SZVCP v Minister for Immigration and Border Protection

[2016] FCCA 3333

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCP v MINISTER FOR IMMIGRATION & ANOR (No.3) [2016] FCCA 3333

Catchwords:
MIGRATION – Refugee Review Tribunal Assessment – complementary protection – data breach – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2), 420, 424A, 425, 430, 438, 476.

Cases cited:

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

MZAFZ v Minister for Immigration and Border Protection [2016] FCCA 2464

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

SZBEL v Minister for Immigration and Indigenous Affairs [2006] 228 CLR 152

Applicant: SZVCP

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 142 of 2015

Judgment of: Judge Street

Hearing date: 19 and 20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Sydney

Delivered on: 20 December 2016

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: Mr P Herzfeld

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. That the consolidated amended application for judicial review be dismissed.

3. That the applicant pay the first respondent’s costs in a fixed amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 142 of 2015

SZVCP

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) for a Constitutional writ in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 March 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

Protection Visa Applications

1. The applicant is a citizen of Nigeria, and his claims were assessed against that country. The applicant claimed to have been persecuted by the military and Muslims because of his race, religion and political opinion in the first claim for a protection visa in December 1995. That application was unsuccessful.

2. The applicant was permitted to make a trip to Fiji in 1999, which enabled him to lodge a second protection visa application on his return in January 2009. During the intervening years, the applicant was convicted of fraud in 1996 and 2001. In 2007, the applicant was convicted of unlawful sexual intercourse with a child. In the second application for protection, the applicant added a claim that he would be killed by the community for breaching a taboo if he returned to Nigeria. The second application for protection was unsuccessful.

3. On 18 September 2012, consistent with the principles identified in the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant was permitted to make a further application for protection on the grounds of complementary protection.

The Delegate’s decision

1. The applicant was interviewed by the delegate and claimed to fear persecution on the basis that he claimed he was a homosexual. On 28 May 2014, the delegate refused the application for a protection visa on the grounds of complementary protection.

The Tribunal’s decision – 17 September 2014

1. On 17 September 2014, a Tribunal affirmed the decision under review, and that decision was, by consent, quashed pursuant to orders of the Federal Circuit Court made on 12 November 2014. The matter was remitted to a differently constituted Tribunal.

The Tribunal’s decision - 24 March 2015

1. The reasons of the differently constituted Tribunal identified the relevant law in a summary that was incorporated in the reasons. The Tribunal expressly referred to taking into account the policy guidelines prepared by the Department of Immigration and referred to the DFAT Country Report - Nigeria dated 10 February 2015.

2. The Tribunal made clear to the applicant that his current application was on the basis of complementary protection criterion consistent with the decision of the Full Court of the Federal Court of Australia in SZGIZ. The Tribunal correctly identified the relevant issue was whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk he will suffer significant harm.

Consideration of the applicant’s claims and evidence

1. The Tribunal referred to the applicant’s personal history and his original claims for protection. The applicant alleged that he was born Catholic but later joined the Jesus Crusade Church, which was said to be Great Southern Baptist oriented and Pentecostal. The applicant alleges that he became a senior pastor with the Jesus Crusade Church from 1984. The applicant said that his family came from the Isoko Ogoni tribe and alleged that this family’s house had been burnt to the ground by the military and Muslim civilians in 1976, after the applicant’s father other members of the tribe declared that they were not going to be for the political party that was corrupt and which marginalised Christians. The applicant alleges his senior brother was killed that night. At a hearing before the Tribunal on 1 September 2009, the applicant said it was his brother who had been killed at the family’s house when it burnt down. The applicant explained the inconsistency on the basis that who had been killed, was not his brother but that his blood brother was.

2. The applicant alleged that he was arrested in Lagos in 1984 after a political rally and beaten by the army and police and left for dead on the side of the road, in the bush. The applicant alleged that there were many other incidents in which he had been beaten and spat on and prevented from preaching between 1984 and 1989. The applicant alleges that in 1989, he was warned by the military at a crusade in Okokomaiko, in Lagos, not to support the Nigerian People’s Party (“the NPP”) or to speak out against the government or he would be killed. The applicant alleged that he had been beaten and had a deep scar on his right cheek as a result of this incident. The applicant alleged that in October 1990, his wife was beaten and held hostage with his son for four days. The applicant alleges that they were released by a Christian naval officer who was shot dead in his house two days later. The applicant alleges that two weeks later, in November 1990, his house was burnt down at night by thugs and military personnel.

