SZRCF v Minister for Immigration - [2012] FMCA 368

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRCF v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 368

MIGRATION – Review of decision of RRT – where grounds of application contain no particularisation.

Migration Act 1958, s.424A

Applicant:

SZRCF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 182 of 2012

Judgment of:

Raphael FM

Hearing date:

17 April 2012

Date of Last Submission:

17 April 2012

Delivered at:

Sydney

Delivered on:

17 April 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,325.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 182 of 2012

SZRCF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nigeria who arrived in Australia in October 2011. The visa upon which he travelled was cancelled prior to his arrival and upon arrival he was taken to immigration detention. On 19 October 2011 he applied for a protection (Class XA) visa. His application was considered by a delegate of the Minister who refused that application on 21 November 2011. On 22 November 2011 the applicant applied for review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal on 9 December 2011. He was represented by a solicitor and migration agent both at the hearing and by way of written submissions thereafter. On 23 January 2012 the Tribunal determined to affirm the decision not to grant the protection visa and handed it down the same day.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were those of religion and political opinion. The applicant is an Igbo, is a member of the ethnic group that lives in the area of Nigeria that used to be known as Biafra. He claims that he is a supporter of an organisation known as MASSOB that has as its goal the achievement of a Biafran state. The applicant claimed that being a member of MASSOB he was targeted and harassed by the Nigerian government. He had been arrested for attending a MASSOB meeting. He claimed that he had been particularly active within the organisation.
The applicant’s claims arising from his membership in MASSOB, and his political opinion concerning Biafra, were complemented by two additional problems. The first was that he had claimed to have run foul of a Nigerian politician who he believed had some connection with MASSOB. This politician belongs to another political party, the PDP, and proposed to run for the governorship of Enugu state where the applicant lived. The applicant claimed that he had evidence that the politician had been having an affair with his girlfriend and he took this matter up with him and told him that he had some film of the politician and his girlfriend indulging in sexual activity. The politician apparently threatened the applicant. The applicant believed that the politician’s influence in MASSOB could cause him to be arrested.
The other matter complementing the applicant’s claim was that although born and raised a Christian he no longer was a believer. The applicant tied this change of view to his association with MASSOB. He told the Tribunal that MASSOB was against the Christian religion. The applicant believed that if he was made to return to Nigeria he would be at risk from the government because of his membership of MASSOB and that this risk would be enhanced because of his run in with the politician and because of his atheistic views.
The Tribunal questioned the applicant in some detail and put to him the concerns it had as to the veracity of the information that he was providing. Because of the concerns that the Tribunal had expressed about the applicant’s credibility on particular matters it gave him some time after the hearing to make written submissions. Although it did not send him a letter under s.424A of the Migration Act 1958 (the “Act”) the applicant’s advisors took advantage of this opportunity and on 19 January 2012 faxed to the Tribunal a detailed submission [CB 140-156]. This covered some general matters about MASSOB and also some of the particular concerns raised by the Tribunal. The Tribunal took that submission into consideration [CB] [177-178].
In its findings and reasons the Tribunal said that it had difficulty in accepting that the applicant was or had ever been a member of MASSOB. It did not believe that the applicant had sufficient understanding of MASSOB’s activities. The information about those activities, provided by the applicant were not consistent, in the Tribunals view, with the position he claimed to have enjoyed within the organisation. This matter was touched upon by the representatives but the Tribunal did not accept their submission [97] [CB 180]. The Tribunal also had difficulty in accepting the applicant’s account of his arrest along with 60 other members of MASSOB in 2009 or 2010. The Tribunal appears to have had available to it a considerable amount of independent country information about what was going on in Nigeria at the time and about MASSOB. Yet it had no information about the arrest of so many people which it believed would have been made public in some way or another. The Tribunal also expressed doubt that even if the applicant had been arrested it was unlikely that he would not have been charged as he had said. It was also unlikely that he would have been released after two days just as a result of signing a piece of paper saying he would not be involved in MASSOB any more.
The Tribunal expressed its concern in accepting the applicant’s account of his dispute with Mr O:
