SZTRY v Minister for Immigration

[2015] FCCA 169

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 169

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to consider all the evidence before it and/or all the elements of the Applicant’s claim – whether the Tribunal exceeded its jurisdiction by failing to warn or advise the Applicant that he had a right to claim legal professional privilege in respect of communications between himself and his lawyers – no jurisdictional error.

Legislation:  

Evidence Act 1995 (Cth), s.132
Migration Act 1958 (Cth), ss.5, 414, 422B, 424, 433

Anochie v Minister for Immigration and Citizenship(2012) 126 ALD 611; [2012] AATA 234
Anochie v Minister for Immigration and Citizenship(2013) 135 ALD 692; [2013] AATA 391
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Benecke v National Australia Bank (1993) 35 NSWLR 110
Dang v Minister for Immigration and Multicultural Affairs [1999] FCA 38
Htun v Minister for Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FCR 537; [2004] FCAFC 274
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v MZYHS and Another (2011) 119 ALD 534; [2011] FCA 53
Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 559; [1996] HCA 6
MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZHWY v Minister for Immigration and Citizenship and Another (2007) 159 FCR 1; [2007] FCAFC 64
SZIYN v Minister for Immigration and Citizenship [2008] FCA 151
SZSLM v Ministerfor Immigration and Border Protection [2014] FCA 945

Applicant: SZTRY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3217 of 2013

Judgment of: Judge Barnes

Hearing date: 5 September 2014

Delivered at: Sydney

Delivered on: 30 January 2015

REPRESENTATION

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr J Knackstredt

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3217 of 2013

SZTRY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal dated 4 December 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Nigeria, arrived in Australia in 2000 as the holder of a temporary business entry visa.  He initially applied for a protection visa in October 2000.  His application was refused.  He sought review by the Tribunal in March 2001 but withdrew the review application after he obtained a spouse visa in January 2002.  He obtained a permanent spouse visa in April 2003. 

3. However, following his conviction and imprisonment for drug-related offences, the Applicant’s permanent spouse visa was cancelled by the Minister in April 2011.  That cancellation was set aside, as was a further cancellation in September 2011.  The Applicant’s visa was again cancelled in December 2012.  After review by the Federal Magistrates Court and appeal proceedings in the Federal Court of Australia, that decision was found not to involve jurisdictional error.

4. Relevantly, on 25 July 2013 the Applicant again applied for a protection visa.  In a statutory declaration of 23 July 2013 accompanying the application, the Applicant claimed to fear harm in Nigeria on the grounds of his sexual orientation and criminal conviction for a drug offence in Australia. 

5. The Tribunal summarised his claims as ultimately presented as follows:

   He has said that his life will be in danger if he returns to Nigeria, because he is bisexual.  He has also referred to the fact that he has been convicted of drug trafficking in Australia and he has said that this will expose him to prosecution under Nigerian law.  He has also claimed that his family or tribe in Nigeria have passed a resolution excommunicating him as a result of his conviction.  He has also said that as a Catholic he fears persecution by Muslims or specifically by the terrorist group Boko Haram in Nigeria.  He has also referred to the fact that he has Hepatitis B and that he has a severely damaged right eye and that the standard of medical care in Nigeria is not as good as it is in Australia.  Finally he has referred to the fact that he has four children in Australia.

6. In support of the protection visa application the Applicant’s advisor provided various items of country information and documents, including information in support of the proposition that the Applicant faced a risk of prosecution (and hence double jeopardy) under Nigerian law, in particular by virtue of Decree 33 which provided for a prison term of 5 years for persons who had been convicted of drug trafficking abroad and thus had brought Nigeria into disrepute.  The advisor provided the Department with a copy of the decision of the Administrative Appeals Tribunal (the AAT) in Anochie v Minister for Immigration and Citizenship (2013) 135 ALD 692; [2013] AATA 391 (referred to for convenience as Anochie 2013).  That decision had been cited in the Applicant’s statutory declaration of 23 July 2013 as the “current case on Degree (sic) 33”.  The advisor referred to the fact that in Anochie 2013 the AAT had observed that there was a real risk that the applicant in that case would face significant harm if returned to Nigeria by virtue of the application of Decree 33.  This was said to support the proposition that there were substantial reasons to believe that the Applicant would face a real risk of significant harm if he returned to Nigeria under s.22 of the National Drug Law Enforcement Agency Act (which incorporated the terms of Decree 33).  It was suggested that this law “[a]pparently” required criminal deportees who had been convicted of drug offences to be detained on return to Nigeria where they may face prosecution. 

7. The protection visa application was refused by a delegate of the First Respondent on 8 October 2013.  Among other things, the delegate was not satisfied that the Applicant had a real chance of being prosecuted under Decree 33 in Nigeria.

8. The Applicant sought review by application lodged with the Refugee Review Tribunal on 9 October 2013.  He was invited to and attended a Tribunal hearing on 11 November 2013.  A transcript of the Tribunal hearing is in evidence before the Court as an annexure to the affidavit of Winnie David affirmed on 3 June 2014. 

9. Subsequently the Applicant’s advisor provided the Tribunal with further documentation in support of the review application, including country information and a letter from the Applicant addressing concerns that had been raised by the Tribunal during the hearing.

Tribunal Decision

1. On 4 December 2013 the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.

2. In its reasons for decision the Tribunal described in some detail the claims made by the Applicant, his oral evidence and issues it raised with him at the hearing.  However, having detailed various claims made by the Applicant from 2000 on, the Tribunal expressed the view that, as it had put to the Applicant at the hearing, he had “a history of saying whatever he believes will be to his advantage without regard for the truth”.

3. The Tribunal stated that in assessing the Applicant’s credibility it had taken into account the fact that a psychologist had formed the opinion that he was suffering from severe post-traumatic stress disorder and major depressive disorder at the time of his sentencing for a drug offence in 2007.  The Applicant had claimed at the Tribunal hearing that this explained his inability to recall where he had been living in Nigeria before his departure in 2000.  However the Tribunal was of the view that this 2007 diagnosis did not explain the things the Applicant had said which he had subsequently admitted were not true or his failure to mention his claims regarding his sexual orientation prior to making his current application for a protection visa.

4. The Tribunal considered the Applicant’s claim that for the most part the claims he had made in support of his first protection visa application (about Muslims killing his relatives and forcing him to be initiated into Islam) were untrue.  However it rejected the suggestion that the Applicant was unaware of the claims made by his migration agent in the original protection visa application, as he had conceded that the claims accompanying the original application were in his own handwriting.  It was of the view that at that time the Applicant “clearly had enough fluency and understanding of English to write out the statement in his own handwriting”.  The Tribunal concluded that even if the Applicant had copied something that had been written by his former migration agent, it did not accept that, for example, he was unaware that the statement included the false claims that his parents and two brothers had died in a car accident when he was 15 years old, that his uncle and aunt and their three children had been killed by Muslims and that he himself had been forced to join the Muslims.

5. In assessing the Applicant’s credibility, the Tribunal had regard to the fact that throughout his trial on drug trafficking charges the Applicant had maintained his innocence, even though he admitted to the Tribunal that he had committed the crime with which he had been charged.  It considered the Applicant’s explanation for why he had committed the offences and also his failure to advance such explanation at his trial in circumstances where he had falsely maintained his innocence.  Insofar as the Applicant suggested that his lawyer had advised him to go to trial rather than to plead guilty to the drug offence, the Tribunal was of the view that the Applicant’s conduct demonstrated that he had a history of saying what he believed would be to his advantage without regard for the truth.

6. The Tribunal also took into account inconsistencies in the claims made by the Applicant while the decision to cancel his spouse visa was before the AAT.  It had regard to the fact that when he sought to have the cancellation of his permanent resident visa set aside, the Applicant had claimed that he had reconciled with his wife and that he planned to resume his relationship with her and his children if released.  However he had subsequently claimed that his wife was verbally and physically abusive towards him during their relationship and that this was why he had decided not to resume his relationship with her.  The Tribunal was of the view that the Applicant had presented a completely different (and quite inaccurate) picture of the relationship to the AAT.  It was of the view that he did this because he believed it would be to his advantage to do so.

7. The Tribunal was also of the view that the Applicant’s claims that he would die “in a very short time” if he returned to Nigeria as a carrier of Hepatitis B (in circumstances where the medical evidence was that his Hepatitis B was “very inactive” and that it was most likely he would never need treatment) also indicated that the Applicant “demonstrated a willingness to tailor his evidence to what he perceived to be his advantage without regard for the truth”.

8. The Tribunal addressed the Applicant’s claim that he realised he was bisexual while in prison in Australia.  However it had regard to his subsequent failure to raise any claim that his life would be in danger in Nigeria because of his sexual orientation at the time the Minister was considering the third cancellation of his permanent residence visa. 

9. Insofar as the Applicant explained that failure on the basis that he had been successful in having the cancellations of his permanent residence visa overturned on two previous occasions and had an application for special leave pending in the High Court, the Tribunal found it difficult to accept that the Applicant could have been so confident of his prospects of success that he would have believed it was unnecessary to raise this claim.  Insofar as he said he had not wanted others (including his current partner) to know about his sexual orientation at that time, the Tribunal had regard to his other evidence that his partner had found out about his bisexuality before he was sent the notice of the third proposed cancellation of his visa.  The Tribunal also considered the Applicant’s explanation that his failure to mention his sexual orientation reflected the fact that he was still “struggling” with such orientation at that time.  However the Tribunal was of the view that, if accepted, the Applicant’s claim regarding his sexual orientation would clearly have been relevant in the context of the cancellation of his visa.  The Tribunal also had regard to the fact that the Applicant had mentioned other matters relevant to Australia’s international obligations in that context, such as his Hepatitis B and his receipt of a letter from his sister saying that “his kindred had passed a resolution excommunicating him as a result of his involvement in a criminal offence in Australia”.

10. The Tribunal was of the view that the Applicant had had ample opportunity to raise claims regarding his sexual orientation prior to the final cancellation of his spouse visa, but that he had not done so. 

11. The Tribunal accepted that the Applicant’s evidence regarding his sexual orientation was corroborated by his current female partner, by another person [Mr B] who gave evidence of a sexual relationship with the Applicant, and also by evidence from a priest that the Applicant had confided in him regarding his homosexuality.  However the Tribunal gave greater weight to the problems it had with the Applicant’s own evidence, specifically what it considered to be “his history of saying whatever he believe[d would] be to his advantage without regard for the truth and his failure to raise his claimed sexual orientation in the context of the cancellation of his permanent resident visa”, than it did to such corroborating evidence. 