3. In a separate statement, the applicant’s wife said that her father was a pastor and that he and her family had been persecuted by the government since 1974 because her father had taken a stand against corruption by the ‘Muslims Government of military dictatorship’. Submissions made on behalf of the applicant alleged that he first became politically involved in 1976 and that he had a leadership position with the Youth Vanguard of the NPP, which had been known as the National Council of Nigeria and the Cameroons (“the NCNC”) in the 1950s.

4. The applicant alleged he became the publicity secretary of the Agege Branch of the NPP in 1998. The applicant said that this was a typographical error for 1988. The applicant claimed that his reference to being involved in the NPP since 1976 was actually a reference to the NCNC and that he only became a member of the NPP in the early 1980s, before the proscription of political parties. The applicant said that he became the publicity secretary of the Agege Branch because the Christian Association of Nigeria (“the CAN”), of which he had been a member, had its headquarters there. The applicant alleges he used his time as publicity secretary to call press conferences and to give out press releases. The applicant alleges he used his position as a pastor to highlight things which were of concern to him regarding the exploitation and the uneven distribution of the wealth of the Delta as a result of the crude oil which came from the Delta.

5. The applicant alleges that he had not applied for refugee status earlier because he had been hoping things would ease off and that he and his family would be able to return to Nigeria. The applicant alleges that in July, he received a fax from his father‑in‑law stating that they had been marked to be killed and that their second house had been destroyed and that his brother James had been killed and that all the family had been scattered.

6. The applicant produced a fax that suggested not a single house was standing in the Delta region and that James was killed as he was trying to escape and that ‘Soro-Wiwa [sic] and other leaders of MOSOP (Movement for the Survival of Ogoni People) have been in detention ever since and that they have been charged for treason and sedition which is punishable by death’. The fax asserts that the applicant’s house was burnt down and that he will be targeted because he is known to have been campaigning against the military and for the Ogoni people in Australia. In a separate statement, the applicant’s wife said that they had received a telephone call from her father in November 1993, warning them not to return to Nigeria.

7. The applicant told the Tribunal at the hearing that he had been called to come for the Nigerian national team many times, but his other commitments had not allowed this. He was asked whether he had been involved in MOSOP and said that this was a red herring. The applicant alleged that his involvement had not come under the umbrella of MOSOP but of the Delta. The applicant alleged that he had spoken about the rights and privileges of the Ogoni people as an Ogoni, half Ogoni and half Isoko, but when this movement had started completely, he had left Nigeria.

8. The applicant alleged that his father had been active in relation to the rights of the Ogoni people. The applicant said that one of the things he himself had done was to mobilise the youth to explain what was happening in the Delta, that the Hausa people or the Muslims were taking their oil and that they were not getting anything for it. The applicant alleged on 24 March 1998 that he and his wife received telephone calls from Nigerian callers threatening to kill the whole family because the applicant had said things against the military government in Nigeria whilst in Australia and in New Zealand.

9. The applicant alleged that he had given a radio interview in Adelaide on a station called Alta Mira in 1993 and 1994 and that he had spoken on the radio in New Zealand and that he had spoken to the farmer’s federation in New Zealand in 1991 or 1992, about persecution he had been through and what was happening to the people in the Niger Delta.

10. The Tribunal also made reference to a report from a Dr Michael Lee, being a general practitioner, who had met the applicant for two hours and referred to the applicant’s claims and various scars.

11. The applicant’s then representatives also produced a letter dated 24 March 1999 from the Anglican Archbishop of Adelaide, who said that he had visited Nigeria in 1984 and that the treatment by Muslims of Christians in that country had reached an appalling state, that many hundreds of Christian churches, especially in the north, had been destroyed and that he was not surprised the applicant had been a victim of serious abuse and had only survived because of his football prominence.

12. Under cover of a letter dated 14 February 2000, the applicant produced a further letter from Dr Lee dated 21 January, in which he said that the family had continued to attend therapy on a regular basis. The applicant produced various media reports referring to human rights abuses and Christian‑Muslim conflict in Nigeria. The applicant alleged that Nigeria is now officially a Muslim nation with Sharia laws now in place. The applicant alleged in an affidavit that his scars were the result of beatings and torture to which he had been subjected by the Nigerian government soldiers and police as well as people acting independently of the government as a result of his opposition to human rights abuses by the government and Muslims and their policies in relation to the Niger Delta and its people. The applicant alleged his assets and wealth have been destroyed by the Nigerian military, forcing him to flee to Australia.

