SZTDP v Minister for Immigration & Border Protection

[2014] FCCA 2677

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2677

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Legislation:
Migration Act 1958 (Cth), ss.36, 474

Cases Cited:
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Waterford v Commonwealth (1987) 71 ALR 673
Attorney General (NSW) v Quin (1990) 93 ALR 1

Applicant: SZTDP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1785 of 2013

Judgment of: Judge Emmett

Hearing date: 12 November 2014

Date of Last Submission: 12 November 2014

Delivered at: Sydney

Delivered on: 12 November 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1785 of 2013

SZTDP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 28 June 2013, affirming a decision of a delegate of the first respondent to refuse the applicant a protection visa.

2. The applicant was unrepresented before the Court this morning but had the assistance of an interpreter.

3. The applicant attended a directions hearing before a Registrar of this Court on 25 October 2013 and was given leave to file and serve an Amended Application, together with any evidence and submissions in support, by 6 December 2013.

4. The relevant issue before this Court is whether the RRT’s finding, that the applicant could relocate within Nigeria, was made according to law.

5. On 6 December 2013, the applicant filed an Amended Application to which he annexed various documents and a statement written by him. Those documents were tendered by the applicant at the hearing. The documents appear to be in the nature of country information relating to Boko Haram activities in Nigeria.

6. Other than the applicant’s statement that was annexed to the Amended Application, the first respondent objected to the annexed documents on the grounds of relevance, given that they were not documents that were provided to the RRT for consideration.

7. The applicant confirmed that they were not documents that he had given to the RRT because he believed he needed to provide them to the Court. Plainly, documents that were not given to the RRT for consideration cannot establish a jurisdictional error on the part of the RRT for a failure to consider those documents. The documents were rejected by me on the grounds of relevance.

8. The applicant’s statement, annexed to his Amended Application, was received by the Court as a document in the nature of submissions. That statement is as follows:

   “The Boko Haram will easily recognise me by my accent from the North.

   On 10^th March, 2012 the Boko Haram attacked Southern Nigeria – reference about “security beefed up in Rivers Govt House”.

   As I mentioned in my hearing sometimes the Boko Haram wear army uniforms as reported by the article in The Vanguard – as the army tightens security in the Port Harcourt Barracks/ In the hearing I said my mother reported the soldiers came to ask where I was. My mother said they told her they were Boko Haram. The member said he had no information about the military or police attacking Christians.

   In January 2012 – reference Sunday Punch – Five Boko Haram bombers were arrested in Port Harcourt – Army puts formations on the red alert.

   In August 2013 the Boko Haram moved into Lagos River State – reference Federal Senator reported in the Premium Times.

   If I were to be relocated in Port Hardcourt I fear my life would be in danger.”

9. At the commencement of today’s hearing, the applicant confirmed that he relied on the ground of his application, which is as follows:

   “An error in the process regarding relocation to the southern states”

10. That ground appears to be a complaint that the RRT made an error in its consideration regarding relocation of the applicant to the southern states of Nigeria.

11. The applicant was invited to say whatever he wished in support of his application this morning. The applicant did no more than restate his claim that if he relocates, he will be chased and harmed. The applicant also said that he has a son in Australia and wishes to look after his son.

12. The first respondent’s written submissions summarise the applicant’s claims to fear harm in Nigeria for reason of his religion, as well as the RRT’s decision record. Relevantly, that summary is as follows:

    “2. The Applicant is a citizen of Nigeria who arrived in Australia on 30 September 2011, travelling on a Temporary Business Entry visa: CB 53.9. He applied for the protection visa on 24 October 2011: CB 1-37. The delegate refused the visa on 28 March 2012: CB 49-61. The Applicant applied to the Tribunal for review on 11 April 2012: CB 63-68. The Tribunal held hearings on 23 July 2012: CB 85-87, 1 March 2013: CB 180-182, 26 March 2013: CB 198-200 and 16 April 2013: CB 440-442. On 6 May 2013 the Tribunal wrote to the Applicant pursuant to s 424A of the Migration Act 1958 (the Act): CB 467-468.

    3.  The Applicant claimed to fear persecution in Nigeria for reason of his religion. He claimed to be a Christian from Jos and to fear harm from Hausa/Falani Muslims and Boko Haram. He claimed that he was involved with mobilising Christian youths in his area, and the authorities will not protect him. He claimed that there were incidents of violence and deaths of Christians at the hands of Muslims in 1994, 2001, 2008, 2010 and 2011. He claimed that members of his family, including his sister Chinyere, and some friends were killed. He claimed his house was destroyed in a fire. He provided large volumes of country information, newspaper articles and photographs in support of his claims. See generally CB 475-502.

    4.  The Tribunal accepted that the Applicant’s family’s house was destroyed in the violence in 1994, and that the Applicant knew people who were killed. Independent evidence confirmed the violence at that time, and the Tribunal accepted that the Applicant’s family spent some time in army barracks CB 504 [143]. It accepted that some of his relatives were killed in the violence in 2001: CB 515 [174] and that his sister was one of a number of victims of a bombing of a Christian church: CB 516 [176]. The Tribunal accepted that there was significant violence in November 2008, and that the applicant witnessed violence between Christians and Muslims at that time: CB 512 [165]. However it did not accept that the Applicant played a significant role in mobilising Christian youth in Jos: CB 513 [169]. The Tribunal had doubts about the Applicant’s credibility, and accepted that his house was burnt down in 2011, but not that he was targeted by Boko Haram or the Nigerian authorities as he claimed: CB 413-414 [170-171].

