SZOVO v Minister for Immigration
[2012] FMCA 733
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 733 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it breached ss.420, 424A and 425 of the Migration Act 1958, failed to make enquiries, erred in the exercise of its discretion to allow an adjournment of its hearing, failed to give reasons for refusing an adjournment, conducted a hearing although the applicant was not medically fit to appear, made incorrect factual findings, failed to provide the applicant with an interpreter, was biased and failed to ask the correct questions. |
| Migration Act 1958, ss.65, 420, 424A, 425, 427, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v Li [2012] FCAFC 74 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 |
| Applicant: | SZOVO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2662 of 2010 |
| Judgment of: | Cameron FM |
| Hearing dates: | 27 June 2011, 12 September 2011 |
| Date of Last Submission: | 3 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr H.P.T. Bevan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2662 of 2010
| SZOVO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nigeria where, he claims, he was an active member of both the National Conscience Party (“NCP”) and the Eiye cult, a student-based university group. He claims that the Eiye cult was engaged in violent activities to which he was opposed and that he spoke out against their practices. He claims that as a result of these actions and because of his continued association with the NCP, members of the cult came to view him as a traitor. He claims that they will seek to kill him if he returns to Nigeria.
The applicant claimed to fear persecution in Nigeria because of his political opinion and his membership of a particular social group.
The applicant arrived in Australia as the holder of a student visa in February 2005. On 20 November 2009 he lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 22 March 2010. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-22 of the Tribunal’s decision (Court Book or “Green Book”, pages 294-312). Relevant factual allegations are summarised below.
Department
The applicant produced to the Minister’s department a letter dated 4 December 2009 from a psychologist at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). The psychologist stated that the applicant was suffering depression and symptoms of post-traumatic stress disorder associated with his past experiences in Nigeria and that his condition had been exacerbated by traumas experienced in Australia. The psychologist stated that, as a consequence, the applicant was not capable of undertaking paid employment at that time.
In his protection visa application the applicant said that he had joined the Eiye student group but later wanted to leave it when he found out more about its activities. He said that he feared that he would be harmed because he was considered a traitor to the group and had been warned that he would be targeted. The applicant also claimed that he feared harm from the Nigerian government because of his association with the Eiye group. He further claimed that the police were associated with student groups and were ineffective in controlling their violence.
In a statutory declaration declared on 22 January 2010 in support of his application for a protection visa, the applicant made the following claims:
a)he joined the NCP in 1999. He regularly attended meetings and helped organise rallies and protests on behalf of the NCP;
b)he commenced university studies in 2002 and became a member of the university’s most powerful student cult, the Eiye cult. He joined the cult partly because he wanted to instil the NCP’s ideology into the cult’s practices and also because the NCP was unable to participate in elections that year and he wanted to assist his friends in the cult who were supporting the Alliance for Democracy;
c)from 2003 he started to question the Eiye cult’s support for the Alliance for Democracy. He spoke in favour of the NCP, reported violent incidents to a group called Campus Conscience and continued to associate with certain members of an opposing cult, the Black Axe cult, with whom he had grown up. As a result of these factors, members of the Eiye cult became suspicious of his commitment to them;
d)he was threatened by Eiye cult members and by other groups such as the Black Axe cult;
e)he escaped an assault in June 2003. He did not know who was responsible but there were often attacks by members of rival groups;
f)in 2004 he had a fight with an Eiye cult member who told him that there was a price on his head. He left Lagos immediately and ceased his involvement with the NCP;
g)he feared that if he returned to Nigeria he would be killed or severely beaten by members of the Eiye cult who viewed him as an “oyana”, a traitor or a person who had informed on other members of the group or who had not kept the oath or secrets of the group;
h)he also feared that certain members of the Black Axe cult would try to hurt him in order to prevent others in their cult from finding out that he had been informed about the planned attack on him; and
i)the Nigerian police and security forces were often incompetent and they could not provide him with protection. Further, many officers had been members of the student cults at university and would be reluctant to protect him or to prosecute members of the gangs.
In submissions dated 18 March 2010 the applicant’s representatives referred to evidence that the campus-based cults in Nigeria had evolved into violent gangs which operated both on and off campus and were involved in a range of criminal activities. It was submitted, amongst other things, that the applicant feared persecution in Nigeria for reasons of his political opinion and his membership of the particular social group “oyana”.
Tribunal
On 10 May 2010 the applicant’s representatives wrote to the Tribunal requesting that the hearing scheduled for 12 May 2010 be postponed for one day as the applicant was experiencing considerable anxiety in relation to the hearing and was concerned that he would not be able to provide evidence effectively. In support of the request for an adjournment the applicant’s representative produced a report from a psychologist at the Transcultural Mental Health Centre (“TMHC”) who said, amongst other things, that the applicant had been referred to the centre for grief and trauma counselling and had attended seven sessions. The psychologist referred to the applicant’s symptoms and recommended that he seek further psychological assistance.
On 11 May 2010 the Tribunal refused the applicant’s request for an adjournment because it did not consider that there was anything in the report which provided a basis for postponing the hearing for one day.
On 11 May 2010 the applicant’s representatives produced a further statutory declaration made by the applicant on 10 May 2010. In that statutory declaration the applicant claimed that he had had a telephone conversation with his uncle on 27 March 2010 who told him that four of his friends had been killed in Nigeria. The applicant claimed that his friends had all been members of the Eiye cult and had campaigned with him for the NCP.
