SZOJQ v Minister for Immigration
[2010] FMCA 493
•12 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJQ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 493 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Abebe v The Commonwealth (1999) 197 CLR 510 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | SZOJQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 952 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 July 2010 |
| Date of Last Submission: | 12 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2010 |
REPRESENTATION
| The Applicant appeared in person assisted by an Ibo interpreter |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms J. Dinihan, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 952 of 2010
| SZOJQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 7 April 2010 and handed down on 8 April 2010.
The applicant claims to be a citizen of Nigeria and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 7 July 2008 having departed legally from Nigeria on a passport issued in his own name and a subclass 676 tourist visa issued on 8 June 2008.
On 20 August 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 6 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 18 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 1 July 2009, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 17 November 2009, the Federal Magistrates Court set aside the decision of the Refugee Review Tribunal and remitted the matter for determination according to law.
On 7 April 2010, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 3 May 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In support of his protection visa application, the Applicant claimed that he worked for the Independent National Electoral Commission (“INEC”) in Nigeria during the national elections in 1998 and April 2007. He claimed that he was approached by members of the People’s Democratic Party (“PDP”) to rig the voting results and was beaten when he refused. The Applicant claimed that his sister was kidnapped and his mother told that, if she did not produce the Applicant within two days, they would “bear the consequences” of the Applicant’s act. The Applicant claimed that, as a result, he and the members of his family were displaced and he has now lost contact with his mother and sister. The Applicant claimed to have gone to Onitsha to stay with his uncle but that his life was not safe there.
The Applicant claimed that he had been the president of a Catholic youth organisation in his village in Nigeria and sought the assistance of his Parish Priest to come to Australia. The Applicant claimed that the government of his country and fellow Christians were afraid of the PDP and he would be unprotected if he returned to Nigeria. Further, he claimed that the PDP had recruited “assassinators” to kill him.
The Delegate’s decision
On 16 October 2008, the Applicant attended an interview with the Delegate.
On 6 November 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Applicant produced various documents at the interview, including a letter dated 27 June 2008 purportedly from his Traditional Ruler, a letter dated 26 June 2008 purportedly from his Parish Priest and a “Christian Testimonial” from another Catholic parish church purportedly attesting to his baptism at that church on 30 May 1991.
The Delegate found the Applicant’s evidence to be contradictory, non-specific, evasive and vague. The Delegate found the Applicant to be “totally without credit”. Further, the Delegate found that details provided by the Applicant at interview often contradicted the Applicant’s claims in support of his protection visa application.
The Tribunal’s review and decision
The Applicant provided further documents to the first Refugee Review Tribunal on 23 March 2009 and 1 April 2009. On 29 January 2010, 8 February 2010 and 11 February 2010 the Applicant provided further documents and material to the Tribunal.
On 7 January 2010, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 8 February 2010 to give oral evidence and present arguments. The hearing date was postponed to 15 February 2010 by letter dated 8 January 2010 and, on 15 February 2010, the Applicant attended the Tribunal hearing and gave evidence.
On 25 February 2010, the Applicant sent a post-hearing submission to the Tribunal for its consideration addressing concerns put by the Tribunal to the Applicant during the hearing.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“15. In coming to his decision to affirm the decision of the delegate, the Tribunal reviewed at length the written and oral claims and evidence provided by the applicant. Firstly, the Tribunal reviewed the applicable law in unobjectionable terms. It then set out the first applicant’s claims and evidence, including the evidence given both at the Departmental Interview and to the previous (and differently constituted) Tribunal. Finally, the Tribunal set out its findings and reasons.
16. In the findings and reasons the Tribunal firstly dealt with the applicant’s ability to participate effectively in the hearing before the Tribunal[1]. The Tribunal examined, and assessed, the medical reports provided by the applicant on his mental health. The Tribunal noted that such evidence was relevant to the applicant’s ability to participate effectively in a hearing. The Tribunal found that the applicant had no difficulty recalling events at the hearing on 15 February 2010. The Tribunal then concluded, after taking into account the evidence on the issue of the that the applicant was able to participate effectively in the hearing before the Tribunal on 15 February 2010[2].
[1] GB 351-352.
[2] Ibid at [145].