13. When interviewed by the delegate in respect of the current application, the applicant said that when Nigeria’s application to join the OIC had been approved, he had made sure that everyone knew about it and that the Muslims hated him for this. The applicant referred to the fact that Boko Haram was now causing a lot of terror in Nigeria. The applicant referred to Boko Haram having bombed places in Lagos and everywhere in Nigeria and that you did not know who they were. The applicant said that his fear was not alleviated because Goodluck Jonathan, a Christian, was currently president.

14. The applicant attended a hearing on 5 August 2014 before the Tribunal to give evidence and present arguments, and on that occasion, the applicant said that he had opposed to the Islamisation of Nigeria on television in 1986 and that whenever he had done anything, it had been in the newspapers. The applicant alleged that the press would report these matters if he was deported to Nigeria.

15. In a letter dated 1 September 2014, the applicant said that he had been on television in Nigeria as a guest of Yinka Craig on the ‘Sport and Football Show’ every Wednesday night. The applicant said that he had spoken on Radio Alta Mira in Adelaide and Radio Rhema in New Zealand and had spoken to 15 different corporations and conferences in New Zealand in 1995.

16. The applicant maintained that his brother who is mentioned in a fax from his father‑in‑law, had been killed and said that this person was, in fact, his uncle and his father’s youngest brother. The applicant said that his brother James who had been killed when his family home was burned down in 1976 had been named after this uncle. The applicant alleges that his father‑in‑law had rung them in New Zealand in 1993 and told them that their names were on a hit list of the government and authorities.

17. The applicant alleges that on speaking engagements around Australia, he has always spoken about the reasons he left Nigeria. The applicant alleges he has spoken about the Islamisation of Nigeria, which he is opposed as a member of the CAN, at Onikan Stadium in Lagos, that he has also spoken about marginalisation of the Delta and its people, the corruption of government and Muslims and torture, brutality and persecution which he suffered at the hands of the Nigerian authorities and Muslims. The applicant alleged that the protests in which he had been involved against Islamisation had resulted in his picture appearing in various newspapers and on the national television evening news.

Applicant’s claimed warning from the Acting High Commissioner

1. In his second application made on 15 January 2009, the applicant alleged that in 2004, he had been personally advised by the Acting High Commissioner of Nigeria not to make the mistake of returning to Nigeria and to stay away forever. The applicant alleged that the warning was delivered through a Nigerian Australian who resided in Western Australia and who worked in the oil industry. The applicant alleged that this person was a close friend of the Acting High Commissioner. At the hearing on 5 August 2014, the applicant named this man as Angus, who he alleged had been at university with the Acting High Commissioner. The applicant alleged that he had known Angus when he had been living in Adelaide but by the time that the Acting High Commissioner had come to Australia, Angus had been living in Western Australia because he was working in the oil industry.

2. The applicant said that he had been in immigration detention when the Acting High Commissioner had been appointed but he was released on 25 March 2004. The applicant alleged that Angus visited him in Adelaide and told him in person what the Acting High Commissioner told him. The applicant said that, although he had not met the Acting High Commissioner, he had spoken to him on the telephone on two occasions. The applicant said that the Acting High Commissioner did not mention this warning in their telephone conversations.

3. The applicant alleged that there were few people of his age in Nigeria that would not know him because of what he had done. The applicant alleged that the Acting High Commissioner was aware there had been a lot of negative press against the applicant. The applicant alleged that he had been on Today Tonight twice and all his refugee claims had been put before Australia. The applicant alleged that there had also been a report in the Sunday Mail in Adelaide in January 2001 which referred to his refugee claims.