The applicant appeared before the Tribunal on 12 May 2010 and made the following additional claims:
a)he assisted his friends during the 1999 elections by campaigning for the Alliance for Democracy because, at the time, the NCP had not been registered and therefore could not participate in the elections;
b)in 2001/2002 he started to speak “aggressively” against the cult’s use of violence. He became involved in Campus Conscience at around the same time;
c)he first received threats from members of the Eiye cult in 2002/2003 but it was not until 2003 that things became very severe;
d)he campaigned for the NCP candidate during the presidential elections in 2003. He also campaigned for one of his friends who was standing for the NCP in the local government council. His activities on behalf of the NCP put him under pressure with the Eiye cult as they supported the Alliance for Democracy; and
e)during this period the Eiye cult “got to know what had been going on” and, as a result, the threats against his life became very intense. Even so, he continued his involvement with the NCP until his departure from Nigeria in 2004.
The hearing was adjourned at the applicant’s request and resumed on 17 May 2010 at which time he made the following additional claims:
a)his murdered friends had been involved with the NCP and had shared his ideology of non-violence. Together, they provided information to Campus Conscience about the Eiye cult’s activities;
b)their involvement in the NCP was “against the core of the Eiye” and in order to prevent others from following in their footsteps, the Eiye cult made them and him “scapegoats”;
c)he could not say categorically who was responsible for the death of his friends but it was either the Eiye or the Black Axe cult or one of the other cults which were in existence;
d)the Eiye group perceived him as a threat not only because he was an “oyana” but also because he had refused to budge in relation to their demands that he leave the NCP. Also, he did not follow their way of doing things, believed in non-violence and tried to stop them from engaging in violent activities;
e)the Eiye cult contracted the Black Axe cult to carry out the assault on him in 2004; and
f)many attempts were made to attack him but he managed to escape because he had informants both in the Black Axe and the Eiye cult who were trying to help him.
At the hearing the applicant’s representatives produced a psychiatrist’s report dated 15 December 2009 indicating that the applicant had been diagnosed with post-traumatic stress disorder, major depression and alcohol abuse. The applicant’s representatives submitted that the report was relevant to the applicant’s ability to focus and answer questions at the hearing.
The applicant’s representatives provided further submissions after the hearing.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal had regard to the psychologist’s report from STARTTS and the psychiatrist’s report which the applicant submitted on the second day of hearing, both of which indicated that the applicant had difficulties with concentration and memory. However, the Tribunal noted that neither of those reports, nor indeed the psychologist’s report from the TMHC submitted on 10 May 2010 in support of the request for a postponement of the first day of the Tribunal’s hearing, expressed any opinion about the applicant’s capacity to participate effectively in a hearing. The Tribunal noted in this connection that in the course of the hearing on 12 May 2010 the applicant was afforded breaks when requested and the hearing was eventually adjourned to 17 May 2010. Further, while the applicant prevaricated and refused to give straight answers to straightforward questions, he nevertheless demonstrated that he understood the issues in the review and was able to address the matters raised with him. In the circumstances, the Tribunal was satisfied that the applicant had been able to participate effectively in the hearing before it;
b)the Tribunal accepted that the applicant had been involved with the Eiye cult while at university, that after his initiation in 2001/2002 he began to speak out against the cult’s involvement in violence, that around this time he became involved with Campus Conscience, that from 2003 onwards members of the Eiye cult became suspicious of his commitment and that he began to receive threats from Eiye cult members as well as from other groups such as the Black Axe cult. The Tribunal also accepted that in 2004 the applicant had a fight with a member of the Eiye cult who told him that there was a price on his head;
c)in relation to his political activities, the Tribunal accepted that the applicant joined the NCP in 1999 but campaigned for the Alliance for Democracy candidate for governor of Lagos State in elections that year. It accepted that in 2003 he campaigned for the NCP candidate in the presidential elections and also for his friend who was standing for the NCP in the local government council. The Tribunal accepted that, by 2003 if not earlier, everyone would have known that the applicant was campaigning for the NCP;
d)however, it appeared to the Tribunal that if the members of the Eiye cult wanted to harm or kill the applicant, it was for his real or perceived actions in providing information about the cult and not because of his membership of any particular social group;
e)the Tribunal did not accept that the applicant’s ideology of non-violence or his real or imputed political opinion, including his involvement in the NCP, was the essential or significant reason for the persecution which the applicant claimed to fear from members of the Eiye cult. The Tribunal found that the applicant’s persecutors were motivated by their opinion that he was an “oyana”, a traitor or a person who had informed on other members of the group or who had not kept the oath or the secrets of the group;
f)the Tribunal did not accept, on the basis of the evidence before it, that “oyanas” had achieved such notoriety in Nigeria that it could be said that they feared being persecuted for reasons of their membership of that particular social group rather than because of their individual actions. Accordingly, the Tribunal did not accept that the essential and significant reason for the persecution which the applicant feared was because of his membership of a particular social group in Nigeria known as “oyanas” or his real or imputed political opinion. Rather, the Tribunal found that the essential and significant reason for the persecution which the applicant said he feared was his actions in providing information, for example to Campus Conscience, which led to him being singled out as a traitor or a person who had not kept the oath and secrets of the Eiye cult;
g)in relation to the applicant’s claims that he feared harm from the Eiye, Black Axe and other cults, the Tribunal found that they lacked a relevant connection to one or more of the five Convention criteria;
h)the Tribunal noted the evidence before it which suggested that the police in Nigeria were corrupt and ineffective but did not accept that there was a systematic discriminatory failure by the government to protect people like the applicant for one or more of the Convention reasons;
i)the Tribunal did not accept that there was a real chance that the applicant would be persecuted by the Nigerian government for reasons of his past association with the cult, noting that he did not claim to have had any problems with the government while he was in Nigeria because of his association with the Eiye cult; and
j)while accepting that the applicant would wish to continue his involvement in politics were he to return to Nigeria, the Tribunal did not accept, given the active and vigorous political opposition in the country, that there was real chance that he would be persecuted for reasons of his real or imputed political opinion were he to return.