“[102]…mainly because I have difficulty in accepting that the applicant would have had anything to do with a local government chairman, or that the applicant’s girlfriend would have met the local government chairman. Meaning no disrespect to the applicant, it appears from his evidence that he was a travelling shoe salesman, whereas by his account the local government chairman is a powerful political figure who is planning to contest the governorship of Enugu state.” [CB 181]
The Tribunal concluded that it could not accept that either the applicant or his girlfriend knew the politician or that the politician was associated as a secret supporter of MASSOB.
The Tribunal indicated that for all these reasons it did not accept the applicant as a witness of truth, or that he was a member of MASSOB, or that he had been arrested, or that his girlfriend had a relationship with the politician or that anybody was looking for him. In regard to his claims concerning religion the Tribunal said:
“[108]I accept that the applicant has stopped being a Christian because he has found that Christianity does not satisfy him. I do not accept that this had anything to do with his being an ‘inside member’ of MASSOB or with being honest. For the reasons given above I do not accept that the applicant is or was ever a member or a supporter of MASSOB and I do not regard him as honest. As I put to the applicant, contrary to his evidence it does not appear that MASSOB is against the Christian religion. It has a Director of Religious affairs who is the spiritual leader of the group.” [CB 109]
The Tribunal accepted that the applicant was an Igbo and that there was a complaint by Igbos’ of marginalisation within Nigeria. However, it did not accept that the applicant would face discrimination amounting to persecution for reasons of his race as an Igbo if he returned to his home in the south-eastern part of Nigeria where Igbos predominate. The Tribunal concluded that, having considered the totality of the applicant’s circumstances as an Igbo and as someone who has stopped being a Christian, it could not accept that there was a real chance that he would be persecuted for one or more of the five convention reasons if he returned home.
On 27 January 2012 the applicant filed an application in this court for a review of the decision of the Tribunal. There were seven grounds of this application. They are all subject to the same criticism and so I will set them all out in this paragraph.
“1)The decision of the RRT is vitiated by jurisdictional error.
2)The decision was made in denial of procedural fairness to me the applicant.
3)The Tribunal denied me natural justice.
4)The Tribunal ignored relevant materials and relevant considerations.
5)The Tribunal constructively failed to exercise jurisdiction.
6)The Tribunal failed to make enquiry into the critical facts the existence of which was easily ascertained under Section 4241(A) of the Migration Act.
7)The Tribunal made erroneous findings and reached mistaken conclusions.”
It will immediately be seen that these grounds do not contain any particularisation whatsoever. They are generic references to matters that may constitute jurisdictional error if they are established but they cannot be established without looking at the particular facts which are said to constitute them. In what way was procedural fairness denied? As the respondent points out in his helpful written submissions the applicant was granted an interview by the Tribunal as required by s.425. At that interview he was represented not just by a migration agent but by a lawyer and migration agent. He was given an opportunity to make further representations to the Tribunal which he took. There was no information of the type that required a s.424A letter. All of the information utilised by the Tribunal was independent country information that is exempted from that requirement.
The applicant does not tell the court what relevant materials and relevant considerations the Tribunal ignored nor what critical facts the existence of which was easily ascertained should have been enquired after. The applicant did not specify what erroneous findings the Tribunal had made.
The applicant appeared before me today with the assistance of an Igbo interpreter. He did not enlarge upon the grounds of application. He told me that the Tribunal did not appreciate his evidence and did not accept it as the truth. So much is clear from the Tribunal decision. He told me that he was pleading with the court to grant him an opportunity to stay. He told me that he had a friend who was pregnant by him and he wanted to remain in Australia to take care of that lady and the child. The applicant told me that the court should believe that he was a member of MASSOB and that he really did have a problem. He told me that everything he had said about MASSOB was true. He believed that he was being looked for in Nigeria and that if he was not allowed to remain in Australia he would have a lot of problems and would be killed should he return.
These matters, with the exception of that relating to his girlfriend, are all matters which he could have and, in fact did, raise with the Tribunal. They do not indicate error in the Tribunal’s reasoning such as to found a review by this court. In those circumstances the application must be dismissed and the applicant shall pay the first respondent’s costs which I assess in the sum of $3,325.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 4 May 2012