SZMYO v Minister for Immigration

[2010] FMCA 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYO v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 963

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to consider claims and information – whether Tribunal failed to ask a necessary question – whether Tribunal erred in interpreting Article 1A(2) – Tribunal cannot fail to consider a claim not before it – audio recording not constructively before the Tribunal – no failure to ask a consequential question in light of facts found – no examination of Convention nexus necessary – no breach of natural justice – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 116, 414, 418, 422B, 424A, 425, 476
Evidence Act 1995 (Cth), s.55

SZMYO v Minister for Immigration & Anor (No 2) [2010] FMCA 448
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319
SBAA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 195
McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700
A-G for Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536
Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh & Anor [1989] FCA 234; (1989) 18 ALD 77
WAGP v Minister for Immigration & Multiculturalism & Indigenous Affairs [2006] FCAFC 103
Matete v Minister for Immigration and Citizenship [2008] FCA 1876
Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191; (1997) 72 FCR 288
Abebe v the Commonwealth (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 179 ALR 1; (2000) 105 FCR 548
NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256
VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1
MZXGR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1167
SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 962
Hellman v Minister for Immigration and Multicultural Affairs [2000] FCA 645
Cameirao v Minister for Immigration and Multicultural Affairs [2000] FCA 1319
Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 57
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Ram v Minister for Immigration & Ethnic Affairs & Anor (1995) 57 FCR 565
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [1998] FCA 622
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 170 ALR 553
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1
Nouredine v Minister for Immigration and Multicultural Affairs [1999] FCA 1130; (1999) 165 ALR 401; (1999) 91 FCR 138
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 231 ALR 592
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Kioa v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 62 ALR 321
O’Sullivan v Repatriation Commission (2003) 128 FCR 590
Hot Holdings v Creasy (2001) 210 CLR 438
R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330
VCAK of  2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300

Applicant: SZMYO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2365 of 2009

Judgment of: Nicholls FM

Hearing date: 21 July 2010

Date of Last Submission: 16 August 2010

Delivered at: Sydney

Delivered on: 13 December 2010

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Teleo Immigration Lawyers

Counsel for the Respondents:

Ms L Clegg

Mr G Kennett (written submissions)

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application to re-open the case, dated 21 July 2010, is refused.

2. The application dated 28 September 2009, and ultimately as amended on 8 June 2010, is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $14,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2365 of 2009

SZMYO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The matter currently before the Court commenced with an application made on 28 September 2009 under s.476 of the Migration Act 1958 (Cth) (“the Act”) which sought review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 May 2009, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Nigeria. He arrived in Australia on 11 July 2008. He was interviewed at the airport on arrival by immigration officers (see Court Book – “CB” – CB 1 to CB 7).

2. According to the “Immigration Inspector’s Report”, the applicant had previously entered Australia to attend the Catholic Church’s: “World Youth Day”. He was questioned as to the purpose of his second arrival. The applicant’s response is reported as being that he was single and had problems with his family, his life in Nigeria was difficult, and that he wanted to migrate to Australia.

3. He was issued with a notice of intention to cancel his visa. His response was reportedly that he had problems with his father and

   
   

   step-brother in Nigeria in 2002, but had no other “issues” in returning to Nigeria. His visa was cancelled. He was taken into immigration detention from which he was subsequently released.

4. He applied for a protection visa on 28 July 2008 (CB 8 to CB 51). He was assisted by a migration agent (CB 41).

Claims to Protection

1. The applicant’s claims to protection at that time were set out in a written statement (CB 61 to CB 64 – additional documents at CB 65 to CB 67).

2. He claimed to fear persecutory harm at that time because he was a Christian, and feared harm from his father and step-brother because his father wanted him to join a “secret cult”, of which his father was the leader. His refusal meant that he was seen as an “enemy” by his father. He suffered harm at the hands of his step-brother.

The Delegate

1. The applicant was interviewed by the delegate, who ultimately refused the application on the basis that the Nigerian state could offer “effective” protection to the applicant (CB 73 to CB 83).

The Tribunal

1. The applicant applied for review by the Tribunal on 22 August 2008 (CB 86 to CB 89). He continued to be represented by a migration agent (CB 85 and CB 87) who made written submissions on his behalf (CB 99 to CB 110).

2. The Tribunal (differently constituted) affirmed the delegate’s decision on 21 October 2008. The Tribunal accepted that the applicant was a Christian, but did not accept that he had suffered harm as a result. On a separate basis, the Tribunal found he could relocate within Nigeria to avoid any harm feared (CB 169 to CB 193).

3. That decision was quashed by order of this Court on 9 March 2009. The matter was returned to the Tribunal (CB 194).

4. The Tribunal wrote to the applicant by letter dated 2 April 2009 inviting his comments on certain information. Relevantly, this included what he was “recorded” as having said at the airport on arrival and in response to the notice to cancel his visa (CB 207 to CB 211). The response from his agent is reproduced at CB 212 to CB 213.

5. The applicant’s agent was given a copy of the report created by the immigration officials at the airport on interviewing the applicant (CB 221 to CB 227).

6. The applicant ultimately attended a hearing before the Tribunal on 4 May 2009. His representative was present and made submissions. Evidence was also given by a friend and a Christian Pastor (CB 236).

7. The Tribunal found the applicant not to be “a witness of credibility” ([95] at CB 267, [105] at CB 270). It accepted that he was a Catholic, that his father and some brothers were members of a cult, and that he had been attacked by his brother in 2001 ([101], [102] at CB 269, [106] at CB 270). Beyond that, however, the Tribunal rejected the remainder and greater part of the applicant’s claims.

8. The Tribunal found that his claimed difficulties with his family were not Convention related ([107] at CB 271). As to the remainder of his claims, the Tribunal placed significant weight on what it said were the applicant’s clear escalation and significant exaggeration of his claims ([97] at CB 268), the increase in the claims as the “application progressed” ([100] at 269) and the inconsistencies between these new claims and what he said when interviewed at the airport on arrival ([95] at CB 267, [97] at CB 268).

9. The Tribunal also found that the applicant’s return to Nigeria in 2008 was an indication that he did not have a subjective fear at that time, and that following his father’s death any fear emanating from that quarter had disappeared ([103] at CB 270 and [109] at CB 271).

10. In relation to harm feared from any of his siblings, the Tribunal found he could relocate to any one of a number of parts of Nigeria where Christians are in the majority and where in any event he had lived safely in the past ([112]).

Before the Court

1. The application to the Court was made on 24 September 2009. While it appears to have been allocated to the docket of a Federal Magistrate, it is unclear how the matter progressed.

2. In any event, this matter was transferred to my docket on 5 May 2010.

3. I should also note that on 18 January 2010 the applicant also made an application to the Court in relation to a decision of the Migration Review Tribunal by which he was aggrieved. I handed down judgment in that matter on 28 June 2010 (see SZMYO v Minister for Immigration & Anor (No.2) [2010] FMCA 448 – “SZMYO (No.2)”).

4. The issues for consideration emerge from a further amended application made on 8 June 2010 containing three grounds with particulars. These grounds were explained in written submissions of 8 June 2010 for the applicant, and 11 June 2010 for the respondent. They were argued at the hearing on 15 June 2010. Mr L J Karp of counsel appeared for the applicant. Ms L Clegg of counsel appeared for the respondent.

5. At that hearing leave was granted to both parties to make supplementary written submissions in relation to the proper construction of the term: “… for reasons of… religion…” as it appeared in Article 1A(2) of the Refugees Convention. Written submissions were received on 21 June 2010 and 29 June 2010.

6. The matter was then re-listed on 21 July 2010 to hear the applicant’s application for leave to re-open his case to further amend his application. Leave was granted for the parties to file written submissions in relation to this issue. Leave to amend the application was not granted at that time. Written submissions on this issue were subsequently filed by both parties.