Proceedings in this Court
Based on a series of lettered subparagraphs the applicant alleged in the further amended application that the Tribunal had “misconstrued” the Convention tests. However, rather than identifying a misunderstanding by the Tribunal of those tests, the various lettered subparagraphs appearing in the further amended application are better understood as allegations of jurisdictional error and they will be dealt with on that basis. The applicant’s submissions were principally set out in affidavits filed on 4 January 2011 and 2 May 2011, a document entitled “Statement of Reasons” dated 30 April 2011 and 2 May 2011, written submissions dated 5 November 2011 and further written submissions dated 16 September 2011. Those documents were not drawn in a clear manner and it has been necessary to distil the applicant’s arguments from those various documents. The applicant also made oral submissions to the Court.
The applicant’s case might largely be summed up by the following statement appearing in his written submissions dated 5 September 2011:
Had I been provided a day extension, an interpreter, a fair hearing; where questions asked are without presuppositions, the decision would have be [sic] favourable to me. (parenthetical comments omitted)
Subparagraph (a)
The first subparagraph of the further amended application was expressed as follows:
As particularised in this submission the Tribunal failed to act in accordance with the substantial justice and merits of the case as required by s 420(2)(b) of the Act.
Provisions such as s.420 add nothing to, and have no particular content divorced from, the Tribunal’s obligation to afford procedural fairness in a particular case: Minister for Immigration & Citizenship v Li [2012] FCAFC 74 at [28]. Consequently, as the Tribunal’s obligation to afford procedural fairness is codified in div.4 of pt.7 of the Act, it is necessary that reliance on s.420 be grounded upon a right or entitlement provided in that division. As this allegation does not refer to any provision of the Act other than s.420 or any right which might arise under such other provision, it discloses no basis to conclude that the Tribunal’s decision was affected by jurisdictional error.
Subparagraph (b)
The second subparagraph of the further amended application was expressed as follows:
The Tribunal failed to give to the Applicant particulars of information the Tribunal considered to be reason for affirming the delegate’s decision. And, the Tribunal fail to request from the applicant, materials that can substantial or explain such particulars/or to comment on same as required by s 424A of the Act, in particular its concerns about the oversea account (page 52 of the Green Book) and IRIS CASE NOTES-08/03/2004 (PAGE 37 of the Green Book).
The first of the documents identified by the applicant, the “oversea [sic] account”, seems to set out transactions on a foreign bank account together with the balance of that account and appears to have been accompanied by a Westpac account statement. The second document, “IRIS CASE NOTES – 08/03/2004”, was a departmental case note dated 8 March 2004. It records that the applicant had lodged a student visa application and deferred to the following year but that, because the author of the file note could not advise him of the funds and requirements for the following year, the applicant advised that “he would like to withdraw”.
Section 424A of the Act relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
None of the information contained in the two documents in question was relied upon by the Tribunal in affirming the decision of the delegate. Nor, in light of the reasons which the Tribunal gave for affirming the delegate’s decision, could it reasonably be inferred that that information would have been considered by the Tribunal, at any time, to have been the reason or a part of the reason for doing so. It is apparent that the Tribunal reached its decision based on its assessment of the applicant’s claims concerning his interaction with the Eiye cult and not on matters relevant to his original student visa.
As a result, no obligations relevantly arose under s.424A and this part of the further amended application discloses no breach of the Tribunal’s obligations to the applicant.
Subparagraph (c)
This ground was expressed in the following terms:
So therefore; there are probable causes and there will be no misgiving for this Honourable Court to believe and to agree with the applicant. That the rule of natural justice has been breach, accept that the Court is not fully certain that all documents, information & records the Tribunal & Delegate of the Minister utilized in reaching BOTH respective decisions was not afforded in the Green Book and to the Applicant and to agree with the applicant’s fear of same.
At the outset it should be observed that these proceedings are concerned to review the decision of the Tribunal, not the decision of the delegate. Consequently, the aspect of this and subsequent allegations which refers to the delegate’s decision need not be considered further. As to the remainder of this allegation, it appears to be a submission in support of the allegations made in subparagraphs (a) and (b). As such, it is unsuccessful for the reasons expressed in relation to them.
