SZNQI v Minister for Immigration and Citizenship

[2010] FCA 164

FEDERAL COURT OF AUSTRALIA

SZNQI v Minister for Immigration and Citizenship [2010] FCA 164

Citation:		SZNQI v Minister for Immigration and Citizenship [2010] FCA 164
Appeal from:		SZNQI v Minister for Immigration & Anor [2009] FMCA 918
Parties:		SZNQI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1128 of 2009
Judge:		NICHOLAS J
Date of judgment:		2 March 2010
Legislation:		Evidence Act 1995 (Cth) s 135
Cases cited:		SZNQI v Minister for Immigration & Anor [2009] FMCA 918 affirmed NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited
Date of hearing:	14 December 2009
Date of last submissions:	14 December 2009
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	44
Counsel for the Appellant:	SEJ Prince (Pro Bono)
Counsel for the First Respondent:	T Reilly
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1128 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNQI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	2 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1128 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNQI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	2 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Nicholls FM delivered on 17 September 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 30 April 2009 (see SZNQI v Minister for Immigration & Anor [2009] FMCA 918). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of Nigeria who arrived in Australia on 13 December 2008.  He lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department) which was refused by a delegate of the Minister on 4 February 2009.  On the same day the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed to fear persecution from the Odua People’s Congress (OPC) in Lagos, from his family because he is a Christian, and from militant groups in Rivers State, a region of the Niger Delta. He claimed that a trader at the market where he worked refused to pay protection money to the OPC and as a result a fight broke out in which the appellant was involved. He claimed that he ran away and was pursued for some time by an OPC member, whom he heard say: “Let him go, I know where he lives”.  The appellant claimed that he knew that this meant big trouble for him and so he did not return to his house but stayed with a friend. He claimed that he returned to the market a week later and discovered that his goods were all destroyed.  He claimed that he was told by a friend that the OPC were at his house looking for him. He claimed that he would not be safe remaining in Lagos.

4. The appellant also claimed that he feared harm from his family because he refused to take over from his uncle as the person in charge of the family religion, which involved the worship of idols. He claimed that he became a true Christian in 2007 when he converted to a Charismatic Christian church and that this prevented him from worshipping at the family shrine. He claimed that when he told his father this, his father was furious, and threw a glass object at the appellant’s head. He claimed that his father had threatened to kill him.

5. The appellant also claimed that he feared harm from militant groups in River State. He claimed that the chief of his village had problems with other chiefs and as a result there was violence and killings. He claimed that militant boys were kidnapping people who didn’t want to join them. He claimed that he did not wish to fight on either side.

6. The appellant stated that as result of the fear of harm from his family and from the militant groups he left the village for Port Harcourt, where he remained before travelling to Australia. 

   THE TRIBUNAL DECISION

7. The Tribunal accepted that the market in which the appellant worked in Lagos was affected by riots instigated by the OPC in 2000.  It observed that the incident appeared to have an essentially criminal character. The Tribunal was not satisfied that the appellant had a well founded fear of Convention persecution as a result of this incident. Further, the Tribunal was satisfied that, 8 years after the incident, the risk of the appellant being sought out and targeted for harm as a consequence of his involvement in the 2000 riots was remote and speculative. The Tribunal noted that there was no evidence that the appellant remained of interest to the OPC when he returned to Lagos for short periods in 2007 and 2008. The Tribunal also found that there was no indication that the authorities in Nigeria would fail to protect the appellant for any Convention reason should he face harm from the OPC that was not related to any Convention reason.

8. The Tribunal had concerns about the reliability of the appellant’s evidence in relation to the harm he claimed to face from his family. It found that his accounts of his dealings with family members were confused, incoherent and inconsistent, and labelled some of his assertions as inherently implausible.  The Tribunal was not satisfied that he was at real risk of harm from his family based on his failure to carry out his religious obligations. The Tribunal accepted that he and his father may have argued and that his father threw a glass object at him, but did not accept that this constituted sufficiently serious harm as to be considered persecution or that it disclosed a real chance that further harm amounting to persecution would be carried out by members of his family.

