SZUTN v Minister for Immigration

[2015] FCCA 727

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 727

Catchwords:
MIGRATION – Protection visa – review of Refugee Review Tribunal decision – protection visa – refusal – Tribunal unable to take evidence from witness by mobile telephone – whether the Tribunal’s refusal to make a second attempt to take evidence from witness using applicant’s mobile telephone meant that it had failed to fulfil its function of review.

Legislation:

Migration Act 1958 (Cth), ss.36, 427, 429A, 430, 476

Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: SZUTN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2011 of 2014

Judgment of: Judge Smith

Hearing date: 10 March 2015

Date of Last Submission: 10 March 2015

Delivered at: Sydney

Delivered on: 1 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M. Glavac, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2011 of 2014

SZUTN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks the issue of constitutional writs under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“Tribunal”) dated 29 June 2014. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.

2. Although there are nine grounds in the application, the grounds fall into two categories:

   a)first, there are eight grounds that, in effect, seek review by the Court of factual findings made by the Tribunal; and

   b)secondly, there is one ground that takes issue with the way in which the Tribunal dealt with the request by the applicant to take evidence from her uncle by telephone in Nigeria.

3. For the following reasons, there is no jurisdictional error in the Tribunal’s decision and the application will be dismissed with costs.

Background

1. The applicant is a citizen of Nigeria who arrived in Australia on 22 November 2012 as the holder of a Temporary Business Entrant (Class UC) visa.  Shortly afterwards, on 19 December 2012, the applicant lodged an application for a protection visa. 

2. The applicant claimed that she and her partner were Christians and had had two children.  On 3 February 2012 her partner returned from a business trip to the north of Nigeria and told the applicant that his business partner there, a man name Musa, had asked him to join the Boko Haram organisation to help them set up a network in south-west Nigeria but that the applicant’s partner had refused the request.

3. Later that day, the applicant went to do some shopping and when she returned found her son with stab wounds to the chest. Her son died in hospital the next day and when she returned home, she realised that her partner and their daughter had disappeared. 

4. After the incident, the applicant noticed a group of men standing in front of her house “talking and looking”.  The same group came to her church one Sunday morning shouting her partner’s name and saying that he and his family were “dead people”.  At the suggestion of the police and her uncle, the applicant relocated to a different town in Nigeria for about seven months.  While there, she claimed that she was tricked into revealing her whereabouts to her partner’s business partner and that he and others continued to call and threatened her.  Her uncle then organised travel documents for the applicant to leave Nigeria and the applicant ultimately left by plane on 21 November 2012. 

5. In support of her claims the applicant sent the following documents to the Department of Immigration:

   a)a document entitled “Extract from Crime Diary” on the letterhead of “The Nigerian Police Force” which set out details of the incident in which the applicant found her injured son;

   b)a letter from the Salvation Army dated 18 April 2013 indicating that the applicant attended church regularly and worked hard to help in any way that she could in ministries in the church;

   c)a photograph of the applicant and her partner taken in 2009 said to have been taken by a professional photographer when the applicant and her partner held a gathering to introduce their respective families to each other and to celebrate their union; and

   d)a photograph of the applicant’s daughter at three months of age.

6. On 30 July 2013 a delegate of the first respondent decided to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.

Proceedings before the Tribunal

1. On 19 November 2013 the Tribunal sent the applicant an invitation to appear before the Tribunal at a hearing on 3 January 2014. On 18 December 2013 the applicant’s migration agents sent a submission to the Tribunal outlining the applicant’s claims and addressing the reasons for which the delegate had refused her application. 

2. The applicant’s claims were summarised as being a fear of persecution throughout Nigeria due to her religion (Christianity), her imputed political opinion (opposition to Boko Haram) and her membership of a particular social group (family members of those who have refused to join Boko Haram). It was also claimed that the applicant feared that there was a real risk that she will suffer significant harm as defined by s.36(2A) of the Act. On 20 December 2013 the applicant faxed to the Tribunal a letter dated 14 November 2013 addressed “To Whom It May Concern” that appears to have come from the applicant’s uncle. That letter corroborated the applicant’s claims about the incident on 3 February 2012 as well as her claim about the way in which she was able to obtain her travel documents and leave Nigeria.

3. The applicant attended the hearing on 3 January 2014 and was given until 17 January 2014 to provide further submissions in writing.  The applicant’s agent did so by that date, requested an extension to 31 January 2014 to enable the applicant’s psychological condition to be assessed and made certain submissions about the impact of trauma upon the ability of people to give evidence.  The submission also noted that during the hearing the applicant’s agent had stated that the applicant’s uncle would be happy to provide oral evidence as a witness over the telephone and submitted that the Tribunal should reconvene in order to hear and assess the evidence of the applicant’s uncle.  The submission also addressed a number of matters which had been raised by the Tribunal at the hearing including a mistake as to the date of birth of the applicant’s daughter, the applicant’s planned marriage to her partner, the details of the events on 3 February 2012 and a number of other matters.

