SZOCP v Minister for Immigration

Case •

[2010] FMCA 296

•

4 May 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCP v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 296
MIGRATION – Refugee Review Tribunal – “information” does not include inconsistencies – Tribunal complied with statutory obligations – findings of fact a matter for the Tribunal – no obligation on Tribunal to ensure adviser acted competently in dealings with applicant – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.424A, 424AA, 425
Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
SZMMP v Minister for Immigration & Citizenship [2009] FCA 233
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259
Randhawa v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39
Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Applicant: SZOCP
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 122 of 2010
Judgment of: Nicholls FM
Hearing date: 27 April 2010
Date of Last Submission: 27 April 2010
Delivered at: Sydney
Delivered on: 4 May 2010

REPRESENTATION

The Applicant: In Person
Appearing for the Respondents: Ms E Baggett
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The application made on 21 January 2010 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATSYDNEY

SYG 122 of 2010

SZOCP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 21 January 2010 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 December 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

  1. The applicant is a national of Nigeria who arrived in Australia on 1 August 2009. His visa was cancelled on arrival at Sydney Airport and the applicant was detained (Court Book – “CB” – CB 17). He applied for a protection visa on 18 August 2009 (CB 3 to CB 35, including a statement as to his claims – CB 29 to CB 35). He was assisted by a registered migration agent who appears to have been in the employ of the Refugee Advice and Casework Service – “RACS” (CB 11, CB 36 to CB 39).

Claims to Protection

  1. The applicant’s claims to protection are set out in a statement annexed to his application for a protection visa (CB 29 to CB 35).

  2. The applicant claimed to be a Christian of Yoruba ethnicity. His family lived in Sobaloju, near Iree. At around 18 or 20 he moved away from his family to Osogbo.

  3. In 1992 his father, while sick, told him that he had previously joined the Ogboni cult because he and his wife (the applicant’s mother) had had difficulty conceiving. The applicant’s father was told that, in exchange for his being able to have children, one of his children would have to join the cult.

  4. The applicant’s father said that, prior to the applicant’s birth, he had broken a rule of the cult, and was required to sacrifice his daughter. His father also said that he had recently broken another rule of the cult, and had decided to sacrifice himself rather than one of his children.

  5. The applicant was warned by his father to escape, as the cult still wanted one of his children to join them following his death, and believed that members of the cult would try to force the applicant to join.

  6. Following the father’s death, three men came to the house to take the body for burial, however the applicant’s mother refused them. Village elders explained to the applicant’s mother that she would be harmed if she stopped the cult members from taking the body. The applicant claimed that, when the men returned, he witnessed them removing some of his father’s body parts with a knife.

  7. Four years later (1996) the applicant received a telephone call from an unknown man, who explained that he must take his father’s position in the cult. A further three months later the applicant received a similar call. He said he did not want to join, and was told that if he didn’t “they would get me”. One year later (1997) the applicant received another similar phone call. Following this, the applicant was contacted fortnightly.

  8. In July 2008 the applicant applied for a passport as “threats I received from the members of the group became more alarming”.

  9. In March 2009, as the applicant was leaving his house he was grabbed by two men who pushed him onto a bus. The applicant’s eyes were covered, and he was driven around for an hour. The applicant was told he had been given his “last warning”. After this, the applicant began living with friends and arranged for a visa to leave Nigeria. During this time he continued to be contacted by a cult member by telephone.

  10. The applicant, through his adviser, provided a number of documents (CB 53 to CB 58), including a letter, said to be from lawyers in Lagos, Nigeria (CB 55), in support of his claims.

The Delegate

  1. The delegate noted there were a number of issues which gave rise to credibility concerns (CB 77). The delegate found it implausible that Ogboni members would have pursued the applicant for thirteen years to fill his father’s position. Instead, the delegate considered that the Ogboni members would have given up many years ago, or alternatively have killed the applicant earlier as they knew of the applicant’s movements. The delegate did not accept the applicant’s offered explanations (CB 77).