12. The Tribunal concluded that the Applicant’s claim to be bisexual was a “late invention after his other attempts to remain in Australia had proved unsuccessful”.  For the reasons given, the Tribunal did not accept that the Applicant was bisexual or homosexual, that he had had sexual relationships with Mr B or with other men, or that he would have sexual relationships with other men if he returned to Nigeria now or in the reasonably foreseeable future.  Hence it did not accept that there was a real chance that the Applicant would be persecuted for reason of his real or perceived sexual orientation if he returned to Nigeria or for reason of his membership of any of the suggested particular social groups relating to his sexuality referred to in his advisor’s submission to the Department.

13. The Tribunal observed that the Applicant had claimed he had suffered abuse at the hands of an uncle, but that he made no claim that he feared persecution by his uncle if he returned to Nigeria.  On the evidence before it, it did not accept that there was a real chance he would be persecuted by his uncle if he returned to Nigeria.

14. The Tribunal accepted that the Applicant was Catholic but, having regard to the view it had formed of his credibility, did not accept that Muslims had wanted him to join them to start persecuting Christians and that he had refused.  It did not accept that he had ever had any problems with Muslims or, specifically, with extremist Islamist groups like Boko Haram in the past.  It considered the chance of the Applicant being affected by terrorist acts by a group such as Boko Haram if he returned to Nigeria would be very remote because he would be one of only 68 million Christians in Nigeria.  Insofar as the Applicant claimed that some people had stopped going to church because they did not know when Boko Haram would come and plant a bomb in the church, the Tribunal had regard to the fact that the Applicant had also said he was a strong Catholic and that he would never stop going to church.  On the evidence before it, the Tribunal did not accept that there was a real chance the Applicant would be persecuted for reasons of his religion or that he would be prevented from practising his religion if he returned to Nigeria now or in the reasonably foreseeable future.

15. The Tribunal did accept, on the basis of the medical evidence before it, that the Applicant had Hepatitis B and a severely damaged right eye.  However it did not accept that there was a real chance that he would be discriminated against in relation to the provision of medical care for a Convention reason in Nigeria.  It found that the independent country information did not support his claim that there was a stigma attached to carrying the Hepatitis B virus. 

16. The Tribunal then considered the Applicant’s claims in relation to the consequences of his Australian criminal conviction.  It stated:

    As I indicated to [the Applicant], I accept that the Nigerian authorities will be aware that he has been convicted of a drug offence in Australia.  I also accept that Decree 33 is still in force in Nigeria.  However, as I put to him, the Australian Department of Foreign Affairs and Trade advised on 14 February 2013 that since 1 April 2003, no repatriated Nigerian nationals had been prosecuted under Decree 33.  [The Applicant] said that the Nigerian government did not let outsiders, especially westerners, know that they were violating human rights and he said that they sometimes gave misleading information.  His representative referred to the fact that the research response prepared for the Tribunal to which [the Applicant] himself had referred, NGA 37358, dated 7 October 2010, said that reports of returned Nigerians with foreign criminal convictions being targeted by police on return continued into 2005, that Nigerians returning to Nigeria having been convicted overseas of drug offences could face being tried and sentenced again on return to Nigeria, that drug offences were being punished sternly in Nigeria and that Nigerians who had served their sentences abroad for drug trafficking had been prosecuted and convicted again on their return to Nigeria.  He submitted on the basis of this information that there was more than a real chance of [the Applicant] being prosecuted under Decree 33. 

    As I indicated to [the Applicant’s] representative, my understanding is that such prosecutions have happened in the past, as reflected in the research response to which [the Applicant] referred.  However I find on the basis of the Australian Department of Foreign Affairs and Trade that no repatriated Nigerian nationals have been prosecuted under Decree 33 since 1 April 2003.  I do not accept that, as [the Applicant] suggested, the Nigerian authorities are concealing such prosecutions from westerners.   With regard to the prospect raised by the more recent advice from the Australian High Commission in Nigeria that people may be detained under Decree 33, not for the purposes of prosecution but for the purposes of debriefing, including in the course of seeking information that might relate to other ongoing trials, I give weight to the advice of the Australian High Commission that there were no other sources of which they or their UK colleagues were aware that had reported detention on these grounds.  I do not accept on the evidence before me that there is a real chance that [the Applicant] will be detained, prosecuted, further punished or otherwise persecuted because he has been convicted of a drug offence in Australia if he returns to Nigeria now or in the reasonably foreseeable future.  [Footnotes omitted]. 

1. The Tribunal accepted that the Nigerian authorities would be aware that the Applicant had applied for asylum in Australia, but having regard to independent country information about the treatment of returned failed asylum seekers did not accept that there was a real chance he would be persecuted because he would be returning to Nigeria as a failed asylum seeker or for reason of his membership of the particular social group of “failed asylum-seekers with a criminal record from overseas”.

2. Nor, on the evidence before it, did the Tribunal accept that there was a real chance that the Applicant would be targeted by vigilante groups because he had been convicted of a criminal offence in Australia.  It found that the claimed ostracism by his tribe would not amount to persecution for the purposes of the Refugees Convention.  In any event, having regard to the view it had formed of the Applicant’s credibility, the Tribunal did not accept that there was a real chance his life would be endangered because he had disrespected or dishonoured his tribal laws by committing the offence of which he was convicted in Australia. 

3. The Tribunal concluded that it did not accept, on the evidence before it, that there was a real chance the Applicant would be persecuted because of his criminal conviction if he returned to Nigeria now or in the reasonably foreseeable future. 

4. Having regard to the cumulative effect of all of the Applicant’s circumstances, the Tribunal did not accept that there was a real chance he would be persecuted for one or more of the Convention reasons if he returned to Nigeria.

5. The Tribunal also considered whether the Applicant satisfied the complementary protection criterion.  In that context it referred to its findings that, for the reasons it had given, it did not accept that the Applicant was bisexual or homosexual, that he had had sexual relationships with men as claimed, or that he would have sexual relationships with other men if he returned to Nigeria.  On that basis the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Nigeria, there was a real risk he would suffer significant harm as a result of his claimed sexual orientation.

6. The Tribunal reiterated that there was no claim that the Applicant feared harm in Nigeria from the uncle he said had abused him.  It did not accept, on the evidence before it, that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Nigeria, there was a real risk he would suffer significant harm at the hands of his uncle.

7. While the Tribunal accepted that the Applicant was a Catholic, having regard to the view it had formed of the Applicant’s credibility it did not accept that Muslims wanted him to join them to start persecuting Christians and that he refused or that he had ever had any problems with Muslims or, specifically, with Islamist groups like Boko Haram in the past.  It considered that the chance of the Applicant being affected by terrorist acts committed by Boko Haram would be very remote, because he would be one of some 68 million Christians in Nigeria.  It was not satisfied that he met the criterion for complementary protection on this basis.

8. The Tribunal accepted that the Applicant had Hepatitis B, that there was a small risk of his developing cirrhosis of the liver and liver cancer in the future and that he had a severely damaged right eye.  It accepted that the standard of medical care was better in Australia than in Nigeria.  However it found that there was nothing in the information available to suggest that the Nigerian government had acted in an arbitrary way to deprive people of medical care or that there was an intention on the part of the Nigerian government to inflict pain or suffering on people by depriving them of medical care (as required by the definitions of “torture” and “cruel or inhuman treatment or punishment” in s.5 of the Migration Act 1958 (Cth) (the Act)).

9. The Tribunal also addressed the Applicant’s claim to fear being stigmatised as he had Hepatitis B.  For the reasons it gave, the Tribunal did not accept that there were substantial grounds for believing there was a real risk that the Applicant would be subjected to significant harm because he had Hepatitis B and a severely damaged right eye.

10. In relation to the Applicant’s claims about his drug convictions and his fear that he would be prosecuted and convicted again on return to Nigeria, the Tribunal accepted that the Nigerian authorities would be aware that the Applicant had been convicted of a drug offence in Australia.  It acknowledged that Decree 33 was still in force in Nigeria.  However the Tribunal had regard to information from the Australian Department of Foreign Affairs and Trade (DFAT) that since 1 April 2003 no repatriated Nigerian nationals had been prosecuted under Decree 33.  It acknowledged the submissions made by the Applicant and the information referred to by his advisor in this respect.  It accepted that in the past Nigerians who had served sentences overseas for drug trafficking had been prosecuted and convicted again on return to Nigeria.  However, on the basis of the advice of DFAT of 14 February 2013, the Tribunal found that no repatriated Nigerian nationals had been prosecuted under Decree 33 since 1 April 2003.  The Tribunal did not accept the Applicant’s contention that the Nigerian authorities were concealing such prosecutions from Westerners. 

11. The Tribunal also addressed the possibility that the Applicant may be detained on return to Nigeria in light of advice from the Australian High Commission in Nigeria that the Nigerian National Drug Law Enforcement Agency had indicated that people may be detained under Decree 33, albeit for the purposes of debriefing (including in the course of seeking information that might relate to other ongoing trials) rather than for prosecution.  It also gave weight to the advice of the High Commission that no other sources of which they or their United Kingdom colleagues were aware had reported detention on these grounds.

12. The Tribunal did not accept, on the evidence before it, that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Nigeria, there was a real risk he would be detained, prosecuted or further punished or that he would otherwise suffer significant harm because he had been convicted of a drug offence in Australia.

13. While the Tribunal accepted that the Nigerian authorities would be aware that the Applicant had applied for asylum in Australia, having regard to independent country information (in particular the absence of reports of human rights abuse, ill treatment or persecution of returned failed asylum seekers), the Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Nigeria, there was a real risk he would suffer significant harm because he would be returning as a failed asylum seeker.

14. In relation to the Applicant’s claims that he faced ostracism by his family or tribe or targeting by vigilante groups because of his criminal conviction, the Tribunal did not accept on the evidence before it that there was a real risk of targeting by vigilante groups.  The Tribunal found that the suggested tribal ostracism, without more, would not amount to significant harm for the purposes of the complementary protection criterion.  In particular, it found that without more such ostracism would not amount to “degrading treatment or punishment” as defined in s.5 of the Migration Act which required that there be an intention to cause extreme humiliation which was unreasonable. Further, having regard to the view it had formed of the Applicant’s credibility, the Tribunal did not accept that there was a real risk that his life would be endangered because he had disrespected or dishonoured tribal laws by committing the offence he was convicted of in Australia. It did not accept that there were substantial grounds for believing that there was a real risk he would suffer significant harm because of his criminal conviction.

