SZOET v MIAC
[2010] FMCA 483
•5 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOET v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 483 |
| MIGRATION – RRT decision – Nigerian Christian fleeing religious violence in home town – risk of repeated violence – Tribunal accepted country information about State protection – found protection met international standards – no jurisdictional error shown in Tribunal’s assessments – application dismissed. |
| Migration Act 1958 (Cth) |
| Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 SZEQI v Minister for Immigration & Anor [2005] FMCA 1615 |
| Applicant: | SZOET |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 461 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 5 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Byrne |
| Solicitors for the Applicant: | Ian Byrne Solicitor |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 461 of 2010
| SZOET |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant is a national of Nigeria who arrived in Australia in August 2009. He was immediately taken into immigration detention, when he was refused clearance at Sydney airport on the ground that it was believed that he was a “non‑genuine business entrant” under the visa found in his passport. He has been in detention since that time.
On 25 September 2009, he applied for a protection visa with the assistance of a solicitor appointed under an assistance scheme. He has since that time been further assisted by the solicitor, and has received legal assistance in today’s proceedings also.
A statement attached to the visa application explained his reasons for fearing persecution if he returned to Nigeria. He said that he was a Catholic who had been raised in an eastern State in Nigeria, where people of his Ibo ethnicity provide the majority, and where Christianity is the predominant religion. However, he moved to a State in the middle of Nigeria, and lived in the town of Jos where he conducted a business, firstly in relation to food trading, and then in relation to garments. He said:
Jos is a mostly Muslim city, but there were also a number of Christians. …
To begin with I did not have any problems and I made friends with a number of Muslim people. However, in 2001 there was an outbreak of anti‑Christian violence. Many of my Christians friends were killed, some by Muslims who had been there [sic] friends. The trouble was started by politicians, but it quickly turned to anti‑Christian violence. I managed to avoid trouble by running to a police barracks where I stayed for a few days until things calmed down. I later learned that I had been lucky to escape because some Muslims pretended to be police and dressed in uniforms so that they could stop and kill Christians.
After the violence died down I tried to return to my normal life. At the time I was in the food business. I had a stall in the market which was destroyed. I was slowly able to rebuild my business. However, I no longer had friendships with any Muslim people.
The applicant referred to commencing his business buying and selling clothing, including travel to Dubai to buy clothes. He said:
After 2001 there continued to be anti‑Christian violence in Plateau State, but not Jos. This changed in November 2008. There was a local government election. In the early morning following the election I heard a lot of Hausa people shouting “Allah Akbar”. I went outside and saw smoke and people shouting. I knew that there was going to be violence and I could be in great danger. I grabbed my passport and I started to run towards my business to see if it was secure. However, I saw many other Christian people leaving that area. They told me it was too dangerous to enter. I tried to return to my house, but people were also running from there in fear. After this I went with a number of other Christian people to a field near a police station. Before we got to the police station I saw many people being beaten and stabbed to death with knives.
The police started to move into the area where the violence was occurring, but the violence continued for several days. The following day we heard that the army had come to Jos to help deal with [the] situation.
We had to remain in the field near the police station for several days. The police and others brought some food and water, but it was very limited and not everyone was able [to] get any food or drink.
After several days the violence died down and I tried to return to my home. I discovered that it had been burned down. My business had also been destroyed. I went to stay with a Christian who lived in an area which had been affected by violence but not destroyed. I stayed with him for several months. I could not go out at night because there continued to be many killings of Christians after dark.
The applicant said that a group of Muslims “were trying to catch me”. He said:
After the violence in November the local Muslims started to say that their Taliban brothers from overseas and that they would be taking over and there was nothing we could do. At first we did not believe them, but then in February 2009 we heard that there had been an outbreak of anti‑Christian violence in Bauchi, which is next door to Jos. We heard from people who came from Bauchi to Jos that the Taliban were now in Bauchi. After this all of the Christians in Jos became very frightened. …
Then in July [sic: 2009] there was a second outbreak of violence in Bauchi. I believed that it was only time before the Taliban came to Jos and that I would not be safe if I remained in Nigeria.
