carry out its statutory duty. The particulars of that claim are that the Tribunal failed to consider all integers of the Applicant's claims:
i)The Applicant raised the claim of fear of persecution due to his race at pages 4, 66, 72, 192 and 186 of the Court book;
ii)The Tribunal gave no or no realistic consideration to this claim.
Ground 4
The Applicant's ground 4 is that the Tribunal's decision was infected by apprehended bias. The particulars of that claim are that:
a)The Tribunal based its decision on the failure of the applicant to mention his arrest in June 2006 in the document headed "history of involvement with MEND".
i)That document would not be expected to contain details of an arrest which was the action of Government agents not during or immediately after an action by MEND.
ii)The Tribunal having received evidence of the arrest failed to go on to consider what led to the arrest or whether it was simply an unprovoked action of Government agents.
iii)The Tribunal assumed, without evidence that the arrest followed an action by the Applicant which should have appeared in the document headed "History of involvement with MEND."
b)The Tribunal found that there was no evidence of MEND prior to late 2005. There was such evidence at pages 100, 102 and 103 of the Court Book.
c)The Tribunal placed undue importance on minor differences and evidence 6th v 7th June, and “several” v “twice”.
d)The above errors are an indication that the Tribunal had closed its mind to the possibility that the Applicant was telling the truth.
The Applicant’s Submissions
In support of the claim, Mr Turner referred first of all to information that the Tribunal had put before the Applicant but had failed to comply with requirements of paragraph (b)(i), (ii) and (iii) of section 424AA of the Migration Act. The items of information were:
a)The documents were easy to fabricate and obtain in Nigeria;
b)That in his protection visa application he stated that he joined MEND in 2003;
c)That the ISSN was that of a Korean language music magazine.
As to the Applicant's second claim, that the Tribunal failed to carry out its statutory duty. Mr Turner submitted that the Applicant raised the claim of a fear of persecution due to his race at various parts of the Court Book, and this was supported by independent evidence. While it is true that his main concern was due to his membership of MEND, he had a secondary concern due to his race. Mr Turner submitted that the Tribunal failed to deal effectively with this claim:
a)The Tribunal in its decision at page 221 of the Court Book reported that it had put to the Applicant a summary of his claims based on his membership of MEND and noted that "The applicant accepted this as a fair summary of his situation and claims."
b)At pages 230 and 231 of the Court Book, the Tribunal characterised the claim of race as simply a further claim based on the Applicant's membership of MEND.
This consideration does not amount to a real consideration of the Applicant's claim of a well-founded fear of persecution due to his race.
The Applicant's fourth ground was a claim of apprehended bias. Mr Turner submitted that if a Tribunal closes its mind to the possible evidence that it does not agree with a preconceived finding of the Tribunal, that the Tribunal can be said to have displayed apprehended bias. The Tribunal based its decision at least in part on the Applicant's failure to mention his arrest in June 2006 in the document headed "History of Involvement with MEND". That document would not be expected to contain details of an arrest which was the action of Government agents, not during or immediately after an action by MEND.
The Tribunal having received evidence of the arrest, failed to go on to consider what led to the arrest or whether it was an unprovoked action of Government agents. It simply assumed that if it was not mentioned in the "History of Involvement with MEND", it did not occur and closed its mind to the possibility that the arrest would not appear in the document.
The Applicant had raised the second arrest questioned in his interview with the Department of Immigration & Citizenship. The Tribunal found there was no evidence of MEND prior to 2005 but that evidence can be found at page 111 of the Court Book. The Tribunal based its findings about the address of MEND at Port Harcourt on hearsay and this conduct by the Tribunal indicates that it brought a closed mind to its conduct of the review, which was infected with apprehended bias.
In oral submissions on s.424AA, Mr Turner submitted that the Tribunal should go through the s.424AA procedure each time adverse information is put.
The Respondents’ Submissions
Counsel for the Minister, Mr Kennett, submitted in respect of ground 1, that s.424AA is an adjunct to s.424A of the Act, and complying with s.424AA in relation to an item of information allows the Tribunal to rely on s.424A(2A), thus excusing the Tribunal from compliance with s.424A(1) with respect to that information. Section 424AA(2) does impose additional pre-requisites to a valid decision which come into force if, but only if, the Tribunal seeks to act fairly by discussing adverse information with an applicant during a hearing. The only consequence of a breach of s.424AA is that the Tribunal cannot rely on s.424A(2A). Mr Kennett referred the Court to the decision of Marshall J in SZLQD v Minister for Immigration & Citizenship[6].
