SZSGA v Minister for Immigration and Anor

[2013] FMCA 162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSGA v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 162

MIGRATION – Complementary protection – 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 the Tribunal failed to consider a claim and applied the wrong test.

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NABE v Minister for Immigration, Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

Applicant: SZSGA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2713 of 2012

Judgment of: Cameron FM

Hearing date: 20 February 2013

Date of Last Submission: 20 February 2013

Delivered at: Sydney

Delivered on: 15 March 2013

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2713 of 2012

SZSGA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nigeria who arrived in Australia on 6 August 2012 on a single entry business visa. Upon arrival at Sydney Airport his visa was cancelled and he was detained at Villawood Immigration Detention Centre. On 23 August 2012 he lodged an application for a protection visa with the Department of Immigration and Citizenship. That application was refused by a delegate of the first respondent (“Minister”) on 27 September 2012. On 3 October 2012 the applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s 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.

3. For the reasons which follow, the application will be dismissed.

Background facts

Arrival interview

1. Upon his arrival at Sydney Airport on 6 August 2012, and before he made his protection visa application, the applicant was interviewed by an officer of the Minister’s department. In that interview, the applicant claimed that:

   a)he had a meeting and campus tour with the education manager of the Sydney branch of Raffles College of Design and Commerce (“College”) scheduled for 8 August 2012. The applicant stated that the meeting was arranged so he could solidify the terms of his remuneration as the College’s agent to recruit Nigerian students to study at its campuses in Singapore and elsewhere and to become familiar with Sydney. (When contacted by the department officer, the College’s education manager confirmed that the meeting was scheduled). The applicant claimed that another person at the College told him that he could expect to be paid twenty per cent of the fees of any student whom he recruited;

   b)his travel to Sydney was sponsored by the chairman of a local government council in Nigeria because the council wanted to sponsor underprivileged Nigerian students to study at the College. Representatives from the council were also supposed to travel to Sydney but had been unable to obtain visas and had other things to do;

   c)he was also supposed to travel to New Zealand but had been unable to obtain a visa due to problems with his sponsorship. The applicant denied the departmental officer’s assertion that his visa to New Zealand was refused because he had provided false documents or that his first two applications for an Australian visa were refused because he had provided fraudulent documentation and false and misleading information;

   d)he had registered a company in Nigeria in August 2011. He indicated that students in Nigeria were paying him a $500 processing fee per student to arrange their enrolments. He thought that one student had been admitted to study with the College and had made full payment but he was not sure if she had arrived in Australia. He had not been recruiting students to go to Singapore because “they did not want students from Africa”. (When contacted by the departmental officer, the education manager stated that the applicant had not yet referred any students);

   e)although he had only US$650 in his possession, he was expecting money from the local council in Nigeria and from a cousin in Nigeria who was seeking admission to the College. His parents would provide additional money if necessary;

   f)he was going to stay at a hotel in Sydney for the first three nights and then stay with a friend of his brother for the remainder of his trip. However, he did not have a hotel booking. (When contacted by the departmental officer the friend stated that he had known that someone who worked in education and was sponsored by the government was coming to Sydney but that he did not know their name or how long they would be staying. The friend stated that this person would not be staying with him); and

   g)he had not worked in the United Kingdom between 2008 and 2009 (despite the departmental officer sighting a curriculum vitae in the applicant’s email account and obtaining confirmation of this from his mother in Nigeria, his brother in Ghana and, indirectly, from his brother-in-law in the United Kingdom. The applicant’s mother also said that she paid for the applicant’s trip to Australia). The applicant claimed that he had tried to go to the United Kingdom but had not actually gone there. He also claimed that his mother did not know that he was coming to Australia and that he had only told his landlord, his landlord’s son and his brother because he did not want his trip to be spoiled. He said that his mother was only trying to help him as a mother. He claimed that he did not have a brother-in-law and that the person identified as his brother-in-law was actually a former classmate whom he had not seen since 2006. The applicant confirmed that one of his sisters was married and was living in the United Kingdom but said that he had no contact with her.