Applicant’s claimed visit by two Nigerian officials in 2008

1. In a letter dated 1 August 2008, the applicant alleged that on 4 March 2008 he had been visited in prison by two officials from the Nigerian High Commission. The applicant referred to a letter from the General Manager of the prison dated 21 April 2007 confirming the visit and noting that the officials in question had been visiting Nigerian prisoners in South Australian prisons. The applicant alleges that the officials told him they had come on instructions from their ‘headquarters in Nigeria’, that the security agents were well aware of all the speeches he had made regarding his persecution and torture at the hands of the Nigerian government and they had come to get information regarding his discharge date, and that when he returned to Nigeria they would be waiting for him. The applicant alleged this confirmed and validated his fears that he would be tortured and killed if he returned to Nigeria.

2. In the second application for protection the applicant said that officials from the Nigerian High Commission told him that they are aware of all his speeches he had made in Australia and New Zealand on the radio, in churches and at conferences about the government, the plight of the Delta people and of his own family and human rights abuses.  

3. The applicant alleged that the threats to his life are coming from the Nigerian government through its secret security agents, who he said had been able to penetrate the prison security system in Australia. The applicant alleged in an affidavit that two officials from the Nigerian High Commission had told him that he would be killed upon entering Nigeria, as a result of his opposition to the government in the past, and his political comments, and his activities in New Zealand and Australia regarding his persecution and torture at the hands of the government, Muslims and people acting independently of the government. The applicant alleged that they were concern about his ability to marshal people against the ongoing human rights abuses in the Delta.

4. When interviewed by the delegate in relation to the current application, the applicant produced a letter from the Department of Correctional Services in South Australia dated 30 November 2010, which said that only one official request to visit Nigerian prisoners had been received since 1996 and only one official request to visit the applicant specifically had been received since that time.

5. The applicant argued that the visit in 2008 had not been a routine visit but a specific visit designed to know when he would be released because of what had happened. The applicant contended this meant that he had been the only Nigerian prisoner visited in South Australia. The Tribunal noted that the letter does not say this and made reference to the previous letter produced from the General Manager of the prison, which had referred to the officials who visited the applicant as visiting Nigerian prisoners in South Australian prisons.

1. At the hearing on 12 December 2014, the applicant maintained that the two officials had told him on 4 March 2008 that they were visiting him on instructions from headquarters and that they knew what he had done and that they had come to get the date on which he was going to be released. The applicant alleged that if he returned to Nigeria there would be security agents waiting for him and he would disappear. The applicant referred to another Nigerian who had been in detention with him and had returned to Nigeria, who the applicant alleged was dead and that his body had not been seen. The applicant alleged that there was no inconsistency in what he had said these people had told him and that the threshold question was whether they had threatened him.

Applicant’s conviction for sexual offences against his daughter

1. The applicant also made reference to the conviction for sexual offences as having breached a taboo which the applicant alleged would result in his death according to the beliefs of the Nigerian people. The applicant alleged that the government would not be able to stop the people of the community from killing him. In an affidavit made in 2009 the applicant alleged the government would use the taboo as a disguise to kill him, saying his death was the result of a taboo, even though the government had killed him.

2. The applicant produced a letter to the department dated 21 May 2009 from a clinical psychologist, who said the applicant began psychological therapy sessions on 2 September 2005 following an earlier admission to a particular clinic for treatment of depression, suicidal ideation, exacerbation by alcohol intoxication. At this stage, the applicant’s condition had been diagnosed as an adjustment disorder with depressed and anxious mood. The psychologist said that the applicant was suffering severe post‑traumatic stress disorder with depressed mood and significant risk of suicide.

3. The psychologist said that the applicant’s emotional and behavioural difficulties were indicative of a background of major traumatic experience and loss, and were generally consistent with the history which he had reported of religious persecution and torture in Nigeria, with the subsequent persecution and murder of his family members there following his escape. The psychologist noted that the applicant vehemently denied the charges of alleged sexual abuse which were then pending against him and alleged that his daughter had emotional and behavioural problems.

4. The applicant contended that he was in the process of having other criminal convictions overturned. The psychologist noted that the therapy sessions had ended around April 2006 when the applicant had remanded into custody. The applicant also referred to a report from a senior counsellor at Supporting Survivors of Torture and Trauma dated 25 May 2009.

5. The applicant, in his third application for protection lodged on 18 September 2012, alleged that the taboo on incest meant death in the community in Nigeria. The applicant also alleged that he would be put in jail for a crime in respect of which he had already served time in Australia, contrary to the principles of double jeopardy. The applicant also alleged that he had brought Nigeria’s name into disrepute. The applicant alleged he had severe heart problems and an incapacitating mental injury.