  2. Further, the delegate noted significant inconsistencies between the applicant’s written statement and what was said at interview. Some of the applicant’s claims were described as “significant implausibilities”. The delegate did not accept the applicant’s explanation for the inconsistent details relating to his claimed kidnapping. In consequence, the delegate did not accept these claims (CB 77).

  3. Ultimately, while the delegate accepted that the applicant’s father was a member of the cult, and the applicant may have been initially approached, she did not accept the applicant’s claims that this occurred over a period of thirteen years, and concluded that the applicant did not face any real chance of persecution on return to Nigeria.

The Tribunal

  1. The applicant applied for review to the Tribunal on 24 September 2009. He continued to be represented by the same migration agent. He was invited to attend, and ultimately attended, a hearing before the Tribunal on 6 November 2009 (CB 99, CB 104, CB 108, CB 114). His adviser was present.

  2. The Tribunal noted in its decision record:

    1)Details in the applicant’s “original” application ([14] at CB 139).

    2)A report of an interview conducted at Sydney airport with the applicant and another traveller, a woman. It noted inconsistencies in what the applicant reportedly said. It noted what the applicant had reportedly said in relation to a notice he had received to cancel his visa ([15] – [16] at CB 139 – CB 140).

    3)The applicant’s statement accompanying his protection visa application ([17] at CB 140 to [22] at CB 141).

    4)Documents submitted by the applicant in support of his claims ([23] at CB 141).

    5)The applicant’s evidence at the interview with the delegate ([24] at CB 142 to [34] at CB 144).

    6)The applicant’s evidence at the hearing before the Tribunal ([35] at CB 144 to [68] at CB 151).

    7)A submission made by his adviser after the hearing, with the applicant’s written statement attached (CB 179 to CB 131 and [69] at CB 151 to [78] at CB 155).

  3. The Tribunal considered there to be good reasons to conclude that the applicant was not truthful in his claims for protection ([82] at CB 154).The Tribunal noted significant inconsistencies in the accounts given by the applicant in relation to the telephone calls received from the cult members from 1996 ([82]), and in relation to the March 2009 incident ([85] at CB 155). The Tribunal did not accept the applicant’s explanations for these inconsistencies ([83], [84], [86] and [87] at CB 154 to CB 155).

  4. The Tribunal also found it difficult to accept that, if the Ogbuni cult had intended to do harm to the applicant, it would have left him alone between 1996 and 2009, and have released him again with a “warning” in March 2009 ([88] at CB 156). Again, the Tribunal did not accept that applicant’s explanations ([88] to [90] and [92] at CB 156 to CB 157).

  5. Further, the Tribunal considered it significant that, during an interview at the Sydney Airport, the applicant made no mention of the fact that he feared harm on returning to Nigeria ([93] at CB 157). The applicant’s representative sought to explain the applicant’s account on arrival by relying on what was said in Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584 (“Abebe”) per Gummow and Hayne JJ at [91]: “…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising”.

  6. The Tribunal did not accept this submission. It did not accept that the relevance of what the Court said was immediately obvious to the applicant’s circumstances. The point clearly made by the Tribunal was that the applicant’s story at the airport was not an embroidery or an exaggeration, but indeed a completely different story. Importantly, it was a story that made no mention of any claim to fear persecutory harm. Quite to the contrary.

  7. In any event, the Tribunal’s finding that the applicant’s behaviour was consistent with someone who had come to Australia for employment and to start a new life was reasonably open to it on what was before it ([95] at CB 157).

  8. The Tribunal found the applicant not to be a witness of truth ([96] at CB 157), and did not accept the applicant’s claims ([97] at CB 158).

  9. As a result, the Tribunal, while accepting that the applicant had told the truth about his identity and employment history, found he had not told the truth about the threats that he claimed from members of the cult in Nigeria. In this light the Tribunal gave greater weight to that view than what was expressed in the letter from the lawyers in Nigeria which purportedly corroborated his claims ([96] at CB 157).

  10. The Tribunal rejected the applicant’s factual claims underpinning his claim to fear persecutory harm in Nigeria and found the applicant did not have a well founded fear of persecution for a Convention reason if he were to return to Nigeria. The Tribunal affirmed the decision under review ([97] – [98] at CB 158).