Protection visa application

1. In his protection visas application the applicant claimed that he had twice travelled to Singapore in 2011 to have meetings with the College representative whom he had been scheduled to meet in Sydney on 8 August 2012. The meetings were arranged in order to discuss the applicant acting as the College’s Nigerian agent.

2. The applicant claimed that he had not been able to afford to travel to Sydney to enter an agreement for certain particular students to be enrolled in the College so, to cover his expenses, he borrowed 750,000 naira (approximately AU$4,500) from one potential student and 492,000 naira (approximately AU$3,500) from another on condition that he repay them from the commission that he would receive from the College for organising their enrolment.

3. The applicant claimed that before he left for Australia he received telephone calls from the parents of the two potential students reiterating the terms of the agreement. He claimed that the telephone calls “made it very clear that they expected that [he] would return with arrangements ready for their daughters to enrol” and that if he did not do as he had promised he “would not be long for this earth”.

4. The applicant claimed that as he had been detained since his arrival in Australia, he was “very scared” that people in Nigeria would think that he had defaulted on his promise and that they would not understand that it was not his fault. He said that he “did not want to die at their hands” and had thus tried to end his life by running with his head down towards a key in a lock.

Departmental interview

1. At his departmental interview on 13 September 2012 the applicant repeated the claims made in his protection visa application and also claimed that:

   a)since he had been detained, he had received emails threatening him with death and torture if he returned without arranging enrolments. These emails were not sent by the people from whom he borrowed money but by someone who had introduced them to him and who was also allegedly being threatened by those individuals;

   b)he could not remember the names of the two students whose parents had lent him the money to travel to Australia but he recalled the names of the lenders, stating that one of them was a rich woman who was “mother figure” to a potential student, although not in fact their mother, and the other person was the father of a potential student;

   c)when he was interviewed at Sydney Airport he had not been himself and had not known what he was doing. He claimed that the local government council pulled out of sponsoring his trip to Sydney due to visa problems experienced by two of its representatives but he had not been able to explain the detail and reasons for the council’s withdrawal of support;

   d)he did not spend a year in the United Kingdom. He stayed with a friend in Nigeria during that time. The applicant again stated that the person whom the departmental official at the airport thought was his brother-in-law was a former classmate with whom he had little or no contact;

   e)relocation in Nigeria would not be possible because that would indicate to his clients that he was a thief and his family would be harmed as a result. He stated that few cities in Nigeria were safe and that the Nigerian police were corrupt. He again stated that he had received threatening emails which said that his picture had been given to criminals; and

   f)being granted a protection visa would enable him to do what he had set out to do.

2. At the departmental interview the applicant’s representative also submitted that the applicant:

   a)was at risk of persecution as a failed asylum seeker or as a returnee suspected of criminal misconduct and might be subject to disproportionate punishment upon his return to Nigeria; or

   b)was at risk of death or serious harm from the people from whom he had borrowed money and also from the Nigerian police, if he was detained for any period.  

3. The applicant’s advisers provided the delegate with written submissions dated 21 September 2012. They essentially reiterated the applicant’s submissions to the delegate and made further submissions in relation to the conditions the applicant might face if he were to return to Nigeria. The submissions also attached a number of items including a letter from the College confirming that the applicant was their representative agent in Nigeria and had been invited to inspect the Sydney campus, registration documentation for the applicant’s business in Nigeria, letters of offer from the College for three students, a bank statement in the applicant’s name indicating a cash deposit of 742,000 naira on 30 December 2011 and printouts of threatening email messages sent to the applicant on 17 August, 21 August and 8 September 2012 purporting to be from a prospective student whose father had lent the applicant money to travel to Australia.

Tribunal

1. Prior to its hearing, the applicant provided the Tribunal with a statement dated 22 October 2012 which repeated the claims made in his protection visa application. The applicant made a further claim that he had been seriously harmed in 2004 as a result of being defrauded in a business scheme in which he sold forms for students to take university entrance examinations in Nigeria. He had had to sell property to compensate the people who had been disadvantaged. He stated that as he had no way to repay the people from whom he had borrowed money to fund his trip to Australia he was afraid that he would be harmed again or that they would pursue and threaten his family.

