SZOET v Minister for Immigration and Citizenship

[2010] FCA 968

FEDERAL COURT OF AUSTRALIA

SZOET v Minister for Immigration and Citizenship [2010] FCA 968

Citation:		SZOET v Minister for Immigration and Citizenship [2010] FCA 968
Appeal from:		SZOET v Minister for Immigration & Anor [2010] FMCA 483
Parties:		SZOET v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 908 of 2010
Judge:		YATES J
Date of judgment:		3 September 2010
Cases cited:		Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 SZLWB v Minister for Immigration & Citizenship [2009] FCA 1067
Date of hearing:	25 August 2010, 3 September 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	24
Solicitor for the Appellant:	Mr P McGirr (25 August 2010) Mr I Byrne (3 September 2010)
Counsel for the Respondents:	Mr G T Johnson
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 908 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOET
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	3 SEPTEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 908 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOET
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE:	3 SEPTEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of the Federal Magistrates Court of Australia delivered on 5 July 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 10 February 2010.  The Tribunal’s decision affirmed the decision of a delegate of the first respondent not to grant a Protection (Class XA) visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of Nigeria who arrived in Australia on 29 August 2009.  His passport contained evidence of a UC 456 Business (Short Stay) visa for entry to Australia.  This visa was cancelled in Immigration clearance at Sydney airport because the appellant was assessed as being a non-genuine business entrant.  He was refused immigration clearance and sought to engage Australia’s protection obligations.  The appellant is presently in immigration detention.  He applied for a Protection (Class XA) visa on 25 September 2009. 

3. The appellant claims that he is a Christian from Jos in Plateau State who fears persecution on the ground of religion.  His claim is based upon communal violence by Muslims against Christians.  In a typed statement supporting his application for a protection visa the appellant described what he identified as anti-Christian violence in Jos in 2001 and 2008.  He also described what he identified as anti-Christian violence in Bauchi (in Bauchi State) in February and July 2009.  He said that it had been reported that, in February 2009, the Taliban were in Bauchi.  He expressed the belief that, following the second outbreak of violence in Bauchi in July 2009, it was only time before the Taliban came to Jos and that he would not be safe if he remained in Nigeria. 

4. His claim is also based on having been personally targeted for mistreatment by Muslims.  In this regard he stated in an interview conducted on 1 October 2009 that he had seen his picture pasted “somewhere” and marked with red ink.  He said that this had occurred in July 2009; that he had seen the pictures posted on walls in four places; and that he had removed the pictures and thrown them away.  Despite having been previously interviewed on his arrival in Australia and having provided the typed statement in support of his application for a protection visa, the appellant had not previously given this information in support of his claim. 

5. The delegate was prepared to accept that the appellant may have experienced past hostilities from members of the Islamic population in Jos, and may have genuine reservations about returning to this city.  However the delegate found that there was no reason why the appellant could not live in another part of Nigeria where religious violence was less frequent.  As the delegate was satisfied that the appellant would be able to locate to a safer area to escape any risk of religious persecution, the delegate was not satisfied that the appellant’s fear of religious persecution was well-founded in relation to Nigeria as a whole.  Consequently, the delegate found that, if returned to Nigeria, the appellant did not face a real chance of persecution by any individual or group in the foreseeable future, on account of his religion, and that any such fear by the appellant was not well-founded.

   THE TRIBUNAL’S DECISION

6. At the hearing conducted before it, the Tribunal put to the appellant that much of what he had said in the typed statement in support of his application for a protection visa did not accord with the independent evidence that was available to the Tribunal.

7. This independent evidence included the following:

   (a)Christians were in the majority in Plateau State and Christianity was the dominant religion among the indigenes or the original inhabitants of the area.  The website of the Jos Catholic Archdiocese suggests that Catholics alone number 636,000 out of a population of 2.56 million in the diocese.

   (b)In the violence that had taken place in Jos in 2001 and 2008, Christians had attacked Muslims just as much as Muslims had attacked Christians. 

   (c) The group called the “Nigerian Taliban” does not appear to have any links to the Taliban in Afghanistan at all.

   (d)The conflict in Bauchi in February 2009 arose over parking at a church before the weekly prayers at a nearby mosque.  In this connection the Tribunal did not accept that the “Nigerian Taliban” had anything to do with the violence in Bauchi in February 2009.

   (e)The “Nigerian Taliban” was responsible for violence in July 2009 in Bauchi and other northern states, but the main targets were police stations.  This violence was responded to by the authorities arresting the leader of the group, and the military driving the group out of their base, with security forces putting up road blocks and enforcing curfews in towns across northern Nigeria to halt the violence.

8. The Tribunal accepted that further outbreaks of communal violence were likely to occur in Jos in the reasonably foreseeable future.  However, in that regard, the Tribunal also found in [76] of the decision record:

   While I accept that further outbreaks of communal violence are likely to occur in Jos in the reasonably foreseeable future…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….  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.

9. Furthermore, the Tribunal did not accept the appellant’s claim of having been singled out by Muslims.  The Tribunal noted that in his original statement in support of his application the appellant had made no reference to Muslims having his picture or having his picture pasted-up and marked in red.

10. The Tribunal concluded that the appellant did not have a well-founded fear of being persecuted for a Convention reason should he return to Nigeria now or in the reasonably foreseeable future.  Accordingly the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention.