17. Next, the Tribunal dealt with the applicant’s claims[3]. The Tribunal Member found he had difficulty accepting much of the applicant’s evidence. The Tribunal found that the applicant was not a credible witness. In making that finding the Tribunal had regard for the medical problems claimed by the applicant[4]. The Tribunal also had regard to the fact that the applicant had given an account of what had happened on a number of occasions: orally at the Departmental Interview and before the Tribunal on two occasions and in writing in the original application for a protection visa and in statutory declarations dated 9 December 2008, 12 January 2009, 20 March 2009, 29 January 2009 and 18 February 2009[5]. Nevertheless the Tribunal found that there were significant inconsistencies in the applicant’s account, which were not adequately explained. The Tribunal found that these inconsistencies went to the issue of whether the applicant was telling the truth about events, which he claimed placed his life in danger in Nigeria[6].
18. The Tribunal then explained each of the inconsistencies that he was referring to. There were eight in total. The Tribunal's treatment of the eight inconsistencies was very comprehensive and detailed. Amongst other things the Tribunal Member found that there were inconsistencies in the applicant's evidence regarding whether he was involved in any political activities in Nigeria or his opposition to the PDP[7].
19. The Tribunal then made findings regarding the material that had been provided to the Tribunal by the applicant. The Tribunal did not accept that certain letters and documents provided by the applicant were genuine[8].
20. Further, the Tribunal gave no weight to a letter from the INEC in light of the finding that the applicant was not a witness of truth, and because of the availability of fraudulent documents in Nigeria[9].
21. The Tribunal found that having regard to the view he had formed about the applicant’s credibility he did not accept that the applicant was opposed to the PDP and corruption. The Tribunal did not accept what was submitted in the applicant’s submission dated 29 January 2010 that he was at high risk because of his refusal to pay bribes if he returns to Nigeria[10].
22. The Tribunal accepted the applicant was Catholic and involved in the Adoration Ministry, but did not accept that the applicant ever had any problems as a result of his involvement in the Adoration Ministry nor did the Tribunal Member consider he had to conceal his involvement in the Adoration Ministry to avoid detection[11]. The Tribunal found the applicant did not face a real chance of persecution in Nigeria by reason of his involvement in the Adoration Ministry[12].
23. Having regard to the findings made, the Tribunal also found that there was not a real chance that the applicant would be detained by the Nigerian security forces and interrogated about his absence if returned to Nigeria. The Tribunal did not accept that the applicant would be displaced due to political unrest if he were to return to his home in Enugu[13].
24. Further, the Tribunal did not accept that the applicant would face a real chance of persecution for reasons of his real or imputed political opinion or his religion if he returned to Nigeria[14].
25. Finally, the Tribunal did not accept on the evidence provided by the applicant that he would face a real chance of persecution by reason of his physical or mental disabilities if he returned to Nigeria[15].
26. The Tribunal found the applicants were not persons to whom Australia owed protection under the Act[16].”
[3] GB 352.
[4] GB 353 at [149].
[5] GB 353.
[6] GB 353 at [150].
[7] GB 359 and following at [178]-[181].
[8] GB 362 at [188], [191], GB 363 at [192] and [193].
[9] GB 363.
[10] GB 363.
[11] GB 363 at [194].
[12] Ibid.
[13] GB 364 at [195].
[14] GB 364 at [195].
[15] GB 364 at [197].
[16] GB 365 at [198].
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of an Ibo interpreter.
On 27 May 2010, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents, headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he had not filed any other document in support of his application. He confirmed that he relied on the grounds contained in the initiating application filed on 3 May 2010. Those grounds are as follows:
“1. That the Tribunal found that certain documents provided by the Applicant to the Department or Tribunal were not genuine. The Tribunal fell into jurisdictional error in making these findings.
2. The Tribunal found that it was not satisfied that the applicant faced a real chance of persecution in Nigeria. The Tribunal fell into jurisdictional error in making these findings.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
In support of Ground 1, the Applicant asserted that his documents were genuine. He also said that the Tribunal should have made an effort to investigate their authenticity “outside the Nigerian government” and should have given him another chance to produce further documents. I asked the Applicant what further documents he would have wished to produce to the Tribunal and he responded: documents from his Parish Priest, Traditional Ruler and INEC.
The Applicant did not provide particulars, evidence or submissions to explain how or why the Tribunal erred in finding that his documents were not genuine.