15. The Tribunal accepted that if the Applicant was removed from Australia, this would result in his separation from his four children who were Australian citizens.  However it found that this in itself would not bring him within the complementary protection criterion, because in this context the harm feared was the removal from Australia itself, whereas the law required that as a consequence of the removal there was a real risk that the Applicant would suffer significant harm. 

16. The Tribunal also considered the totality of the Applicant’s circumstances but it was not satisfied that he met the criterion for complementary protection.  The Tribunal affirmed the delegate’s decision. 

This Application

1. The Applicant sought review by application filed in this Court on 23 December 2013.  He now relies on an Amended Application filed on 2 September 2014.  There are three grounds in the Amended Application. 

Decree 33 issues

1. Grounds One and Two both relate to the Tribunal’s consideration of the Nigerian law known as Decree 33 and were addressed together in submissions.  They are as follows:

   1. The Tribunal failed to exercise its jurisdiction by not   considering all of the evidence before it. 

   Particulars 

   The Tribunal had before it certain evidence from the British authorities concerning the use of the Nigerian law described as Decree 33.  Part of that evidence was that the British authorities did not reveal the fact that certain deportees to Nigeria had criminal convictions for narcotics offences.  The Tribunal did not consider the relevance of this part of the evidence when making its finding that Decree 33 had not been used since 2003. 

   2. The Tribunal failed to consider all of the elements of the Applicant’s claims. 

   Particulars 

   The Applicant claimed that Decree 33 could not only be used to prosecute him, but that it might also be the basis for extra-judicial harm if he was returned to Nigeria.  The Tribunal only considered the possibility of formal prosecution.

2. The solicitor for the Applicant pointed out that the issue of Decree 33 had been raised with the delegate by the Applicant’s lawyers and that their submission to the delegate had referred to the decision of the AAT in Anochie 2013.  It was acknowledged that in its reasons for decision the Tribunal had referred (at paragraph [51] of its reasons) to advice from DFAT of 14 February 2013 and to subsequent advice of 10 April 2013 from the Australian High Commission in Nigeria which had also been cited in Anochie 2013 (at [51]).  It was pointed out that the advice of 10 April 2013 from the Australian High Commission (as set out in Anochie 2013 at [51]) was as follows: 

   I have put your question to the lead officer at the British High Commission.  This is not to abdicate post’s responsibility, but to reflect the fact that they may have a dedicated team working on immigration issues where we do not.  The answer to your question is:  the National Drug Law Enforcement Agency (NDLEA) have confirmed to British officials verbally that yes, they would detain people under decree 33, not for the purposes of prosecution, but for the purposes of debriefing – including in the course of seeking information that might relate to other ongoing trials.  We are advised that the use of the conditional tense (the ‘would’ rather than ‘do’ detain) is reflective of the way the NDLEA phrase it.  There are no other sources that have reported detention on these grounds of which we, or our UK colleagues, are aware. 

   A formal, written request for clarification on the government’s intent regarding decree 33 was lodged one year ago by the British High Commission, but has not received a response. 

   For your background, the UK currently deport [sic] Nigerian drug offenders to Nigeria, but as a result of decree 33, they refuse to inform the Nigerian authorities about the exact nature of the offence.  They refer to drug offenders as ‘immigration offenders’.  This may become a more complicated issue for the UK in the near future as they negotiate a Prisoner Transfer Agreement.

3. It was submitted that the last paragraph from this extract from the advice of the Australian High Commission (about UK practices when deporting Nigerian offenders) appeared not to have entered into the Tribunal’s reasoning, even though the Tribunal had confirmed, at two places in its reasons for decision, that it accepted that the Nigerian authorities would be aware that the Applicant had been convicted of a drug offence in Australia. 

4. The Applicant submitted that it was significant that the Australian authorities had relied on information from their British counterparts on the basis that the UK High Commission had a “dedicated team working on immigration issues” whereas the Australians did not.  It was submitted that the evidence supplied by the British was strictly qualified by the background information that the British refused to inform the Nigerian authorities of the fact that a deportee had been convicted of drug offences in the UK and that this practice had been implemented as a result of Decree 33.  It was contended that by failing to consider this evidence the Tribunal had failed to consider all of the evidence that was before it in relation to Decree 33. 

5. The solicitor for the Applicant acknowledged that in SZSLM v Ministerfor Immigration and Border Protection [2014] FCA 945 Jacobson J had considered similar claims by a Nigerian protection visa applicant, including that his conviction in Australia for drug importation offences exposed him to liability in Nigeria under Decree 33. In particular, Jacobson J considered a contention that the trial judge (and the Tribunal) had failed to appreciate that the country information relied on to consider the risk of harm to the appellant in SZSLM was from British authorities who, it was suggested, had no evidence of the application of Decree 33 because they did not inform the Nigerian authorities of the nature of offences committed by UK deportees.  In that context, the appellant in SZSLM had referred to the information in the final paragraph of the extract of advice from the Australian High Commission cited in Anochie 2013 (at [51]) set out above at [44] and submitted that in having regard to this information the Tribunal had considered the risk of harm by reference to a group of people of which he was not a member, because the group consisted of persons whose drug offences had not been brought to the attention of the Nigerian authorities.  The Tribunal in SZSLM (as in this case) had accepted that the Nigerian authorities would be aware that the appellant had been convicted of a drug offence in Australia.  Relevantly, Jacobson J reached the view that the country information before the Tribunal extended beyond information about persons returning from Britain whose drug offences were not disclosed to the Nigerian authorities.  However the solicitor for the Applicant submitted that such a finding of fact on the part of the Federal Court was not a statement of law, that it was not a correct finding of fact and that it was not binding on this Court. 

6. In addition, the Applicant submitted that the Tribunal should have considered the entirety of the evidence considered by the AAT in Anochie v Minister for Immigration and Citizenship (2012) 126 ALD 61; [2012] AATA 234 (Anochie 2012) and that it was clear from the entirety of that evidence and from the Applicant’s claims that formal prosecution procedures were not the only concern of the Applicant about returning to Nigeria. 

7. This argument was put on the basis that in Anochie 2013 the AAT had referred (at [52]) to the fact that paragraphs [83] to [86] of Anochie 2012, set out why, in the AAT’s view, there was a real risk that Mr Anochie would face significant harm if returned to Nigeria by virtue of the application of Decree 33 and why his removal would put Australia in breach of its non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR).  The Applicant accepted that the findings of the AAT in Anochie 2012 were not binding on the RRT.  However it was submitted that as the Tribunal had before it the decision in Anochie 2013 (to which it referred in its reasons), by reference at least, it also had before it the decision in Anochie 2012.  It was submitted that while the Tribunal had relied on a particular cited paragraph from Anochie 2013 (paragraph [51]), it had to be assumed that the Tribunal had considered this extract in its context and that if it had not, then it had not given proper consideration to this material at all.  On this basis it was contended that, particularly given the history of the Anochie case, such context included what the AAT had said in Anochie 2012.  The Applicant contended that the entirety of the evidence about the situation in Nigeria considered in both Anochie cases was before the Tribunal and should have been addressed in its reasons for decision.

8. The Applicant pointed out that the evidence referred to in the part of Anochie 2012 cited in Anochie 2013 included evidence from sources such as RRT Country Advice, Human Rights Watch and the UK Home Office which referred, among other things, to corruption and severe human rights abuses by the Nigerian police, as well as to the deplorable conditions in Nigerian prisons and detention facilities.  It was contended that the possibility of such harm should have been considered by the Tribunal in this case. 

9. The Applicant also contended that the Tribunal had limited its consideration of the risk to him under Decree 33 to the risk of “prosecution”, whereas it was said to be clear from the entirety of the evidence (including the evidence before the AAT in Anochie 2012) and from his claims, that formal prosecution procedures of the type an accused person might be subjected to in Australia were not the only, or even the greatest, of the Applicant’s concerns.  It was submitted that the Tribunal had not understood the extent of the claims made by the Applicant, which were said not to be limited to a claim about the risk of formal prosecution in Nigeria.

10. It was pointed out that in Anochie 2012 (at [81] – [82]) the AAT had concluded that it was a reasonable assumption on the evidence before it that the Nigerian authorities were aware of Mr Anochie’s drug conviction and found that even if that was not the case, it was more probable than not that the conviction would come to the attention of the authorities if Mr Anochie was returned to Nigeria and that it would be known to them on his return.  The AAT continued (at [82]):

    The consequences of this are unclear.  It is not clear whether Mr Anochie would be simply “monitored” – whatever that means – or detained on arrival.  It is not clear what chance he faces of being detained under Decree 33 and, if so, what that would mean for him.  However, in the language of the High Court in Chan Yee Kin v MIEA [1989] HCA 62 in relation to the meaning of “well-founded fear” of persecution in Article 1A(2) of the Refugees Convention, the chance that he may be detained under Decree 33 and subjected to the type of harm that would engage Australia’s non-refoulement obligation cannot be dismissed as remote or insubstantial, or a far-fetched possibility and is, therefore, “real”.

11. The Applicant submitted that it was relevant that in the part of the advice from the Australian High Commission quoted in Anochie 2013 at [51] which was referred to by the Tribunal in this case, it was stated that Nigerian officials had indicated that people would be detained under Decree 33, not for the purposes of prosecution, but for the purposes of debriefing.  It was contended that to understand what this might mean in the Nigerian context it was necessary for the Tribunal to have regard to what had been said in Anochie 2012 about the risk of harm to Mr Anochie beyond formal prosecution under Decree 33.  It was submitted that this issue was clearly on the mind of the AAT in both Anochie 2012 and Anochie 2013 and that by reference to those cases it should have been clear to the Tribunal in this case that simply having regard to evidence that people had not been formally prosecuted under Decree 33 was not sufficient to consider the claims being made by the Applicant.  Hence, the Applicant contended that the Tribunal ought to have had regard not only to the information referred to in Anochie 2012 (at [83] - [86]) but also to the fact that the AAT member in Anochie 2012 had considered the possibility that the threat of prosecution was not the only harm that a person convicted of an offence in Australia may face on return to Nigeria. 

1. In support of the proposition that the Tribunal failed to consider an element of the Applicant’s claim, the Applicant submitted that claims of the nature contended for in Ground Two of the Amended Application arose clearly on the material before the Tribunal, given that in the statutory declaration accompanying his protection visa application he had referred to the use of Decree 33 to target Nigerians convicted of drug-related offences overseas (in particular to the risk of prosecution) and also to what he described as the current case on Decree 33: Anochie 2013.  While the Applicant referred to Anochie 2013 in support of this claim that he would face significant harm by virtue of the application of Decree 33 if he returned to Nigeria, it was submitted that this also had to be seen in light of the findings and material cited in Anochie 2012 which, it was submitted, were before the Tribunal.