The applicant claimed:
I cannot return to Jos because I am a Christian and my life would be in danger there. Furthermore, I do not believe that I would be safe anywhere in Nigeria. I fear that the Taliban will be told about me and my attitude and that I will be singled out and pursued even if I relocate to another area. In addition, I believe that the current government secretly supports the Taliban because they want the entire country to become Muslim. I believe that sooner or later I will be killed by the Taliban or their supporters. The only way I could avoid this would be to convert to Islam, which I am not prepared to do.
The applicant was interviewed by a delegate on 1 October 2009. In the course of the interview the applicant made a claim that he was being personally targeted by people who had posted up his picture on walls in four places, and that “if he returned to Nigeria now the Taliban would kill him because his picture had been pasted everywhere”.
The delegate refused the visa application on 3 November 2009. He referred to country information about tensions between Christians and Muslims in Nigeria, particularly in the “middle belt” where “both Muslims and Christians reside in large numbers”. The delegate accepted that the applicant is a Christian who resided in Jos, and that “in recent years the Middle Belt has been frequently the scene of conflicts between Muslims and Christians”. He accepted that in November 2008 there had been violent clashes, and that there had been previously violence in 2002 and 2001, and that in the 2001 riots there had been up to 1000 people killed.
The delegate accepted that the applicant’s home and business may have been destroyed in the November 2008 riots, however, the delegate considered that “the applicant’s fear of being harmed by Muslims in Jos is localised to this area, and there are no reasons the applicant could not live in another part of Nigeria where religious violence is less frequent”. The delegate therefore found that the applicant did not face a real chance of persecution if he returned to Nigeria.
On appeal, the submissions of the applicant’s solicitor emphasised that the applicant claimed that he “has been singled out and threatened. Extremist Muslims obtained a picture of him, which he believes shows that they are determined to pursue and punish him”. His submission also disagreed with the delegate’s finding that “extremist Islamic groups are restricted to limited areas in Nigeria”.
The applicant attended a hearing of the Tribunal on 14 December 2009. In the course of the hearing, the Tribunal put to the applicant country information which did not appear consistent with the applicant’s claims about the religious constitution of Jos and the persons responsible for the rioting, and importantly, that violence was promoted or condoned by government agents. The Tribunal put to the applicant that the authorities in Nigeria “had responded effectively to halt the violence” in the 2001 and 2008 rioting in Jos. The Tribunal also put to the applicant that his claim to have been personally singled out by Muslims might not be believed, because it had not been made in his original visa statement.
After the hearing, there was further rioting in Jos. On 22 January 2010 the Tribunal invited comments on this further outbreak, in which “at least 65 Christians and 200 Muslims are believed to have died … at least 17,000 people are reported to have been using army barracks and public buildings as temporary accommodation”. The applicant’s solicitor responded shortly by maintaining that the applicant’s fear “relates to the specific problems he faced and that he has been targeted by extremist Muslims because he confronted them in the past”.
The Tribunal made a decision on 10 February 2010 which affirmed the delegate’s decision. It referred to the applicant’s claims and how they had been presented in interview with the delegate and at the hearing before the Tribunal. It referred to the post‑hearing correspondence, and also extracted background information. This included a description of events in November 2008:
On November 27, 2008, ethnoreligious violence erupted in Jos following the Local Government Area (LGA) elections in Plateau State, with mob attacks continuing for three days. At least 300 persons were killed, and some estimate that as many as 2,000 persons died in the violence. Hundreds of others were injured. It was widely reported that rioters razed churches, mosques, and numerous businesses and vehicles. The crisis displaced at least 10,000 persons, although most returned home within two weeks. The state governor implemented a curfew and directed security agents enforcing it to “shoot on sight”, resulting in many of the fatalities. The curfew remained in effect at the end of the reporting period. Police arrested at least 500 persons, although no trials had commenced by the end of the reporting period.
The Tribunal noted that subsequent inquiries had suggested that the violence was related to elections, and the tensions had been exploited in the course of this.
In its “Findings and Reasons”, the Tribunal explained the parts of the applicant’s claims about the general background which it did not accept, and in relation to which it preferred independent evidence available to it. This included the fact that “Christians were in the majority in Plateau State and that Christianity was the dominant religion among the indigenes or the original inhabitants of the area”. It also found, in relation to the rioting in 2001 and 2008, that “on both occasions the Christians attacked Muslims just as much as the Muslims attacked the Christians”. It said that a group called “the Nigerian Taliban” had no links to the Taliban in Afghanistan, and also did not have “anything to do with the violence in Bauchi in February 2009”. The Tribunal also did not accept the applicant’s claims that the central government “secretly supported the Taliban and that they wanted the entire country to become Muslim”.