    FEDERAL MAGISTRATES COURT

11. By application filed in the Federal Magistrates Court on 5 March 2010 the appellant sought judicial review of the Tribunal’s decision.  The single ground of review was as follows:

    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.

12. At the hearing in the Federal Magistrates Court the appellant, by his solicitor, argued that it was not open as a matter of law to the Tribunal to arrive at the conclusions set out in [76] of the decision record once the Tribunal accepted the background circumstances of communal violence which had faced the appellant in Jos.  The Federal Magistrates Court recorded that this submission suggested that the law allowed only one outcome to the appellant’s refugee claim based on those facts, and that the Tribunal therefore necessarily erred by arriving at an adverse conclusion.

13. The Federal Magistrates Court rejected this submission.  The Federal Magistrates Court found that the evidence before the Tribunal about the events in Jos, and its findings of fact on that evidence, left it open to the Tribunal to find that the Nigerian Government had and would meet international standards in so far as they required States to assume responsibilities for protecting their citizens from death and violence.  In this connection the Federal Magistrates Court referred to Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [26] where Gleeson CJ and Hayne and Heydon JJ said:

    No 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.

14. The Federal Magistrates Court found that the Tribunal had properly instructed itself, and had properly considered, the broad test as to the adequacy of State protection, and that no jurisdictional error was revealed.

15. The Federal Magistrates Court also stated that it was unable to identify any procedural error in how the Tribunal had dealt with the matter before it.  In this connection the Federal Magistrates Court noted that no submission had been made respecting procedural fairness and that it could find no jurisdictional error in how the Tribunal warned the appellant about the issues which it would be deciding, both as to his particular claims and also to the general country situation.

16. Finally the Federal Magistrates Court noted that the appellant’s contentions were really directed to inviting that court to itself engage in a review of the Tribunal’s decision on the merits, which was not its function.

17. In the end result the Federal Magistrates Court dismissed the application, with costs.

    APPEAL TO THIS COURT

18. On 22 July 2010 the appellant filed a notice of appeal in this Court.  The notice of appeal raises the following as grounds of appeal:

    1.The Federal Magistrate made an error in law by not finding that the Minister’s delegate accepted the applicant’s claim but denied the applicant procedural fairness.

    2.The Federal Magistrate made an error in law by not finding that [sic] Refugee Review Tribunal made a decision favourable to the Minister’s delegate without a proper assessment of the applicant’s claims.

19. The appellant was not present at the hearing today.  He was, however, represented by a solicitor acting pro bono.  I was informed that the appellant was not present because of health reasons but had expressed the desire that the hearing of the appeal proceed today.  The appellant’s solicitor advanced no oral submissions in support of the appeal.  Although directions had also been made for the filing of written submissions, no written submissions had been filed by the appellant.  Written submissions had been filed on behalf of the first respondent.  Those submissions were supplemented orally this morning by reference SZLWB v Minister for Immigration & Citizenship [2009] FCA 1067 at [24] where Besanko J said:

    With respect to the issue of adequate state protection, the High Court considered the relevant principles in Respondents S152/2003. Adequate state protection is relevant to a claim for refugee status because, if it is available, an applicant will have difficulty in showing that he is a victim of persecution, or in establishing that he is justified in his unwillingness to seek the protection of his country of nationality (at 9 [21], 13 [29] per Gleeson CJ, Hayne and Heydon JJ). Adequate state protection does not mean a guarantee of safety. A person may have a well-founded fear of harm and yet there may be adequate state protection. What is required is a reasonably effective police force and a reasonably impartial system of justice or, put another way, a level of protection an applicant is entitled to expect according to international standards (at 12 [28], 13 [29] per Gleeson CJ, Hayne and Heydon JJ).

20. The first respondent submits that the notice of appeal raises no arguable case. 

21. The first respondent submits, correctly in my view, that there is an immediate difficulty with the first ground of appeal in that the Federal Magistrates Court was reviewing the Tribunal’s decision, not that of the delegate.  Any claim of denial of procedural fairness must be one with respect to the Tribunal’s decision under review, not some antecedent decision affecting the appellant.  In any event, the first respondent submits that no denial of procedural fairness, much less jurisdictional error, is apparent on the evidence.

22. As to the second ground of appeal, the first respondent submits that there was no failure to consider the appellant’s claims and that the second ground of review impermissibly invites review of the Tribunal’s decision on its merits.  The short point raised by the first respondent is that the fact that the appellant’s claim has not been accepted does not mean that it has not been considered.

23. In my view there is no substance to either ground of appeal.  First, there is no evidence that there has been a denial of procedural fairness, let alone one associated with the decision under review.  Secondly, it is plain from a consideration of the Tribunal’s decision record that the Tribunal, although affirming the delegate’s decision, gave proper assessment to the appellant’s claim.  The Federal Magistrates Court came to the same view.  The appellant’s real complaint is that the Tribunal came to the wrong factual conclusions.  However it was not open to the Federal Magistrates Court, and it is not open to this Court, to supplant the Tribunal’s findings of fact with its own findings of fact. 

24. No appealable error is demonstrated in the decision of the Federal Magistrates Court.  The appeal will be dismissed with costs. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        3 September 2010