Subparagraph (d)
The fourth subparagraph of the further amended application was expressed as follows:
There is undoubting premise for this Honourable Court to agree with the applicant that the Tribunal Member failed to use his power under Migration Act 1958 – 427(d) to order an investigation into the need for the hearing date to be deferred for just a day; as the Tribunal member implies. While failing to reach same logical and reasonable conclusion to adopt experts’ reports that; there are probable cause for the hearing to be defer.
The applicant submitted that he had provided the Tribunal with two psychological reports so that it could order an examination by its own chosen doctors. The second report was provided on the second hearing day, 17 May 2010.
Section 427 relevantly provides:
427 Powers of the Refugee Review Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation; or
(b) adjourn the review from time to time; or
(c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
As referred to above at [11], on 10 May 2010 the applicant’s representatives asked that the hearing scheduled for 12 May 2010 be postponed for a day as the applicant was suffering considerable anxiety in relation to the hearing and supported that request by supplying the report from the TMHC counsellor.
The Tribunal’s decision reveals that the request was refused because the Tribunal did not consider that anything in the TMHC report provided a basis for postponing the hearing for a day. The following day, after the Tribunal’s decision on that request had been communicated, the applicant’s representatives submitted to the Tribunal for a second time that the applicant was in a vulnerable position as a result of psychological difficulties.
In these proceedings the applicant submitted that:
a)the only evidence that was before the Tribunal was supportive of his request for an adjournment;
b)at its hearing he tried to explain to the Tribunal that his health was not very sound but was ignored;
c)the Tribunal had no relevant medical expertise and failed to use its discretionary power under s.427(1)(d) of the Act to order an investigation into the need for an adjournment and this amounted to a denial of natural justice;
d)there was no evidence to justify the decision to refuse the request for an adjournment;
e)by refusing to grant him the adjournment simply because the psychological report did not state that he could not attend the hearing, the Tribunal had not acted in good faith; and
f)the Tribunal should have given reasons for its decision to refuse the adjournment.
The applicant also submitted that his mental health affected his ability to give evidence on 12 May 2010 and, further, that listening to the sound recording of the Tribunal’s hearing would reveal that the Tribunal intimidated him “during the process”.
Really what the applicant is alleging is that the Tribunal’s decision to proceed with its hearing on 12 May 2010 amounted to a miscarriage of discretion because the decision to proceed was grounded on a failure by the Tribunal to exercise its discretionary power of adjournment provided by s.427(1)(b). The applicant’s allegation assumes that the circumstances obliged the Tribunal to exercise that power of adjournment and, in particular, that before the Tribunal could refuse his request for an adjournment, it had to be possessed of information which contradicted what was said in the TMHC report or which demonstrated that an adjournment of its hearing was not necessary. However, those assumptions are not correct.
The Tribunal had no obligation to exercise its s.427(1)(d) power to order an investigation or a medical examination or even to consider whether to exercise that power: WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277, and although circumstances may arise in a particular case by reason of which the Tribunal has to make particular enquiries: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123, that does not necessarily require the application of s.427(1)(d): Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 603 [22] per French CJ and Kiefel J, Heydon and Crennan JJ agreeing. In this case, it is not apparent that the applicant’s representatives suggested to the Tribunal that it should seek to obtain a second opinion. Nor is it apparent that other circumstances existed which required the Tribunal to turn its mind to taking such a step.
Additionally, even assuming that the TMHC report had expressed the view that an adjournment of the Tribunal’s hearing was appropriate or desirable, which it did not, the Tribunal was not obliged to accept and act on that opinion. To the extent that the Tribunal’s exercise of discretion regarding whether to adjourn the hearing depended on an assessment of evidence, its discretion will not have miscarried if factual findings grounding the decision it made were open to it on the evidence; that is to say, if they were not completely unsupported by evidence. In this case, the Tribunal found that there was nothing in the TMHC report or the representatives’ covering letter which justified a one day adjournment of its hearing. Given what was contained in those documents, that finding was open.
As the Tribunal’s decision not to grant an adjournment was based on its assessment of the evidence before it, it was not invalidated by the fact that the Tribunal had not obtained evidence contradicting what was said in the TMHC report and in the representatives’ covering letter.
The applicant also submitted that the Tribunal should have inferred from what was said in the TMHC report that he was unfit to proceed with the hearing. However, that does not provide a basis to find that there has been a miscarriage of discretion because it is no more than a complaint that the Tribunal reached a conclusion on the facts different from the one which the applicant would have preferred it to have made. Unless the conclusion which the Tribunal reached following consideration of that material was manifestly unreasonable in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and I find that it was not, the Tribunal will not have erred on the basis alleged and any exercise of discretion based on it will not have miscarried on that account.
At paras.103-107 of its decision the Tribunal discussed the applicant’s ability to participate effectively at the hearing and those passages disclose that the Tribunal gave careful consideration to the applicant’s request for an adjournment and to the TMHC report which accompanied it. As there was nothing in that report which reflected on the applicant’s capacity to participate at the hearing, it was open to the Tribunal to decide that the hearing should proceed. Further, having taken into account what was contained in that report and the applicant’s presentation at the 12 May 2010 hearing, the Tribunal concluded:
While … the applicant prevaricated and refused to give straight answers to straightforward questions in the course of the hearing before me, he demonstrated that he understood the issues in the review and he was able to address the matters I raised with him. I consider that he was able to participate effectively in the hearing before the Tribunal.