[6] [2008] FCA 739 [12]
A breach of s.424AA has no relevance if the information on which the breach occurred is information which would not otherwise attract obligations under s.424A. It was therefore not sufficient for the Applicant to allege or even to establish non-compliance with s.424AA. He must also show the particular information which attracted s.424A and that the section was not otherwise complied with. He submitted that three pieces of information referred to were not required to be disclosed under s.424A.
In respect of the claim in ground 3, failure to consider the Applicant's claim, Mr Kennett submitted the Tribunal recognised that a claim of persecution on the ground of race had been made, and that it had to be dealt with. It specifically found that the Applicant was not at risk for reasons of his ethnicity and did so because of a lack of evidence to support the contention that he was at risk on that basis.[7] The claim was dealt with on its merits and it was not treated as an aspect of the Applicant's claims concerning MEND.
[7] See Court Book at pages 231 and 232
As to the Applicant's ground 4, the claim of apprehended bias, Mr Kennett submitted that first of all in the Tribunal's findings about the Applicant's claim of a second arrest in July 2006, the arrest at that time that the Applicant had described in his Departmental interview was clearly intended to be linked to his membership of MEND. When he was asked at the hearing why he had not mentioned this arrest in his comprehensive outline, the Applicant sought to blame the omission on his advisers, rather than suggest the arrest was somehow unconnected with the subject matter of the outline.[8] It was reasonable for the Tribunal to infer from this discrepancy between his oral and written accounts, that one or both of these accounts did not genuinely reflect his experience.
[8] See the Transcript supplied by Mr Turner at page 33.
As to the claim that the Tribunal found a lack of evidence with the existence of MEND before 2005, Mr Kennett submitted that the Tribunal regarded the independent evidence to which it had referred, as indicating that MEND came into existence in 2005, thus contradicting the Applicant's claim to have become involved in 2003. That finding was clearly open to the Tribunal.
As to the claim that the address on the purported MEND identity card in Port Harcourt was hearsay, it should be noted that the Tribunal had concluded that the document was not a genuine document. This hearsay evidence concerning the fictitious address, had been put to the Applicant[9] and he had effectively agreed, saying that MEND had no identifiable address. In those circumstances, the Tribunal cannot be criticised for accepting the evidence.
[9] See Court Book at page 175.
Further, the Applicant's response that MEND had no address, made it unlikely that MEND would issue identity cards for its members containing an address. None of those aspects of the Tribunal's reasoning gives rise to any basis upon which a fair minded observer could infer that the Tribunal Member might not be bringing an open mind to the hearing.
Court’s Considerations
Ground 1 – That the Tribunal misapplied the provisions of s.424AA
In dealing with the Applicant's first ground, there are a number of claims being brought to this Court at the moment about a breach of s.424AA of the Migration Act. It appears that at this stage there is some controversy over the meaning and the effect of s.424AA. It has been suggested that s.424AA provides an alternative procedure for the Tribunal, which creates its own obligations rather than being a complementary procedure in dealing with the recognised s.424A procedure.
A failure to comply with s.424AA does not constitute a jurisdictional error. If the Tribunal fails to comply with s.424AA after having embarked on that procedure, the only consequence is a possible failure to comply with s.424A. The effect of embarking on the s.424AA procedure and failing to do so correctly is the same as the Tribunal electing not to embark on that procedure in the first place.
The suggestion that the word "information" for the purpose of s.424AA is in some way different to that in s.424A, is not, in my view, correct, and indeed, the result, if it were so, would lead to an absurdity. It has been submitted on a number of occasions, that information in s.424AA somehow has a different meaning because there is in s.424AA, no equivalent to sub-section 424A(3)(a) of the Migration Act. The answer to that is that there does not need to be, because s.424AA does not set up a completely separate procedure.