9. The Tribunal accepted that the appellant may have witnessed and felt threatened by the generally violent situation in Rivers State. But it was not satisfied that he had a well-founded fear of persecution for a Convention reason. It accepted that the appellant may have been approached by people from a militant gang.  However, it was not satisfied that he would have been further targeted or sought out given the generally chaotic situation described in the country information before it.

10. The Tribunal found that it was not credible that, in the atmosphere of extreme violence in Rivers State, a militant group which did actually intend serious harm to the appellant would have merely threatened and harassed him over a period of time without actually carrying out the threat. It did not accept that the appellant was subjected to serious and sustained threats by militant groups in Rivers State. The Tribunal accepted that the appellant may have been afraid of returning to Rivers State and that he may be at risk of harm because of the high level of generalised violence in the region.  However, it was not satisfied that he would be targeted for such harm for any Convention reason. In particular, it did not accept that any harm suffered would be for reason of the appellant’s religion on the basis that it was because of his religious beliefs that he refused to fight, and while the appellant’s religion may have been his motivation, it was not the motivation of his potential persecutors.

11. The Tribunal also found that, in any event, it would be reasonable for the appellant to relocate to another area of Nigeria outside of the Niger Delta region. The Tribunal noted that the there was nothing in the country information that indicated that the militant groups operating in the Niger Delta region were active outside that area, or that they would pursue their enemies outside that region.

    THE FEDERAL MAGISTRATES COURT

12. The appellant filed an application for judicial review of the Tribunal’s decision.  By his amended application the appellant contended:

    1.The Second Respondent failed to address the Applicant's claim of persecution based upon his Christian “pacifist” stance in the face of political and ethnic violence in Nigeria. His continued refusal to participate in the violence placed him at risk of serious injury and death.

    2.In failing to properly categorise the Applicant’s “convention basis” for his claim, the Second Respondent misapplied the “real chance” test when examining the prospects of relocation within Nigeria.

    3.The hearings before the Second Respondent miscarried due to the lack of an Ibo interpreter.

13. As to the first ground of review, the federal magistrate found that it could not be said that a claim to fear of harm because of the appellant’s membership of a particular social group arose from the circumstances of the appellant’s claim and there was nothing in the country information to suggest that such a claim arose.  In particular, his Honour was satisfied that no obligation arose to consider the existence of a particular social group consisting of able-bodied Christian pacifists. His Honour found that a clear distinction could be drawn between the appellant’s claim to be opposed to the violence because of his religious beliefs and the position of a person said to be a pacifist.  His Honour was satisfied that the Tribunal dealt with the only potential Convention reason that could be said to have arisen in the circumstances presented by the appellant’s evidence.

14. In relation to the second ground of review, his Honour also found that the Tribunal properly considered the issue of relocation, observing that the Tribunal examined the issue of relocation with reference to the objections of the appellant and consistently with the relevant authorities by asking whether the appellant could reasonably and safely relocate away from the Niger Delta region.  

15. As to the third ground, the appellant sought to tender during the hearing before the federal magistrate the CD recordings of the proceedings before the Tribunal. His Honour did not accept them into evidence as the appellant’s complaint lacked particularity, in that there was no particularised item of misunderstanding that was said to arise at either of the two hearings. His Honour was of the opinion that listening to the CDs would not assist in the consideration of the appellant’s ground that the Tribunal did not understand him.

16. His Honour also noted that there was evidence that the appellant spoke fluent English and that he did not request an interpreter and that the appellant’s representative had not made any complaint to the Tribunal about what occurred at the first Tribunal hearing. His Honour also noted that when the appellant was invited to the second hearing, he again advised that he did not require an interpreter.  His representative’s submissions made after the hearing said nothing about communication difficulties. His Honour observed that the reason for the second Tribunal hearing was that there were additional matters or issues that needed to be exposed to the appellant, largely arising from the country information which his representative had provided after the first hearing and which were directly relevant to the issues determinative of the review.

17. His Honour was satisfied that a plain reading of the Tribunal’s reasoning and analysis as a whole showed that the Tribunal did not experience any difficulties in understanding the appellant’s evidence. His Honour went on to find that, even if the appellant’s evidence was not clear at the first hearing, the second hearing had addressed any concerns of lack of clarity arising out of the first hearing. 