In connection with the applicant’s reference to the psychiatric report dated 15 December 2009 provided to the Tribunal on the second hearing day, as that document was not made available to the Tribunal when it was deciding whether to grant the request for an adjournment of the first hearing day, it provides no basis to conclude that the decision to proceed with the first hearing day as scheduled amounted to a miscarriage of discretion. In any event, as the report appears to have been a medico-legal report prepared in anticipation of a compensation claim connected with an assault suffered by the applicant in 2007, it was not directed to his ability to give evidence and present arguments at the Tribunal’s hearing in 2010.
Significantly, the applicant has not adduced any evidence in the present proceedings to demonstrate that, at the Tribunal hearing, his health was sufficiently poor that his ability to give evidence and present arguments was materially compromised.
The applicant’s allegation that he tried to explain to the Tribunal at its hearing that his health was not very sound but was ignored was made by reference to the sound recording of that hearing. He also said that the Court needed to listen to the sound recording to understand that the Tribunal had intimidated him. I have read the transcript of the Tribunal hearing and have listened to the sound recording of both sessions of the Tribunal hearing. I listened to the sound recording with particular reference to the time-related points in that recording which the applicant referred to in his submissions. Neither the transcript nor the sound recording support the assertion that the Tribunal ignored the applicant’s health. At p.3 of the transcript of the first session the applicant is recorded as having told the Tribunal that although he was not feeling very good he could “cope with it”. Further, he was given a break during the first session of the hearing which was subsequently adjourned to the second session because he said that he was not in a condition to proceed further.
In all the circumstances, there is no basis to conclude that through ill health the applicant was denied the real and meaningful hearing which was his right under s.425 of the Act.
Further, the sound recording does not support the assertion that the Tribunal intimidated the applicant or the related implied assertion that the Tribunal conducted itself in an intimidating manner. While the Tribunal was on occasion insistent in seeking answers and even somewhat exasperated on other occasions because of the applicant’s circumlocutionary responses, it did not adopt an intimidating or overbearing tone. The manner of the Tribunal was predominantly understated and placid. The applicant’s behaviour as it appeared from the sound recording reflected this in that although not always relevant, he was articulate in his responses, generally confident in his delivery and sometimes quite forceful. He did not seem to have been intimidated.
Finally, and contrary to the applicant’s submission, the Tribunal was under no obligation to provide reasons for its decision to refuse the adjournment. Its only obligation to provide reasons is the one imposed by s.430 of the Act, a provision which is not concerned with interlocutory decisions such as the one presently under discussion. But in any event, although the Tribunal did not express its reasons for refusing the adjournment at the time the adjournment was refused, those reasons were included in the Tribunal’s final decision.
Subparagraph (e)
(e-i) “That the applicant belonging to the Eiye Cult/Group/Gang did not form/belong to another cognizable Social Group called Campus Conscience, Political Opinion.”
The applicant submitted that, by not accepting that he had been a member of Campus Conscience, the Tribunal ignored his ideology, political opinion and association with that group. He submitted that the Tribunal failed to ask him about his membership of the NCP and Campus Conscience because it preferred to characterise him as a member of the Eiye cult. He further submitted that the Tribunal was biased and that this was demonstrated by the fact that it ignored his ideology, political opinion and association with Campus Conscience.
The applicant’s principal complaint appears to be that the Tribunal erred by not concluding that Campus Conscience was a particular social group or by rejecting his claims based on his political opinion.
The applicant never claimed to fear persecution because he was a member of a group of people distinguishable by their association with or membership of Campus Conscience. The particular social groups of which he claimed membership were the “oyana” and, as expressed in his representatives’ post-hearing submissions, a broader group with the characteristics of “resisting the leadership of the group to put forward his own political ideas and moral beliefs with others”. In relation to that latter group the applicant’s representatives said:
In this sense he was persecuted for reasons of his political opinion and his membership of a particular social group.
Commencing at para.111 of its reasons the Tribunal reviewed these claims and relevant authorities and concluded that the essential reason for the persecution which the applicant claimed to fear was not his real or imputed political opinion or his membership of a particular social group of “oyana” but because he was regarded as someone who had betrayed the Eiye cult by giving information about it. The Tribunal considered but rejected the applicant’s claims based on his political views and the postulated particular social group of “oyana”, concluding that the persecution he said he feared arose out of him having given information to Campus Conscience.
Consequently, on the facts, this allegation is not made out.
Finally, the allegation made in the applicant’s submissions that the Tribunal was biased is not made out. This allegation was based on the assertion that the Tribunal had found that the applicant had not been a member of a particular social group of people associated with or members of Campus Conscience and that this amounted to an ignoring of his political stance and association with that group. However, as has already been noted, the applicant never claimed to fear persecution on the basis of his membership of such a group and the Tribunal therefore did not have to consider whether he was a member of such a particular social group. It made no finding either way. Even so, the Tribunal did accept that the applicant had been involved with Campus Conscience. On the facts there is no basis to this allegation of bias.
(e-ii) “That, the applicant is seeking hearing date deferment from 12 May 2010 to 13 May 2010 on reports from experts without basis for the hearing to be deferred in the first place within the reports.”
This appears to be an allegation that the Tribunal’s decision to proceed with the hearing on 12 May 2010 was based on a factual conclusion which was incorrect. For the reasons given above in relation to subparagraph (d), the decision to refuse the request for a postponement does not disclose error.