4. On 20 January 2014 the Tribunal notified the applicant that the hearing would recommence on 31 January 2014.  In response to that letter the applicant’s agent sent the Tribunal a notice indicating that the applicant wished the Tribunal to take evidence from her uncle and provided a mobile telephone number for that purpose.

5. On 30 January 2014 the applicant’s agent sent another submission to the Tribunal accompanied by a report by a clinical psychologist in respect of the applicant.  The agent submitted that the report supported their earlier submission on 17 January 2014 in respect of the applicant’s poor mental health and the probable effects of her psychological state upon her ability to testify as to her experiences and to present a consistent, coherent account of her experiences.

6. On 28 January 2014 the Tribunal contacted the applicant’s agent to advise that, due to limitations with the Tribunal’s telecommunications equipment, the Tribunal was unable to contact mobile telephone numbers in Nigeria and required a landline telephone number.  At the hearing on 31 January 2014 the applicant again provided a mobile telephone number for her uncle which, according to the Tribunal, it did not prove possible to contact.  The applicant’s agent advised that there was in fact no landline telephone number upon which the applicant’s uncle could be contacted.  In response to this the Tribunal noted that it already had a letter from the uncle but if the applicant wanted to produce further evidence from the uncle then she was welcome to do so.

7. By letter dated 6 February 2014, the applicant’s agent wrote to inform the Tribunal that according to their instructions the applicant’s uncle did not have access to a landline telephone line, that the applicant was able to use her mobile phone to contact her uncle in Nigeria and would consent to, and bear the costs of, the Tribunal using her mobile telephone during a resumed hearing for the purposes of contacting the uncle to take evidence from him.  The Tribunal did not agree to the request made in that letter on the basis that mobile telephones may “interfere” with the Tribunal’s recording equipment and reiterated the invitation to produce further written evidence from the uncle, giving until 28 February 2014 for such evidence to be obtained.  The applicant’s agents took the opportunity extended to them by the Tribunal and sent a further statement by the applicant’s uncle by letter to the Tribunal dated 26 February 2014. 

8. On 29 June 2014 the Tribunal made the decision to affirm to the decision of the delegate. 

Tribunal’s decision

1. In a statement of reasons prepared pursuant to s.430 of the Act, the Tribunal first set out its consideration of the applicant’s claims and her evidence. In this respect, the Tribunal also considered the submissions of the applicant’s agent and the report from the clinical psychologist in respect of the applicant’s ability to give evidence together with the observations made by the Tribunal at the hearings conducted by it. The Tribunal concluded that the applicant had been able to participate effectively in the Tribunal hearing on 3 January 2014.

2. The Tribunal did not accept that the applicant was telling the truth about the murder of her son, the disappearance of her partner and daughter, or the threats she claimed to have received from her partner’s business partner or from Boko Haram.  Further, it did not accept that the business partner had wanted her partner to join Boko Haram or that there was a real chance that if she returned to Nigeria the applicant would be persecuted by Boko Haram because she would be able to provide information to the police or security services in relation to the activities of that organisation, identify members of it or testify against her husband’s business partner if he were ever prosecuted.  For those reasons, the Tribunal found that there was no real chance that the applicant would be persecuted for her imputed political opinions (opposition to Boko Haram) or her membership of the particular social group suggested by her representatives (family members of those who have refused to join Boko Haram).

3. While the Tribunal accepted that the applicant was a Christian, it did not accept that Christians in Nigeria faced particularly severe risks of forced conversion and found that the chance of the applicant being caught up in a terrorist attack or on a church or some other target in south of Nigeria was very remote.  For those reasons the Tribunal found that there was no real chance that the applicant would be persecuted by reason of her religion if she returned to her home in the south of Nigeria.

4. The Tribunal also rejected the claim that the applicant would face a real chance of persecution for being a woman or that she faced discrimination in obtaining employment or accessing adequate medical treatment or social security.  The Tribunal concluded that the applicant did not have a well-founded fear of being persecuted for one or more of the five Convention reasons if she returned to Nigeria at that time or in the reasonable foreseeable future.

5. In light of those factual findings the Tribunal also 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 that she would suffer significant harm.  For that additional reason, the Tribunal concluded that the applicant did not satisfy either criteria for the ground of protection visa and so affirmed the decision of the delegate.

Consideration

1. The grounds in the application are as follows:

   1. Court to review tribunal decision.

   2. Court should look at whether the law was properly applied when RRT made its decision.

   3. Whether the RRT properly followed legal procedures in conducting the review of my matter.

   ….

   1.RRT refused to contact my uncle by phone, he insisted to use landline and there is no landline phone in Nigeria. RRT didn’t contact my uncle for evidence.