    APPEAL TO THIS COURT

18. The appellant’s notice of appeal raises the following grounds of appeal:

    1.His Honour erred in finding that there was no claim implicitly made on the basis of the applicant’s pacifist stance (see paragraph 52 of the judgement). Such a claim was not addressed by the Second Respondent and this constituted jurisdictional error.

    2.The Federal Magistrate erred by failing to find that there had been a breach of section 425 and or procedural fairness by reason of the absence of an interpreter at either or both of the Tribunal hearings.

    3.The Federal Magistrate erred by rejecting the tendering of the sound recordings of the Tribunal hearings.

19. Grounds 2 and 3 are closely related and it is convenient to deal with them together.

    DISPOSITION

    Ground 1

20. It was submitted on behalf of the appellant that the federal magistrate should have found that the Tribunal erred in not considering whether the appellant belonged to a “particular social group” comprising young able bodied Christian pacifists. He argued that there was material before the Tribunal which implicitly gave rise to a claim of that character which the Tribunal was required to consider. Not to do so, it was submitted, constituted jurisdictional error. The error in the judgment relevant to this ground of appeal was said to reside in paras [47] to [49]. In particular it was submitted that para [49] of the judgment incorrectly characterised the failure by the appellant and his legal representative to articulate a claim to be a “pacifist” as fatal to the appellant’s case. In para [49] of the judgment the federal magistrate states:

    What is fatal, however, in my view, is that the applicant was given every opportunity, with the assistance of his representative, to give his relevant evidence and make his relevant submissions.  In my view, a plain reading of the relevant material before the Court reveals that no such claim to be a “pacifist” was made by the applicant.  Nor can it be clearly inferred, or rather clearly implied, to arise from what the applicant, or his representative, did say. 

    The appellant’s counsel placed considerable emphasis upon the first sentence in the paragraph. 

21. I should say at the outset that the federal magistrate elsewhere in the judgment referred to the applicable principles and summarised them in terms which were not criticised by the appellant.  As his Honour correctly observed, the Tribunal was not obliged to deal with claims which were not articulated or which did not clearly arise from the materials before it.

22. It is not clear to me on a fair reading of para [49] as a whole and the two immediately preceding it that his Honour actually approached the matter on the basis that the failure to articulate the claim now advanced was fatal to the appellant’s case.  What his Honour was perhaps saying is that given the claim did not clearly arise from the materials before the Tribunal, the fact that it was not articulated by the appellant’s representative meant that it was fatal to the appellant’s case. 

23. It is important to remember that there were two different grounds relied upon by the appellant before the Tribunal in relation to which the appellant’s religious beliefs had relevance. 

24. First, the appellant relied upon an alleged fear of persecution from his family for reasons of religion.  That ground was rejected for various reasons.  Leaving aside ground 3 before the federal magistrate (concerning the lack of an Ibo interpreter), there was no challenge to that part of the Tribunal’s decision. 

25. Secondly, the appellant relied upon an alleged fear of persecution from militant groups with whom the appellant refused to fight.  The appellant attributed his unwillingness to fight (referred to in the grounds of review as his “pacifist stance”) to his religious beliefs.  He said killing was against this Christian faith.  The Tribunal stated at para [96] and [97] of its reasons:

    The Tribunal accepts that the applicant may well be afraid to return to Rivers State, and that he may be at risk of harm there because of the high level of generalised violence which exists in that region. However, the Tribunal is not satisfied that he would be targeted for such harm for any Convention reason; rather, the risk would be of being caught up in random generalised violence …

    The Tribunal does not accept the contention of the applicant’s adviser in her submission of 17 April 2009 that the persecution would be for reason of the applicant’s religion, on the basis that it is because of the applicant’s religious beliefs that he refuses to fight. While this may be applicant’s motivation, it is not the motivation of his potential persecutors.

26. It is apparent from these paragraphs that the Tribunal considered the appellant’s claim in a general sense, indicating that it was not satisfied that the appellant would be targeted for harm for any Convention reason.  It then proceeded to dispose of what was said to be the contention of the appellant’s adviser in the written submission of 17 April 2009.  It is necessary to look at that written submission more closely. 

27. In this Court the respondent submitted that the case put to the Tribunal by the appellant’s representative in the written submission dated 17 April 2009 and referred to by the Tribunal in para [97] of its reasons was that any persecution of the appellant would be because of his Christian religion.  In the written submission, under the heading “Convention Link”, the following appears:

    [The appellant] fears persecution from his family for reasons of religion, because of his refusal to take on the role required of him by his father and other relatives.