The Tribunal then addressed the possibility of future outbreaks of violence in Jos, and the position of the applicant if he returned there. It said:
74.I accept that further outbreaks of communal violence are likely to occur in Jos in the reasonably foreseeable future. Indeed a further outbreak occurred in January this year. As referred to in the Tribunal’s section 424A letter, as was the case with the outbreaks of violence in 2001 and 2008 Christians attacked Muslims as much as Muslims attacked Christians: at least 65 Christians and 200 Muslims are believed to have died. As with the previous outbreaks of violence, the authorities gave shelter to people fleeing the violence - at least 17,000 people were reported to have been using army barracks and public buildings as temporary accommodation - and the authorities responded effectively to halt the violence. The reports available to me indicate that the army intervened to restore order, that more than 250 youths were detained in connection with the violence and that a curfew was imposed (‘Nigeria - Mass funerals in Jos riots’, BBC, 21 January 2010, downloaded from accessed 22 January 2010; ‘Nigeria curfew released after religious fighting in Jos’, BBC, 21 January 2010, downloaded from accessed 22 January 2010).
75.As I explained to the applicant, the High Court has said that ‘[n]o country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence’. It has said that the State is obliged ‘to take reasonable measures to protect the lives and safety of its citizens’ (per Gleeson CJ, Hayne and Heydon JJ in Respondent S152/2003, referred to above, at [26]). As I put to the applicant, he himself says that he was protected by the police in the outbreaks of violence in Jos in 2001 and 2008. As I put to him, the information available to me indicates that, where violence like that in Jos in November 2008 has occurred in Nigeria, the authorities have responded effectively to halt the violence. If anything, the criticism has been that they have used excessive force. As I put to the applicant, Human Rights Watch reported in relation to the violence in November 2008 that, despite the allegations of arbitrary killings by the army, the witnesses they interviewed generally credited the army with having quelled the violence and restored peace, and in some cases with intervening to save the lives of both Muslims and Christians (Human Rights Watch, Arbitrary Killings by Security Forces - Submission to the Investigative Bodies on the November 28‑29, 2008 Violence in Jos, Plateau State, Nigeria, July 2009, page 9). The applicant agreed that the security forces had stopped the violence.
76.While I accept that further outbreaks of communal violence are likely to occur in Jos in the reasonably foreseeable future, therefore, I consider that the Government of Nigeria has taken reasonable measures to protect the lives and safety of its citizens in the context of these sorts of outbreaks of communal violence and that the protection it provides meets international standards as referred to in Respondent S152/2003, cited above. I do not accept that, as the applicant claims, the Nigerian Government supports the Taliban or that they want the entire country to become Muslim. I do not accept that there is a real chance that the applicant will be persecuted for reasons of his religion as a Christian in the context of these sorts of outbreaks of communal violence if he returns to his home in Jos now.
The Tribunal then turned to the applicant’s claims that Muslims had singled him out personally. It did not accept that claim, and concluded:
79.As I put to the applicant, he had made no reference at all in the statement accompanying his original application to the Muslims having his picture and having pasted his picture up and marking it in red. I do not accept the applicant’s claims in this regard. I do not accept that if this was the real reason for the applicant having left Jos he would not have mentioned this in the statement accompanying his original application. Moreover, having regard to the extent to which the applicant’s evidence is at variance with the independent evidence available to me I do not regard him as a witness of truth. I do not accept that there is a real chance that the applicant will be singled out by the Muslims to be attacked because he is perceived as being against their religion if he returns to Nigeria. The applicant also referred to having come under pressure from so‑called Christian friends to join a cult which he suggested believed in human sacrifice. However he did not suggest that he feared being persecuted by these friends because of his refusal to join their cult. Based on my findings above I do not accept that there is a real chance that the applicant will be persecuted for reasons of his religion if he returns to his home in Jos now or in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant would face a well‑founded risk of persecution for a Convention reason if he returned to Nigeria, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant has filed only an original application setting out his grounds:
That the RRT committed a jurisdictional error when it failed to send me a letter, and to accord me procedural fairness, by failing to give due consideration to my claims, as a Christian that I am telling the truth as I saw and witnessed it happen, therefore the RRT failed to consider that my individual claims is true.