(e-iii) “That the Nigerian Government though ineffective in curbing violence by these groups and private entities; that the Nigerian government will not persecute the applicant; even by proxy.”
In a submission which was possibly linked with this allegation the applicant argued that the Nigerian government could not protect him from harm. He submitted that it was corrupt and ineffective and that the police and security forces were incompetent.
The Tribunal found that the applicant did not claim to have had any problems with the Nigerian government while he was still in Nigeria because of his association with the Eiye group and it did not accept that the evidence disclosed that there was a real chance that he would be persecuted by the Nigerian government for reasons of his past association with the Eiye cult were he to return to Nigeria. Otherwise, the question of state protection did not arise for consideration by the Tribunal because it concluded that the applicant did not have a well-founded fear of persecution for a Convention reason. That is to say, there was no Convention-related persecution from which the applicant needed protection by the Nigerian state.
The claim which the applicant relevantly made, namely to fear harm from the Nigerian government because of his association with the Eiye group, was considered by the Tribunal. The present allegation suggests that the Tribunal reached the wrong conclusion on this issue but, even if it did, that would be an error within jurisdiction and thus not a basis to set the decision aside for jurisdictional error.
(e-iv) “That the Eiye Cult, Black Axe or any other cults and fraternities though with affiliations with the government and politics is not having a singular political agenda and Political interest contrary to that belief and ideology of the applicant; those that warrant the must for the applicant to fear for his life.”
This ground appears to complain that the Tribunal should have reached a different factual conclusion on the applicant’s claim to fear persecution. For the reason given above at [58], such matters do not provide a basis to conclude that the Tribunal’s decision is affected by jurisdictional error.
(e-v) “That the applicant’s long and continuous actions; by working and providing information to Campus Conscience did not form a common purpose of a cognizable social group. Whereas it is in a society mad with maladministration, ineffective security and without due process within the governmental security agents; that the applicant find it fit to aid the cause of justice by associating/belonging/sharing with Campus Conscience and NCP a common purpose different from that of the general public.”
The applicant submitted that the Tribunal failed to take account of his statutory declaration and evidence about his commitment to the NCP and Campus Conscience and failed to identify this as satisfying the criteria for membership of a particular social group. He submitted that the Tribunal ignored the core reason for his persecution which was his membership of Campus Conscience and the NCP.
As already noted, the applicant’s claim to fear persecution by reason of membership of a particular social group was based on his claimed membership of the group of “oyana” and of a group identified by certain political beliefs and behaviour as referred to above at [51]. He did not claim to fear persecution by reason of his membership of particular social groups which were based on membership of the NCP or Campus Conscience. The claims he made which were related to those groups arose out of his political opinion, not membership of a group.
The matters which this allegation raises have also been considered above in relation to subparagraph (e-i). For the above reasons and the reasons given in relation to subparagraph (e-i), this allegation does not identify a basis on which the Tribunal’s decision should be set aside.
(e-vi) “That the Applicant will and wishes to be back into politics in his home country then or in a foreseeable future is baseless, prophetic erroneous belief and misleading.”
This allegation discloses no basis on which the Tribunal’s decision should be set aside.
Subparagraph (f)
In this paragraph the applicant alleged:
Misconstrued Word ‘Oyana’ – The tribunal member asking the applicant for clarification and submission on same; is like ‘A blind asking to be walked by another blind’. The applicant has emphatically state; that his belief and ideologies stays with NCP, Campus Conscience and freedom of all sorts within his political beliefs. The tribunal failed to weigh the circumstances that give rise to NCP and Campus Conscience’s common purpose, actions and inactions of government security operatives, government itself that did not afford the applicant to turn Queen’s witness. However, the tribunal member failed to connect the nexus that give rise to the emergency usage of the word ‘Oyana’. Among these criminal gangs; it is commonly use (lingo) even when no evidence refutes the context the applicant claimed it was used, to refer to himself and or Campus Conscience by these groups.
The applicant submitted that the Tribunal had used the concept of “oyana” out of context, saying that one had to have had the same life experience as the applicant, or presumably his group of friends and associates, to properly understand its meaning. In this connection, in his further submissions dated 16 September 2011 the applicant said:
In context to the usage of “Oyana” within the applicant’s statutory declaration as a campus conscience associate and their nexus connection with NCP …
And, the usage of “Oyana” as a ‘lingo’ among these cultic groups to refer to people like this applicant that associate with Campus Conscience …
This appears to be an attempt to link “oyana” with membership of, or association with, Campus Conscience and/or the NCP. However, the applicant has not pointed to evidence suggesting that he made such an allegation to the delegate or to the Tribunal. Rather, in para.71 of his statutory declaration of 22 January 2010 the applicant explained in the following terms what “oyana” meant:
I fear that I would be killed because I would be seen as ‘Oyana’, which is slang used by the Eiye group for a traitor or a person who informs on other members of the group, or does not keep the oath or secrets of the group. This is also someone who might confess to people during an interrogation.
In his evidence at the second day of the Tribunal’s hearing the applicant confirmed that “oyana” was slang for a traitor or a person who had informed on other members of the group and later described it as “like a whistleblower”.