Application to the Court

  1. In the application to the Court, the applicant put forward the following grounds:

    “1. That the RRT committed a jurisdictional error when it failed to send me a letter telling me what it was going to find against my credit and allow me the opportunity to answer therefore not complying with 424A of the act.

    2. That the RRT committed a jurisdictional error when it did not take into account my complaints about the interpreter.”

  2. No further particulars were provided.

Before the Court

  1. The applicant appeared in person. He was assisted by an interpreter in the Yoruba language. Ms E Baggett appeared for the first respondent. Written submissions have been filed on behalf of the Minister.

  2. At the hearing before the Court, the applicant complained:

    1)The Tribunal did not accept his claims to fear harm.

    2)That the Nigerian woman who arrived in Australia with him was granted refugee protection even in circumstances where she made no refugee claims on arrival.

    3)The Tribunal relied on what she had said on arrival as to the reason for their coming to Australia, instead of accepting what he said.

    4)In relation to ground one, “other people” in the Villawood Immigration Detention Centre (“VIDC”) had received letters from the Tribunal containing reasons for refusal and inviting commend. He did not receive such a letter.

    5)When he was interviewed by the delegate at the VIDC the interpreter participated by telephone. This caused confusion and resulted in the seeming inconsistency between whether he received threats in Nigeria by landline or mobile phone.

    6)When he was interviewed by his lawyer at the VIDC there was no interpreter present. This explained the deficiencies in his subsequent application.

    7)The Tribunal did not acknowledge, in the sense of replying to, the letter from the lawyer in Nigeria. This letter should have been taken into consideration.

Consideration

Ground One

  1. The first ground asserts a breach of s.424A. As pleaded, the “information” which the applicant argues should have been put to him in writing related to the Tribunal’s findings against his credibility.

  2. The short answer to this complaint is that “information” for the purposes of s.424A does not include the Tribunal’s findings as to inconsistencies contained in what was put before it, nor to doubts about the applicant’s evidence and claims (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18]).

  3. The Tribunal is not required to provide the applicant with a draft of its decision record before proceeding to a decision. But in any event, as set out below, the Tribunal clearly and squarely put its thoughts and its views about the applicant’s evidence to him at the hearing. His adviser was present. The applicant and his adviser had the opportunity, which they took up, to make further written submissions to the Tribunal.

  4. To the extent that the applicant may complain about the Tribunal’s failure to otherwise put any information to him in writing pursuant to s.424A(1), then, and in any event, evidence and submissions given by the applicant to the Tribunal for the purpose of the review falls within the exception to the obligation in s424A(1) contained in s.424A(3)(b). The written information provided by the applicant to the Minister’s department in his application falls within the exception contained in s.424A(3)(ba).

  5. Regardless of the exceptions, the “information” and its doubts about his evidence were put to the applicant at the hearing. (See [52] to [68] at CB 148 to CB 151.)

  6. The Tribunal’s account of the hearing, which remains unchallenged by evidence to the contrary, reveals that at the hearing the Tribunal gave the applicant certain information that it considered might form part of the reason for concluding that the applicant was not owed protection under the Refugees Convention (at [52] to [68]). This invoked the Tribunal’s obligations pursuant to s.424A(1). In context, the Tribunal clearly employed the facility available under s.424AA to put such information, orally, to the applicant at the hearing.

  7. On what is before the Court, the Tribunal complied with its obligations set out in s.424AA. Having outlined the particulars as to the relevance of the information, the Tribunal invited the applicant to comment or respond ([53] – [67]). The applicant was notified that he was entitled to seek additional time in which to do so ([52], [68]). As a result, because of s.424A(2A), the Tribunal was not obliged to give this information to the applicant in writing pursuant to s.424A(1) (see SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 (“SZMCD”) at [90], SZMMP v Minister for Immigration & Citizenship [2009] FCA 233 at [51]).

  8. This is similarly the case with the information given by the applicant orally to the delegate. While this information does not fall within any of the exceptions contained in s.424A(3), in the circumstances of the hearing, it is exempt pursuant to s.424A(2A).