7. The applicant also sought to tender the affidavit of Mr Robert Liu of 11 June 2010, solicitor, annexing a transcript (“T”) of a “record of interview” of the applicant conducted by immigration officials at the airport, and a compact disc (“CD”) containing the recording of that interview. These are dealt with below.

Ground One: Failure to Consider Claims. The Airport Interview

1. Ground one of the amended application of 8 June 2010 asserts that the Tribunal failed to consider certain claims and information given by the applicant at the airport interview with immigration officials.

2. The applicant’s argument is that the Tribunal relied to a significant extent on the written report of the airport interview to find adversely to the applicant’s credit. If regard is had to the actual recording of that interview (or the transcript), then that report presents as incomplete and in some instances incorrect. The omissions and inaccuracies meant that the Tribunal did not deal with certain aspects of his claims, attributed to him statements not made, and resulted in perceived inaccuracies on which the Tribunal relied to find adversely to his credit.

3. The applicant’s attack is that, in conducting the review, the Tribunal must consider all claims made by an applicant. He relied on Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 (“WAFP”), and SBAA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 195 (“SBAA”). This failure therefore is said to reveal jurisdictional error.

4. The Minister contends that the recording and transcript should not be admitted into evidence. There is nothing to show they were before the Tribunal. To the extent that the applicant refers to certain factual matters said to be contained in the transcript or the interview recording, these were not before the Tribunal.

5. The Minister’s position is that the Tribunal did deal with all of the applicant’s claims that were before it. The Tribunal cannot be held to have failed to have considered a claim that was not before it. On judicial review of a Tribunal decision, that review can only be conducted with reference to the material that was actually before the Tribunal. The applicant’s attempt to introduce new evidence that could have been put before the Tribunal, but was not, should be rejected. The transcript and recording of the airport interview is therefore not relevant to a fact in issue in these proceedings and should not be admitted (see s.55 of the Evidence Act 1995 (Cth)).

6. I agree.

7. First, the actual recording of the airport interview (or any transcript) was not before the delegate, the Tribunal as previously constituted, nor the Tribunal.

8. While the delegate noted that the applicant’s visa was cancelled at the airport, the delegate directed his mind to the detailed claims made by the applicant in his protection visa application (CB 75 to CB 78 and as taken from CB 61 to CB 64).

9. The Tribunal as previously constituted had regard to the “notes of the border interview”, which it noted were contained in the relevant departmental file ([19] at CB 172). What follows in that decision record are extracts of this report. Any plain reading makes it obvious that this was extracted from the same report which was the subject of the Tribunal’s invitation to the applicant to comment on this information, and the report subsequently referred to by the Tribunal.

10. Mr Karp referred to McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700 at [37] for the circumstances where evidence not before a Tribunal is otherwise said to be admissible before the Court charged with judicial review of that decision.

11. In that case, Sackville J referred to Lockhart J in A-G for Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540. Mr Karp referred the Court to that part:

    “Where however there is a question of mixed fact and law, that is, where there is an issue both of statutory interpretation and the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material.”

12. I cannot see that this assists the applicant in the current case. There is no question here (on this point) of statutory interpretation and the true facts of the case, such that the “true” facts (ie what the applicant now says he actually said to the airport inspectors) engage any conferral of any relevant power.

13. Ultimately, the ground of review here is whether the Tribunal properly dealt with all of the applicant’s claims directed to the question as to whether or not it could reach the requisite level of satisfaction (s.65 of the Act) in relation to the matters set out at s.36(2) of the Act. That is, whether the applicant met a relevant criterion for the grant of a protection visa. In short, whether he met the definition of refugee as set out in the Refugees Convention.

14. What the applicant told the airport inspectors was directed to a different statutory purpose. Namely, whether the visa that he used to travel to Australia should be cancelled pursuant to s.116 of the Act.

15. The applicant’s claims to be a refugee and to engage Australia’s protection obligations were those that he set out in his protection visa application, as further explained to the delegate, and as ultimately developed and enhanced before the Tribunal (as differently constituted) and the Tribunal.

16. The Tribunal dealt with all of these claims and each aspect of them.

17. The Tribunal was still entitled to consider what it understood to be the information that the applicant had provided on arrival in Australia, albeit directed to a different purpose. A distinction can be drawn between the applicant’s claims to be a refugee and information he provided for a different statutory purpose. The Tribunal plainly considered that this information, as put before it in the shape of the inspectors report, could be the reason or a part of the reason for affirming the delegate’s decision. Consistent with its obligation pursuant to s.424A(1), it wrote to the applicant seeking his comments on this information.

18. If there were inaccuracies or omissions between the information before the Tribunal and what the applicant considered to be what he actually told the airport inspectors, then he clearly had the opportunity both in response to the Tribunal’s letter, and indeed in light of what the Tribunal told him at the hearing (see in particular [54] – [55], [62] of the decision record) to address these matters. The applicant was not unrepresented during the conduct of the review. His representative was present at the hearing (see [82] to [86] at CB 264 to CB 265 and CB 236). The applicant also had a number of “support persons” at the hearing.

19. The applicant now contends that through his agent he asked for a “full” copy of the airport interview, yet was only given the written report. The applicant now points to the letter sent by his agent on 20 April 2009 in response to the Tribunal’s letter inviting the applicant’s comments on certain information, which included information relating to the interview at the airport.

20. Relevantly, the agent wrote (CB 213):

    “The Applicant respectfully requests the Tribunal that a full copy of the airport interview be provided to the Applicant so that the Applicant has a copy of the full record of the airport interview – the actual questions asked and the actual recorded responses by the Applicant – to enable him to respond to the Tribunal’s letter”

1. The submission was that the words: “actual recorded responses” were a reference not to the notes, but to a full copy of the interview. While it was not clear whether this was a reference to the actual CD, the complaint was certainly that his agent had asked for what had actually been said at the interview.

2. The letter from the agent is not clear. If what was required was the CD or a transcript, then those words do not appear in the letter. What then was meant by the “actual questions asked and the actual recorded responses” in light of the statement that the applicant wanted to have: “a copy of the full record of the airport interview”?

3. The answer is to be found in the context in which the statements were made.

4. The delegate made no reference to any airport interview, or to a record or report of it. The first reference appears to be in the decision record of the earlier, differently constituted Tribunal (CB 172). Although it is not clear, it appears the Minister’s concession of jurisdictional error in that decision stemmed from the failure of that Tribunal member to put this information to the applicant pursuant to s.424A(1). While the Tribunal wrote to the applicant seeking his comments on a wide range of information, no reference was made to the airport interview (CB 130 to CB 137).

5. In any event, in that decision record the Tribunal member stated:

   “He was interviewed upon arrival (here-in-after the border interview). The notes of the border interview are contained from folio 7 DIAC file. It was stated therein, the applicant had been (at least initially) sponsored to travel to Australia by New Ministries. Some of the recorded claims include:” ([19] at CB 172.)

6. What followed were extracts from the airport inspector’s report (CB 172 to CB 174). Plainly, when compared with the complete report which was before the Tribunal (whose decision is the subject of the current application to the Court) (CB 1 to CB 7), it was not the “full” report.

7. The Tribunal (as constituted for current purposes) wrote to the applicant by letter dated 2 April 2009. It sought comments on certain information. While it referred to information said to have been provided by the applicant at the airport, what was set out was the Tribunal’s summary of what he was “… recorded to have stated…”, not the complete version of the airport inspectors report, which it plainly had.

8. In these circumstances, “the full copy of the airport interview” (CB 213.6) is precisely what the Tribunal subsequently provided in response (CB 220 to CB 227).

9. I am comforted in this view by the fact that, despite opportunity, the immigration agent (and for that matter the applicant) made no complaint regarding what was given to them. Nor was any further request for any “recording” made. The agent subsequently wrote to the Tribunal on other matters on 21 April 2009 (CB 228), 22 April 2009 (CB 233) and attended the hearing on 4 May 2009 (CB 236). Nothing was said in complaint about what was given. Nor was any further, or more specific, request made.