   2. Error of not believing that if I should remove from Australia to Nigeria there is a real risk that I will suffer.

   3.Significant harm through physical violence, robbery, murder owing to a state of endemic lawlessness.

   4.RRT did not believe and accept that boko haram target Christian in Nigeria: Christian is the main target of boko harm, millions of Christian have been killed by boko haram by bombs, gunshot, suicide bombs and other means of killing.

   5.All my claims about the murder of my son, disappearance of my partner and daughter and threat I received from boko haram is the truth.

   6.RRT made an error by not verified the documents he just made the decision that the document is not genuine. I do not accept that because all the documents are genuine.

   7.Error of not believing that there is not adequate security because Nigeria government cannot protect everybody in the country.

   8.RRT made error by not believing that there is a real risk chance that I will be persecuted for reasons of my imputed political opinion (opposition of boko haram) membership of the particular social group of woman in Nigeria if I return to Nigeria.

   9.RRT made an error buy not believing that Christians are facing severe risk of forced conversion. Christians are facing risk of forced conversion by boko haram.

2. The first three stated grounds are framed at such a level of generality that they do not assist in clarifying the issues before the Court.  Upon a proper analysis it appears that the first three grounds are in fact particularised by the following nine grounds.  For that reason it is convenient to focus on the last nine of the grounds set out in the application.  However, as already noted eight of the last nine grounds in the application do no more than assert that the Tribunal made errors in its findings of fact.  This Court’s jurisdiction is limited to determining whether or not the Tribunal’s decision was affected by jurisdictional error.  The Tribunal does not make jurisdictional error simply by making a finding of fact that is wrong.  Thus, where the applicant raises only the correctness of a factual finding she does not in fact engage the jurisdiction of this Court and her grounds must be dismissed.  For that reason grounds 2 to 9 in the application must be rejected.

3. The first of the latter nine grounds of the application is of a different nature. There is no question that by a combination of ss.427(1) and 429A of the Act the Tribunal had the power to take evidence from the applicant’s uncle by telephone and that it refused a request by the applicant to make a second attempt to obtain such evidence from the applicant’s uncle after the first attempt was unsuccessful.

4. The question raised by the first ground of the application is whether the Tribunal’s refusal to do so meant that it did not fulfil its function of review and thereby committed jurisdictional error.  The Minister submits that the error inherent in the ground was analogous with the error identified in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25] (“SZIAI”) namely, constructive failure of the Tribunal to exercise its jurisdiction by “making an inquiry about a critical fact the existence of which is easily ascertained”.  He submits that such enquiry must be expected to yield a useful result and that the statement of the applicant’s uncle in fact dealt with the issues that her representative claimed necessitated contact with the uncle and that in her case before the Court the applicant does not establish how failure to contact the uncle in any way affected the Tribunal’s decision.

5. The High Court in SZIAI recognised that, while there is no duty to make any inquiries, a failure by the Tribunal to undertake an inquiry may, in certain circumstances, amount to jurisdictional error. That error might be categorised either as a constructive failure to exercise jurisdiction or an unreasonable failure to exercise power: SZIAI at [26]. In that case the Court held that there was no factual basis for a conclusion in respect of either category because the inquiry would have been futile.

6. The same reasoning applies in this case. The Tribunal did attempt to contact the applicant’s uncle on the mobile telephone number provided to it, but could not do so. It did not attempt to call the uncle on the applicant’s mobile phone because it might interfere with the Tribunal’s recording equipment. Although it is not clear to me why that would be the case, no challenge has been brought in respect of that reasoning.  Absent such a challenge and any evidence that might undermine the Tribunal’s reasoning, I cannot find that there was no valid reason for refusing to make the further telephone call using the applicant’s mobile telephone. In any event, at the Tribunal’s invitation, the applicant produced a further written statement from the uncle. There is no suggestion that, had the uncle been telephoned, he would have said anything beyond what he had already put in his statement. The applicant submitted that the uncle might have made a difference, but did not articulate how that could be in light of the fact that the applicant was able to obtain a further statement from him and produce it to the Tribunal. For that reason, there would have been no utility in a further telephone call.

7. Another way of explaining the outcome is that the refusal by the Tribunal to attempt another telephone call did not prevent it from obtaining, and then considering, material that was readily available and that was critical to the decision. Similarly, the applicant was not denied any opportunity to present evidence and arguments in relation to the issues under review.

8. For those reasons, the first ground of the latter nine grounds must also fail.

Claims at hearing

1. At the hearing before me, the applicant also argued that the Tribunal erred by finding that the documents that she had produced were not genuine. She said that they were genuine. This argument goes no higher than to say that the Tribunal made a wrong finding of fact. In circumstances where that finding was open to the Tribunal and, as here, the applicant was put on notice of the possibility of that finding, such a finding did not amount to or otherwise reveal jurisdictional error in the Tribunal’s decision.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 1 April 2015