SZUUY v Minister for Immigration

[2015] FCCA 1012

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1012

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424A

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

Tran v Minister for Immigration [2004] FCAFC 297

Applicant: SZUUY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2069 of 2014

Judgment of: Judge Driver

Hearing date: 22 April 2015

Delivered at: Sydney

Delivered on: 22 April 2015

REPRESENTATION

Applicant in person

Solicitors for the Respondents: Ms H Musgrove of Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2069 of 2014

SZUUY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 27 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Nigeria and had made claims of harm due to his involvement with a cult.  Background facts concerning the applicant’s claims to protection and the decision of the Tribunal on them are set out in the Minister’s outline of written submissions filed on 15 April 2015. 

2. The applicant, a citizen of Nigeria, arrived in Australia on 27 July 2012 travelling on a tourist visa[1].

   [1] Court Book (CB) 128

3. On 13 August 2012, the applicant applied for a protection (class XA) visa[2]. The applicant claimed to fear harm in Nigeria from an occult society or fraternity because he had “refused to join them and he knows their secrets”[3]. The applicant expressly stated that he had no other problems[4].

   [2] CB 1

   [3] CB 164 at [1]

   [4] CB 168 at [20]

4. The particulars of the applicant’s claims are as follows:

   a)the applicant claimed that in a telephone call on 12 June 2012, he was informed that members of the group caused a fatal car accident involving his friend and poisoned his wife, causing her death, because he refused to join the group[5];

   b)the applicant claimed that after the telephone call on 12 June 2012, he stopped using that phone but received threatening texts and missed calls when he checked it for his contacts[6]. He also claimed that members of the group had come looking for him and had come to his house at times[7];

   c)the applicant claimed that the group gave him money and gifts as a way of “enticing” him but they gradually took the money back[8]. When the applicant found out the group killed people, he told them he could not join because he was “a good Christian”[9];

   d)the applicant produced various documents to corroborate his claims, including: a Nigeria Police “Station Diary Extract;” a letter from the Lagos State University Teaching Hospital; a “Medical Certificate of Cause of Death” (relating to his wife); qualifications; country information; and a threatening email[10].

   [5] CB 164-165 at [2], [3] and [6]

   [6] CB 171 at [34]

   [7] CB 169 at [26]

   [8] CB 167 at [14]

   [9] CB 165 at [7]

   [10] CB 166-167 at [12], [16] and [17]

5. On 31 October 2012, a delegate of the Minister refused to grant the visa[11].  On 21 November 2012, the applicant applied to the Tribunal for review of the delegate’s decision[12].

   [11] CB 142

   [12] CB 145

6. On 25 November 2013, the applicant appeared before the Tribunal to give evidence and present arguments[13] and, on 27 June 2014, the Tribunal affirmed the delegate’s decision[14].

   [13] CB 159

   [14] CB 163

Tribunal's proceedings and decision

1. The Tribunal found that the applicant was not a “witness of the truth” and had “difficulty in accepting” his claims[15]. The Tribunal had “difficulty understanding” why the group would seek to recruit him in the first place and then continue to do so when he told them he would not join. The Tribunal also found that it was not clear why the group had waited so long to put pressure on him (by telephone on 12 June 2012) after killing his friend in October 2011. The Tribunal also found it “difficult to understand” why the applicant continued to meet with people from the group when he learned of their activities[16].

   [15] CB 173-175 at [44] and [51]

   [16] CB 173-174 at [44]-[45]

2. The Tribunal also had difficulties with other aspects of the applicant’s evidence including his claims that the group killed “influential people” and his reasons for coming to Australia[17].

   [17] CB 174 at [46]-[47]

3. Based on country information, the Tribunal found that corruption is endemic and the use of forged documents is widespread in Nigeria. In light of this, the Tribunal found that the applicant’s corroborative evidence did not outweigh the problems it had with the applicant’s evidence[18]. The Tribunal found that even if the medical documents relating to the applicant’s wife’s death were not false, they would not establish the death was caused by the occult group[19].

   [18] CB 175 at [49]

   [19] CB 175 at [50]

4. For these reasons, the Tribunal did not accept that the applicant’s claims were credible and found the applicant’s claims were not well-founded[20]. On the same basis, the Tribunal rejected the applicant’s claims under the complementary protection criterion[21].

   [20] CB 175-176 at [51] and [53]

   [21] CB 175-176 at [52] and [53]

The present proceedings

1. These proceedings began with a show cause application filed on 24 July 2014.  The grounds in that application are set out in handwritten form, which is not entirely clear.  The Minister recites his understanding of the grounds at [14] of his submissions:

   1. I will face significant harm if I return and be killed.

   2. The said they asked me or email me before issuing the visa from Nigeria and I claim my wife was alive when she was dead.

   3. I got my document from the Nigerian Authority which I didn’t forge. (errors in original)

2. The matter came before me for directions on 21 August 2014.  At that time, I provided the applicant with the opportunity to file and serve an amended application and additional evidence.  He has not taken up that opportunity.  The applicant told me from the bar table today that he was still seeking additional documentation from Nigeria to support his claims concerning the cultists.  He sought the opportunity for further time to obtain those documents.  I declined that request on the basis that the documents, if obtained, while they might bear on his claims to protection, would not assist me in assessing whether the Tribunal made any jurisdictional error. 