  9. As is set out below, and in any event, the Tribunal did put information relating to the applicant’s credit to the applicant at the hearing. In the absence of a transcript of the hearing, there is no evidence before the Court that it did not do so in compliance with s.424AA(b)(i).

  10. At [67] the Tribunal told the applicant that the information “might form part of the reason for my concluding” that the applicant was not owed protection under the Refugees Convention. At [52] and [68] the Tribunal indicated that the applicant could comment on, or respond to, the information either at the hearing, or that he could seek additional time to do so. The applicant responded to this invitation in writing (see CB 119 to CB 125, see also [69] to [78] of the decision record at CB 151 to CB 153).

  11. On the best view of the evidence before the Court, therefore, in circumstances where the applicant has brought no evidence to the contrary, the Tribunal complied with the requirements in s.424AA.

  12. In these circumstances, given the complementary nature of the relationship between s.424AA and s.424A, and the description of s.424AA as a facultative provision (see SZMCD), the Tribunal was able to rely on s.424A(2A) such that it was not obliged to put this information to the applicant in writing. There was no failure of procedural fairness obligations in this regard.

  13. The applicant’s complaint before the Court that others at the VIDC received a “s.424A letter” does not reveal error on the part of the Tribunal. Whatever may have happened in any other case does not form the basis for any error on the part of the Tribunal in this case.

  14. In any event, even if others had received such letters, it may have been in circumstances where those Tribunal members chose not to employ the facility available under s.424AA, as did this Tribunal. The Tribunal complied with its statutory obligation in this regard. But even on any assessment, the applicant, with his adviser present, was given all the relevant information and the Tribunal’s relevant reasoning. He and his adviser had the opportunity, which they took up, of responding in writing.

  15. To the extent that this complaint may broadly be said to refer to a failure to comply with the requirements of s.425, the Tribunal’s obligation under that section is to raise at the hearing issues determinative or dispositive of the review, unless those issues arise as a result of the delegate’s decision, and to give the applicant the opportunity to address any such issues (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

  16. The dispositive issue in this case was the rejection of the applicant’s factual account of claimed harm. The Tribunal did raise the issue of the applicant’s credit in this regard at the hearing ([59] to [61], and [65] to [67] at CB 149 to CB 151). It also told him the relevance of these matters to its consideration of his claims (see in particular [66] to [67] at CB 151).

  17. No error is revealed in this regard.

Ground Two

  1. The second ground asserts that the Tribunal failed to take into account complaints by the applicant about the interpreter. No particulars are provided in the application.

  2. First, it is clear from the material before the Court that no complaint was raised by the applicant or his adviser about the interpreter at the hearing with the Tribunal.

  3. Rather, the applicant’s complaint appears to be about the interpreter at the interview with the delegate. This was confirmed by the applicant before the Court. At the Tribunal hearing it was quite clear that the Tribunal was concerned with inconsistencies in the applicant’s various accounts of what he said had occurred in Nigeria and the basis for fearing persecutory harm if he were to return.

  1. In written submissions subsequent to the hearing the applicant set out, in partial explanation for inconsistencies in his evidence between the interview with the delegate and at the hearing with the Tribunal, that the interpreter may have “confused” certain words (see CB 119 to CB 120). The Tribunal noted this ([69] at CB 151), took it into account, and considered it in its analysis (see [83] to [84] at CB 155). This included the applicant’s specific complaint before the Court involving the claimed “confusion” between whether he received the calls from the cult members by landline or mobile phone.

  2. Also in explanation for inconsistencies between his evidence at the hearing, his interview with the delegate and what had been written in his statement accompanying his protection visa application, the applicant’s adviser submitted that the application and statement had been prepared without the assistance of an interpreter and that he had difficulty understanding his representative. (See further below.)

  3. Again, the Tribunal considered this at relevant parts of its analysis (see [71] at CB 152, [75] at CB 153, and [76] at CB 153).

  4. What is immediately apparent on any plain reading of the Tribunal’s analysis, is that the inconsistencies in the applicant’s account were by no means confined to his initial written statement. The preponderance of inconsistencies were between the interview with the delegate, the hearing with the Tribunal and his subsequent written statement.