10. In submissions before the Court, something was made of the use of the word “recorded” by the agent in her letter of 20 April 2009 (CB 213). It was said that the use of this word, as in: “actual recorded responses”, gave rise to a request for at least something more than the inspectors report signed and dated 5 days after the applicant’s arrival (see CB 1.2 and at the bottom of each of CB 1 to CB 7).

11. In great part the answer to this aspect of the submissions is as already set out above. For the remainder, the answer is that a characteristic of the English language is its flexibility of use and evolution and nuance of meaning. Many words have a spectrum of meaning and application. The word “recorded” could mean, depending on context, a written record, an electronic record, or a registration of various types. The Macquarie Dictionary (Revised Third Edition) provides 24 meanings or nuances to the term “record”.

12. The use of the word “recorded” by the migration agent can be traced to the genesis of the term as used by the earlier constituted Tribunal. The “recorded claims” referred to in that decision record (CB 172.4) were plainly a reference to what was “recorded” in the “notes of the border interview” (for complete extract see [50] above).

13. The same word “recorded” was also used by the officer of the Tribunal who drafted and signed the Tribunal’s letter of 2 April 2009 (CB 209.4). The reference to: “In response to the NOICC (Notice of Intention to Consider Cancellation) you are recorded to have stated the following…”, is plainly a reference, in context, to what was “recorded” in the airport inspector’s report.

14. It is the case that Tribunal’s decision records, and in this case also the Tribunal’s letters, should not be over zealously scrutinised with an eye attuned to error (Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; [1996] HCA 6; (1996) 185 CLR 259). The word “recorded” has to be understood in the context in which it appears. In the current case, as already set out above.

15. To the extent the use of “recorded” is said to infer only some audio record, that is any CD of the interview, then the very first meaning to the word given by the Macquarie Dictionary is: “to set down in writing…”. It was the very written record available to it, and before it, that the Tribunal gave to the applicant.

16. The applicant also argues that the actual audio recording of the airport interview was constructively before the Tribunal. There appear to be two limbs to this argument.

17. The first appears to be based on the premise that what was in the possession of the Minister’s department must then be said to be constructively before the Tribunal, in a situation where the Tribunal is reviewing the decision of the Minister’s delegate. The second is that, pursuant to s.418(3) of the Act, the actual audio recording of the airport interview should have been given to the Tribunal because the Tribunal relied on the airport interview to find adversely to the applicant’s credit.

18. The applicant, in part, relied on Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh & Anor [1989] FCA 234; (1989) 18 ALD 77 (“Pashmforoosh”). This case involved a decision, ultimately made by the Minister personally, to refuse entry permits to an Iranian family.

19. The relevant scheme then in place involved a recommendation from the then Immigration Review Panel to the Minister. The Court found that the material ultimately put before the Minister did not contain, and ultimately the Minister did not address, the complete version of what Mr Pashmforoosh had put to the Minister’s department. The Court held that, because the decision maker did not proceed on the facts as put by the applicants, the Minister failed to take into account material considerations, and therefore fell into error.

20. What immediately distinguishes the current circumstances from those in Pashmforoosh is that, in that case, what was found not to be before the Minister was material that in part was put to the Minister’s department for the express purpose of seeking protection. In the current case, what was said at the airport was said in a different context.

21. But far more importantly, it is distinguishable because the relationship between the Minister and his department is different to the relationship between the department and the Tribunal. Underlying the applicant’s argument now is the presumption that what was before the department can also said to be before the Tribunal. While this argument may in certain circumstances have validity as between the department and the Minister, it does not, in my view, apply to the department and the Tribunal. The former is created by administrative arrangements made by the Governor-General. The latter is a creature of statute (Part 7 of the Act).

22. They are two separate entities. This for current purposes, and specifically for the purpose of what is said to be before the Tribunal, is emphasised by s.418 of the Act itself. In particular s.418(3) makes specific provision for the giving of documents from the department to the Tribunal that are relevant to the review.

23. Section 418(3) is in the following terms:

    “Secretary to be notified of application for review by Refugee Review Tribunal

    …

    (3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”

24. To the extent that the applicant relies on s.418(3) to argue that the CD or a transcript should have been before the Tribunal, and therefore to highlight that the audio of the interview should be seen as being constructively before the Tribunal, this must be rejected.

25. First, the obligation on the Secretary of the department is based on a subjective, not objective, test. The Secretary is to give to the Tribunal documents in his possession or control which he considers to be relevant to the review of the decision.

26. There is no evidence before the Court that the Secretary considered the audio recording to be relevant to the review. In the circumstances an inference can probably be drawn that the audio recording was not considered relevant, given that the inspector’s report was provided.

27. In any event, even if some breach of s.418(3) had been evident (which it is not) then no jurisdictional error is revealed on the part of the Tribunal (WAGP v Minister for Immigration & Multiculturalism & Indigenous Affairs [2006] FCAFC 103, Matete v Minister for Immigration and Citizenship [2008] FCA 1876).

28. The applicant also sought to draw comfort from the Full Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129. This case (also in 1989 – as was Pashmforoosh), while before the Court as also involving an application for an extension of time, relevantly involved a decision to order the deportation of Mr Barrett. The complaint was that the decision was based on misleading or incorrect information (by the omission of certain documents from the relevant submission to the decision maker).

29. Again the difficulty for the applicant in the current case is that the more complete and accurate information was available within the department, but was not communicated to the decision maker. In these circumstances the Court found that: “…In the present case, however, it is arguable that the appellant was denied rights the law accords to him, in that a decision was made to deport him on the basis of a submission which was, in an important respect, misleading” (in (1989) 18 ALD 129 at 133).

30. Plainly, that relationship is not relevant to the current proceedings.

31. This is also the situation to the extent that the applicant seeks to rely on Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 45 per Mason J:

    “It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading”.

32. In the current case there is no evidence that the Tribunal had actual knowledge of the existence of any audio recording of the interview at the airport. The argument that it should have had such knowledge because the inspector’s report states that at one point the applicant asked that the “interview recording” be stopped is dealt with below (at [201]). As to constructive knowledge, the department and the Tribunal are separate entities, which distinguishes the situation from the authorities relied on by the applicant now. That distinction is relevantly emphasised by s.418(3) itself.

33. Further and in addition, the evidence is that the audio recording was in any event not actually before the delegate. As to whether it could be said to be constructively before the delegate, I agree with Ms Clegg that in the authorities relied on by the applicant the circumstances presented involved information provided for the purpose or object of the relevant decision. Here, what was relevantly provided by the applicant for the purpose of the protection visa application and as to why he was a refugee cannot, on its own, be said to include information provided for the purpose of consideration of the cancellation of another and quite separate visa.

34. Neither the audio recording of the airport interview nor any transcript was actually before the Tribunal. Nor, for the reasons above, was it constructively before the Tribunal. As Ms Clegg also submitted, even if any factual error arose from the Tribunal’s decision in these circumstances this would not reveal jurisdictional error in any event (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321).

35. The futility of the applicant’s position in this ground is ultimately revealed if regard is had to the transcript and to the audio recording of the airport interview, in relation to each of what the applicant says were the errors or deficiencies in the airport inspectors report as then relied on by the Tribunal, and when compared with what is on the audio recording and the transcript attached to Mr Liu’s affidavit.

36. First, the applicant says that the Tribunal found that at the airport interview he made “no mention of the cults…” (at [95] – the second dash point at CB 267). This was said by the Tribunal with reference to the airport inspectors report that was actually before it.

37. The applicant says he did make reference to “cults” at the airport interview.

38. No such reference is evident in the transcript. The applicant also asks the Court to listen to the audio recording and, in light of that, to read the reference at T20, A241 to “code” (“a gang, a secret code”) as being “cult”. Further, that at T18, A228 the word “cold” (“A little bit cold”) also to read as “cult”.