Further explanation was provided in the post-hearing submissions of 8 June 2010 which the applicant’s representatives sent the Tribunal:
… over time, he was seen as a member of the Eiye who was also part of a group of people disloyal to the Eiye, or in Mr [SZOVO]’s words, an “Oyana”.
…
We submit that the phrase “Oyana” indicates the existence of a cognisable social group within Nigerian society, in particular to those who are or were members of the Eiye cult. In support of this submission, we note that paragraph 71 of the Statement describes indicates an Oyana includes a person who may inform on the group. In this sense it is not someone who has acted against the group but someone who is a member of the group and seen to be disloyal to the group in the eyes of the leaders of the group. …
In any event, the applicant’s claim was determined by its substance, not by the descriptor which he applied to an aspect of it. In this connection, he has failed to identify a shade of meaning associated with the word “oyana” which was identified to the Tribunal but which it failed to consider. In those circumstances, there is no basis to conclude that the Tribunal erred in identifying the characteristics which defined the particular social group of “oyana” postulated by the applicant.
Subparagraph (g)
This ground was expressed in the following terms:
No Evidence Doctrine crystallising the ‘Theory of Convenience and Ease’: The tribunal accepts the evidence of the applicant on claims it find appropriately as ease and convenient with it; while using out of context precedents to ignore the whole facts and details within the Applicants’ Claims when it deem it inconvenient. Without having or providing contrary evidence to the applicant, hearing date deferment to the applicant and relied upon records. “When the law loses touch with the facts, it begins to fly blind. By ignoring necessary details; the Law ensures that its abstract principles are never adequate to the precise realities of any particular case”. page 183 paragraph II – Soul of the Law by Benjamin L. Sells: Element Books Limited, Brisbane Australia. (italics in original)
This ground appears to be an allegation that the Tribunal accepted some of the applicant’s evidence but rejected other parts of it on grounds of “inconvenience” and without identifying adverse evidence. This allegation was not particularised and without particulars to explain the allegation and to give it meaningful substance it discloses no basis to conclude that the Tribunal’s decision is affected by jurisdictional error.
Subparagraphs (h)-(k)
In these subparagraphs of the further amended application the applicant alleged that the Tribunal erred in finding that there was reasonably effective state protection available to him. The allegations were expressed in the following terms:
(h)The Tribunal failed to consider the placebo of measures introduced to address cultism in Nigeria at a State, National or operational level when assessing whether the applicant would be afforded a reasonable level of State protection from acts of torture and persecutions from such groups.
(i)The Tribunal was satisfied that the mere existence of measure designed to stamp out cultism or it lack thereof was sufficient to provide the applicant with reasonably effective State protection without considering the willingness or ability of police, the courts and other agents of the State to enforce those measures which are in themselves to deter, punish and torture known culprits.
(j)The Delegate and RRT Member was satisfied that the mere existence of measures designed to stamp out Cultism was sufficient to provide the applicant with reasonably effective State protection without considering the willingness or ability of police, the courts and other agents of the State to enforce those measures. And it failure to consider the nexus between persecution and the reason for the persecution feared in a “common sense way”.
(k)The Tribunal and Delegates asked itself wrong question; on whether Nigeria tolerates or condones persecution of rival political parties, Political thugs, cultism, persecution of rival gangs, anti-cultism groups, anti-oppression groups, NCP and Campus Conscience and whether there was a systematic and discriminatory withholding of Sate protection from certain prospective claimant like the applicant without considering the action or inaction of agents of the State of whether the reasons for the action or inaction of agents of the State were Convention-related.
Regardless of the way the applicant expressed these allegations, when considering whether state protection is available to a person who claims to fear Convention-related persecution, in general terms the issue is whether the authorities of the relevant state can and will provide protection to that person which is sufficient to prevent the persecution they claim to fear. In this case, in para.121 of its decision the Tribunal referred to evidence suggesting that the police in Nigeria were corrupt and ineffective but it nevertheless did not accept that there was evidence of a systematic discriminatory failure on the part of the Nigerian government to protect people such as the applicant for one or more Convention reason.
The Tribunal considered the issue which was relevant in the circumstances and reached a conclusion which was open to it on the evidence. Consequently, the allegations in subparagraphs (h)-(k) disclose no relevant error.
Breach of s.425 of the Act
Section 425(1) provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Two allegations made by the applicant imply that the Tribunal breached this provision.
No interpreter
The applicant submitted that no interpreter was present at the Tribunal hearing.
The applicant’s responses to the two hearing invitations sent to him by the Tribunal advised that he would be represented by his solicitor and that no interpreter was needed. He thereby elected to proceed without an interpreter and in the absence of a subsequent request for one, which was not made, is now bound by that election. The Tribunal did not err by not providing an interpreter in circumstances where its offer of one was refused twice and where no advice was given to it at any other time that an interpreter was needed.
Further, the applicant’s representative was present during the hearing and made no complaint about there being no interpreter and when the hearing concluded and the applicant was asked whether he wanted to say anything further, he said nothing about having needed an interpreter.
Importantly, following the conclusion of the Tribunal’s hearing the applicant made further written submissions which made no suggestion that he had needed an interpreter at the hearing. This is particularly significant as, although the applicant’s submission in these proceedings was that if he had had an interpreter he could have effectively communicated the meaning of “oyana”, his post-hearing written submissions were directed to that very issue, namely the applicant’s claim to be an “oyana” and whether he was truly a member of a particular social group of “oyanas”.