    He fears persecution from the rebels or militants who have tried to recruit him to join them.  He refused to join the militants who tried to recruit him to fight for the king in his area.  He refused to fight for either side.  It is against his religion.  He gave evidence that the militants look around for young men to join the militancy to fight against the government, oil workers and the state and federal governments.  He said that if you sit on the fence you are perceived as an enemy and face retribution, even death.

    I submit that these claims are certainly Convention related.  He faces persecution because he refuses to take part in politically motivated violence.  He is opposed to this violence because of his religious beliefs. 

28. As to the appellant’s fear of persecution by family members, there is no doubt that form of persecution was attributed by the appellant in the written submission to religion.  But in the case of the appellant’s fear of persecution by militant groups, the written submission was quite specific in asserting that the appellant faces persecution because he refuses to take part in politically motivated violence.  While it is true that the written submission goes on to say that the appellant is opposed to violence because of his religious beliefs, that is not quite the same as saying that he faces persecution because of his religious beliefs.  As I read it, the appellant feared persecution as a result of his refusal to take part in politically motivated violence.  Accordingly, I do not accept that the claim articulated by the appellant before the Tribunal was limited in the manner suggested by the respondent or, indeed, by the Tribunal itself in para [97] of its reasons. 

29. There are some indications in the written statement made by the appellant and relied upon by him before the Tribunal which might suggest that there were other young men who were kidnapped or killed by militant groups which they refused to join.  In particular, the appellant said:

    There are big problems all the while in the Niger Delta where there are many militant groups.  They want people of my age to join them.  If you say no they say you are a coward and deserve to die.

    …

    I fear that I will be killed if I go back.  I fear the militant youths because I refused to join them to do their killings.  I knew it was wrong and I refused to join them.  It is against my Christian faith.  They feel that they are fighting a just cause.  Their view is, if you are not with us you are against us and they come after you for your life.  Even my king is on the run now. 

1. However, this is as high as the material identified by counsel for the appellant rises and it seems to me that the material before the Tribunal was too vague to clearly raise a claim based upon the existence of a particular social group of the kind now postulated by the appellant.  No such claim was apparent on the face of the material before the Tribunal.  See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63].

2. Even if I am wrong about that, I do not think it should be inferred from the Tribunal’s failure to deal specifically with the appellant’s claim as now articulated that it was not considered by the Tribunal.  

3. The Tribunal was not satisfied that the appellant was at risk of harm except as a result of “generalised violence”.  It found that there was no real chance that he would be targeted for harm for a Convention reason by any of the state or non-state armed groups currently operating in the Niger Delta region.  The claim based upon the appellant’s “pacifist stance” could never have succeeded given that finding.  More than once the Tribunal stated that it was not satisfied that the appellant would be targeted for harm for any Convention reason.  The reasons it provided for finding that the appellant was unlikely to be targeted for harm for reason of his religion apply equally to the appellant’s membership of a particular social group of the kind now postulated.  The position could not be otherwise given the appellant’s case that it was his unwillingness to fight which placed him at great risk. 

4. Moreover, the Tribunal found that the appellant could reasonably and safely relocate from the Niger Delta area to Lagos or to another area of Nigeria where the Ibo tribe predominates.  The relocation findings apply to the claim founded upon the appellant’s membership of the postulated social group just as much as they apply to the claim based upon religion.  There is nothing associated with the former claim which suggests that it too is not met by the Tribunal’s relocation findings.  On the contrary, the terms in which those findings are expressed provide a complete answer to that claim. 

5. I am not satisfied that the claim now articulated on behalf of the appellant, or something very close to it, was not considered by the Tribunal.  If the Tribunal had approached the merits review on the basis that the only claim with which it need concern itself was based upon a fear of being persecuted for reasons of religion then one would not expect to see language of the kind appearing in para [96] of the Tribunal’s reasons. I should add that the generality of the language in that paragraph is hardly surprising given the generality of the submissions made on the appellant’s behalf to the Tribunal.