39. It must be said that this is an extraordinary submission to make. The applicant’s counsel seeks to challenge the evidence that he wishes to put before the Court made (or caused to be made) by the applicant’s own solicitor on his behalf. The transcript was said to have been commissioned by his solicitor. At the same time, if there were any errors in transcription, the solicitor could have addressed these in his affidavit.

40. In subsequent written submissions ([4] of the applicant’s written submissions filed on 6 August 2010) Mr Karp states that he was not seeking to challenge his own evidence, but merely seeking to put two sets of evidence before the Court, and for the Court to arrive at its own conclusion.

41. In that light, therefore, the conclusion is that the audio recording is inconclusive. “A little bit cold” appears appropriate in answer to what precedes it at Q228: “Just speak up a little bit…”. At A241 (T20) “He’s into a gang, a secret code” could also be a reference consistent with “a kind of secret society” (at T20, A 242).

42. The person who listened to the audio and created the transcript could not discern the word “cult”. The solicitor who commissioned the transcript and who made the affidavit did not take the opportunity to correct it. Given what is at [4] of the affidavit, indicating that changes were made to the transcript, the opportunity was plainly there to address it.

43. In these circumstances, the airport inspector can hardly be said to have erroneously overlooked what the applicant said. But far more importantly, there is nothing to say that the Tribunal would have heard the word “cults” when all the others failed to do so if it had called and listened to the audio recording.

44. However whatever all this means, it does not reveal any material relevance to the Tribunal’s reasoning and findings, or otherwise reveal error on the part of the Tribunal. The Tribunal’s relevant finding was that the applicant’s various statements, his “evidence”:

    “…shows a clear escalation – and, in the Tribunal’s view, a significant exaggeration – of the applicant’ claims from a ‘family problem with his step-brothers’ to a series of continuous and persistent attacks on the applicant perpetrated by his family, the cult members and the members of the Niger Delta group”.

45. The probative basis of this finding is quite evident when regard is had to the evolution or escalation of the applicant’s claims on each of the many subsequent occasions that he utilised to put them forward.

46. Ultimately, even if the word “code” is to be read as “cult” (I have the utmost difficulty accepting that the word “cold” can be so understood) then, at its highest, this would mean that at the airport the applicant said to the airport inspector that his brother was a member of a cult, a secret society.

47. With reference to the transcript which Mr Karp seeks to put before the Court, what he clearly did not say was that his brother sought to harm him for this reason, or that he feared harm from him because he was a cult member. The reasons advanced as to why his brother attacked him were either that his father stole his property, or that he took his “father’s things”, perhaps to protect them from his brother, or because he reported one or both of them to the police (see also [105] below).

48. There was nothing from the applicant to say he feared harm from his brother because of his membership of a cult. The Tribunal’s finding as to what was said at the airport was plainly open to it.

49. The Tribunal’s reference (at [95] second dash point, CB 267.7) that at the airport: “… the applicant made no mention of the cults…” is plainly a reference to the subsequent escalation of his claims to fear harm from cults, that is various cult members, in a variety of ways.

50. The essence of the Tribunal’s reasoning is that it well understood that the applicant had stated at the airport that he had problems with his family in Nigeria and that he was fearful of harm from his father. Any plain reading of the Tribunal’s analysis reveals that it understood that the harm from the father was connected to some secret group. But the Tribunal had a problem with what it saw as the subsequent “escalation”, the “significant exaggeration”, of his claims to then include: “… a series of continuous and persistent attacks on the applicant perpetrated by his family, the cult members and the members of the Niger Delta group” ([96] at CB 269). None of which were even hinted at in the airport interview.

51. Second, the applicant complains that the Tribunal drew from the airport inspectors report that he had said that he had no issues in returning to Nigeria. This is a reference to what is set out in its decision record ([95] – first dash point at CB 267.6). The applicant refers to the transcript (T20.7 – Q246) to contend that this is not accurate. The applicant says that the transcript reveals that he actually answered: “no” to the question: “… Are there any issues that would cause you serious problems if you went back to Nigeria, other than the event you described?” (emphasis added).

52. The applicant now says that the Tribunal did not include in its relevant finding the actual reference to the words emphasised above. That is at the first dash point in [95] at CB 267.

53. The “event” that the applicant had “described” was an attack on him by his step-brother in 2002 (see T20.7 – A245). Mr Karp referred to the inspectors report (at CB 7.8) which states: “[The applicant] was asked if he had any issues returning to Nigeria. PAX answered no to the question”.

54. The transcript reveals that the applicant told the airport inspector that he had been attacked by his step-brother in 2002 because he had reported his father to the police (T18 Q228 to T20 Q245). The “2002 event” is plainly reported in the airport inspectors report (CB 7.5): “… PAX then said his step-brother attacked him and accused him of reporting their father to the police. The event occurred in 2002”.

55. The Tribunal reported (at the fourth dash point of [95] at CB 267) that at the airport interview the applicant had referred to this event in 2002.

1. It must be said that this complaint is a contrivance. At most, the Tribunal did not record at one dash point what it recorded at another below in the same paragraph. The Tribunal understood that at the airport the applicant: “… referred to one instance of past harm… his step-brother attacked him in 2002 for reporting their father to the police”.

2. In essence the Tribunal understood from the airport report that the applicant had stated he feared harm from his family, in particular his father and siblings (“family problems”), and that there had been a specific instance of past harm in 2002. Its concerns were that on subsequent occasions this account of his claimed fear had changed significantly, and had been significantly exaggerated. There is nothing in the transcript in this regard to reveal factual error in the airport inspectors report, or ultimately in the Tribunal’s finding.

3. Third, the applicant complains that the Tribunal was wrong to find that the applicant had said at the airport interview that his father had broken into his house and stolen some property (third dash point of [95] at CB 267).

4. This was taken from the airport inspectors report (CB 7.5):

   “He mentioned that his father broke into his home and stole personal effects”.

5. The applicant now refers to the transcript at T18 to T19. What can immediately be said is that the applicant’s statements appear confused, and are confusing. At one point it appears that the applicant is saying that he stole from his father: “… I was the person that was taking my father’s things…” (T19 A228, line 4). At another: that his step-brother was the thief and the applicant and his father had reported him to the police (T19 A238, line 5). At a yet third point the applicant seems to say that it was his father who broke into his house. At T19, A228, line 4: “… I was the person that was taking my father’s things… and he broke into the house…”. It may also even be that the applicant was saying he took his father’s things to protect them from his step-brother, who then broke into his house and took them.

6. Whatever the applicant was saying, in the circumstances there was no error in the airport inspectors report. The report given by the inspector was certainly open on what appears in the transcript.

7. But ultimately and importantly, this is immaterial and irrelevant to the Tribunal’s reasoning and its findings. The Tribunal found that at the airport the applicant had said that he feared harm from his family, specifically his father and step-brothers, because he reported them to the police and he was attacked by his step-brother. Whether his father or his step-brother broke in and robbed him, or otherwise, is immaterial to the Tribunal’s finding that in subsequent accounts these claims had changed significantly to include a series of continuous and persistent attacks not only by his family, but also by cult members and the Niger Delta group.

8. Fourth, the applicant complains that the Tribunal’s findings at the fourth dash point ([95] at CB 267) are inaccurate to the extent that he was said to have referred to only one instance of harm and not to others. The applicant says that the inspectors report (at CB 7) only refers to one instance, yet the transcript reveals that he made reference to others.

9. It can only be that the applicant now refers to (T20):

   “Q247.      Okay. After the 2002 event ---

   A           Yeah.

   Q248.    --- have there been repetitive events?

   A           Yeah.

   Q249.    How many?

