SZNVA v Minister for Immigration
[2009] FMCA 1091
•17 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNVA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1091 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of Nigeria claiming fear of persecution on the ground of political opinion – credibility – whether Tribunal failed to review the delegate’s decision as required by Migration Act 1958 (Cth) s.414 – whether Tribunal failed to comply with Migration Act 1958 s.425(1) – whether the Tribunal misconstrued the evidence – whether the Tribunal ignored a claim – whether the Tribunal inferred a level of knowledge that the applicant did not have – whether the Tribunal failed to consider evidence – whether Tribunal failed to disclose issues on the review – no failure to review the decision. WORD & PHRASES – “issue”. |
| Migration Act 1958 (Cth), ss.91X, 414, 425, 476 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 128 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63 SZFDZ v Minister for Immigration and Citizenship [2008] FCA 390 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909 Fang Wang v Minister for Immigration [2003] FCA 1044 Abebe v The Commonwealth of Australia (1999) 197 CLR 510; 162 ALR 1; 73 ALJR 584; [1999] HCA 14 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434; [2009] HCA 30 |
| Applicant: | SZNVA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1899 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 October 2009 |
| Date of Last Submission: | 12 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the Respondents: | Mr Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
An order in the nature of certiorari is to issue to quash the decision of the Second Respondent Refugee Review Tribunal made on 30 June 2009.
An order in the nature of mandamus is to issue requiring the Second Respondent to determine according to law the Applicant’s application for review of a decision of the first respondent not to grant the Applicant a Protection (Class XA) visa.
The First Respondent is to pay the Applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1899 of 2009
| SZNVA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Applicant
This is an application for review of a decision of the Refugee Review Tribunal made on 30th June 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
In an amended application filed on 28th September 2009, the Applicant seeks the issue of:
a)A writ of certiorari, quashing the Tribunal decision; and
b)A writ of mandamus, requiring the Tribunal to consider and determine the Applicant’s application for review according to law.
Background
The Applicant is a citizen of Nigeria who arrived in Australia on 7th July 2008. He applied for a Protection (Class XA) visa on 20th August 2008. In a handwritten statement on his application form, the Applicant claimed to have worked on a temporary basis for the Independent National Elections Commission of Nigeria. He claimed to have refused a request by supporters of one political party to falsify the voting results in favour of their party. When he refused, he was threatened.
The Applicant submitted a number of documents with his application, including a letter from His Royal Highness Igwe I.O. Ugwu dated 27th June 2008. That letter, addressed to the Australian Government, set out the Applicant’s claim in this way:
He came to be in your midst due to political crisis which was caused by undesirable elements, some people who thought of their failure in 2007 gubertorial[1]/presidential election because they know that if the election will be conducted properly they must lose it or fail.
Which they forced him and rig the election, beat him almost half dead and later on, used assassinators to eliminate his life. And there after affected the rest of the entire family members. All our effort to hide or secure him in Nigeria turns into abortive, because our system of government is corrupt.[2]
[1] Sic – presumably “gubernatorial”
[2] Court Book 47
The Minister’s delegate invited the Applicant to attend an interview on 16th October 2008.[3] He attended that interview and provided his Nigerian passport for examination.[4] The delegate refused the application for a visa on 6th November 2008.[5] The delegate refused the Applicant’s claim on credibility grounds, stating:
As stated previously in this document, the applicant’s complete lack of knowledge about his employer gave the impression that he has never been employed by this organisation. The applicant was asked direct questions at interview about the Independent National Electoral Commission (INEC) in Nigeria, however he could not correctly answer any of the questions…[6]
[3] Court Book at 52
[4] Court Book 67
[5] Court Book 74
[6] Court Book 73
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 18th November 2008. He appointed Mr Michael McCrudden as his representative.
The Tribunal wrote to the Applicant’s representative on 3rd December 2008 under the provisions of s.424A of the Migration Act, inviting the Applicant to comment on or respond to certain information. The information referred to was:
· When you were interviewed by the Minister’s delegate, you were asked a number of detailed questions about INEC, the organisation for which you claimed to have worked. You demonstrated a complete lack of knowledge of it.
· When you were asked to explain your claims, your statements were vague and lacking in detail.[7]
[7] Court Book 92
The Tribunal asked the Applicant to provide his written comments or response by 17th December 2008. The Applicant provided a statutory declaration in reply, which was forwarded to the Tribunal by his representative under cover of a letter dated 9th December 2008.[8]
[8] Court Book 101-103
The Tribunal invited the Applicant to attend a hearing on 20th January 2009.[9] The hearing was postponed to 17th March 2009 at the Applicant’s request.