In relation to the Applicant’s assertion that he was not given another chance to produce further documents and that he would have wished to produce certain documents to the Tribunal, as stated above, the Applicant made a post-hearing submission which did not in any way suggest that the Applicant wished further time to provide other documents. Nor is any such request apparent on the face of the Tribunal’s decision record. In any event, the Applicant had already provided letters from his Parish Priest, Traditional Ruler and INEC which were considered by the Tribunal.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 27 May 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Tribunal’s decision record makes clear that the Tribunal conducted a detailed analysis of each of the documents provided by the Applicant. The letter, dated 26 June 2008, purportedly from the Parish Priest, stated that the Applicant was “a bona fide member of the Parish”. That letter and the letter, dated 27 June 2008, from the Traditional Ruler both refer to people forcing the Applicant to rig the 2007 elections and the alleged subsequent persecution of the Applicant and his family. The Applicant provided subsequent letters from each of those persons to similar effect. The letter purportedly from INEC was dated 25 March 2009 and stated that the Applicant had worked for the Commission as a Presiding Officer in 2007 election. The Tribunal put its concerns about the genuineness of those documents to the Applicant in some detail at the hearing.
The Tribunal’s decision record makes clear the careful and detailed exchanges that the Tribunal had with the Applicant about its concerns in relation to the Applicant’s documents and all his claims. In particular, the Tribunal discussed the prevalence of document fraud in Nigeria. The Tribunal noted that it put to the Applicant that it was very difficult to put any weight on the documents produced and noted the Applicant’s various responses. The Tribunal also noted that it explained to the Applicant that it was unable to check the authenticity of the INEC document with INEC because the Applicant was claiming that he feared persecution by Nigerian authorities and that INEC was part of the Nigerian government. The Tribunal noted that the Applicant said that the Parish Priest had obtained all the documents for him.
The Tribunal concluded that the letters from the Parish Priest and the Traditional Ruler had a common origin and were not genuine. In reaching that conclusion, the Tribunal had regard to country information before it regarding the availability of fraudulent documents in Nigeria. In light of the Tribunal’s comprehensive rejection of the Applicant’s claims and his lack of credibility, the Tribunal gave the INEC letter no weight.
The Tribunal’s decision record makes clear that the Tribunal carefully and thoroughly put to the Applicant the specific matters of concern it had about his oral evidence, particularly in relation to internal inconsistencies and inconsistencies with independent country information. The Tribunal explained the relevance of that information and the consequences if it relied on the information in affirming the decision under review. The Tribunal invited the Applicant to comment on or respond to the information and gave him further time to provide those comments. The Tribunal had regard to the Applicant’s post-hearing submissions addressing those concerns but was not persuaded by the Applicant’s explanations.
The Tribunal found that there were significant inconsistencies which the Tribunal considered were not explained by the number of times the Applicant had given an account of what he said had happened to him. The Tribunal found that those inconsistencies were part of the reason that led it to find that the Applicant was not telling the truth about the events which he claimed placed his life in danger in Nigeria. The Tribunal found the Applicant’s post-hearing statutory declaration to be “an unconvincing attempt to reconcile the differences in the accounts he has given”.
Further, the Tribunal accepted that country information before it disclosed that people who have worked for INEC at the April 2007 elections had not been targeted by PDP supporters in the way claimed by the Applicant. The Tribunal further found that country information disclosed that people opposed to the current regime in Nigeria are not routinely harmed by authorities. The country information to which the Tribunal has regard and the weight it gives such information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
In the circumstances, the Tribunal did not accept that the Applicant’s claims were consistent with information before it regarding the situation of INEC workers or of ordinary Nigerians who may be perceived to oppose the government.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
To the extent that the Applicant asserts that the Tribunal should have further investigated his claim, it is well established that it is only in certain circumstances that the Tribunal may be obliged to investigate an applicant’s claims (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is apparent on the face of the Tribunal’s decision record (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Otherwise, Ground 1 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review, which this Court cannot undertake.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 was unsupported by particulars, evidence or submissions. It does not identify an error capable of review by this Court.
As is apparent from the Reasons above, the Tribunal gave careful and thorough consideration as to whether the Applicant faced a real chance of persecution in Nigeria, as claimed. Ultimately, the Tribunal was not satisfied that the Applicant met the criteria for being a refugee. It is for the Applicant to satisfy the Tribunal that he meets that criteria (Abebe v The Commonwealth (1999) 197 CLR 510 at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]). If the Tribunal was not so satisfied, s.65(1)(b) of the Act mandates that the Applicant must be refused a protection visa.
Accordingly, Ground 2 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 12 July 2010
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