   AYeah, that’s why I – I wasn’t in my state. I had – even when I went back home, I was another state so my mum was sometimes day transport to come and see me there. I (indistinct) now, I have to be in Lagos and if I stay in Lagos for some – for some days, and I’ll get to Ghana and just stay with a friend in Ghana.”

10. None of this reveals error in the Tribunal’s finding. The Tribunal was plainly accurate when it reported that (at the fourth dash point of [95] at CB 267):

    “At the airport interview, the applicant referred to one specific instance of past harm…” [Emphasis added.]

    No other specific instance of past harm or details about any other instances was given.

11. Fifth, the applicant complains that the Tribunal was wrong to find that he had told the airport inspector that he had to return to Nigeria following his first visit because his father had “passed away” ([97] at CB 268, the first dash point).

12. It is clear that the Tribunal was referring to that part of the airport inspector’s report that said:

    “PAX had to depart A/A because his father had passed away”.

13. The difficulty for the applicant now is that the transcript commissioned by his lawyer, consistent with instructions provided by the applicant’s solicitor, is not a complete transcription of what was said at the airport. The lawyer’s affidavit makes it plain, as does what appears in the transcript, that Parts 2, 3 and 4 of the CD of the interview were not transcribed.

14. In any event, central to the Tribunal’s reasoning in affirming the delegate’s decision was the adverse view that the Tribunal took of the applicant’s credibility in light of what it said was the significant escalation in his claims (not the only reason). In addition, it was the inconsistencies in the applicant’s claims.

15. One such inconsistency (one of many found by the Tribunal) was that at the hearing before the Tribunal the applicant confirmed to the Tribunal that his father had passed away. He said he found that out after he had returned to Nigeria on the first occasion of his stay in Australia ([54] at CB 258). The applicant has not challenged the Tribunal’s account of what the Tribunal said occurred at the hearing before it.

16. The import of this is that, in effect, the applicant told the Tribunal that when he came to Australia on the second occasion and was interviewed at the airport he knew his father had passed away. Yet much of what he told the airport inspector, the delegate, and the Tribunal was that he feared harm from his father if he were to return to Nigeria.

17. Mr Karp submitted that the Tribunal gave “preference” to the airport interview in its analysis. The Tribunal relied heavily on this and, given the material deficiencies in the inspectors report on which the Tribunal relied, and the consequent failure to take into account relevant facts and claims which would have been apparent had it listened to the audio of the interview, this leads to jurisdictional error.

18. The applicant relies on SBAA at [44] and WAFP at [11], [16] [19] in support of the latter propositions. It is not necessary to consider and apply what was said in those authorities to the current case because, given what is set out above, the factual basis for ground one is not made out.

19. Ground one does not succeed. Leave to admit the transcript of the airport interview and the audio recording into evidence before the Court is refused on the basis as set out at [26] to [79] of this judgment. But even if regard were had to the transcript and audio recording, ground one would not succeed because it fails at the factual level asserted ([80] to [116] above).

Grounds Two and Three: “For Reasons of… Religion.”

1. Grounds two and three of the amended application are concerned with, and arise out of, the Tribunal’s approach to the Convention ground of “… for reasons of… religion”.

2. Ground two complains that the Tribunal failed to ask a question required of it to fulfil the exercise of its jurisdiction. Namely whether the “cults” to which the applicant’s father and step-brother were said to belong could be characterised as being “religions”.

3. Ground three pleads an error by the Tribunal in its interpretation and application of Article 1A(2) of the Refugees Convention. Namely, that the Tribunal did not understand, and did not properly apply the causal connection between the applicant’s fear of persecution and the ground of religion.

4. Further, that this Convention ground encompasses situations where the persecution feared arises from the persecutor’s, and not necessarily the applicant’s, religion. The ground takes issue with the Tribunal’s statement that such a connection had to be with “the applicant’s religion per se”.

5. The part of the Tribunal’s reasoning central to this complaint is at [107] (CB 271):

   “The Tribunal has considered the 2001 attack. The applicant claimed in the airport interview that his brother attacked him because he reported his father to the police for breaking into his flat and taking his goods. The applicant later suggested that his brother was also angry with him for reporting his brother’s activities to the police. None of these matters appear to the Convention-related. Rather, this is a family dispute, arising either from the applicant’s reporting on his family to the police or the brother’s jealously of the applicant’s special powers. Further, even if this attack was motivated by the applicant’s refusal to join the cult, the applicant claims that his brother attacked him at his father’s instigation or because of his own jealousy. This, also, appears to be a family dispute arising from the applicant’s refusal to follow his father’s orders and join the cult, and not for any other reason. While the applicant argues that he refused to joint the cult because he was a Christian, the essential and significant reason for the harm was his refusal to join the cult – whether due to his Christianity or any other reason – and not his religion per se. Thus, the Tribunal does not accept that any past harm the applicant claims to have suffered as a result of his refusal to join the cult was Convention-related.” [Emphasis added.]

6. Some clarification is required as to which attack, as claimed, the Tribunal refers to at [107] (CB271).

7. At [95], when setting out the changes between what the applicant said at the airport, as revealed in the airport inspectors report, and what he subsequently said, the Tribunal relevantly states that at the airport interview the applicant referred to one specific instance of past harm. This is, that in 2002 his step-brother attacked him in relation to a report to the police.

8. This was contrasted with the applicant’s statement in his protection visa application that his brother attacked in him in 2001 in relation to cult activities (CB 63).

9. The inspectors report (and as set out in the transcript at T19 to T20) plainly places the attack by the brother because of the reporting of the father to the police as being in 2002 (CB 7.6).

10. In his protection visa application the applicant stated that in September 2001 his step-brother came to his house: “… with a group of his people” (in context either members of the step-brother’s cult or the separate Niger Delta Militant Group) and attacked him because the step-brother accused him of reporting him to the police. He then went and reported this attack to the police (CB 63.6). There was no reference to any attack in 2002 in the protection visa application statement.

11. The attached “Nigeria Police Force” document makes reference only to the report of the attack in 2001 (CB 65).

12. At the interview with the delegate, the applicant was reported as making reference to “the 2001 incident with his brother” (CB 249.3). There is no reference to any incident in 2002.

13. Before the earlier constituted Tribunal, the applicant is reported as referring to an incident “around 2001” when his step-brother attacked him (CB 181.3).

14. Before the Tribunal, and with reference to the Tribunal’s unchallenged account of what occurred at the hearing, it is clear that the applicant’s account of relevant events in Nigeria was confused, confusing and contradictory.

15. The “incident” of 2001 is highly illustrative of this. Up to that point the applicant’s (also confused account) was that he had been attacked by his step-brother in 2001, that his brother belonged to a number of cults, and that his brother had been sent to force him to join a cult ([61] at CB 260).

16. The Tribunal pointed out the contradiction in the applicant’s various accounts in this regard ([67] at CB 261 to CB 262). When the Tribunal asked the applicant for the reason for the brother’s attack in 2001, the applicant ultimately said he did not know ([67]), although he then went on to again seek to link his step-brother with cults that he had allegedly joined at University ([68] at CB 262).

17. Given the state of the applicant’s evidence, it is not surprising that the Tribunal referred to the brother’s attack as being in “2001 or 2002” ([106] at CB 270). What is clear, given the state of the evidence, is that it was reasonably open to the Tribunal to find that the applicant was not a witness of credibility ([95] at CB 267).

18. In any event, in light of the above, the question which Mr Karp now says that the Tribunal should have posed, and answered, falls within a species of argument that can best be described as “putting the cart before the horse”. The Minister’s submissions did not appear to directly challenge this approach. But, for the reasons given below, this cannot be ignored.

19. The Tribunal was jurisdictionally charged to conduct the review of the delegate’s decision (s.414 of the Act). The central and critical question posed in the review was whether the applicant had a well founded fear of persecution (on an objective basis) “for reason of religion” if he were to return to Nigeria in the foreseeable future.

20. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court set out that a well founded fear of persecution requires a “real chance” of being persecuted. (See per Mason CJ at 389, Toohey J at 406, Dawson J at 396-8 and McHugh J at 428-9.)

21. Clear and relevant direction for the disposition of the current complaint is to be found in and arising from:

    i)“… ‘a well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified” (per McHugh J at 429).

    ii)“Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear” (per Dawson J at 396).

    iii)The Convention, in speaking of ‘well-founded fear of being persecuted, posits that there should be a factual basis for that fear.” (per Gaudron J at 412).

22. Findings as to that factual basis, including findings as to credibility, are, of course, for the Tribunal to make as the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J).

23. The central question that the Tribunal was jurisdictionally asked to address and answer is, with regard to s.65 and s.36(2) of the Act, whether the applicant has a well founded fear of persecution for a Convention reason.

24. This requires an examination of the claims made and the circumstances of the case to ascertain whether there is a factual basis upon which any such fear can be considered and, if so, whether it can be made out.

25. In short, before consequential questions such as that proposed by Mr Karp in the current case become at issue, regard must be had to the factual findings made by the Tribunal such that any consequential questions required to be asked and answered by the Tribunal can be said to arise from the facts as found. That is, the circumstances as presented by the facts as found.

26. While the Tribunal accepted that in the past the applicant’s father may have wanted him to join a cult, and the applicant may even have refused to join a cult, it rejected that any harm followed such a refusal ([106] at CB 270 to CB 271). The Tribunal rejected the applicant’s claims of any incidents of claimed harm after the brother’s attack in 2001 ([110] at CB 271).

27. The Tribunal’s findings need to be understood as accepting that only one of the claimed incidents of harm occurred. That is, the step-brother’s attack in, probably, 2001. Up to that time the Tribunal allowed, notwithstanding that the applicant had not been “truthful in his evidence to the Tribunal with respect to his description of events before… 2001”, that his father may have wanted him to join the cult and he refused ([106] at CB 270 to CB 271).

28. But the claimed factual basis for all of the claimed events after 2001 (or 2002) was rejected by the Tribunal ([106] and [110] at CB 270 to CB 271). It gave reasons which were reasonably open to it for this.

29. A reading of the Tribunal’s decision record reveals that it understood that the real chance test of a well founded fear of persecution for a Convention reason is to be made with reference to the time of the making of the decision (see for example, Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191; (1997) 72 FCR 288) and can be informed by past events, but this is not essential in showing that the fear is well founded (Abebe v the Commonwealth (1999) 162 ALR 1 per Gummow and Hayne JJ at 52).

30. The Tribunal said:

    “[109] The Tribunal has considered whether there was a real chance that the applicant would experience harm in the future…” [See also [113].]

31. The test involves the real chance of what is likely to happen in the future. (See Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 279).

32. The short answer to the applicant’s second and third grounds is that, on the facts as found, the Tribunal was not required to ask itself whether the cults to which the applicant’s step-brother and father were said to belong could be characterised as “religions”.

33. This is because, for reasons which were reasonably open to it, the Tribunal accepted that only one attack, of the many claimed, had occurred to the applicant (“the 2001 attack”). While his father may have wanted him to join a cult, and the applicant may even have refused ([106] at CB 270 to CB 271), no harm ensued, and in any event the applicant’s father had since died ([108] and [110] at CB 271).

34. The Tribunal rejected that the applicant’s step-brother or any other brother attacked him for any reason in relation to any cult, or for that matter “the Niger Delta or any other individual or group” ([110] at CB 271).

35. The only part of the applicant’s factual account of past harm to be accepted was the “2001 attack”. The Tribunal had regard to the applicant’s evidence in this regard and found that whether the
    step-brother attacked him because he reported his father to the police, or whether he reported his brother’s activities to the police, it found that such harm was occasioned as a result of a family dispute. In context this had nothing to do with any “cults”, and therefore had no Convention nexus ([107] at CB 271). That is, the harm feared was not “for reasons of… religion”. Whether the “cults” could be considered religions (ground two) is in the circumstances an irrelevant question, and should be left to another Tribunal or another Court on another day.

36. In this, no doubt, regard would be had to what was relevantly said about “religion” by the High Court in Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 at 136 per Mason CJ and Brennan J, at 151 per Murphy J and at 174 per Wilson and Deane JJ.

37. Further, I note what was said by Merkel J (with whom Gray J agreed) in Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 179 ALR 1; (2000) 105 FCR 548, that for the purposes of the Convention Courts have generally taken a broad view of what constitutes a religion.

Ground Three

1. The applicant’s third ground can be specifically said to arise from what the Tribunal said (also in [107]) in apparently finding that the Convention nexus between the ground of religion and the applicant’s fear of Convention related persecution had to be with “the applicant’s religion per se”.

2. The dispute between the parties is that Mr Karp contends that the term: “for reasons of… religion”, as set out in Article 1A(2) of the UN Refugees Convention, includes not only the nexus between the harm feared and the applicant’s religion, but also encompasses the harm feared by the applicant because of the persecutor’s religion.

1. Mr Karp proceeded on the basis that the cults referred to by the applicant and the harm feared by the applicant from cultists, including his father, brothers or other groups, are religions, and that their religious motivation in harming him is encompassed in the proper construction of the Convention term, and not just limited to their perception of the applicant’s religion.

2. On this issue, the Minister’s position is that the harm feared must be for reasons relating to the applicant’s religion. That is “for reason of” religious characteristics in his possession, and not the religious characteristics of those whom he says seek to persecute him. It is what they perceive about his religion that is relevant, and not some wider reference to the perpetrator’s beliefs or religious characteristics.

3. Mr Karp raises some interesting points which, had it not been for the particular circumstances of this case, and for other separate and stand alone findings made by the Tribunal, would have obviously required detailed consideration.

4. However, the complete answer to the applicant’s complaint is again to be found with reference to the facts as found by the Tribunal. The Tribunal’s finding at the first part of [107] (CB 271), and elsewhere as already referred to above, provides a complete answer that does not require an examination of the Convention nexus.

5. The Tribunal rejected the applicant’s claims to have been harassed or threatened by any cult members, or any other group, or to have been of interest to them for any reason including his father’s or step-brother’s position, his special powers, his own Christianity or for any other reason (as at [106] at CB 270 to CB 271). No error is revealed in this regard.

6. In relation to his father and his step-brother, the Tribunal accepted that the 2001 attack by the step-brother (and only that attack) occurred. But on the applicant’s own, albeit various, evidence the Tribunal could find no Convention nexus. Rather it saw the attack as being in the nature of a family dispute arising from either the applicant’s claim of reporting on his family to police, or jealousy because of the applicant’s “special” powers, depending on which version of the applicant’s evidence was considered (at the first part of [107] at CB 271). Again no error is revealed.

7. The Tribunal’s reasoning must be read holistically. What appears at [107] (CB 271) is the Tribunal’s reasoning that the only incident it accepted as occurring, the 2001 attack, did not occur for any Convention related reason.

8. Having accepted earlier that the applicant’s father may have wanted him to join a cult and he refused, it did not accept that any of the harm consequently claimed and which it accepted had occurred, namely the 2001 incident, occurred for that reason. It occurred according to the Tribunal’s findings for other reasons.

9. I agree with Ms Clegg that, in light of this, the Tribunal’s findings at [110] (CB 271) are separate and stand alone and apart from the impugned part (the latter part) of what is set out at [107] (CB 271) regarding Convention nexus and religion.

10. The Tribunal plainly found at [110] (CB 271) that it did not accept, with reference to the question it was jurisdictionally charged to consider, that there was a real chance of harm if the applicant were to return to Nigeria in the foreseeable future because the only harm that the applicant had ever suffered was the attack in 2001. All the other claimed attacks, and harm, were found not to have occurred. These findings were open to the Tribunal on what was before it.