[9] Court Book 95
On 4th February 2009 the Applicant’s representative forwarded to the Tribunal:
a)A four page submission; and
b)A statutory declaration by the applicant.[10]
[10] Court Book 121-126
The Applicant attended the Tribunal hearing on 17th March 2009, accompanied by his representative, Mr McCrudden. He gave evidence with the assistance of an interpreter.
On 23rd March 2009, the Applicant’s representative made a further submission to the Tribunal.[11] Attached to the submission were:
a)A further statutory declaration by the Applicant;[12] and
b)A letter dated 22nd December 2008 to the Applicant from the NSW Refugee Health Service.[13]
[11] Court Book 140-144
[12] Court Book 145-146
[13] Court Book 147
On 1st April 2009, the Applicant’s representative forwarded to the Tribunal a letter dated 25th March 2009 from a Commissioner of the Independent National Electoral Commission of Nigeria, certifying that the Applicant had worked for the Commission in the 2007 General Election.[14] Also provided was a letter dated 4th February 2009, being a Certificate of Service by the applicant at the Zion Secondary School.[15]
[14] Court Book 149
[15] Court Book 150
The Refugee Review Tribunal Decision
The Tribunal made its decision on 30th June 2009, affirming the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.[16]
[16] Court Book 156
The Tribunal referred to aspects of the Applicant’s evidence which it found problematic:
At hearing, I asked the applicant to go over the events which led to his departure from the country, which he did. I asked him several questions about the elections – the name of the constituency in which he served, the number of polling stations, the number of candidates, the parties and the number of votes cast. He was very unsure in his answers and a check with the Electoral Commission web site showed that, in a number of matters, he was wrong. There were not 10-12 polling stations, but 14. There were not 5 candidates but 16 for the governorship and 24 for the presidency.
He told me that he had worked as a primary school teacher, whereas one of the documents he submitted showed him employed as a secondary school teacher. He subsequently submitted a document purporting to be from the Electoral Commission stating that he was the presiding officer at his polling station, yet he claimed that, after one day, he ran away. The elections took place over 2 days. Another document he submitted was from His Royal Highness Igwe I.O. Ugwu, his traditional ruler. This states that the aggrieved people were those who lost the elections, whereas, as I pointed out to the applicant at hearing, the PDP candidates won overwhelmingly…[17]
[17] Court Book 161-162 at paragraphs [27]-[28]
In its Findings and Reasons, the Tribunal accepted that the Applicant was a citizen of Nigeria. However, the Tribunal did not accept any of the Applicant’s other claims.
The Tribunal said:
Despite scouring all the material submitted by the applicant, I have no confidence in anything else in the applicant’s claims. The weakness of his knowledge of INEC and of the elections in which he claimed to serve as a presiding officer leads me to conclude that his whole account is a concoction. The 2007 elections took place in April. He did not leave for Australia for 14 months. His passport, which was before me at hearing, was issued in Enugu, his home state, in January 2008. Under ECOWAS arrangements, a citizen of an ECOWAS country may travel to another country freely without a visa. If the applicant was genuinely concerned for his well being, he could have availed himself of this facility.
However, I do not accept that he was. There is no doubt that Nigerian elections are accompanied by violence. But this disappears once the elections are over. The applicant was at best a minor temporary official and I do not accept that anyone would spend the time and resources to pursue him and his family in the manner he has described. He is simply not important enough (even if he did occupy the position he claims, which I do not accept).[18]
[18] Court Book 165 at [31]-[32]
Having made these extensive findings, the Tribunal went to find that it did not accept that:
a)The Applicant was involved in the 2007 elections;
b)The Applicant was assaulted;
c)The Applicant’s family were threatened; or
d)The Applicant’s sister was kidnapped.
The Tribunal found that the Applicant did not have a well-founded fear of persecution in Nigeria for a Convention reason.
Application for Judicial Review
In his amended application, filed on 28th September 2009, the Applicant relies on two grounds of review.
Ground 1 claims that The Tribunal failed to review the delegate’s decision as required by s 414 of the Migration Act.