  5. The only direct reference to inconsistency in its analysis involving the original written statement was at [85] (CB 155) in relation to the incident of March 2009. Here the Tribunal ultimately repeated the applicant’s claim that this incident occurred because of the rejected and unexplained inconsistencies in his account to the delegate, the Tribunal at the hearing, and to the Tribunal in writing subsequent to the hearing.

  6. Before the Court the applicant repeated his adviser’s submission to the Tribunal that his application for a protection visa, including when he was “interviewed” by his adviser, was prepared without the assistance of an interpreter. The Tribunal’s consideration of this submission or explanation is dealt with above.

  7. To the extent that the applicant now seeks to imply error on the part of the Tribunal on the basis that it should have accepted this as a satisfactory explanation for the inconsistencies and deficiencies in his evidence, this must be rejected on the basis that it is a challenge to the Tribunal’s finding of fact. A finding open to it to make, and not one susceptible to revealing jurisdictional error.

  8. Nor was the Tribunal obliged to ensure that the adviser acted competently in his dealings with the applicant. There is nothing in the material before the Court to suggest any conduct by the adviser of the type central to the High Court’s consideration in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35.

  9. Short of this, therefore, any failure on the part of the adviser in conducting his discussions with the applicant without the assistance of an interpreter remains the responsibility of the adviser and the applicant. It may be that the adviser’s “admissions” in the letter of 24 November 2009 to the Tribunal (CB 120.4 and CB 120.9), that he and the applicant proceeded without an interpreter either in their discussion or in the preparation of the applicant’s statement in support of his protection visa application, may be a matter for referral or complaint to that authority dealing with the conduct of migration agents, but it does not reveal error on the part of the Tribunal.

  10. In my view, at the very least the applicant’s adviser should have raised this difficulty at a much earlier time, not left it for the applicant to raise at the hearing with the Tribunal.

  11. In any event all these complaints, in the totality of the Tribunal’s findings which were open to it on what was before it, do not reveal error on its part.

Other Complaints

  1. The applicant’s complaint before the Court that the Tribunal did not accept his claim to fear harm, on its own, can only properly be seen as a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259). The Tribunal does not have to uncritically accept what an applicant says, whether in part, or even in whole (Randhawa v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). The Tribunal is obliged to properly evaluate what has been put before it and to make relevant findings of fact. Such findings, including findings on credibility, are for the Tribunal to make (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In the current case, the Tribunal acted within jurisdiction. It gave cogent reasons for its findings.

  2. The applicant’s complaint that his travelling companion was granted refugee status cannot assist him now before this Court. It is a trite observation that each case before the Tribunal must be decided on its own merits. It may be that the applicant’s grievance in this regard is fuelled by knowledge of this woman’s circumstances. His evidence was that he had known her for a year. It may be that his knowledge is such that it is objectively difficult for him to see how she was granted refugee protection.

  3. But the fact that a different Tribunal member was satisfied on what was before it that she met the definition of “refugee” set out in Article 1A(2) of the UN Refugees Convention, even if her claims were similar to his, does not assist the applicant in showing jurisdictional error in his case.

  4. The best that can be said for the applicant is that inconsistent outcomes in relation to family members or even those who have known each other for a year and travel to Australia together to make “a new life” may lead to a question about the integrity of the system. But this is a matter for the Principal Member of the Tribunal, and does not assist the applicant before this Court.

  5. The applicant also complained that the Tribunal relied on what she had said to immigration officials on arrival at the airport as their reason for coming to Australia, rather than accepting what he had subsequently put in his application for a protection visa and in his evidence to the Tribunal.

  6. First, as set out above, the information obtained from the travelling companion at the airport was put to the applicant for comment at the hearing ([64] at CB 150). The applicant responded to this. The Tribunal complied with s.424AA in this regard and facilitated its compliance with the obligation in s.424A(1).

  7. Second, on at least a fair reading of the Tribunal’s analysis I am not persuaded that the Tribunal “relied” on what she said in preference to what the applicant said. The Tribunal did not use what she said to form an adverse view of his credibility. The Tribunal’s relevant findings in this regard arose from what he said at various times and the evidence he gave at the hearing.