11. The Tribunal’s subsequent reasoning therefore, unaffected by any view of nexus on religious grounds, was that the applicant had remained in Nigeria for another seven years after the 2001 event. He was found not to be of any adverse interest (as at the time of decision) to any of his siblings, the cults, or any other group or persons.

12. As Ms Clegg submits, given that these findings proceed on the assumption that the 2001 attack occurred, any error that may have occurred in its earlier consideration about Convention nexus and the 2001 attack is separate and stands alone.

13. Ground three therefore, even if it contains error, does not reveal jurisdictional error as a whole in the Tribunal’s decision. (NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086 at [23], VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 per North J at [33], SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256, VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1, MZXGR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1167, SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390).

14. Given the above, it is not therefore strictly necessary to consider the interesting question raised by Mr Karp.

15. However I note the following. In essence Mr Karp contends that the very language, the plain words of Article 1A(2) of the Refugees Convention do not distinguish between circumstances where the harm feared is for reason of the applicant’s religion or the persecutor’s religion. That both are encompassed.

16. Mr Karp refers to a number of authorities where this issue has been addressed, but not as part of the ratio decidendi (SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 962 per von Doussa J at [33]-[34], Hellman v Minister for Immigration and Multicultural Affairs [2000] FCA 645 per Branson J at [26] and Cameirao v Minister for Immigration and Multicultural Affairs [2000] FCA 1319 at [25] per O’Loughlin J. For that matter Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 57 per Madgwick J could probably be added to this list).

17. The Minister’s position is that the plain and ordinary words of the Convention carry a meaning that results in the relevant inquiry being concerned with Convention attributes possessed by the persecuted, not the persecutor.

18. The Minister relies on Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”) for the proposition that prime regard must first be given to the language of the treaty, and that the relevant definition is to be read as a whole (per McHugh J at 254-255 and 257).

19. The applicant’s approach is said to be at odds with the approach in Applicant A where, in a case involving a claim based upon membership of a particular social group, it is necessary first to define the social group itself, rather than define the social group by reference to a commonly held fear of harm.

20. The Minister contends that the applicant’s approach attempts to define fear by reference to the fear alone, rather than a fear held because of a characteristic possessed by the refugee. A characteristic that is protected by the Convention (Applicant A per Dawson J at 242-246, McHugh J at 256-268, Gummow J at 284-5).

21. In Ram v Minister for Immigration & Ethnic Affairs & Anor (1995) 57 FCR 565 (“Ram”), as approved of in Applicant A (per Dawson J at 242, and Gummow J at 284), Burchett J said:

    “The well-founded fear of which it speaks is a fear of ‘being persecuted’. Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word ‘persecuted’, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is ‘membership of a particular social ground’. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’. The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ – the membership of the social group must provide the reason. There is thus a common threat which links the expressions ‘persecuted’, ‘for reasons of’, and ‘membership of a particular social group’. That common threat is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.”

22. In one importance sense the applicant’s argument now seeks to conflate or confuse two important and distinct elements: the motivation of the persecutor, and the Convention related characteristic of the persecuted which motivates the persecutor to inflict harm.

23. In Applicant A, Gummow J’s citation of Ram with approval was emphasised with the reasoning that the words “for reasons of” operates to identify the motivation of the persecutor for the occasioning of persecution and what the persecutor seeks to thereby achieve. The reason for the persecution therefore is to be found, and must be found, in one or more of five attributes of the applicant. Namely race, religion, nationality, membership of a particular social group or political opinion (Applicant A at 284).

24. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs [1998] FCA 622 French J (as he then was) said:

    “The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted”

25. This was cited with approval by the joint judgment in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 170 ALR 553 at [34].

26. It is the motivation of the persecutor for the claimed persecutory conduct which an applicant says he fears that the Tribunal is required to ascertain (Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [102] per McHugh J).

27. The relevant scheme of the Convention therefore, when understood in light of relevant authority and drawn from the language of the Convention itself, is that the words “for reason of” are to be understood in an arc that flows from a persecutor who is motivated to persecute a person for a Convention related characteristic perceived of or about that person. That is, for reason of their, amongst other things, religion.

28. Mr Karp gives the example of an Afghan girl attacked by the Taliban because they took offence at her going to school. This is said to be an example of a victim being persecuted because of the perpetrator’s religion. A second example was said to be members of the now defunct “Thuggee” cult in India murdering travellers because their “religion” demanded it.

29. The answer to a great part is found in Burchett’s J’s observation in Nouredine v Minister for Immigration and Multicultural Affairs [1999] FCA 1130; (1999) 165 ALR 401; (1999) 91 FCR 138 (at [12]) that Applicant A supported the distinction drawn in that case by the Tribunal between a persecution motivated by religious zeal, and persecution for reason of religion.

30. In any event, as Ms Clegg submits, neither of the examples given by Mr Karp assists the applicant.

31. The first can be characterised as persecution of the girl for reason of what is perceived to be her (unacceptable) practice of (presumably) the Muslim religion, or even membership of a particular social group.

32. The second example, of members of the Thuggee cult in India murdering travellers because they saw it as their religious duty to do so, could also best be addressed as being within the scope of members of a particular social group. That is, travellers trespassing through Thuggee areas.

33. This may illustrate why, as Mr Karp submits, it was difficult to find authorities on this point since those he refers to in 2000 and 2002. Given the language of the Convention, and Applicant A (and the other authorities referred to above), applicants and probably this Court have felt the need to frame or consider such matters more properly in a way consistent with the reasoning of the High Court.

34. In the current case, given what I have found above (at [171]) it is not necessary to apply that reasoning to the facts of this case. But if it were necessary to do so I would not then find for the applicant.

35. When viewed in this light the Tribunal’s, admittedly it must be said clumsy, reference to: “… not his religion per se” (at [107] at CB 271), must be seen as saying that, in the circumstances presented and even on the relevant facts accepted, the applicant’s refusal to join the cult as his father wanted, prior to and up to the incident of 2001, led to that attack (on that version of the applicant’s claims).

36. The motivation of his father and his step-brother in harming the applicant was not because he was a Christian, or that they were cultists (accepting this as a religion), nor for any other reason other than the son did not do as his father wanted him to do. This was purely a family dispute, and not Convention related.

37. This was a sequence of findings reasonably open to the Tribunal to make on what was before it and for which it gave reasons. There is no error on the part of the Tribunal to correctly interpret and apply the causal connection between the applicant’s claimed fear arising from the 2001 incident and the Convention ground of religion.

38. Remembering of course that ultimately the Tribunal found that any such fear arising from that incident, in any event, had not survived the passage of time such that it could be said to form the basis for a

    
    

    well-founded fear of persecution for a Convention reason if the applicant were to return to Nigeria in the reasonably foreseeable future.

39. In all ground three of the amended application is not made out.

Leave to Reopen the Case

1. At some little time after reserving judgment in this matter Mr Karp sought to reopen the applicant’s case to allow further amendment to the application. The proposed additional ground is in the following terms:

   “4. The Tribunal breached the requirements of natural justice.

   Particulars

   (a) The Tribunal adopted a procedure that was manifestly unfair, that being to rely on a summary of the applicant’s interview with officers of the Department at Sydney Airport on 11 July 2008 which was materially inaccurate, in circumstances where an accurate record could have been procured.

2. I granted leave to the parties to make further written submissions in relation to this issue. Both provided such submissions. In this case the Minister’s were drafted by Mr G Kennett of counsel.

3. In essence Mr Karp’s comprehensive submissions are that the transcript and audio recording of the airport interview should be admitted into evidence, that there were material omissions from the “summary” of the airport interview put before the Tribunal, such omissions are relevant to the issue of a breach of natural justice, and that the evidence is both admissible for that reason and would then show the breach.