2. It was acknowledged that in written submissions in support of the protection visa application the Applicant’s advisors had also quoted the finding in Anochie 2013 that there was a real risk that Mr Anochie would face significant harm if returned to Nigeria by virtue of the application of Decree 33 in support of the proposition that there were substantial reasons to believe that the Applicant would face a real risk of significant harm if he returned to Nigeria under s.22 of the National Drug Law Enforcement Agency Act which incorporated the provisions of Decree 33.  However it was submitted that by referring this claim back to Anochie 2013, the advisors were incorporating the entirety of the findings of the AAT in Anochie 2013 and, therefore, were including in the Applicant’s claim a claim that he would face harm beyond the risk of formal prosecution as had been discussed in Anochie 2012.

3. Reliance was also placed on what occurred in the Tribunal hearing, in particular the part of the hearing (at p.29 of the transcript) where Decree 33 was discussed, as follows:

   MEMBER:   The question– the live question is, is it actually being enforced and the answer is no one’s been prosecuted under it for 10 years. 

   APPLICANT:   Yes, this is the information they give to westerners but they do, they do –they do I believe they do still persecuting people.  Nigeria is corrupt.  When you get deported the – the local police – I mean the police from the airport will normally take you and put you in – in a (not transcribable) gaol but they don’t let the westerners know this.

4. The solicitor for the Applicant submitted that it was clear that in this exchange the Applicant was making a claim that there was an entirely informal process (that involved being taken from the airport and placed in a jail) that was other than a formal prosecution that would be on the record.  It was contended that it was necessary for the Tribunal to have regard to this aspect of the Applicant’s claims, particularly having regard to the fact that there was said to be material before the Tribunal submitted by the Applicant’s advisor addressing what were said to be “atrocious” conditions in Nigerian prisons and detention centres. 

5. The Applicant submitted that by failing to deal with an essential part of his claims and the evidence before it, the Tribunal had fallen into jurisdictional error of the type identified by the Full Court of the Federal Court in Htun v Minister for Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802. The solicitor for the Applicant also contended, without reference to authority other than Htun, that the Tribunal was required to review the case and that if it had evidence before it and did not consider all of that evidence, then it had not reviewed the case. 

6. The First Respondent submitted first that insofar as the contention in Ground One of the Amended Application that the Tribunal had failed to consider the last paragraph of the information from the Australian High Commission (about the British authorities not informing Nigerian authorities of the nature of any criminal convictions imposed on Nigerian returnees) was intended to assert a failure to have regard to relevant considerations, it involved a misunderstanding of the requirement to take into account relevant considerations (see Minister for Aboriginal Affairs v Peko-Wallsend Limited and Another (1986) 162 CLR 24 at 39-40; [1986] HCA 40 per Mason J). It was contended that the only relevant considerations for the purposes of the Migration Act were the Applicant’s claims and the integers that made up such claims (see Minister for Immigration and Citizenship v MZYHS and Another (2011) 119 ALD 534; [2011] FCA 52 at [24] and MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [27] – [28]).

7. The material from the country information referred to in Ground One was said not to constitute a relevant consideration in the sense discussed in Peko-Wallsend.  Rather, it was submitted that the Applicant’s claim, relevantly, was that he belonged to a particular social group of failed asylum seekers with a criminal record and that because of his membership of that group he would be subjected to significant harm if he returned to Nigeria.  The integer of that claim was said to be that Decree 33 was a law that would apply to him and would be applied to him by the Nigerian authorities.  However it was submitted that the Tribunal dealt with this aspect or integer of the Applicant’s claims. 

8. Insofar as there was said by the Applicant to have been simply a failure to have regard to evidence, it was contended that, on any view, this could not be a jurisdictional error.  Reference was made to the remarks of Moore J in Dang v Minister for Immigration and Multicultural Affairs [1999] FCA 38 at [32] in relation to the distinction between taking into account relevant considerations and taking into account particular pieces of evidence and to the statement of Kenny J in MZYHS (at [24]) to the effect that:

   …a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact. 

9. Counsel for the First Respondent submitted that such an approach was consistent with the law as laid down by the High Court in Peko-Wallsend and that if recent decisions of the Federal Court departed from the High Court’s reasoning they should not be followed.  However, it was contended that, properly analysed, recent Federal Court decisions (such as Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and subsequent cases), did not in fact result in a departure from the law as stated by the High Court. It was submitted generally that SZRKT and other recent decisions of the Federal Court merely involved a “semantic difference” in the expression of the same principles that Mason J had explained in Peko-Wallsend. 

10. In any event, it was submitted that the part of the country information (in the report of the Australian High Commission) before the Tribunal relating to the practice of the British authorities was not relevant, but that if it was, the Tribunal did in fact consider it insofar as necessary.  It was also submitted that if, contrary to the Minister’s contention, the particular aspect of the independent country information identified in Ground One was a relevant consideration in the Peko-Wallsend sense, the Tribunal ought to be regarded as having taken it into account. 

11. The First Respondent pointed out that the Tribunal’s reasons were not to be overzealously scrutinised “with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 559; [1996] HCA 6 (at [30] – [31]) and that an inference that the Tribunal had failed to consider an issue or particular evidence was “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point” (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]).

12. It was contended that a fair reading of the Tribunal reasons did not disclose a failure to consider the evidence in question in a manner constituting jurisdictional error, given the Tribunal’s detailed discussion of country information relating to Decree 33 and finding that no Nigerian returnee had been prosecuted under that law since 2003.  The First Respondent submitted that the particular evidence about the practice of British authorities did not constitute evidence of Nigerian practice with respect to Decree 33 and was of doubtful relevance at best.  It was also pointed out that the Tribunal had had regard to the fact that Australian authorities (which did not claim to follow the British practice of not disclosing to the Nigerian authorities that returnees may have been prosecuted for drug-related offences) had reported that no Nigerian returnee had been prosecuted under that law since 2003.  In any event, the First Respondent contended that to the extent that British practice in deporting Nigerian nationals was relevant at all, such issue was closely connected with and subsumed in other Tribunal findings (Applicant WAEE at [47]).

13. In addition, it was submitted that the approach taken by Jacobson J in SZSLM about the nature of the country information in question was not distinguishable as a finding of fact and should be followed. 

14. In relation to the Applicant’s contentions that the Tribunal had erred in failing to consider material or possible consequences for the Applicant that were considered in Anochie 2012, the First Respondent contended that any argument that the Tribunal ought to have referred to evidence not actually before it lacked merit. It was pointed out that the Tribunal had the power, but not the obligation, to obtain information relevant to the determination of the issues before it (see s.424 of the Act and SZIYN v Minister for Immigration and Citizenship [2008] FCA 151 at [16]).

15. In oral submissions Counsel for the First Respondent submitted that it was necessary in this context to determine what was actually before the Tribunal and that, contrary to the contention by the Applicant that the material before the Tribunal included both Anochie 2013 and Anochie 2012, the reality was that only Anochie 2013 was before the Tribunal.  It was pointed out that only Anochie 2013 was referred to in the claims of the Applicant in connection with his protection visa application, in the submissions by his advisor and in the Tribunal reasons for decision.

16. It was submitted that while the Tribunal had referred to paragraph [51] of Anochie 2013, the fact that in Anochie 2013 the AAT had gone on to refer to findings in Anochie 2012 was not such as to give rise to an obligation on the Tribunal to make inquiries and then to have regard to all of what was said in Anochie 2012.

17. The First Respondent also submitted that insofar as there was a contention that the Tribunal had failed to consider a claim by the Applicant that he might be subject to extra-judicial harm (in Ground Two in the Amended Application) the Applicant did not at any time claim to fear extra-judicial harm from the application of Decree 33.  It was contended that such a claim did not arise “clearly” or “squarely” on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 (at [58] – [60]). Rather, it was submitted that at all times the Applicant’s claim in respect of his conviction for a drug offence was to fear double jeopardy in the form of further prosecution pursuant to Decree 33.

18. The First Respondent submitted that the Applicant’s reference to Anochie 2013 in the statutory declaration accompanying his protection visa application, the claims by his advisor citing Anochie 2013 and/or the exchange at the Tribunal  hearing were not such as to put the Tribunal on notice that there might be other types of harm to be considered as significant harm on the basis that the Tribunal should have read Anochie 2013 and then had regard to Anochie 2012 and the material considered and findings made therein.  It was submitted that a claim that this Applicant might be subjected to extra-judicial harm was not raised expressly and nor did it arise squarely on the material before the Tribunal and that the Tribunal considered the claims the Applicant did raise in relation to prosecution. 

19. Insofar as the exchange at the Tribunal hearing could be seen as raising a claim that the Applicant might be detained without a formal judicial process in relation to Decree 33, the First Respondent submitted that such claim was considered by the Tribunal, but it did not accept that the Applicant would be detained, prosecuted, further punished or otherwise persecuted both in relation to the Refugees Convention criterion and the complementary protection criterion.  It was also submitted that insofar as the Applicant contended that a claim of torture during detention was raised on the material before the Tribunal, the Tribunal addressed any such claim in its findings about persecution and significant harm.  It was further submitted that the Tribunal’s findings rejecting the claimed risk of detention subsumed the issue of torture in detention. 

Consideration

1. Ground One in the Amended Application is expressed as a contention that the Tribunal failed to consider all of the evidence before it.  The only authority cited by the Applicant in written submissions in support of the contention that a failure to consider all of the evidence would constitute jurisdiction error was the decision of the Full Court of the Federal Court in Htun. That case is more usually cited (as it was also cited in this case) in support of the proposition that as the requirement under s.414 of the Act to review a decision obliges the Tribunal to consider the claims of the applicant, if the Tribunal makes a decision without considering all those claims it fails “to complete the exercise of jurisdiction embarked on” (see Allsop J (as his Honour then was) at [42] in Htun). 

2. Notwithstanding the Applicant’s reliance on Htun, it is not apparent that in Ground One the Applicant sought to assert a failure to have regard to a relevant consideration, in the sense of an integer of the Applicant’s claim as discussed in Htun and MZYHS per Kenny J (at [24]).  However if that is the basis for Ground One it is not made out as the country information particularised did not constitute or raise squarely an integer of the Applicant’s claim to fear persecution or significant harm.

3. As particularised, Ground One involves a claim that the Tribunal failed to consider the relevance of certain evidence (being an aspect of country information before it which indicated that British authorities did not inform Nigerian authorities of the nature of any criminal convictions imposed on Nigerian returnees from the UK) when it made its finding that Decree 33 had not been used since 2003. 