2. The applicant’s advisers also provided the Tribunal with a written submission dated 24 October 2012, again saying that the applicant would be subjected to serious harm by the Nigerian authorities as a returnee, and also that it would not be practicable for him to relocate within Nigeria to areas where he had no friends or family support, no work, nowhere to live and where he would fear being located, and that being deported would adversely impact his future prospects as an international education agent and thus his ability to earn income from such work.

3. The applicant appeared before the Tribunal on 26 October 2012 at which point he made the following further claims:

   a)he did not have a written agreement with the College because their former admissions officer told him that the College would not sign an agreement with him until he had arranged for a minimum of three students who had actually paid their tuition fees. He had tried to convince potential students and their family members to liaise with the College directly but they were afraid of being duped so, before they paid any tuition fees, they wanted him to travel to Sydney to prove to them that it was a legitimate college and that he was a legitimate education agent. Thus he felt he had no choice but to travel to Sydney in order to conclude a written agreement with the College;

   b)he had not received any money from the students for whom he had arranged the letters of offer which were provided to the delegate in his submission in September 2012 as none of those students had taken up the offer to study;

   c)the reason why there was such a delay between him being lent the money and his departure for Sydney was because of the difficulties he had experienced in obtaining a visa. The people who lent him the money knew of and accepted the reasons for his delayed departure;

   d)the answers that he gave at Sydney Airport on his arrival were impacted by the length of his journey and his inability to sleep during the flight. He had also been distracted by immigration officers coming in and out of the interview room; and

   e)he did not tell anyone in his family apart from his sister that he was leaving Nigeria because of a Nigerian belief that a person should not speak about their plans otherwise they risked someone using black magic against them and ruining those plans.

4. At the hearing, the applicant’s representative also submitted that, because his visa to travel to Australia had expired, the applicant might be at greater risk of attention from authorities if he returned to Nigeria. She also submitted that it was only after the applicant told her of his fears about returning to Nigeria should his business visa not be reinstated that she suggested he make a protection visa application.

5. After the hearing, the applicant made a further statement dated 9 November 2012 which essentially restated the claims he had made at the Tribunal hearing. The applicant also claimed that he had hoped to receive financial help from the council but had only received its endorsement. He claimed that when he was interviewed at the airport he had not slept for twenty-two hours and had therefore been too tired to explain the arrangements he had made with his clients and found it easier to say the council had paid his fare. The applicant claimed that as he had already been endorsed by the council, he had thought that this would save him a lot of explanation.

The Tribunal’s decision and reasons

1. 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 concluded that the applicant’s travel to Australia was funded by the local council and that to provide a basis for his application to remain in Australia the applicant invented the claims of being threatened in Nigeria and by email. The Tribunal found that the threatening emails were not genuine.

2. The Tribunal’s decision was based on the following findings and reasons:

   a)the applicant gave inconsistent evidence as to why he travelled to Sydney. Whilst the Tribunal accepted that the applicant was appointed as a representative agent in Nigeria to recruit prospective students and had been invited to travel to Sydney, it did not accept the applicant’s account of the reasons why he came to Australia and suggested that it was the applicant’s intention to remain in Australia. In this regard the Tribunal noted the two explanations put forward by the applicant for his travel to Sydney:

   i)the first explanation was that he needed to travel to Sydney to solidify his arrangement with the College and to come to a specific agreement in relation to his remuneration and commission. However, the applicant agreed with the Tribunal that he had not actually needed to come to Australia to conclude such an agreement; and

   ii)the second explanation was that certain students or their parents or sponsors had wanted him to come to Australia before they would pay tuition fees to the College. The Tribunal was sceptical of this explanation stating that the potential students and their families could have contacted the College directly and were more likely to have been duped by people in Nigeria than by a college in Australia;