The particulars of that ground are that:
a)The Tribunal failed to assess the Applicant’s claimed fear of persecution on the basis of the claims that he actually made, in that it assumed that the Applicant should have a detailed knowledge of the INEC, such knowledge being entirely incongruent to, and a mischaracterisation of, his claims.
b)The Tribunal mischaracterised or misunderstood, and therefore failed to consider, the evidence before it, being:
i)A document purporting to be confirmation of the Applicant’s employment by the INEC;
ii)The letter from the Applicant’s traditional ruler, His Royal Highness Igwe I.O. Ugwu;
iii)That there were no fewer then 12 polling booths in the Applicant’s constituency; and
iv)That the election for which the Applicant was the presiding officer in a polling booth was in part for the Enugu State House of Assembly.
The Applicant’s Ground 2 claims that the Tribunal failed to comply with s.425(1) of the Migration Act.
The particulars of that claim are:
a)Failure to raise with the Applicant the issue of his not availing himself of free access to other West African countries, and therefore leaving Nigeria earlier; and
b)Failure to raise with the Applicant the issue of whether he was so unimportant that his political adversaries would not pursue him.
The Applicant’s Submissions
The Applicant’s counsel, Mr Karp, submitted first of all that the Tribunal had mischaracterised the document purporting to be a certificate showing that the Applicant had worked for INEC at the 2007 election.[19] It does not claim that he worked for two days, nor can it be read that way, despite what the Tribunal stated.[20]
[19] As Court Book 149
[20] Court Book 162 at [28]
Again, it was submitted that the document from the Applicant’s traditional ruler[21], whilst awkwardly expressed, is clear enough in its claim that “undesirable elements” had forced him to “rig the election”. The Applicant’s evidence was that the PDP had polled poorly at his particular polling booth. Mr Karp submitted that the Tribunal had mischaracterised the facts in the document and ignored the Applicant’s evidence.
[21] At Court Book 47
Again, counsel for the Applicant submitted that the Applicant had made it plain that he had first worked for INEC when he was 14 years old. He had only worked for INEC for one day in 2007. The Tribunal did not test the Applicant on his knowledge of INEC at the hearing but relied on the questions asked by the Applicant at the Departmental hearing.
The submission is that a person with the Applicant’s claimed connection with INEC could not reasonably be expected to have the intimate knowledge of INEC, its personnel, rules and functions that the delegate expected. Thus, it is submitted, the Tribunal was assessing the Applicant on the basis of claims of association and involvement with INEC that he did not make.
As to the Tribunal’s finding that the Applicant’s knowledge of the particular elections, Mr Karp submitted that:
a)The Tribunal misconstrued the Applicant’s evidence, in that he had not made any claim that there were 10 to 12 voting stations in his ward, but that there were not less then 12; and
b)The Applicant had made it clear at the hearing that the election was in part for the Enugu State House of Assembly, and the Tribunal had failed to consider whether the Applicant’s claim of 5 candidates related not to the Governorship or the Presidency, but to the State House of Assembly.
Mr Karp referred to the Tribunal’s finding that:
Under ECOWAS arrangements, a citizen of an ECOWAS country may travel to another country freely without a visa. If the applicant was genuinely concerned for his wellbeing, he could have availed himself of this facility.[22]
[22] Court Book 165 at [31]
The first mention of the ECOWAS, Mr Karp submitted, was in the Tribunal decision. The opportunity of flight to another (ECOWAS) country was not raised at any time, either in the interview with the delegate or at the Tribunal hearing. Whilst the fact that the delegate had rejected all the Applicant’s claims put his claims at “issue” (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[23] at [47]), the Tribunal was not entitled to reject a claim on the basis of undisclosed information if that information raises an issue in the proceedings. He referred to the decision of Flick J in SZFDZ v Minister for Immigration and Citizenship[24] where his Honour said at [23]:
An inflexible attempt to define those “issues’ in a particular way may tend to divert attention from the principal concern of s 425, namely to ensure that an applicant is given a meaningful opportunity to be heard.
[23] (2006) 128 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] 63
[24] [2008] FCA 390
This, he submitted, was an issue in the proceedings and was a reason why the Applicant was not believed. Thus, it should have been disclosed to the Applicant for his comment in compliance with s.425.
Similarly, Mr Karp submitted that the Tribunal’s finding that the Applicant was, at best, “a minor temporary official” and “simply not important enough”[25] to have been subject to ongoing persecution after the elections were over, was only raised for the first time in the Tribunal decision.
[25] Court Book 165 at [32]
Counsel for the Applicant submitted that:
a)The Tribunal must consider the Applicant’s claims (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[26]);
b)The Tribunal must consider the evidence going to the Applicant’s claims (WAFP v Minister for Immigration and Multicultural and Indigenous Affairs[27] at [16]-[19]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs[28] at [212][213]; Minister for Immigration and Multicultural Affairs v SBAA[29] [31], [44]; SZMIA v Minister for Immigration and Citizenship[30]); and
c)Mischaracterising evidence can result in jurisdictional error (Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs[31] per Allsop J at [60]-[62]).