In my view, with the greatest of respect, the guide to understanding the operation of s.424AA can be found in the decision of Marshall J in SZLQD. At paragraph 12 of that decision, his Honour sets out the wording of s.424AA, saying:
“Section 424AA, provides:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”[10]
[10] SZLQD v Minister for Immigration & Anor [2008] FCA 739 at [12].
That section places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on. So much is apparent from that part of the explanatory memorandum accompanying the Bill which introduced s.424AA, where the following was said:
"New s.424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under s.425. This will complement the RRT's existing obligation under s.424A, in that if the RRT does not orally give information and seek comments or response from an applicant under s.424AA, it must do so in writing under s.424A. The corollary is that if the RRT does give clear particulars of the information and seeks comments or a response from an applicant under s.424AA, it is not required to give the particulars under s.424A."
With respect, it is that part of the decision in SZLQD that points to a correct understanding of the operation of s.424AA. Section 424AA complements s.424A. It should not be considered in a vacuum. It should be considered in the context of s.424A The key to understanding s.424AA is found on reading s.424A(2A). That is a new sub-section that says:
“The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.”
On reading that sub-section (2A), the operation of s.424AA in conjunction with s.424A becomes clear. That is why there is no need for an equivalent to sub-section 424A(3A) in s.424AA. There does not need to be because the information referred to is the same information.
The purpose of s.424AA is to allow the Tribunal at the hearing to give particulars of information to an applicant and then by complying on the procedure in s.424AA(b), take advantage of the operation of s.424A(2A). It is not mandatory for the Tribunal at a hearing when putting adverse information to an applicant, to use the procedure set out in s.424AA. It is still open to the Tribunal to raise with an applicant information or its thoughts or concerns or its reasoning processes or inconsistencies in the applicant's evidence the way the Tribunal has been able to do before s.424AA came into operation.
If, however, the Tribunal elects to follow the procedure set out in s.424AA, it must follow strictly the procedure set out in s.424AA(b). If the Tribunal complies with that procedure, then it does not have to comply with the procedure set out in s.424A(1). It can rely on s.424A(2A).
If the Tribunal elects not to follow the procedure in s.424AA, then information may still come under the operation of s.424A(1). If the Tribunal elects to follow the procedure under s.424AA, but does not do so correctly, then it does not get the benefit of s.424A(2A) and s.424A(1) will still apply. That is why there is no need for an equivalent to section 424A(3) in relation to information, because it is the same information and s.424A(3) still applies.
In the case before this Court, there was no requirement for the information that was put to the Applicant to be disclosed under s.424A(1). The points that the documents were easy to fabricate and obtain in Nigeria, and that the ISSN on the document purporting to be an MEND newsletter was that of a Korean language music magazine, would come within the exception in s.424A(3)(a), because it was information that was not specifically about the Applicant or another person.
As to the Applicant's claim to have joined MEND in 2003, that point was relevant only to the credibility of his evidence. It was not part of the reason for affirming the decision that was under review. The Applicant's claims about when he had joined MEND were adverse to him only because they gave rise to the inconsistencies which went to his credit. That is not information that is caught by s.424A. (See SZBYR v Minister for Immigration & Citizenship[11]).
[11] (2007) 235 ALR 609 at [17]
Accordingly, the Applicant's first ground fails. There was no breach of s.424AA, more importantly there is no breach of s.424A. Thus there is no jurisdictional error in that way.
Ground 3 – That the Tribunal failed to carry out its statutory duty
The Applicant's ground 3 alleged that the Tribunal failed to carry out its statutory duty by its failure to consider his claim, which admittedly was a secondary claim, a concern about his race. The Tribunal did consider that claim. The Tribunal said at page 230 of the Court Book that it had noted the Applicant's claim in his migration agent's letter of 20th March 2008, that he faced persecution because of, "political opinion and/or, ethnicity (Ijaws from the Niger Delta)"[12]. At page 231 of the Court Book, the Tribunal referred to country material provided by the Applicant's agent, and said:
"However, on the Tribunal's reading, this material does not support a conclusion that Ijaws, or people from the Niger Delta generally, are subject to harm amounting to persecution."