   b)the applicant gave inconsistent evidence as to how he funded his travel to Sydney. In this regard, the Tribunal noted that at his arrival interview at Sydney Airport, the applicant claimed that his travel was sponsored and funded by a local government council but then claimed in his protection visa application that he had borrowed money from relatives of two potential students. The Tribunal also noted the slightly differing explanations given in the written submissions provided to the Tribunal concerning the council’s role in his trip. The Tribunal did not accept that the applicant was given insufficient space or time to explain himself properly in the interview at Sydney Airport;

   c)the applicant gave inconsistent evidence as to who knew about his travel to Sydney. In this regard, the Tribunal noted that:

   i)at his arrival interview at Sydney Airport, the applicant stated that the only people who knew about his trip to Australia had been his landlord, his landlord’s son and his pastor who he first said was his brother and then said was his uncle. However, the Tribunal found it “striking” that no mention was made of the people who he claimed funded his travel and on whose behalf he made the trip; and

   ii)the applicant also cited Nigerian custom as a reason why he did not tell many people (including his family) that he was coming to Australia. The Tribunal found that this reason was irrelevant to why he did not tell the departmental official at the airport of the people who knew about his trip and who funded it;

   d)whilst it accepted that the applicant had been beaten by criminals in relation to an earlier failed business venture, the Tribunal did not accept that the applicant would be harmed or killed or otherwise persecuted because he had been unable to arrange enrolment for Nigerian students at the College;

   e)the Tribunal also did not accept that the people who had lent the applicant money had reported him to the police or that he was suspected of involvement in criminal activity; and

   f)considering independent country information and the evidence presented by the applicant and his representatives, the Tribunal found there was no evidence to suggest that there was a real chance or risk that the applicant would be identified as a failed asylum seeker if he returned to Nigeria then or in the reasonably foreseeable future or that he would attract attention because his visa to Australia had expired.  The Tribunal also found that there was not a real chance or risk that the applicant would be interrogated, detained, tortured or otherwise persecuted at the airport or by police even if he were to be identified as someone who had applied for asylum abroad. The Tribunal also rejected the applicant’s claims based on him being a person who had travelled abroad, a returnee suspected of criminal conduct or a forced returnee suspected of criminal offending.

Proceedings in this Court

1. On 22 November 2012, the applicant filed an application to this Court seeking review of the Tribunal’s decision. In an amended application filed on 24 January 2013 the applicant alleged:

   1.The Tribunal breached section 425 Migration Act 1958 (the Act) by failing to invite the applicant to make submissions in relation to s.36(2)(aa) of the Act;

   2.The Tribunal failed to comply with s.424A of the Act;

   3.The Tribunal failed to assess the applicant’s claims in relation to complementary protection and

   4.The Tribunal’s written statement did not comply with the requirements of s.430(1) of the Act.

2. Of those grounds, only the third was pressed.

Convention protection and complementary protection

1. Section 36 of the Act relevantly provides:

   36     Protection visas

   (1)    There is a class of visas to be known as protection visas.

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

   …

   (2A)  A non‑citizen will suffer significant harm if:

   (a)the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

Applicant’s submissions

1. The applicant initially submitted that his advisers’ submissions to the delegate dated 21 September 2012 raised the following matters in relation to his complementary protection claim:

   a)he was at risk of significant harm from those to whom he owed money and also from the Nigerian authorities;

   b)he would be detained and interrogated as a result of complaints by people to whom he owed money and would suffer cruel or degrading treatment in detention at the hands of police and would not receive a fair trial; and

   c)he would come into contact with the Nigerian authorities as a person against whom fraud was likely to be alleged and as a result of having sought asylum and there was a real chance that he would be tortured and seriously harmed by those authorities.

2. The applicant later characterised the three elements of his claim to complementary protection as:

   a)that he would be persecuted by the people who lent him money;

   b)that the people who lent him money would report him to the police who would mistreat him, and

   c)that he would be tortured and seriously harmed by the Nigerian authorities because they used specific incidents of crime to arrest and detain people randomly and demand money for their release.

   It was submitted that the latter claim was made in the next to last paragraph of the 21 September 2012 submissions which said:

   The Nigerian authorities will not protect the applicant against serious harm from non state actors. Upon return the applicant is likely to come into contact with the Nigerian authorities as a result of his having sought asylum and also as a person against whom fraud is likely to be alleged. Given the overwhelming country information detailed there is a real chance the applicant will be tortured and seriously harmed by the Nigerian authorities also.