[26] (2004) 144 FCR 1; [2004] FCAFC 263
[27] [2003] FCAFC 319
[28] (2005) 147 FCR 51
[29] [2002] FCAFC 195
[30] [2008] FCA 1909
[31] [2003] FCA 1044
Here, Mr Karp submitted that the Tribunal had erred in that it:
·Misconstrued evidence.
·Ignored a claim that the Applicant made, as to who won the election at his polling booth.
·Inferred a level a knowledge that the Applicant did not have about the INEC, this assessing him on a claim that he did not make.
·Effectively failed to consider the Applicant’s evidence in the context of a claim that he did make (that the election was for, inter alia, the state House of Assembly).
·Failed to disclose issues arising on the review.
Considered individually, he submitted, each consists of a jurisdictional error. Considered cumulatively, there must come a point in the Tribunal’s review under s.414 when multiple errors of fact in considering claims and evidence result in a substantive failure to consider the Applicant’s case. It is submitted that this is what the Tribunal did in the case under review.
Mr Karp went on to submit that the errors in breaching s.425(1) stand separately and depend on how the word “issues” is defined. He submitted that an “issue” in the context of s.425(1) of the Act may be defined as:
A distinct factual matter which is part of a chain of reasoning that is or could be dispositive of the proceedings.
Here, he submitted, the Applicant was not given opportunity to be heard on a distinct factual matter that was part of a chain of reasoning going directly to his credit, which was central to the Tribunal’s decision.
The First Respondent’s Submissions
Counsel for the Minister, Mr Reynolds, submitted that the Applicant’s first ground of review, that the Tribunal failed to review the delegate’s decision as required by s.414 of the Act, had not been made out. It was apparent on the face of the material that the Tribunal did in fact conduct a review. Errors of fact, or multiple errors of fact, do not amount to legal error, let alone jurisdictional error (Abebe v The Commonwealth of Australia[32] at [137]).
[32] (1999) 197 CLR 510; 162 ALR 1; 73 ALJR 584; [1999] HCA 14
Further, he submitted that each of the specific alleged errors relied on are without merit. In particular:
a)The Tribunal did not mischaracterise the document purportedly from INEC, as the passage cited was taken from the Tribunal’s summary of the evidence at the hearing[33] and not from the Tribunal’s reasoning;
[33] Court Book 162 at [28]
b)The Tribunal did not mischaracterise the letter from HRH Igwe I.O. Ugwu; the letter on its face suggests that the aggrieved people were those who lost the election and it was therefore open to the Tribunal to find that this was what the letter said;
c)As to the Tribunal’s finding that the Applicant had a weak knowledge of INEC:
i)The Tribunal did not assume that the Applicant should have had a detailed knowledge of INEC but thought that the Applicant should have some knowledge of it, as witness the phrasing of the Tribunal’s s.424A letter, which put to the Applicant that he had demonstrated a complete lack of knowledge about INEC;
ii)It was open to the Tribunal to proceed on that basis, as there is nothing remarkable in the Tribunal reasoning that a person claiming to have been employed as a “presiding officer” by INEC would have some, or detailed, knowledge of the organisation; the Tribunal did not accept the Applicant’s explanation for the paucity of his knowledge, as it was entitled to do, because matters of credibility are matters for the Tribunal;
d)As to the Applicant’s claim that the Tribunal misunderstood his claims as to the numbers of polling stations and candidates in the 2007 election:
i)It was open to the Tribunal to find that the Applicant did not know the number of polling stations given that the Applicant did not identify that there were 14 polling stations; and
ii)The Applicant did not say that the election was only for the State House of Assembly, but that the election was for the governorship and the Assembly, so it was open for the Tribunal to conclude that the Applicant’s answer, that there were 5 candidates, was incorrect; it was open to the Tribunal to find that the Applicant was erroneous in his oral evidence.
Mr Reynolds then turned to the Applicant’s claims that the Tribunal had failed to comply with s.425 of the act by failing to raise with the Applicant the “issues” of:
a)Failing to avail himself of purportedly free access to other West African countries; and
b)Whether the Applicant was so unimportant that his political adversaries would not pursue him.