    5. Ultimately, despite its doubts about his credibility, the Tribunal accepted that the Applicant had a well founded fear of harm from Muslims in Jos or elsewhere in Plateau State: CB 516-517 [177-181]. However the Tribunal found that it was reasonable for the Applicant to relocate to a place in the south-east of Nigeria such as Port Harcourt in River State (where his mother and wife are living) or Abia in Aba State, and that there was no real chance that the Applicant would face harm if he did so: CB 517-520 [181-191]. For the same reason it found that the Applicant did not satisfy the ‘complementary protection’ criteria in s 36(2)(aa) of the Act: CB 520-522 [193-200].”

13. The RRT’s decision record makes clear that it spent some significant time at a hearing exploring with the applicant his claims of harm. The RRT noted that it put to the applicant various concerns that it had about his claims. The RRT noted that the applicant claimed that Boko Haram was looking for him in the Abia State, where the applicant claimed his cousin was killed. The RRT put to the applicant country information that suggested that Boko Haram did not appear to be targeting people in Rivers State. The RRT referred to country information before it that indicated that Boko Haram engaged in attacks in the North and in the Middle Belt.

14. The RRT explored with the applicant whether he could relocate and accepted that the applicant would face a real chance of persecution from Muslims and, in particular, the Islamist group Boko Haram if he was to remain in Jos or the Plateau State.

15. The RRT found that reports indicated that while Boko Haram has made threats to target southern states, it has not been successful in carrying out attacks there. Its activities have been conducted primarily in the northern states, where it is based, and in Nigeria’s Middle Belt, where Jos is located.

16. The RRT found the chance to be remote that the applicant would be persecuted by reason of his religion if he was to relocate to the south‑east of Nigeria, to places such as Port Harcourt in Rivers State, or Abia State. The RRT made the following finding to that effect, as follows:

    “185. In all the circumstances, the Tribunal finds to be remote the chance that the applicant would be persecuted for reason of his religion if he were to relocate to a place in the south-east of Nigeria such as Port Harcourt in Rivers State or Abia in the neighbouring state of Aba. Even having regard to the harm experienced by the applicant and his relatives in the Plateau State in the past, the Tribunal finds, looking to the reasonably foreseeable future, that there is no real chance that he would be persecuted by Boko Haram, Muslims, Hausa/Fulani Muslims, the Nigerian authorities or anyone else for reason of his religion if he were to relocate to the south-east. The Tribunal has considered claims by the applicant o the effect that he would be pursued by Muslims or Boko Haram. However, in all the circumstances, it is not satisfied that there is a real chance that he would be persecuted by Muslims or Boko Haram if he were to relocate to Port Harcourt.”

17. The RRT noted that the applicant said that his mother and wife were living in Port Harcourt and that he had spent at least some time in Port Harcourt before leaving Nigeria. The RRT also considered the applicant’s claim that he would be recognisable in Rivers State due to factors such as his accent. However, the RRT was not satisfied, on the evidence before it, that this would cause the applicant to face a real chance of being subjected to violence or other serious harm in that area for that reason.

18. The RRT also found that the applicant has had a good education, having received 11 years of schooling, and has had lengthy experience in running a business in Nigeria.

19. The RRT also considered the applicant’s claims to be suffering post‑traumatic stress disorder. However, the RRT was not satisfied on the evidence before it that the applicant was suffering from a condition that would make it unreasonable for him to relocate to Port Harcourt.

20. The RRT noted that it had considered carefully all of the applicant’s claims, both individually and cumulatively, and found that there was not a real chance that the applicant would be persecuted for any Convention reason if he were to relocate away from Plateau State and return to live in Port Harcourt. The RRT concluded that, having regard to all the circumstances, it would be reasonable, in the sense of practicable, to expect the applicant to relocate.

21. The RRT noted that it had considered carefully all the information before it in relation to religious violence and violence by Boko Haram and was not satisfied that there is any real risk that the applicant would suffer harm at the hands of Muslims, Hausa‑Fulani Muslims or Boko Haram if he relocated to Port Harcourt. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

22. For those reasons, the RRT concluded that the applicant did not satisfy the protection criterion under either ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

23. A fair reading of the RRT’s decision record indicates that the RRT correctly considered whether relocation is reasonable, in the sense of practicable, in the particular circumstances of the applicant (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18). The RRT considered the applicant’s circumstances in detail and had regard to the applicant’s objections to relocation. There is nothing to suggest that the RRT’s findings and conclusions were not open to it on the evidence and material before it and for the reasons it gave.

24. I accept the first respondent’s submission that, even if the RRT had made a wrong finding of fact, that is insufficient to demonstrate jurisdictional error (see Waterford v Commonwealth (1987) 71 ALR 673 at 689; Attorney General (NSW) v Quin (1990) 93 ALR 1 at 25-26 per Brennan J; Abebe v Commonwealth (1999) 197 CLR 510 at [137]).

25. The applicant’s complaints, as framed to this Court, are more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

26. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

27. The RRT’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

28. The proceeding before this Court should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  18 November 2014