4. Such breach, although not needed to be based on any personal fault on the part of the Tribunal member, did arise because the Tribunal was on notice that the interview at the airport had been recorded (see CB 5.5: “PAX requested DIAC officer to stop interview recording”).

5. The Minister opposes leave being granted to the applicant to reopen his case “at this late stage of proceedings” because there are insufficient prospects of success to warrant such a course of action.

6. The applicant’s case now relies on Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (“Saeed”) to argue that there has been a breach of the natural justice hearing rule, and that Saeed (handed down after judgment was reserved in the current case) supports the applicant’s position to the extent that it is “palpably unfair”, and therefore a breach of the natural justice hearing rule, to rely on an inaccurate summary of the applicant’s “evidence” given at the airport interview. The applicant’s case should be adjudged on the basis of the applicant’s own “evidence” and not a report by a public official. Further, that aspect of the hearing rule is not dealt with in Division 4 of Part 7 of the Act, and therefore, on the authority of Saeed, survives to apply to the current circumstances.

7. To the extent that the Minister seeks to rely on the applicant raising this point at “this late stage”, then I agree with Mr Karp that in the current circumstances of this case this would not cause me to refuse the leave sought.

8. At the hearing of this matter, Mr Karp did raise the possibility of a new ground relying on what he hoped Saeed would say. At that time Saeed was reserved before the High Court.

9. I agree that at that time the applicant could not have raised Saeed in the formal pleadings before this Court. Rather, in view of Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 it would have been improper, and certainly presumptuous, to have raised the argument for which he now contends Saeed provides the opportunity to do so. That is, that relevantly s.422B does not apply in these circumstances to render what is in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule.

10. To that extent therefore, any argument as to the “lateness” of the raising of this proposed ground is not a reason to refuse the reopening of the applicant’s case.

11. Beyond that, however, and even if the transcript and audio recording of the airport interview were to be admitted into evidence before this Court, the applicant’s application to reopen his case is to be refused because the proposed ground lacks sufficient merit to warrant such a course of action.

12. This is because the applicant’s proposed ground fails at the factual level. For the reasons already set out elsewhere in this judgment (see [80] to [119] above) I cannot see, when comparing the transcript of the airport interview, and even with reference to the audio recording, that there was any material inconsistency, discrepancy or omission with what is set out in the airport inspector’s report which was before the Tribunal, and on which to some extent it relied in rejecting the applicant’s claims to have a well-founded fear of persecution for a Convention reason if he were to return to Nigeria.

13. This in itself is a complete answer to the applicant’s proposed ground.

14. But even further, I also agree with Mr Kennett that, beyond the claimed points of the inaccuracy of the inspectors report and the unfairness in those circumstances of the Tribunal’s reliance on it, what is left of the complaint is that the Tribunal could have obtained the full recording of the airport interview which it was said it ought to have known existed because of the reference in the inspector’s report.

15. In all the circumstances it is difficult to see how this alleged failure was unfair, let alone a breach of natural justice, in respect of the Tribunal’s dealing with the applicant and his claims.

16. Each of the points which the applicant now says were reported differently or inaccurately by the inspectors report (which, given what is set out above, were not) were in any event dealt with by the Tribunal with the applicant at the hearing before the Tribunal (see generally [47] at CB 256 to [62] at CB 260 and [65] at CB 261 to [88] at CB 265).

17. The applicant’s statement as reported in the inspectors report (and again which contained no material inaccuracies) were put to the applicant for comment pursuant to s.424A(1) (see the letter at CB 206 to CB 211).

18. To the extent that the applicant complains that there was a breach of the natural justice hearing rule this must be rejected, whether regard is had to what is set out in Division 4 of Part 7 of the Act, or to the common law principles at general law.

1. The Tribunal complied with both s.425 of the Act in that the applicant received a fair hearing (other than that the Tribunal should have obtained the recording there is no other complaint), and with s.424A of the Act.

2. The applicant’s complaint as to unfairness at general law is that there were inaccuracies in the inspectors report. The Tribunal knew of the existence of the audio recording and therefore should have taken steps to obtain it. Had it done so it, presumably, would have realised there were inaccuracies and the accurate version may have resulted in changes to the Tribunal’s consideration and a different outcome. Particularly as the Tribunal relied to a great extent on the inspectors’ report.

3. To the extent that the applicant may be said to take issue with the outcome, it is, as Mr Kennett submits, that what is required by procedural fairness is a fair hearing not a fair outcome (SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 231 ALR 592, Attorney-General (NSW) v Quin (1990) 170 CLR 1). See also Kioa v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 62 ALR 321 per Mason J at 585:

   “In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate consideration: cf. Salemi [No. 2] (4), per Jacobs J”.

4. In the circumstances I cannot (putting to one side that there were not any material inconsistencies and omissions) see that the Tribunal was compelled in the interests of procedural fairness to have obtained and listened to the audio.

5. The applicant was fully and squarely on notice that the Tribunal had regard to the inspector’s report. He had adequately put to him the inconsistencies and concerns the Tribunal had with what he subsequently said in his protection visa application to the delegate and to the Tribunal.

6. The applicant was represented by a registered migration agent. There was no evidence before the Court, and no assertion was made, that the agent acted incompetently or negligently. If the audio recording of the airport interview was so critical to the applicant’s case as Mr Karp now asserts, that would, or should, have been apparent to the agent at least, at the relevant time. Nothing had or has changed in this regard since the applicant was put squarely on notice of the relevant matters at the Tribunal hearing, and in writing.

7. Mr Karp submits the applicant was interviewed at the airport after a long flight, he was nervous and this was a novel situation for him. The Tribunal accepted this ([98] at CB 268).

8. All this is allowed. It does not explain, however, why the agent did not press, not necessarily the Tribunal, but the Minister’s department for a copy of the audio recording. Once the applicant and his adviser, and indeed the friends and observers who accompanied him to the Tribunal hearing, were put on notice as to the role of the airport interview, if there was further material available to assist the applicant, and could assist the applicant, the plain and clear opportunity was there to take steps to obtain it.

9. That it may not have occurred to the agent, the friends or even the applicant to have done so does not reveal any failure of procedural fairness on the part of the Tribunal. That Mr Karp and/or his instructing solicitor may have thought of doing this for the purposes before this Court may be an argument as to why the migration agent scheme should perhaps be restricted to competent lawyers, but it does not reveal error on the part of the Tribunal.

10. The applicant may indeed have forgotten what he said at the airport. But once its importance was made clear to him, and his adviser and supporters, the Tribunal discharged its procedural fairness obligations.

11. Mr Karp submits that one of the tasks of the Tribunal is to ensure that procedural fairness is observed (O’Sullivan v Repatriation Commission (2003) 128 FCR 590, Hot Holdings v Creasy (2001) 210 CLR 438 at [22], R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330). I agree.

12. But once the applicant was put squarely on notice of the case against him, the pendulum then swung to the applicant to do something about it. It is in this sense, and context, that it is said it is not for the Tribunal to make out an applicant’s case for him (VCAK of  2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300).

13. The complaint that the agent asked for an audio recording of the interview by her letter of 20 April 2009 has been dealt with above ([45] to [55]). It does not assist the applicant in this context.

14. Mr Karp pressed submissions arising from Saeed. Given what is set out above it is not necessary to consider the effect of the High Court’s judgment on the circumstances of this case.

15. Mr Karp’s charge in written submissions that: “The Minister seeks to resurrect life from the smoking ruins of his flawed legislative scheme…” will have to await consideration on another day.

Conclusion

1. For the reasons immediately set out above leave is refused to the applicant to further amend his application to the Court.

2. As for the amended application none of the grounds pressed and asserting jurisdictional error are made out. To succeed before the Court the applicant would have to, at least, successfully reveal error arising from at least one of his grounds. With the benefit of capable legal representation he has been unable to do so. The application as amended will therefore be dismissed.

I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  13 December 2010