3. The applicant continues to rely upon his application filed on 24 July 2014.  He also relies upon his affidavit filed with that application.  I received the affidavit as evidence subject to relevance. 

4. I also have before me the court book filed on 12 September 2014. 

5. The grounds advanced in the application do not clearly point to any jurisdictional error by the Tribunal.  I invited oral submissions from the applicant today and he raised two issues.  The first concerned the Tribunal’s treatment of purportedly corroborative documents submitted by him.  The applicant is concerned that he was not treated fairly in relation to those documents.  The Tribunal’s decision record discloses that the issue of the documents was discussed with him at the hearing conducted by the Tribunal.  The Tribunal recounts what occurred at [41] and [42] of its reasons[22]:

   I put to [the applicant] with regard to the documents he had produced that the information available to me indicated that corruption was endemic in Nigeria, that the use of forged documents was widespread, that any printed official document could be forged and that information contained in genuine official documents was often false, in accurate or could not be relied upon.[23]  I put to him that I might put more weight on the view I formed with regard to whether his claims could be believed than I did on the documents which he had produced.  [The applicant] said that he knew that there was a lot of corruption but he did not know about obtaining forged documents.  He said that all these things had actually happened to him.  He denied that he had forged anything.  He said that he had included his admission letter from the University of Lagos because he had been doing his MBA and he had had to leave all this in order not to be killed.

   I put to [the applicant] that the police report said that he had reported the threatening telephone call to the police on 14 June 2012 which was a Monday but 14 June 2012 had not been a Monday.  [The applicant] said that he had not checked the dates.  He said that this was what he had got from them and that this was their mistake.  He said that I could confirm with the police station that he had reported this on 14 June 2012.  I indicated to him that the Tribunal could not approach the police in Nigeria for confirmation that he had reported this on 14 June 2012 given that he was claiming that he needed the protection of Australia because the Nigerian authorities would not protect him.

   [22] CB 173

   [23] UK Home Office, Nigeria: Country of Origin Information (COI) Report, 14 June 2013, paragraphs 31.01-31.08

6. The applicant is concerned that the Tribunal did not take up the invitation he apparently gave the Tribunal to verify the police report he had submitted.  The Tribunal, however, explained to him at the hearing that it could not approach the police in Nigeria for confirmation that he made a report as asserted because that would disclose his identity in circumstances where he claimed the Nigerian authorities would not protect him.  The Tribunal’s conclusions in relation to the documents submitted by the applicant are set out at [49] of its reasons[24]: 

   As I put to [the applicant], the information available to me indicates that corruption is endemic in Nigeria, that the use of forged documents is widespread, that any printed official document can be forged and that information contained in genuine official documents is often false, inaccurate or cannot be relied upon.[25][The applicant] said that he knew that there was a lot of corruption but he did not know about obtaining forged documents.  He said that all these things had actually happened to him.  He denied that he had forged anything.  He said that he had included his admission letter from the University of Lagos because he had been doing his MBA and he had had to leave all this in order not to be killed.  However, as I put to him, having regard to the information regarding corruption and the use of forged documents in Nigeria, I place more weight on the view I have formed with regard to whether his claims can be believed than I do on the documents which he produced to the Department.  I do not consider that these documents outweigh the problems which I have with [the applicant’s] claims as outlined above.

   [24] CB 175

   [25] UK Home Office, Nigeria: Country of Origin Information (COI) Report, 14 June 2013, paragraphs 31.01-31.08

7. If considered in isolation, it might be a cause for concern that the Tribunal placed weight on its own subjective conclusions rather than the documentary evidence.  It is apparent, however, from the earlier discussion by the Tribunal that the Tribunal did consider the documents on their face as well as the possibility of verifying them.  I see no arguable case of jurisdictional error in relation to the Tribunal’s treatment of the applicant’s documentary evidence, considered in the broader context of the Tribunal decision. 

8. The applicant is also concerned that, at an early stage of the consideration of his visa application, someone in the Minister’s Department apparently made an approach to authorities in South Africa to check certain details regarding his tourist visa application.  He said that he was asked a question about this at his initial interview with the Minister’s Department.  Whatever may have occurred at that stage, it does not appear to have figured in the Tribunal’s reasoning. 

9. It was apparent from [40] of the Tribunal’s decision record that an issue of concern to the Tribunal was the applicant’s claims about the death of his wife. Another issue of concern apparent from [47] of the Tribunal’s decision record was the applicant’s migration history. There is nothing to indicate, however, that the Tribunal may have relied on any adverse information obtained from officials in South Africa. There is no indication that anything relied upon by the Tribunal needed to be put to the applicant pursuant to s.424A of the Migration Act 1958 (Cth).

10. More generally, I accept the Minister’s submission concerning the credibility assessment made by the Tribunal. 

11. The Tribunal rejected the applicant’s claims on the basis of adverse credibility findings.  Those findings were open to the Tribunal for the reasons it gave. The Tribunal’s conclusion that the applicant was not credible is a finding of fact, par excellence[26]. Further, the assessment and the attribution of weight to evidence is a matter for the Tribunal[27].

    [26] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]

    [27] Tran v Minister for Immigration [2004] FCAFC 297 at [5]-[7]. It should be stressed, however, that the allocation of weight relates to evidence, not the Tribunal’s subjective opinions.

12. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale which applied at the time the application was filed.  The applicant claims to be impecunious but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.

14. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 April 2015