4. The country information in question in this case was one paragraph of advice of 10 April 2013 from the Australian High Commission.  That paragraph was as follows:

   For your background, the UK currently deport [sic] Nigerian drug offenders to Nigeria, but as a result of decree 33, they refuse to inform the Nigerian authorities about the exact nature of the offence.  They refer to drug offenders as ‘immigration offenders’.  This may become a more complicated issue for the UK in the near future as they negotiate a Prisoner Transfer Agreement.

5. I note that the Australian High Commission’s advice is not in evidence before the Court except insofar as it was extracted in the AAT decision in Anochie 2013 and referred to in the Tribunal’s reasoning. Relevantly, however, this advice was said to have been provided to clarify an earlier report of 14 February 2013 from DFAT that advised that since 1 April 2003 no repatriated Nigerian nationals had been prosecuted under Decree 33, but that the Nigerian National Drug Law Enforcement Agency did not provide statistics on detention without charge. In clarification of the issue of whether the Australian High Commission was aware of reports of people being detained under Decree 33 the response of 10 April 2013 set out at [44] above was provided.

6. As the Tribunal recognised in its reasons for decision, this response from the Australian High Commission raised the prospect that people may be detained under Decree 33, not for the purposes of prosecution, but for the purposes of debriefing, including in the course of seeking information that might relate to other ongoing trials.  However the Tribunal considered this evidence and the prospect of detention of the Applicant on return to Nigeria in light of the advice from the Australian High Commission that there were no sources of which it or English colleagues were aware that had reported detention on such grounds. 

7. In addition, the Tribunal did not accept that there was a real risk that the Applicant would be prosecuted under Decree 33 as a consequence of having been convicted of a drug offence in Australia.  The Tribunal considered this possibility in light of the country information to the effect that since 1 April 2003 no repatriated Nigerian nationals had been prosecuted under Decree 33.  In reaching such finding the Tribunal specifically accepted that the Nigerian authorities would be aware that he had been convicted of a drug offence in Australia. 

8. Other than briefly by Counsel for the First Respondent I was not taken to recent judicial consideration of circumstances in which ignoring relevant material may give rise to a jurisdictional error consistent with the approach taken in Peko-Wallsend by Mason J at 45, Gibbs CJ at 30, Dawson J at 71, Brennan J at 67 and Deane J at 70. However reference was made to SZRKT in which Robertson J made the point that there was no clear distinction between claims and evidence and that the fundamental question was the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error (at [111]).

9. However I am not satisfied that in this case the Tribunal’s failure to refer expressly in its findings and reasons to the background information in the Australian High Commission response of 10 April 2013 to the effect that the UK refused to inform the Nigerian authorities about the exact nature of offences committed by Nigerian offenders being deported to Nigeria from the UK amounted to ignoring relevant material in such a manner as to constitute jurisdictional error. 

10. First, as pointed out by Robertson J in SZRKT (at [97]) “merely to ignore “relevant material” does not of itself establish jurisdictional error”.  In this case the Tribunal properly considered the Applicant’s claim to fear persecution or significant harm (whether consisting of prosecution or detention) as a returning Nigerian convicted of a drug offence whose offence would become known to the Nigerian authorities.  It did so having regard to the absence of evidence of such consequences.  The background information about the UK practice was not of direct relevance to the Applicant’s claims which were put (and considered) on the basis that the Nigerian authorities would be aware of the Applicant’s conviction.

11. Further, as Jacobson J pointed out in SZSLM at [52] – [58], while the advice provided by the Australian High Commission was based in large part on enquiries of the British High Commission, it also reflected the absence of reports of detention by other sources as well as the conditional wording of advice provided by the Nigerian National Drug Law Enforcement Agency about the possibility of future detention. As Jacobson J stated at [53], it is apparent that the advice provided to the Australian High Commission by the British High Commission extended beyond information about persons returning from the UK whose drug offences were not disclosed to the Nigerian authorities.

1. The Tribunal addressed, insofar as it was necessary in the particular circumstances of this case, the part of this country information relevant and hence important to the situation of the Applicant and the claims made by him.  Given that the Tribunal accepted that the Applicant’s conviction for a drug offence in Australia would be something of which the Nigerian authorities would be aware, it was not necessary for it to refer expressly to the part of the information provided by the Australian High Commission that referred to the fact that the British did not inform Nigerian authorities about the exact nature of offences by Nigerian deportees from the UK.  The background information about the practice of British authorities did not constitute evidence of Nigerian practice with respect to the application of Decree 33 to a person such as the Applicant returning as a known offender from Australia. 

2. On a fair reading of the Tribunal’s reasons it is apparent that the Tribunal had regard to the country information, including the advice of 10 April 2013, relating to the application of and consequences of the application of Decree 33 insofar as it was necessary to do so having regard to the particular circumstances of the Applicant.  It did so on the basis that it accepted that the Nigerian authorities would be aware that he had been convicted of a drug offence in Australia.  The Tribunal also had regard to the fact that Australian authorities (which did not claim to follow the British practice) had reported that no Nigerian returnee had been prosecuted under Decree 33 since 2003.  Having regard to the nature of the Applicant’s claims and circumstances it cannot be said that the reference to the British practice was information of such importance to the Tribunal’s decision that it should be inferred from the absence of express reference to that particular part of the country information in the Tribunal’s reasons for decision that it was not considered by the Tribunal (cf. SZRKT).

3. It has not been established that the Tribunal overlooked the country information in question in the sense that it was not conscious of it or did not consider it at all.  It cannot be said that this aspect of the advice was of such centrality that it was necessary for the Tribunal to refer to it in its reasons for decision.  The Tribunal did not fail to exercise its jurisdiction.  Nor did it fail to consider an aspect of the Applicant’s claims by ignoring evidence of significance. 

4. Insofar as the Applicant also intended to raise in Ground One a contention that the Tribunal erred by failing to consider all of the evidence before it because it did not have regard to the evidence considered in Anochie 2012, such a claim was not particularised in the Amended Application.  In any event, as discussed in relation to Ground Two, I am not satisfied that Anochie 2012 and the information cited therein is to be regarded as material that was before the Tribunal.  The fact that the Tribunal had before it Anochie 2013 (a copy of which had been provided by the Applicant’s advisor) is not such as to mean that Anochie 2012, let alone the entirety of the evidence in Anochie 2012 about the situation in Nigeria, was also before the Tribunal and ought to have been expressly referred to in some way. 

5. Ground One is not made out. 

6. Ground Two in the Amended Application is expressed as a contention that the Tribunal failed to consider all the elements of the Applicant’s claims.  It is put on the basis that the Applicant made a claim that Decree 33 could be used not only to prosecute him, but might also be the basis for extra-judicial harm if he returned to Nigeria. 

7. However it has not been established that the Applicant clearly articulated such a claim or that such claim arose clearly or squarely on the material before the Tribunal in the sense considered in NABE (No 2) (at [58] – [60]). 

8. First, there is no evidence that the Applicant expressly claimed to fear extra-judicial harm from the application of Decree 33.  The Applicant’s claim in respect of his conviction for a drug offence was a claimed fear that he would be subjected to double jeopardy in the form of further prosecution pursuant to Decree 33.  The fact that he referred to Anochie 2013 in the statutory declaration accompanying his protection visa application as the “current case” on Decree 33 was not such as to clearly raise a claimed fear of extra-judicial harm.  When consideration is given to the Applicant’s statutory declaration, it is apparent that his concern was the prospect of facing prosecution and imprisonment by virtue of the application of Decree 33.  Nowhere in the statutory declaration in relation to the harm claimed to be feared because of Decree 33 is there any reference to anything other than prosecution. 

9. Nor was any such wider claim made by the Applicant’s advisor, either expressly or by reference to Anochie 2013.  Nor did it arise clearly or squarely on the material provided by the advisor.  In the written submission the advisor contended that the Applicant claimed to fear harm consisting of facing yet another trial and imprisonment in relation to precisely the same conduct for which he had already spent years in imprisonment in Australia.  It was submitted that to deport the Applicant at some point in the future to face the real risk of retrial in Nigeria would amount to inhuman treatment of a severity proscribed by the ICCPR and Convention Against Torture (CAT).  It was in that context that the advisor submitted that the Department must take into consideration the impact of s.22 of the National Drug Law Enforcement Agency Act (which incorporated Decree 33) in view of the poor prison conditions and Nigeria’s dismal human rights record.

10. Moreover the combination of the Applicant’s reference to Anochie 2013 and the subsequent citation and provision of a copy of that case by his advisor was not such as to put the Tribunal on notice of a claim that there were other types of harm feared that may constitute significant harm on the basis that the Tribunal should have read Anochie 2013 and then also read and had regard to Anochie 2012 and that such material clearly and squarely raised the prospect that a person such as the Applicant might be subject to extra-judicial harm.  As indicated above, I am not persuaded that the fact that Anochie 2013 (which was before the Tribunal), cited Anochie 2012 and findings therein meant that Anochie 2012 and the evidence cited in Anochie 2012 was also to be regarded as evidence before the Tribunal let alone evidence that squarely raised a claim of the kind now contended for by the Applicant. 

11. The Decree 33 claim made by the Applicant and by his advisor was that the Applicant feared that he could face being tried and sentenced again on return to Nigeria.  The delegate understood and considered this aspect of the Applicant’s claim as a claim to fear that he would be prosecuted under Decree 33 on return to Nigeria because he had been convicted of a drug-related criminal offence outside Nigeria.  There is no suggestion that any issue was taken with this view of the Applicant’s claim while the matter was before the Tribunal.

12. Seen in context, and in the absence of any other clarification of claims of the kind now said to have been raised on the material before the Tribunal, the brief exchange at the Tribunal hearing was not such as to raise squarely a claim that Decree 33 could be used not only to prosecute the Applicant but also to subject him to extra-judicial harm if he returned to Nigeria.  Insofar as the Applicant might be taken to have been raising a claim of detention short of a formal judicial process (and consequential harm in such detention) by what he said in the Tribunal hearing, the Tribunal dealt with the possibility of returnees being detained, but had regard to country information that that there was no evidence that this had ever occurred. 

13. It has not been established that the Applicant or his advisor and/ or the material before the Tribunal clearly or squarely raised a claim by the Applicant to fear extra-judicial harm from the application of Decree 33. 

14. Ground Two is not made out. 

Privilege Issue

1. Ground Three in the Amended Application is as follows:

   The Tribunal exceeded its jurisdiction by failing to warn or advise the applicant that he had a right to claim legal professional privilege in respect of communications between himself and his lawyers. 