   Grounds 2 and 3

6. The appellant claims that he was deprived of a fair hearing on the basis of a failure in communication stemming from the fact that he gave his evidence in English rather than through an Ibo interpreter.  He argued that the recordings of the hearings before the Tribunal, which the federal magistrate declined to receive into evidence, were relevant to that issue and that his Honour erred in failing to receive them.

7. During the hearing before the federal magistrate the appellant gave evidence by affidavit concerning difficulties in communication which were said by him to have occurred during the hearing before the Tribunal.  The appellant’s affidavit, which was not the subject of cross-examination, consisted of the following four paragraphs:

   1.        Igbo (Ibo) is my native language.

   2.When I appeared before the RRT on 11 March 2009, I was alone.  Although I did not request an interpreter for that hearing, I had great difficulty in expressing myself adequately in the English language.  The Tribunal member appeared to me to be having difficulty understanding me, despite telling me that she understood. 

   3.At the second hearing on 14 April 2009, I appeared with my Legal Aid solicitor, Ms Read.  I thought that being accompanied by my solicitor would solve any difficulties in communication.  At first the Tribunal Member apologised for requiring my further attendance, but told me that it was due to the failure in understanding me on the previous occasion.

   4.The difficulties in communication between myself and the Tribunal member during the second hearing were the same as at the first hearing. 

8. The federal magistrate was not satisfied that there was any substance to the allegation that the appellant was deprived of a fair hearing by reason of a failure of communication.  His Honour was of the view that the submissions made to him in relation to that alleged failure were vague and lacking in any particularity.  Given the absence of any particularity, his Honour could not see how listening to the CDs would assist him.

9. There does not appear to have been any attempt on behalf of the appellant’s (former) counsel to identify to the federal magistrate any particular exchange between the Tribunal and the appellant which was to be relied upon by the appellant in support of the alleged failure of communication.  The appellant’s affidavit is also lacking in any particularity and it too does not attempt to identify any specific exchange which might suggest that the Tribunal’s decision was affected by any alleged failure of communication.  In these circumstances I think the federal magistrate was correct to reject the tender of the CDs.  

10. I do not think it could be concluded without listening to the recordings that they could not assist in the consideration of the appellant’s claim to have been denied procedural fairness as a consequence of an alleged failure in communication which is said to have occurred as a result of him not giving evidence through an interpreter.  However, his Honour was not required to satisfy himself that the recordings could not so assist before rejecting the tender of the CDs.  Rather, it was for the appellant to satisfy his Honour that the CDs contained material which was relevant to the appellant’s claim.  In circumstances where the appellant’s counsel could not identify particular parts of the recordings upon which the appellant wished to rely as evidence of the alleged failure of communication then it seems to me that the federal magistrate was not required to accept the tender of the recordings.

11. The federal magistrate does not appear to have been provided with anything in the nature of a transcript of the recordings or even an index with which to navigate his way through them.  Presumably his Honour was expected to listen to the recordings from beginning to end in chambers and make of them what he could.  I was told by counsel for the appellant that the recordings were approximately three or four hours in length.  There are two observations I would make in relation to this. 

12. First, the federal magistrate was being invited to listen to hours of recordings to determine whether they contained any material that might prove to be relevant to the appellant’s claim.  As I have already stated, it was up to the appellant to establish that the recordings were relevant if they were to be received into evidence.  This required the appellant to do more than simply point to the existence of the recordings. 

13. Secondly, I think it would be unfair to the respondent for the federal magistrate to have received the CDs into evidence over objection and to have embarked upon a private listening without the appellant first identifying by reference to a transcript or summary of some description of those parts of the recordings which were to be relied upon by the appellant as evidence of the alleged failure of communication. The respondent is entitled to know with some reasonable particularity what it is that is being relied upon so that it may engage with both the appellant and the court in a meaningful way as to what significance should be attached to it. In my opinion this is a case where the federal magistrate would have been justified in rejecting the tender of the CDs pursuant to s 135 of the Evidence Act 1995 (Cth).

14. Leaving aside the federal magistrate’s rejection of the CDs, the appellant did not identify any error which was said to infect his Honour’s decision in relation to the lack of an Ibo interpreter.  I am satisfied that there was no such error. 

15. For the above reasons the appeal should be dismissed with costs. 

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        2 March 2010