In addition to not raising any issue about the absence of an interpreter while the review before the Tribunal was still on foot, thereby suggesting that no prejudice had actually been suffered, in these proceedings the applicant did not identify any issues, other than the meaning of “oyana”, whose treatment at the Tribunal hearing might have been affected by the absence of an interpreter. The question of the meaning of “oyana” was dealt with above at [68] and the remaining aspects of this allegation fail to disclose error on the Tribunal’s part.
Further, the sound recording of the Tribunal hearing does not lead me to conclude that the applicant’s communication with the Tribunal was compromised by the absence of an interpreter.
Failure to advise issue
The applicant submitted that although the Tribunal accepted his involvement in the NCP it did not accept his claim of persecution and had failed to put its doubts to him. However, as the Tribunal’s summary of its hearing with the applicant records at paras.82, 84, 87, 92 and 95 of its decision, the Tribunal did raise with the applicant concerns it had regarding his claims to fear persecution because of his political opinion and his membership of a particular social group, particularly the postulated particular social group of “oyana”. Consequently, no breach of s.425 has been demonstrated by reason of a failure by the Tribunal to alert the applicant to the fact that these matters were in issue.
Bias
The applicant also submitted that the Tribunal’s questions were tendentious rather than open-ended and were the wrong questions. He submitted that the Tribunal wanted particular answers to its questions. The applicant also asserted that he had been submitted to an aggressive interview which the Tribunal had approached with a predetermined decision in mind. The applicant submitted that the Tribunal intimidated him.
The applicant also said that the Tribunal’s decision was affected by bias and bad faith. He said that bias was shown by the Tribunal’s statement that his replies were unresponsive when it was simply that some questions could not be answered with simple yes or no replies.
The applicant did not take the Court to anything in the transcript of the Tribunal’s hearing which would support an allegation of apprehended bias. Further, having read the transcript and listened to the sound recording of the Tribunal’s hearing, I have not identified any passage which suggests that the Tribunal was attempting to guide or force the applicant into giving particular answers, was aggressive or intimidating in its approach or was approaching the review with a mind not open to persuasion. The applicant often gave unresponsive answers to the Tribunal’s questions and was discursive on irrelevant matters. The fact that the Tribunal member may have been insistent in his questioning of the applicant is not, without more, a basis to make a finding of bias. On occasion the Tribunal did attempt to elicit yes or no answers from the applicant but such attempts were appropriate to the circumstances and the particular questions posed.
I have found no basis to conclude that the Tribunal was biased or conducted its review in bad faith.
Finally, the allegation that the Tribunal asked the wrong questions misconceives the nature of the review process. The Tribunal was not obliged to ask any particular questions and so it is not correct to say that it asked the wrong questions. If the applicant wished to place information before the Tribunal which had not been provided in response to the Tribunal’s questions, he was free to advance it himself. The fact that the Tribunal may not have asked the applicant certain questions which he may have preferred it to ask provides no basis to find that it erred and that its decision should be set aside.
Miscellaneous
The applicant submitted that the Tribunal
a)did not have evidence to show that he was not entitled to protection;
b)chose to rely on and accept some of his evidence rather than other aspects of it;
c)failed to have regard to country information which he provided to the delegate and, consequently, failed to ask him the right questions.
d)failed to consider the significance and link between the NCP and Campus Conscience;
e)had no evidence to justify its decision which was contrary to his account of events. He submitted that there was no evidence that he was not a member of the NCP or Campus Conscience or that he had a political opinion different from the one he described; and
f)should have sought information “regarding the real danger involving assaults and maltreatment of NCP members by prominent Political parties in Nigeria”.
Dealing with each of those submissions in turn:
a)the Tribunal did not need to have evidence contradicting the applicant’s claims in order to affirm the decision of the delegate. The issue before the Tribunal was whether it was satisfied that the applicant met the criteria for the grant of a protection visa. Unless the evidence and arguments satisfied it of this s.65 of the Act required it to affirm the delegate’s decision. In this case the applicant failed to satisfy the Tribunal that he met the relevant criteria and so it had to affirm that primary decision;
b)the choice of evidence which the Tribunal uses as the basis of its decisions is a matter for it. The fact that it found some evidence more persuasive than other evidence is not a basis to set its decision aside because it was legally erroneous;
c)the applicant has not identified the country information to which he refers. Absent such particularisation this allegation also has no meaningful substance. In any event, the submission’s principal burden is that the failure to consider certain country information meant that the Tribunal failed to ask the right questions. As the Tribunal had no duty to ask any question in particular, whether or not based on country information, this allegation does not disclose relevant error on the Tribunal’s part;
d)the applicant did not advance before the Tribunal a claim based on the asserted link between the NCP and Campus Conscience. Therefore this allegation discloses no error on the Tribunal’s part;
e)for the reasons given above in (a), this allegation discloses no error by the Tribunal; and
f)the Tribunal has power, but no general duty, to make inquiries and although in some circumstances to fail to make an inquiry might amount to a failure to review: Minister for Immigration & Citizenship v SZIAI at 1129 [25], the applicant has not identified anything to suggest that the Tribunal erred by failing to make an obvious enquiry about a critical fact the existence of which was easily ascertained.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 28 August 2012
0
4
0