   Particulars

   The Tribunal allowed the applicant to give evidence about what he had, and had not, told lawyers acting for him in respect of his protection visa application and criminal charges, as well as what his lawyers had said to him.  The Tribunal did not at any time advise or warn the applicant of his right to claim legal professional privilege in respect of those communications.

2. The Applicant submitted that, consistent with what was said to be the approach taken by Lander J and Rares J as the majority judges in SZHWY v Minister for Immigration and Citizenship and Another (2007) 159 FCR 1; [2007] FCAFC 64, the Tribunal had exceeded its authority by failing to warn or advise him during the Tribunal hearing that he had a right to claim legal professional privilege in respect of communications between himself and his lawyers. In particular, the Applicant contended that the circumstances in which reference was made during the Tribunal hearing of 11 November 2013 to communications that he had had with lawyers who had acted for him in previous dealings with the Department of Immigration and in relation to his criminal trial were such that the Tribunal fell into error in the manner considered in SZHWY. 

3. Reliance was placed on the view expressed by Lander J (at [75]) in SZHWY as follows:

   In my opinion, the Tribunal was under an obligation to advise the appellant that he was entitled to refuse the questions which the Tribunal asked of him if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal.

   While Rares J was said to have approached the issue in SZHWY somewhat differently, the Applicant submitted that what his Honour had said was equally applicable in this case. It was pointed out that, after finding (at [158]), that an “impertinent inquiry by the tribunal seeking the disclosure of a communication to which legal professional privilege attaches is not authorised by the [Migration] Act and is, thus, unlawful”, Rares J had stated (at [159]) that the power of the Tribunal conferred by the Migration Act “did not extend to asking the appellant to disclose what he talked to his solicitor about concerning his application for a visa”.  His Honour also expressed the opinion (at [160]) that if this was wrong, the Tribunal had not proceeded in a “reasonable fashion” in its questioning because it had not taken any steps to advise the appellant to the effect that s.433(1A) of the Act entitled him to refuse to answer or to otherwise maintain his privilege.

4. It was submitted that in SZHWY the Full Court of the Federal Court had found that legal professional privilege was an “inviolable limitation” on the Tribunal’s method of conducting its hearing, regardless of whether or not the Tribunal made use of any privileged information.  The Applicant submitted that the reasoning of Lander J in SZHWY (who was said to have accepted that in certain circumstances the Tribunal had an obligation to warn or advise an applicant that he had a right to claim privilege) should be preferred, but that even on the more limited approach taken by Rares J in relation to the Tribunal’s power to ask questions, there was a jurisdictional error in this case on the basis that during the Tribunal hearing there had been an “impertinent inquiry” by the Tribunal seeking the disclosure of a communication to which legal professional privilege attached. 

5. The Applicant submitted that on several occasions during the Tribunal hearing the Tribunal had fallen into error of the type considered in SZHWY.  First, reference was made to what occurred after the Tribunal asked the Applicant (transcript p.38, lines 16 – 18) why he had not mentioned his claims regarding his sexual orientation when he was invited to respond to the notice of intention to cancel his permanent residence visa.  This questioning addressed the fact that although the Applicant had had considerable dealings with the immigration authorities in relation to previous visa applications, cancellations and review, it appeared that during the course of those dealings he had not mentioned the sexual orientation that he later raised as a key element in his protection visa application.  Reliance was placed on the following aspect of this exchange as indicative of jurisdictional error (transcript p.39, lines 6 – 23):

   APPLICANT:   Yes senior member, as I was telling you, after – I ask my lawyer – my lawyer told me that what we going in for is judicial review not merely review and - - -

   MEMBER:   This is before judicial review Mr [Applicant], this is when you had the opportunity to persuade the department, the minister that there were problems and you couldn’t return to Nigeria. 

   APPLICANT:   Yeah, as I told you then senior member that I was struggling with this, I don’t want anybody to know and I didn’t – since I’ve been outside working, I started working, set up a family, I’m not associating with anybody that doing crime in anything and I believe that my lawyer informed me that I should be fine, I should be fine that minister is not going to cancel my visa and that - - -

   MEMBER:   Well, Mr [Applicant], I can’t see how your lawyer could’ve given you that advice when you got a notice from the minister saying he was contemplating cancelling your visa.

6. It was submitted that while the Applicant was the first to mention his legal advice in this exchange, consistent with the approach taken by Lander J in SZHWY, immediately upon the Applicant beginning to talk about discussions with his lawyer the Tribunal should have warned or advised him that he could claim privilege with respect to any of those communications, but that it had erred in that it had failed to do so and instead had proceeded to comment on the lawyer’s advice.

7. It was contended that the obligation on the Tribunal to give a warning prior to asking the Applicant questions about what he had discussed with his solicitor would also arise where the Tribunal should have realised that the Applicant may respond to its questions with privileged information.  It was pointed out that in SZHWY, Lander J had stated at [77]:

   In my opinion, the Tribunal, when conducting its inquiry and in the exercise of its inquisitorial function, should advise a person of their right to claim privilege against self-incrimination or legal professional privilege if it appears that a question asked of the person may give rise to a legitimate claim of that privilege.

8. The Applicant also submitted that even if such advice was not necessary at that stage of the hearing, the Tribunal had fallen into error in the sense considered in SZHWY in its remark (at transcript p.39 line 21) that:

   I can’t see how your lawyer could’ve given you that advice.  

   It was contended that in making this remark the Tribunal was extending an invitation to the Applicant to talk more about what his lawyer had advised him by challenging what he said that his lawyer had told him.

9. In addition, reliance was placed on the further discussion of why the Applicant did not mention his sexual orientation in response to the notice of intention to consider cancelling his visa (at transcript p.42 lines 11 – 19).  After the Applicant suggested that the Tribunal’s questioning was confused because it had not clarified which of the notices of intention to cancel his visa was in issue, the hearing continued as follows:

   MEMBER:   I don’t think the question was confused Mr [Applicant].  You told me today that even though your partner knew about it, you didn’t want anyone else to know about it and that your lawyer was advising you that you didn’t need to raise this because the Minister wasn’t going to make a decision - - -

   APPLICANT:   No my lawyer – my lawyer doesn’t know about it senior member. 

   MEMBER:   Yeah I know because you hadn’t told him either…

10. It was submitted that in this part of the hearing the same legal advice that the Applicant had received from his lawyer that was referred to in the earlier extract was returned by the Tribunal and that the Tribunal had erred again in failing to warn or advise the Applicant about legal professional privilege.

11. The solicitor for the Applicant indicated in oral submissions that he did not press the issue raised in written submissions in relation to an exchange at the hearing at p.43 of the transcript.  However he maintained a contention that jurisdictional error was apparent in light of the extract (at transcript p.44, lines 25 – 28) in which the Applicant referred to his criminal case as follows:

    APPLICANT:   During my sentencing I did not plead guilty because my lawyer advise me that we go for trial, and we went for trial and when we lost at the trial I did – he did not get me on the stand to show remorse but I was very remorseful for the crime that I have committed senior member…

12. It was acknowledged that the Applicant was the first to mention this advice during the Tribunal hearing, but contended that by that stage of the hearing he should have been under notice from the Tribunal in respect of the earlier instances in which an issue of privilege arose.  However he had not been so advised or warned.  It was contended that in these circumstances the Tribunal should have warned or advised the Applicant about his right to claim legal professional privilege in relation to this communication with his lawyer.

13. In oral submissions the solicitor for the Applicant clarified that it was not contended that every Tribunal hearing had to be preceded by a warning to a person about legal professional privilege.  However it was submitted that in this case the issues relating to the Applicant’s credibility were “central to the Tribunal’s decision” and that “the manner in which he had previously behaved with respect to both the Department and the Court while under legal advisement was a major part of the Tribunal’s credibility concerns”.  The Applicant contended that by failing to advise or warn the Applicant of his rights the Tribunal had acted outside its jurisdiction and that its decision should be set aside.

14. The Applicant also contended generally that the Tribunal hearing involved questioning by a government official in respect of claims for refugee status which, as stated in SZHWY (at [172]) per Rares J was:

    …designed by the official to elicit what [Applicant] had told his solicitor.

15. It was said that at the very least the Tribunal’s questions in the parts of the hearing in issue had allowed the Applicant to continue to reveal what he had discussed with his legal representative.

16. The Applicant submitted that he had not waived any legal professional privilege in the sense considered in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 (in particular at [29] per Gleeson CJ, Gordon, Gummow and Callinan JJ and see Rares J in SZHWY at [171]). It was contended that it could not be said that the Applicant’s conduct at the hearing was inconsistent with the maintenance of the confidentiality which the privilege was intended to protect or that it amounted to an intentional act of disclosure inconsistent with maintenance of the confidentiality. The Applicant also submitted that it could not be said that it would be unfair to allow him to maintain a claim for privilege on the basis that he had acted inconsistently with such a claim in the sense considered by Lander J in SZHWY at [60] (see Benecke v National Australia Bank (1993) 35 NSWLR 110).

17. Counsel for the First Respondent took issue with the Applicant’s summary of the reasoning in SZHWY and with the contention that the circumstances in this case, including the parts of the Tribunal hearing relied on by the Applicant, were such that the Tribunal had fallen into error in the manner considered in SZHWY. 

1. It was submitted that the Applicant’s approach would mean either that the Tribunal was obliged to give a general warning about an applicant’s right to claim privilege at the start of every hearing (a proposition not adopted in SZHWY) or that the Tribunal would fall into jurisdictional error every time an applicant volunteered confidential lawyer/client communications. 

2. The First Respondent submitted that SZHWY was not authority for the proposition that every Tribunal hearing must be preceded by a warning about communications between solicitor and client.  It was contended that if Parliament had intended for the Tribunal to provide a general warning in every case it would have expressly required it to do so by imposing a mandatory direction in the Act, but that that had not occurred.  Rather, it was said that the Tribunal’s obligation to give a warning arose only when it was asking or knew it was about to ask a question that could reveal privileged information. 

3. The First Respondent submitted that it was relevant to have regard to what had occurred in the Tribunal hearing in SZHWY and the particular circumstances of that case when considering the majority judgments and that the circumstances in this case were quite different.  It was pointed out that, as Lander J had explained, the exchange at the Tribunal hearing in issue in SZHWY (at [8]) included three express invitations from that Tribunal member to the appellant to disclose privileged communications. After the appellant had volunteered the fact of a conversation with his lawyer, the Tribunal in SZHWY had asked him:

   What did you talk to him about (line 616)

   oh I see I see, so you told him that you didn’t want to go back for political reasons? (line 622)

   and

   And what did he advise you to do? (line 626)

4. Lander J explained (at [10] and [46]) that the appellant in SZHWY claimed that the Tribunal had failed to accord him procedural fairness because it had failed to advise him that he was entitled to claim legal professional privilege in respect of any confidential communication between himself and his solicitor and had asked him questions (in particular those three questions) that required or caused him to divulge the contents of communications between himself and his solicitor (SZHWY at [10]).