It was submitted that the delegate had comprehensively rejected the Applicant’s credibility, so he was not entitled to assume that any aspect of his case would be accepted by the Tribunal. Mr Reynolds referred to the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[34], where their Honours held at [47]:
First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.[35]
[34] supra
[35] (2006) 128 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [47]
It was submitted that the case under review is one of those cases. In particular, the alleged “issues” were merely subjective thought processes rather than dispositive issues. The issue was the genuineness of the Applicant’s fear, which he clearly knew (see SZHKA v Minister for Immigration and Citizenship[36] at [9] and SZBEL at [38]-[39]). Alternatively, the “issues are no more than additional evidence relating to an extant issue” (Minister for Immigration and Citizenship v SZKTI[37] at [51]).
[36] [2008] FCAFC 138
[37] (2009) 258 ALR 434; [2009] HCA 30
Further, it was submitted that both the “issues” were superfluous or, in the alternative, there was an independent basis for the Tribunal’s finding not impugned by the alleged errors.
It was submitted that the Applicant’s ability to travel to another country went to whether the Applicant behaved in a manner that a person genuinely concerned for his well being would behave. Whether the Applicant was so unimportant that his political adversaries would not pursue him was superfluous because it went to what would happen upon the Applicant’s return to Nigeria if he were in fact an officer of INEC, whereas the Tribunal had made it clear that it did not accept that the Applicant had held that position.
Accordingly, it was submitted that the Applicant’s second ground of review should be rejected.
Conclusions
The Applicant relies on two grounds of review:
a)Ground 1 – a failure to review the delegate’s decision as required by s.414 of the Migration Act, evidenced by mischaracterising or misunderstanding the applicant’s claims and evidence; and
b)Ground 2 – a failure to comply with s.425(1) of the Migration Act by failing to raise with the Applicant two particular issues, being:
i)His failure to avail himself of his right of free entry to another ECOWAS country; and
ii)Whether the Applicant was so unimportant that his political adversaries would not pursue him.
Ground 1 relies on a number of claims of misunderstanding or mischaracterising the evidence, which are said individually to constitute jurisdictional errors and cumulatively to constitute a failure to review the delegate’s decision at all. I will state at the outset that this ground is not persuasive, as the claimed misunderstandings and mischaracterisations appear, for the most part, to be no more than factual errors. As counsel for the Minister has submitted, errors of fact do not in themselves amount to legal error, let alone jurisdictional error:
... there is no error of law simply in making a wrong finding of fact…[38]
[38] Abebe at [137]
The Applicant claims that the Tribunal wrongly stated at paragraph [28] of its decision that the document purporting to be from the Electoral Commission appears to have stated that the Applicant was the presiding officer at his polling station “yet he claimed that, after one day, he ran away. The elections took place over two days”.[39]
[39] Court Book 162
On reading the document, which appears at page 149 of the Court Book, it does not state for how long the Applicant worked, only that he in fact worked:
This to certify that the bearer (SZNVA)[40] worked for the Independent National Electoral Commission of Nigeria (INEC) as one of the resource workers for the 2007 General Election.[41]
[40] The applicant’s name is not used in order to comply with s.91X of the Migration Act
[41] Court Book 149
It was a matter for the Tribunal as to what weight it gave this document. It is not for the Court conducting judicial review to state what evidentiary value the document might have.
Again, the Applicant claims that the Tribunal mischaracterised the facts in the document from the Applicant’s traditional ruler, HRH Igwe I.O. Ugwu and ignored the applicant’s evidence. The Tribunal said this about the document:
This states that the aggrieved people were those who lost the elections, whereas, as I pointed out to the applicant at hearing, the PDP candidates won overwhelmingly.[42]
[42] Court Book 162 at [28]
What the document actually says is:
…some people who thought of their failure in 2007 gubertorial/presidential election because they know that if the election will be conducted properly they must lose it or fail.[43]
[43] Court Book 47
Clearly, the document is awkwardly expressed, but it would appear to refer to people who feared that their party would lose the election, not that they actually did lose. After all, the Applicant’s claim was that on the first polling day the PDP supporters tried to force him to falsify the results. It matters not whether their party actually won the election or not.
If the Tribunal did in fact misconstrue this document, which appears to be the case, it does not in my view amount to a jurisdictional error, let alone amount to a failure to carry out the review. At most, it is an error of fact.
The Applicant’s counsel makes much of the Tribunal’s assessment of the Applicant’s lack of knowledge about INEC, taken from the delegate’s questioning of the applicant at the interview. In my view, this is no more than the Tribunal giving more weight to this particular piece of evidence than the applicant thinks appropriate. It does not amount to jurisdictional error, in my view. It does not go to show a failure to review as required by s.414 of the Act.