3. The applicant identified para.190 of the Tribunal’s decision record as the passage of its reasons relevant to these issues. There the Tribunal said:

   While I accept that, as referred to in the applicant’s representatives’ submission dated 24 October 2012, there is evidence that the police use specific incidents of crime, and the high levels of crime in general, as a pretext to arrest and detain people at random and to demand money for their release, the independent evidence does not suggest that the police single out people who have been abroad in this context on the basis that the police think that such people have money. I do not accept on the basis of independent evidence that there is a real chance that the applicant will be arrested, detained and threatened in order to extort money from him because the police will think that he has money as a result of having been abroad.

4. The applicant submitted that in the paragraph from his advisers’ submissions of 21 September 2012 quoted above at [23] he had raised a general claim to fear corrupt and arbitrary policing which was unconnected with any complaints by lenders or his membership of a particular social group.  He submitted that the Tribunal had failed to deal with this generalised claim under the test for complementary protection and had conflated the Convention test and the complementary protection test, thereby falling into error.  He submitted in this connection, referring to the Minister’s Second Reading Speech of the Migration Amendment (Complementary Protection) Bill 2011 which inserted s.36(2)(aa) into the Act, that the significant harm mandated by the test for complementary protection did not require any connection to a particular social group as one aspect of the Convention test does.

5. The applicant argued that the Tribunal required a causal connection between his membership of the particular social group of people who had been abroad and the risk of significant harm at the hands of the police, although the test for complementary protection required no such connection. He submitted that for the purposes of the complementary protection criteria, the real possibility of arrest, detention and extortion could constitute significant harm under s.36(2A).

6. The applicant referred to Professor McAdam’s essay Australia Complementary Protection: A Step-By-Step Approach (2011) 33 Syd LR 687 where the professor said:

   For a consistent, protection-focused, human rights-based approach, the relevant question under s 36(2A)(c) should be whether the applicant faces a real risk of any of the proscribed forms of harm, irrespective of whether it is individually targeted. Otherwise, there is an added evidentiary burden for complementary protection that goes beyond what is required under the Refugee Convention. This undermines it as a complementary form of protection. Indeed, as the European Court of Human Rights has observed in the context of art 3 ECHR, the effect of such a stringent individual requirement ‘might render the protection offered by that provision illusory if … the applicant were required to show the existence of further special distinguishing features’. The court has stated that in demonstrating a ‘real risk’ of inhuman or degrading treatment or punishment, an applicant does not have to establish ‘further special distinguishing features concerning him personally in order to show that he was, and continues to be, personally at risk. (references omitted)

7. Referring to NABE v Minister for Immigration, Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, the applicant also submitted that even if his claim to fear generalised harm from the police in Nigeria had not been squarely put to the Tribunal, it was sufficiently raised by the material which had been put before the Tribunal that it had to be considered.

8. The applicant also submitted, by reference to country information which his advisers had submitted to the delegate, that the evidence supported a conclusion that the Nigerian authorities tortured, beat and abused detainees and that even if detention and extortion were not viewed as torture, extortion was cruel or inhuman treatment or punishment whilst detention was degrading treatment and punishment. He submitted that his advisers’ submissions to the Tribunal of 21 September 2012 should be understood to have been to the effect that detention can amount to significant harm. He submitted that the real possibility of arrest, detention and extortion would constitute significant harm and engage Australia’s other treaty-based protection obligations reflected in s.36(2)(aa) of the Act.

Minister’s submissions

1. The Minister submitted that the applicant’s claim that, regardless of his particular circumstances, he would be subject to torture by the Nigerian authorities as a member of the Nigerian public had not been made to the Tribunal. He submitted that it was necessary for a claim to be appropriately placed before the Tribunal before jurisdictional error could be established and in circumstances where the applicant had been professionally represented, this burden was higher. The Minister submitted that even if such a claim had been made, the Tribunal’s reasons were broad enough to deal with it. The Minister further submitted that at the conclusion of its decision the Tribunal rejected the applicant’s claim that he would be subject to torture or other mistreatment and that this finding was of sufficient generality to cover the applicant’s claim.