5. The First Respondent submitted that in SZHWY Lander J made it clear (at [75] – [77]) that for the obligation to advise an applicant of his or her right to claim legal professional privilege to arise there had to be a question asked by the Tribunal which would tend to invite the disclosure of privileged information. It was contended that it was only at that point that the Tribunal had to warn or advise an applicant that the question did not have to be answered because the applicant could claim privilege in respect of it.

6. It was also pointed out that Lander J had acknowledged (at [60]) that the benefit of the privilege could be waived, albeit that that had not occurred in SZHWY.

7. It was submitted that the focus was on the conduct of the Tribunal and whether it was asking questions which would tend to disclose privileged information, as it was in such circumstances that it would be under an obligation to provide a warning.

8. The First Respondent observed that similarly, in SZHWY Graham J (albeit in dissent) had suggested (at [112]) that the Tribunal “should refrain from calling on” an applicant to disclose what were on the face of it privileged communications “without contemporaneously advising that applicant of his or her right to decline to do so” (although his Honour went on to find that s.422B of the Act deprived the Applicant of an entitlement to have such advice before being asked to respond to such questions).

9. The First Respondent pointed out that Rares J was of the view in SZHWY that the questions asked by the Tribunal had invited the revelation of privileged material (see SZHWY at [150]) and that it was in that context that his Honour (also focusing on the conduct of the Tribunal) had concluded (at [158]) that:

   An impertinent inquiry by the Tribunal seeking the disclosure of a communication to which legal professional privilege attaches is not authorised by the Act and is, thus, unlawful.

10. It was submitted that Rares J had also expressed the view that any obligation on the Tribunal to warn or advise an applicant would arise in circumstances where the Tribunal questioned an applicant about communications for which he or she could make a claim for legal professional privilege (see SZHWY at [168] – [169]).

11. Hence, the First Respondent submitted that SZHWY did not go beyond establishing that a Tribunal must provide a warning or advice about privilege if it sought to put questions to an Applicant that invited privileged communications to be revealed. 

12. It was submitted that no such questions had been put by the Tribunal in this case so that the Tribunal had not fallen into jurisdictional error by failing to provide a warning to the Applicant or by failing to advise him of his right to claim privilege as contended in Ground Three.

13. It was contended that in this case, unlike in SZHWY, the Tribunal did not ask the Applicant to reveal privileged communications.  Rather, the Applicant was said to have volunteered evidence about such communications entirely unexpectedly and not in direct response to any question asked by the Tribunal.  It was submitted that in these circumstances no obligation arose on the Tribunal to provide the Applicant with any warning that he was entitled to claim privilege in respect of that evidence.

14. In addition, the First Respondent submitted that in circumstances where the Applicant had volunteered evidence about communications with his lawyers it could be said that he had voluntarily waived privilege in the sense considered in Mann v Carnell by disclosing such communications, so that it was then open to the Tribunal to refer back to that evidence on subsequent occasions during the hearing.

15. It was acknowledged that, as pointed out in SZHWY, the Evidence Act 1995 (Cth) does not apply to a Tribunal hearing and that principles in relation to waiver of privilege at common law were in issue. It was pointed out that in Mann v Carnell (referred to in SZHWY at [171] per Rares J) Gleeson CJ, Gaudron, Gummow and Callinan JJ had stated (at [28]) that inconsistency between the conduct of the client and maintenance of the confidentiality of communications between the lawyer and client would effect a waiver of legal professional privilege. Relevantly, their Honours had stated (at [29]) that waiver may be implied in circumstances where particular intentional conduct was inconsistent with the maintenance of the confidentiality which the privilege was intended to protect, even though the consequences of such inconsistency “may not reflect the subjective intention of the party who ha[d] lost the privilege” and even if the client may not have turned his or her mind to the question. 

16. The First Respondent submitted that in this case the Applicant had engaged in intentional acts that were inconsistent with maintenance of the confidentiality of communications with his lawyers in circumstances where, in reply to some relatively open-ended questions from the Tribunal, he had volunteered responses which included references to communications with his lawyers and to the content of such communications, both in the exchange relied on by the Applicant in relation to his response to the notice of intention to cancel his visa and when, in response to a very general question at the end of the hearing, he referred to what the lawyer who had acted for him in his drug trafficking case had said.

17. The First Respondent contended that what occurred in this Tribunal hearing did not fall within the principles discussed in SZHWY  and that no obligation arose on the Tribunal to give a warning to the Applicant as contended for in Ground Three of the Amended Application. 

Consideration

1. In SZHWY Lander J and Rares J each expressed the view that the powers of the Tribunal under the Migration Act to ask questions and take evidence at a Tribunal hearing “do not authorise it to override the common law immunity of legal professional privilege or the common law right to refuse to answer questions that might tend to incriminate the person giving the answers” (Rares J at [151] and see Lander J at [51] – [59], cf Graham J in dissent at [113]).  However, as conceded by the Applicant, their Honours did not go so far as to establish or suggest that the Tribunal was obliged to give a general warning about an applicant’s right to claim privilege at the start of or in the course of every Tribunal hearing. 

2. Rather, both Lander J and Rares J considered that insofar as the Tribunal had an obligation to warn or advise an applicant in relation to legal professional privilege, it was an obligation to advise the Applicant of his or her right to refuse to answer particular questions which might elicit or result in the disclosure of the content of confidential communications with his or her lawyer. 

3. In SZHWY the appellant volunteered that he had had a meeting and conversation with a solicitor in response to a general question from the Tribunal (“Well if you first decided not to return in late December 2004, what did you think was going to happen?”).  Lander J concluded (at [45]) that the Tribunal in SZHWY could not have been aware that this question would have led the appellant to refer to his meeting with his solicitor.  His Honour found that the answer given by the appellant to that question (in which he referred to a meeting with his solicitor but did not disclose what was said) was inadvertently received by the Tribunal (albeit it did not constitute a waiver of the privilege).  His Honour did not find that after receiving this answer the Tribunal should immediately have warned and/or advised the appellant about legal professional privilege.  Nor did Rares J take such an approach. 

4. Lander J considered whether the subsequent Tribunal questions (at lines 616 and 222) were impermissible on the basis that they directly sought to ascertain the context of privileged communications, whether question 626 was impermissible on the basis that it sought to ascertain the advice given by the solicitor to the appellant and whether the Tribunal had an obligation to advise the appellant of his rights to refuse to answer such questions. 

5. In addressing these issues Lander J found (at [51] – [59]) that legal professional privilege survived the enactment of s.422B of the Act (as it was not part of the natural justice hearing rule). His Honour pointed out (at [65] – [69]) that at common law (cf. s.132 of the Evidence Act) a court might elect to warn a witness or party that a question might give rise to the disclosure of confidential communications with his or her lawyer, but that no obligation lay on the court to do so. However his Honour concluded relevantly (at [75] – [77]) that:

   In my opinion, the Tribunal was under an obligation to advise the appellant that he was entitled to refuse the questions which the Tribunal asked of him if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal.

   That obligation arises because the Tribunal, like any other administrative decision maker, is not entitled to exercise a power to destroy a freedom of communication which the law seeks to protect: Baker v Campbell per Dawson J at 131. The Tribunal was in the same position as an administrative decision maker who has the power to require documents to be produced. The decision maker should not exercise the power to require a party to produce documents which are subject to legal professional privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at 537; Arno v Forsyth (1986) 9 FCR 576. A decision maker should not purport to exercise a power to require a person to answer a question which the law would excuse that person from answering.

   In my opinion, the Tribunal, when conducting its inquiry and in the exercise of its inquisitorial function, should advise a person of their right to claim privilege against self-incrimination or legal professional privilege if it appears that a question asked of the person may give rise to a legitimate claim of that privilege.

6. In other words, in SZHWY the Tribunal member had elicited evidence from the appellant about what was said in that meeting by asking the three questions set out at [117] above. In that way the Tribunal had asked the appellant to divulge communications with his solicitor that were the subject of legal professional privilege. It was in that context that Lander J found that the Tribunal was under an obligation to advise the appellant that he was entitled to refuse to answer the questions the Tribunal asked of him if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal (at [75]).

7. Lander J did not find that immediately upon the appellant, in SZHWY beginning to talk about discussions with his lawyer the Tribunal was under an obligation to warn or advise him that he could claim privilege in respect of any communications with his lawyer. Nor did his Honour find that the Tribunal was restrained from commenting on the lawyer’s advice. Rather, Lander J related the Tribunal’s obligation to its questioning of the appellant and expressed the view (at [77]) that the obligation on the Tribunal to provide advice to an applicant about legal professional privilege arose when it appeared that a question asked by the Tribunal “may give rise to a legitimate claim of privilege”.  It was in those circumstances that, absent any such advice, his Honour went on to indicate (at [81]) that the Tribunal should not have asked the questions which it did.  In context, this was clearly a reference to the three questions complained of by the appellant in SZHWY which specifically asked him about the subject matter of the conversation with his solicitor and hence to disclose communications which may be the subject of legal professional privilege. 

8. Insofar there was a suggestion that in SZHWY Graham J also found that the Tribunal had fallen into jurisdictional error by asking questions of the appellant, in fact his Honour expressed the view (at [110]) that it did not seem to him that the asking of the questions was in any way improper. Graham J saw the issue as whether the Tribunal had to advise the appellant at the time a question was asked that it would be open to him to decline to answer the question on the ground of legal professional privilege on the basis that a Tribunal member obliged to provide a fair hearing, should refrain from calling on an appellant, likely to be unfamiliar with the law in relation to legal professional privilege, to disclose what were ex facie privileged communications “without contemporaneously advising that applicant of his or her right to decline to do so” (at [112]). However his Honour found that the appellant’s right to such an aspect of procedural fairness had been circumscribed by s.422B of the Act in such a way as to deprive him of an entitlement to have advice concerning the availability of legal professional privilege from the Tribunal before being asked to respond to questions such as those in issue in SZHWY (at [113]).

9. In SZHWY Rares J identified the appellant’s concern that the Tribunal had exceeded its jurisdiction and had committed jurisdictional error by enquiring into the subject matter of his conversation with his solicitor and addressed the appellant’s contention that the Tribunal should have warned or informed him of his right to legal professional privilege and should not have asked him to divulge his communications with his solicitor which were the subject of legal professional privilege (at [132] – [133]).