The level of understanding of INEC and its operations is, in my view, a factual matter for the Tribunal to decide. An assessment by the Court as to what is an appropriate level of knowledge would amount to merits review, which is impermissible.
A similar comment would apply in respect of the Applicant’s criticisms of the Tribunal’s statement in paragraph [31]:
The weakness of his knowledge of INEC and of the elections in which he claimed to serve as a presiding officer…[44]
[44] Court Book 165
Counsel for the Applicant then referred to these two statements as part of his submissions about Ground 1:
Under ECOWAS arrangements, a citizen of an ECOWAS country may travel to another country freely without a visa. If the applicant was genuinely concerned for his well being, he could have availed himself of this facility.[45]
And
The applicant was at best a minor temporary official and I do not accept that anyone would spend the time and resources to pursue him and his family in the manner he has described. He is simply not important enough…[46]
[45] Court Book 165 at [31]
[46] Ibid at [32]
Put simply, neither of those statements appears to show a mischaracterisation or a misunderstanding of the Applicant’s evidence or claims. It is difficult to see how they would go towards showing that the Tribunal failed to carry out its task of reviewing the delegate’s decision under s.414 of the Migration Act.
Section 414(1) of the Migration Act provides:
Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
In my view, the Tribunal did review the delegate’s decision in this case. Whilst it may be argued that the Tribunal made some errors of fact and placed more weight on some evidence than another Tribunal might have done, this does not amount to jurisdictional error and does not constitute a failure to review the decision.
Ground 1 has not been made out.
The Applicant’s Ground 2 claims a failure by the Tribunal to comply with s.425(1) of the Migration Act by not raising with the Applicant two issues:
a)His right of entry to other ECOWAS countries without a visa; and
b)Whether he was so unimportant that his political adversaries would not pursue him.
Subsection 425(1) of the Migration Act provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The High Court has considered this matter in SZBEL. In my view, paragraph [35] of the decision provides a useful guide to Courts at first instance, with respect:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.[47]
[47] (2006) 128 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63 at [35]
When considered in that light, it is difficult to see, with respect, how there is a breach of s.425(1) in this statement by the Tribunal at paragraph [32], which is set out in context:
There is no doubt that Nigerian elections are accompanied by violence. But this disappears once the elections are over. The applicant was at best a minor temporary official and I do not accept that anyone would spend the time and resources to pursue him and his family in the manner he has described. He is simply not important enough (even if that he did occupy the position that he claims, which I do not accept.)[48]
[48] Court Book 165
The above statement appears to be no more than a conclusion reached by the Tribunal on the evidence before it. It is the Applicant’s own evidence that he was a minor and temporary official. The Applicant’s claim was that he and his family were subject to persecution well after the election and he fears that this will continue if he returns to Nigeria, two years later. All that the Tribunal was doing was considering that part of his claim and rejecting it.
The Applicant is on stronger ground, however, when he complains of this finding by the Tribunal at paragraph [31] of the decision:
Under ECOWAS arrangements, a citizen of an ECOWAS country may travel to another country freely without a visa. If the applicant was genuinely concerned for his well being, he could have availed himself of this facility.[49]
[49] Court Book 165
As his counsel stated so eloquently in his written submissions:
Where did this come from?[50]
[50] Applicant’s Outline of Submissions filed 28 September 2009 page 8
The question of the ability of a citizen of an ECOWAS country to travel freely to another such country never arose in the delegate’s decision. A reading of the transcript of the hearing[51] shows that there was no discussion of this question. It was not raised in the Tribunal’s s.424A letter to the applicant dated 3rd December 2008. It is not referred to in the country information in the Tribunal decision. It has just come “out of the blue”, so to speak.
[51] The Transcript is annexed to the affidavit of Elizabeth Biok filed on 28th September 2009 tendered in evidence
Counsel for the Minister has described it as an “alleged issue”. With respect, it is more than that. It is a matter that the Tribunal used as part of its adverse finding as to the Applicant’s credibility. The Applicant’s credibility was most certainly an issue.
In my view, this is an issue that should have been raised with the Applicant at the hearing. That the Tribunal failed to do so is an indication that the Tribunal failed to comply with the requirements of s.425 of the Migration Act. I am satisfied that it is a jurisdictional error.
The application will be granted and orders in the nature of certiorari and mandamus will issue.
As the Applicant is represented, there is a question of costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 November 2009
0
10
1