2. Referring to para.90 of the Tribunal’s decision where it recounted the applicant’s claims that he would be harmed by the Nigerian authorities if they thought he had defrauded people and would be extorted as a returnee from abroad, the Minister submitted that, read as a whole, the applicant’s claims were tied to his particular circumstances rather than to random violence by the Nigerian authorities.

3. The Minister submitted that at para.190 of its decision, whilst the Tribunal accepted that the Nigerian police used specific incidents of crime as a pretext to arrest and detain people at random and to demand money for their release, it did not go so far as to accept that the police tortured people at random or mistreated them in a manner relevant to the complementary protection criteria. In relation to the applicant’s submission that the concept of detention included torture or other relevant mistreatment which engaged complementary protection obligations, the Minister submitted that the applicant’s claims to be at risk of detention were tied to him owing money to people in Nigeria, a claim which the Tribunal rejected.

Consideration

1. The arguments made by the applicant concerned the third of the three elements of his claim to be entitled to complementary protection. The first two elements of that claim failed because the Tribunal found the applicant’s allegations that he had borrowed money from the relatives of potential students to have been inventions.

2. As noted earlier, in addresses the applicant characterised the third element of his complementary protection claim in two ways. The first characterisation was that he would come to the attention of the Nigerian authorities because the lenders would allege that he had defrauded them and because he had sought asylum in Australia. The first of those two allegations was impliedly rejected by the Tribunal’s finding just referred to and also by its additional refusal to accept that the applicant had been reported to the Nigerian authorities or that he was suspected of involvement in criminal activity. The second of those allegations was also impliedly rejected by the Tribunal’s statement at para.189 of its reasons, that it did not accept that there was a real chance that the applicant would be identified upon return to Nigeria as a failed asylum seeker.

3. Consequently, the applicant’s case turns on the second characterisation of the third element of his complementary protection claim, namely that he had claimed to fear significant harm at the hands of the Nigerian authorities because, on return to Nigeria, he might be detained by the Nigerian authorities who were prone to inflict significant harm on detainees and that this claim had not been considered by the Tribunal.

4. The applicant submitted this latter claim could be discerned in the next to last paragraph of his advisers’ submissions to the delegate of 21 September 2012.  I do not agree.  The reference to torture and serious harm in the final sentence of that paragraph concerned what might happen to the applicant if he were to come to the attention of the Nigerian authorities “as a result of his having sought asylum and also as a person against whom fraud is likely to be alleged”.  So much is clear not only from the terms of the paragraph itself but also from the remainder of the submission of 21 September 2012, and also from the applicant’s advisers’ written submission to the Tribunal of 24 October 2012.  The claim to fear harm at the hands of the Nigerian authorities was made in that context and in that context only and was unsuccessful because the Tribunal found that the applicant was not likely to come to the attention of the Nigerian authorities for either of those reasons.   In paras.189, 191 and 193 of its decision the Tribunal rejected all of the applicant’s other claims to face a real risk of being detained by the Nigerian authorities. Apart from those claims the applicant made no claim to face a real risk of detention, whether expressly or in such a way that NABE’s case might be of some assistance to him, although in circumstances where the applicant was professionally represented at all relevant times, it is difficult to see much, if any, room for the operation of the principle on which he relied.

5. I find that the allegation that the Tribunal failed to consider a claim made by the applicant is not made out.

6. Further, the Tribunal’s lack of satisfaction that the applicant met the criteria for complementary protection was not influenced by a misunderstanding of the relevant test.  The Tribunal’s conclusion was not based on the absence of a Convention nexus but on the applicant’s failure to make out his factual allegations and by the absence of any other claim to complementary protection.

7. In addresses the applicant made much of his assertion that detention by the Nigerian authorities would amount to serious harm.  In circumstances where the applicant’s only claims to face a real risk of detention were not made out, the Tribunal had no need to consider whether any such detention would amount to serious harm.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date:  15 March 2013