10. Rares J considered the particular circumstances in SZHWY, finding (at [150]) that the Tribunal’s questions  set out at [117] above sought “the revelation of the subject matter of discussions between the appellant client and his solicitor in relation to legal advice”.  While his Honour acknowledged that it was possible that what was discussed may not in fact have been capable of being the subject of a claim for legal professional privilege, he expressed the view that “the only apparent relevance or purpose of the [Tribunal’s] questioning… was to elicit what had been said between the appellant and the solicitor about the appellant’s claim or basis for a claim for a visa” and concluded that the Tribunal was “using its powers to seek from the appellant what was legally professionally privileged”. 

11. Relevantly, Rares J had regard to the fact that under the Migration Act there was (at [151]):

    …a clear and unmistakable intention that a witness before the tribunal, including an applicant for review, may have a reasonable excuse for failing or refusing to answer a question which is afforded protection in s 433(1A). 

12. Section 433(1A) of the Act provides that the obligation to answer a question at a Tribunal hearing imposed by s.433(1) “does not apply if the person has a reasonable excuse”.  Rares J was of the view that the Tribunal’s powers under the Act to ask questions and take evidence did not authorise it to override the common law immunity of legal professional privilege or the right to refuse to answer questions that might tend to incriminate the person giving the answers.  Thus, his Honour saw “the question for decision” as whether the Tribunal was authorised by the Migration Act to ask the question “What did you talk to him about?” and the subsequent questions exploring the conversation between the appellant and his lawyer (at [152]).  Rares J concluded that “the tribunal had no authority, in the circumstances, to probe into the appellant’s communications with his solicitor” (at [157]).  It was in light of this reasoning that his Honour found that “An impertinent inquiry by the tribunal seeking the disclosure of a communication to which legal professional privilege attaches is not authorised by the [Migration] Act and is, thus, unlawful” (at [158]) and that the power of the Tribunal “did not extend to asking the appellant to disclose what he talked to his solicitor about concerning his application for a visa” (at [159]). 

13. The primary basis for the decision of Rares J was that the Tribunal had exceeded its powers in asking and pursuing questions to elicit the content of the appellant’s conversation with his solicitor that was the subject of legal professional privilege.  However his Honour went on to express the view that if the Tribunal did have the power to ask such questions (see the discussion of JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FCR 537; [2004] FCAFC 274 at [155] – [157]), the Tribunal had not proceeded in a reasonable fashion in its questioning because it did not take any steps to advise the appellant to the effect that s.433(1A) of the Act entitled him to refuse to answer or to otherwise maintain his privilege.

14. While there is some difference in the approach taken by Lander J and Rares J in SZHWY, whether the issue is considered in terms of a restriction on the power of the Tribunal to ask certain questions or an obligation on the Tribunal to provide advice and/or a warning about an applicant’s rights in relation to answering particular questions, it has not been established that the Tribunal fell into jurisdictional error in this case.

15. First, it is not in dispute that there is no general obligation on the Tribunal to advise an applicant at a Tribunal hearing of his or her right to claim legal professional privilege. 

16. It is necessary to have regard to the particular circumstances of the exchanges in question at the Tribunal hearing.  Prior to the first exchange relied on by the Applicant (at p.38 of the transcript) the Tribunal had asked the Applicant why he had not mentioned his sexual orientation when invited to respond to the notice of intention to cancel his residence visa.  The Applicant indicated that, among other things, he did not want his partner to know.  The Tribunal raised with him the fact that he had said that his partner had found out about his sexual orientation prior to the third notice of intention to cancel his visa.  The Tribunal clarified that it was referring to the third notice of cancellation and continued (at p.39, lines 3 – 4):

    And you were invited to respond.  You responded October and November 2012. 

1. It was in response to this general question that the Applicant, who had not been asked anything about communications with his lawyer, volunteered what his lawyer had told him. 

2. It has not been established that there was anything in the circumstances of this case such as to give rise to an obligation on the Tribunal at that point to warn or to advise the Applicant of his right to claim legal professional privilege.  In response to general questioning about why he had not mentioned his claims regarding his sexual orientation when he was invited to respond to a notice of intention to cancel his residence visa, the Applicant referred (unresponsively and unexpectedly) to his lawyer’s advice to him that they were seeking judicial review.  It cannot be said that the Tribunal’s question was such that it sought revelation of any privileged communication.  The response of the Applicant was “inadvertently received” (see SZHWY (at [48]) per Lander J).

3. Moreover at that point, in contrast to what occurred in the Tribunal hearing in SZHWY, the Tribunal in this case did not pursue questions about the Applicant’s conversation with his lawyer.  Rather, the Tribunal in effect pointed out that the questions being asked about why the Applicant had not taken the opportunity to raise his sexual orientation with the Department when seeking to persuade it that there were problems and he could not return to Nigeria) related to a time before any judicial review proceedings.  It was in response to this clarification that the Applicant, who had not been asked anything about communications with his lawyer in relation to his visa cancellation or otherwise, volunteered what his lawyer had told him about the prospect of cancellation of his permanent residence visa. 

4. In proceeding in this manner the Tribunal did not invite the Applicant to say anything about any communications between himself and his lawyer.  It cannot be said that the Tribunal’s clarification amounted to a question that may give rise to a legitimate claim to legal professional privilege such as to have required it to advise the Applicant of his right to claim such privilege on the approach taken by Lander J in SZHWY.  The Applicant’s voluntary reference to his lawyer’s advice about judicial review proceedings did not mean that the Tribunal’s question relating to why he had said nothing about his sexual orientation at an earlier time was a question that sought the disclosure of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal (SZHWY per Lander J at [75] and Rares J at [158] – [159]).

5. In some circumstances earlier exchanges and the issues being discussed may be such as to enliven the Tribunal’s obligation to warn or advise an Applicant (on the reasoning of Lander J in SZHWY).  On balance I am not persuaded that this is such a case.  

6. I am not satisfied that in proceeding in this manner the Tribunal sought to put questions to the Applicant that invited privileged communications to be revealed such that it was under an obligation to warn or advise the Applicant of his right to claim privilege or that the earlier exchanges, the Applicant’s responses, or the issues addressed were such that it appeared at this time that a question asked of the Applicant may give rise to a legitimate claim of such privilege.  The Applicant’s initial reference to a discussion with his lawyer about judicial review was completely irrelevant to the issues being discussed and the questions that the Tribunal had asked.  The Tribunal’s subsequent question was not such as to seek disclosure by the Applicant of the content of any communications with his lawyer at the time he received the notice of intention to cancel his visa.  It cannot be said that the Tribunal was asking or knew that it was about to ask a question or questions that would tend to reveal privileged information. 

7. In any event, the Applicant volunteered the evidence about the content of communications with his lawyer (the advice that he should be fine and that the Minister was not going to cancel his visa) unexpectedly and not in direct response to questions asked by the Tribunal.  In Mann v Carnell Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28] – [29]:

   Legal professional privilege exists to protect the confidentiality of communications between lawyer and client.  It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege…

   Waiver may be express or implied.  Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.  When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law".  This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.  Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions.  She did not subjectively intend to abandon the privilege.  She may not even have turned her mind to the question.  However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication.  What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.  (Footnotes omitted).

8. At [34], their Honours observed:

   Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. 

9. The Applicant’s conduct at this point was intentional conduct that was inconsistent with the maintenance of the confidentiality which legal professional privilege is intended to protect in the sense considered in Mann v Carnell such as to effect a waiver of legal professional privilege consistent with the common law principles (which, as pointed out in SZHWY, apply to a Tribunal hearing).  Relevantly, (see Mann v Carnell at [29]), such waiver may be implied in circumstances where particular intentional conduct was inconsistent with the maintenance of the confidentiality which privilege was intended to protect, even though the consequences of such inconsistency “may not reflect the subjective intention of the party who ha[d] lost the privilege” and even if the person may not have turned his or her mind to the question. 

10. In this case the Applicant voluntarily disclosed communications between himself and his lawyer in response to relatively open-ended questions from the Tribunal about his failure to disclose his fears about returning to Nigeria because of his sexual orientation in circumstances where the Applicant had only recently claimed to be bisexual.  In giving such evidence voluntarily the Applicant intentionally engaged in an act that was inconsistent with the maintenance of privilege such that the privilege was impliedly waived.  That is so notwithstanding that the Applicant may not have intended to abandon privilege and, indeed, may not have been aware that he could claim privilege.  Hence it was entirely proper for the Tribunal, having heard this evidence, to refer back to it later in the hearing.

11. In addition, the last part of the Tribunal hearing relied on by the Applicant (transcript p.44, lines 25 – 28) was another instance of evidence unexpectedly being volunteered by the Applicant, in this case in response to the Tribunal’s general question near the end of the hearing (transcript p.23, lines 28 – 29):

    Did you want to say anything about any of the other matters I mentioned?

12. It was in partial answer to this very general question that (after explaining that he had sought protection on the basis of his sexual orientation and why he had not mentioned various issues at earlier times), the Applicant volunteered the advice given to him by the lawyer acting for him at the time of his criminal proceedings.  It cannot be said that the Tribunal was inviting the Applicant to disclose possibly privileged communications by giving him the opportunity to say anything about any of the other matters it had mentioned. 

13. The Tribunal had not asked any questions that invited or tended to invite the Applicant to give evidence of communications with the lawyer who acted for him in his criminal trial.  The Applicant’s reference to his past legal advice was volunteered in response to a very general question by the Tribunal.  The earlier exchanges were not such as to give rise to an obligation on the Tribunal to advise the Applicant of his right to claim privilege in relation to communications with the lawyer who had acted for him in his criminal proceedings (or any of the other lawyers who had acted for him).  It cannot be said that in such circumstances the Tribunal was allowing or inviting the Applicant to disclose privileged communications between himself and the lawyer who acted for him in his criminal proceedings in respect of his drug charges such as to enliven an obligation to warn or advise the Applicant about privilege or such as to lead to the conclusion that the Tribunal should not or could not have asked such a question.

14. Given the circumstances of the Tribunal questioning and the issues under consideration this is not a case in which the Tribunal was obliged to provide a warning or advice to the Applicant. Nor (insofar as this was raised in oral submissions) can it be said that the Tribunal exceeded its powers in asking the question in issue or that it failed to proceed in a reasonable fashion because it did not take steps to advise the Applicant of the effect of s.433(1A) of the Act in the hearing.

15. It has not been established that the Tribunal fell into error in the manner contended for in Ground Three in the Amended Application.  This ground is not made out.

16. As none of the grounds relied on has been established the application must be dismissed.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  30 January 2015