  8. The Tribunal’s reference in its analysis at [95] (CB 157) to what the travelling companion said at the airport, when properly and fairly read, is that what she reportedly said was merely confirmation of the Tribunal’s view, to which it arrived separately and independently. In my view, the applicant’s complaint misrepresents the Tribunal’s consideration. The Tribunal did not look at what the applicant said and reject it on a preferred comparative basis with what the travelling companion had said. It rejected the applicant’s account on a range of factors that had nothing to do with what she said. It merely used what she said as illustration of its own conclusion. This does not reveal error on its part.

  9. The applicant also complained before the Court that the Tribunal did not acknowledge, reply to, or consider the letter from the lawyers in Nigeria. The letter is reproduced at CB 55. It was provided by the applicant on his own initiative through his representative to the Minister’s department in support of his application on 8 September 2009 (CB 54).

  10. The Tribunal acknowledged the letter in its setting out of the applicant’s corroborative documents ([23] at CB 141). The Tribunal set out in an extractive fashion the main thrust of the letter. It noted the discussion about the letter in the interview with the delegate ([33] at CB 144).

  11. The Tribunal discussed the letter with the applicant at the hearing ([40] at CB 145). The Tribunal put its concerns about the letter to the applicant. The applicant reportedly responded.

  12. Later in the hearing, after the Tribunal had squarely put its concerns to the applicant about the credibility of his factual account ([59] at CB 149 to [65] at CB 150), the Tribunal told the applicant ([66] at CB 151):

    “… I put to the applicant that I might give greater weight to the view that I formed of his credibility than I did to the letter he had produced from the solicitor in Lagos.”

    The applicant responded by asserting the truth of his claims. There was no mention of the letter in the applicant’s subsequent written statement (CB 126 to CB 131).

  13. The Tribunal rejected the credibility of the applicant’s claims. It found, for the reasons given, that the applicant was not “a witness of truth”. The Tribunal rejected that he had told the truth about the threats from the members of the Ogboni cult. The Tribunal gave greater weight to this view of the applicant’s credibility than to what was contained in the lawyer’s letter. The Tribunal did not consider that the letter outweighed the problems that it had with the applicant’s own evidence ([96] at CB 157 to CB 158).

  14. I cannot see error in what the Tribunal has done in this regard. The Tribunal complied with its statutory procedural fairness obligations in relation to the letter (s.424AA and s.424A – although it could be said that the letter fell within at least one of the exceptions in s.424A(3), s.424A(3)(b) or (ba) from the obligation in s.424A(1)).

  15. In any event, the applicant was on notice as to the Tribunal’s thinking in relation to the letter. Its relevant finding was open to it on what was before it. In any event, the attribution of weight to material before it is a matter for the Tribunal (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 42 per Mason J, Abebe at [197], Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44] per Gleeson CJ and McHugh J, [184] per Callinan J; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).

  16. Contrary to the applicant’s complaint now the Tribunal did acknowledge the letter in the sense of noting its existence and the relevance to the applicant’s case. There is no obligation on the Tribunal to acknowledge in the sense of replying to or entering into correspondence in this case where the Tribunal was obliged to pursue any further enquiries about the letter (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155). The Tribunal did not reject the letter as a fabrication, but merely found that, on its face, it did not outweigh its credibility concerns arising from the applicant’s own evidence.

  17. The applicant’s complaint that the Tribunal did not consider the letter can only be seen, in all the circumstances, as a complaint about the weight attributed to the letter by the Tribunal. No error is revealed in this regard.

Conclusion

  1. The Tribunal gave the applicant the opportunity to explain his claims and to address its concerns. It made findings of fact reasonably open to it, and for which it gave cogent reasons. For the applicant to succeed, the Court would need to discern jurisdictional error (at least) on the part of the Tribunal. As no such error is revealed, the application is dismissed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  D Nestor

Date:  4 May 2010

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Cases Citing This Decision

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SZOAU v Minister for Immigration [2010] FMCA 606