…
The Tribunal therefore finds that the applicant is not at risk of persecution for reasons of:
· his ethnicity as an Ijaw from the Niger Delta, or as an Ijaw generally."[13]
The Tribunal did consider the Applicant's claim and was not persuaded by it.
[12] See Court Book at page 230.
[13] See Court Book at page 231.
Ground 4 – That the Tribunal’s decision is infected by apprehended bias
That leaves the Applicant's ground 4, the claim of apprehended bias. The Applicant's solicitor has submitted that the Applicant's failure to mention the second arrest in the document that he provided headed "History of Involvement with MEND", had simply assumed that if the second arrest was not mentioned there then it did not occur and it had closed its mind to any other possibility. Mr Turner submitted that the Applicant had raised the second arrest in his interview with the Minister's delegate.
The Tribunal made a finding that there was no evidence of MEND prior to 2005, although Mr Turner submitted that there was such evidence referred to at pages 111 and 218 of the Court Book. However, the Tribunal referred to a bundle of country information that had been provided after the hearing. That information is set out at pages 182 through to 204 of the Court Book. The Tribunal had said:
"There is nothing in the country material recently submitted by the applicant's agent which suggests that MEND was in existence in 2004 or earlier."[14]
[14] See Court Book at page 233.
The Tribunal's description of that country information was an accurate description, and as Mr Kennett, for the Minister, submitted, the absence of any evidence in that country evidence about when MEND had come into existence was significant because the issue had been raised at the hearing.
Turning to the apparently bogus address on the MEND identity card, the Tribunal came to the conclusion that the identity card was not genuine. This is criticised for being hearsay evidence about the fictitious address. The first point to be made is that the Tribunal is not bound by the rules of evidence, and hearsay is not excluded, nor is reliance on hearsay any indication of apprehended bias. The Tribunal wrote to the Applicant's agent on 19th February 2008. It was a letter clearly written to meet the requirements of s.424A of the Migration Act. A copy of that letter appears at pages 174 and 175 of the Court Book. The letter in part gives this information:
"Second, DFAT has advised the Tribunal that the address shown on the document you said was an MEND membership card (415 Aba Road, Port Harcourt) is not a genuine address. DFAT has advised that "there is no number 415" in Aba Road, Port Harcourt, and that "the last odd number is 273". This information is relevant to the review because, if the Tribunal accepts it is accurate, it would conclude that the alleged MEND membership card is not a genuine document and that you have knowingly submitted a false document to the Tribunal. This would undermine the credibility of your claim to have been involved in MEND.”[15]
[15] See Court Book at page 175.
The Tribunal received a reply from the Applicant through is migration agent, providing comments and a response on its s.424A letter. The Applicant provided a statutory declaration which said about the address at paragraph 5:
"In relation to the issue about the address for MEND headquarters on the membership card; that is most easily explained, MEND has no identifiable address. It did not have an address when it started, and even up until today it does not have an address. The leaders of MEND were known locally. In its early years, we used to meet in the local town hall. Later, the meetings were held at he members' homes. These meetings became more and more discreet as the relationship between MEND and the government of Nigeria broke down. The non existent address referred to on the membership card will be found on every membership card that MEND issued to the leaders of MEND."[16]
[16] See Court Book at page 177.
The Applicant was aware of that information and replied to it. The Tribunal referred to that in its findings and reasons, and had this comment to make:
"However, when the Tribunal pointed out, in its letter of 19 February 2008, that the address on the card is a fictitious address, he responded that the organisation had, no "identifiable address", which is inconsistent with the idea of putting an address on the card, ostensibly so people could return any lost card to that address. Moreover, having found that MEND did not exist in 2004, the Tribunal does not accept that the card, which purports to have been issued in 2004 is genuine."[17]
[17] See Court Book at page 234.
In my view, it was open to the Tribunal to form that view on the evidence which was before it.
I am not of the view that any of the matters referred to in the Applicant's fourth ground amount to an apprehension of bias. I am not of the view that a fair minded observer could infer that the Tribunal might not be bringing an open mind to the review based on that material.
Conclusions
It follows that the grounds relied on by the Applicant have not been made out. There is no jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act.
Accordingly, a privative clause decision is not subject to orders in the nature of certiorari or mandamus or prohibition. It follows that the application must be dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 30 July 2008
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