Although at the hearing of the matter a solicitor appeared and sought an adjournment to give further advice and assistance to the applicant, no amended application was filed, and no written submissions have attempted to formulate better grounds of application.
As I understood the oral submissions made on behalf of the applicant, his solicitor argued that it was not open as a matter of law to the Tribunal to arrive at the conclusions set out in paragraph 76, once it accepted the background circumstances of communal violence which had faced the applicant in Jos and was likely to be repeated, as confirmed by the country information which was accepted by the Tribunal. In effect, his submissions suggested that the law allowed only one outcome to the applicant’s refugee claim based on those facts, and that the Tribunal therefore necessarily erred by arriving at an adverse conclusion.
However, I consider that the evidence before the Tribunal about the events in Jos, and its findings of fact on that evidence, left it open to it to find that the Nigerian government had and would “meet international standards as referred to in Respondent S152/2003”, in so far as they required States to assume responsibility for protecting their citizens from death and violence.
The paragraph of Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, which was cited by the Tribunal at paragraph 75 of its reasons, is:
26No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian State was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.
Their Honours in [28] and [29] indicated that it was unnecessary in the context of the case before them “to consider what those standards might require or how they would be ascertained”, and I am unaware of any subsequent judicial authority which has actually attempted to do this (cf. SZEQI v Minister for Immigration & Anor [2005] FMCA 1615 at [28]‑[40]). In Respondents S152/2003 at [28] there is a suggestion that the provision of “a reasonably effective police force and a reasonably impartial system of justice” might be relevant, although their Honours do not suggest that this is necessary as a matter of law. The broad test as to the adequacy of State protection which emerges in an unexplained fashion from Respondents S152/2003, is that it is sufficient for a Tribunal to make a finding that a government could “provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards” (see [29]).
It is clear, in my opinion, that the present Tribunal has properly instructed itself as to that requirement, and has attempted to apply it. It was understandable that the Tribunal did not attempt to give greater content to the nature of the relevant “international standards”. In my opinion, no jurisdictional error results from the absence of further discussion about this. While minds might differ whether “international standards” could be met where a well‑intentioned government finds itself unable to prevent outbreaks of communal violence, nor bring them under control until after hundreds of people have been killed and thousands displaced, I am not satisfied that the Tribunal arrived at an assessment of this in the present case which was contrary to law. Nor am I satisfied that its conclusion about the situation facing the applicant if he returned to Jos was not open to it upon an assessment of the country information which was put before it.
Although the submissions on behalf of the applicant did not focus upon the particular language used by the Tribunal in paragraph 76, I have considered whether there is any inherent inconsistency between the opening sentence and the closing sentence in that paragraph. However, in my opinion there is not, once the concept of being “persecuted for reasons of his religion as a Christian” is understood as encompassing the absence of adequate standards of State protection. It is clear that the concept does encompass this element (see Respondents S152/2003 at [21]).
In my opinion in the context of the whole paragraph, the Tribunal has concluded in its last sentence of paragraph 76 that, notwithstanding that there is a ‘likely’ risk of the applicant being caught up in further outbreaks of communal violence if he returned to Jos, he was not at risk of persecution within the meaning of the Convention, being persecution in relation to which the government of Nigeria would fail to provide adequate levels of protection. The Tribunal’s last sentence in paragraph 76 thus understood, in my opinion, arrived at a conclusion of fact on the future risk of ‘persecution’ facing the applicant, which revealed no jurisdictional error of either fact or law.
Turning to the formulation of the grounds of application in the application filed in the Court, I am unable to identify any procedural errors in how the Tribunal dealt with the matter. No submissions explaining such a contention were made to me. I can find no jurisdictional error in how the Tribunal warned the applicant about the issues which it would be deciding, both pertinent to his particular claims and also to the general country situation.
Nor can I find any substance in the contention that the Tribunal failed to give consideration to the applicant’s claims to be a refugee, other than an argument that it arrived at an incorrect assessment of those claims on their merits. However, that contention, in my opinion, invites the Court only itself to engage in a decision on the merits, and it is not its function to do that.
For the above reasons, I have been unable to identify any jurisdictional error affecting this decision of the Tribunal, and I must therefore dismiss the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 13 July 2010
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