6. The applicant produced a further psychological assessment under cover of a letter dated 4 November 2012 prepared by a clinical psychologist. Based on two hours of interview, the psychologist noted that the applicant blamed the events which led to his conviction in 1996 on a misunderstanding with the bank manager and that he claimed that the case against him in relation to workers’ compensation fraud in 2001 had been concocted. The psychologist noted that the applicant claimed to have no memory of having committed the sexual assaults on his daughter of which he had been convicted. The psychologist noted the applicant did not display remorse or guilt when recalling the issues which gave rise to his conviction.

7. The psychologist noted that the applicant had told her that his biggest fear was now that he would definitely be killed if he returned to Nigeria because the punishment for incest in Nigeria was death. The psychologist noted that the applicant exhibited elevated levels of anxiety but only subclinical levels of depression and post‑traumatic stress disorder. The psychologist noted the applicant did not report any suicidal thoughts or ideation. The psychologist noted:-

   ‘[the applicant’s] current indefinite situation, coupled with his existent worries, have had a negative impact on his mental health and that they continue to exacerbate his existing medical health condition’.

8. The applicant produced a letter from the ‘People Liberation Union’ in Lagos dated 12 October 2012 in which it was said that the applicant’s life would be in danger if he was deported to Nigeria because in his quest to combat the upsurge of corruption and crimes in the country, the applicant issued various press releases, radio and television interviews, against the Nigerian government and the entire community, especially the conviction of 2006 which is taboo to the federal government of Nigeria and is liable for the death penalty.

9. At the interview with the delegate, the applicant said that he would be imprisoned by the government in Nigeria because he had committed incest. The delegate raised with the applicant that the issue of incest would only be relevant if he committed the crime in Nigeria, and the applicant repeated it was taboo all over Nigeria, and that he was talking about being killed by his tribe or by his community in Lagos. The applicant maintained that any ethnic or religious group anywhere in Nigeria maintained that it was a taboo.

10. The applicant alleged that he had received threats from members of the Nigerian community in Adelaide and Perth, who had told him that they knew what he had done. The applicant alleged that he had received threats on the phone, not only from Nigerians in Australia but also from Nigerians in Lagos and other places. The applicant alleged that a Nigerian who came to visit other Nigerians in the detention centre in 2012 said that this was an open secret.

11. The applicant alleged that he had changed his email address because of this and that he had not received email threats. The applicant that he had searched his name using Google and came across references to his being a sex offender. The applicant alleges that people in Nigeria put that information on the internet. The applicant alleged that after about a month or six weeks he was no longer able to get that information and maybe that was because it had been blocked because there were people threatening him. The applicant also said that in early 2012 he had made a report that an officer at the detention centre had told other people what he had done.

12. The Tribunal referred to a letter from the applicant dated 1 March 2014 acknowledging that the offence he had committed in Australia was an abhorrent crime and repeating that it was a taboo in Nigeria and that he would be killed or otherwise persecuted as a result. The applicant alleged that there had been media reports of his conviction for sexual offences. However, the Tribunal noted that the media reports produced by the applicant refer to the fraud convictions.

13. The applicant referred to various media reports in relation to incest in Nigeria, some of which have resulted in successful prosecutions. One of the reports refers to a person who was sentenced for five years imprisonment for molesting three minors who were his relations. Another report suggested a father had been persecuted for carnal knowledge under the Nigerian Criminal Code, which is punishable by imprisonment of up to 14 years, or for rape, which is punishable by life imprisonment. The Tribunal noted that none of the reports suggest that people alleged to have committed sexual offence against their own children have been killed by vigilantes.

14. The applicant also referred to an academic article suggesting that the Nigerian National Drug Law Enforcement Act may amount to double jeopardy. The Tribunal then referred to what the applicant said at the hearing on 5 August 2014 about the meeting of the two officials from the Nigerian High Commission in 2008. In a letter dated 1 September 2014, the Tribunal noted the applicant alleged that the fact that he had been charged and convicted of sexual offences had been reported on television and radio, news bulletins, and that rocks had subsequently been thrown at his house where he’d been living, breaking the window.

15. The Tribunal noted the applicant suggesting that people who have committed sexual offences against children were stoned and burned alive. The applicant contended that ‘jungle justice’ was the only law that prevailed in Nigeria.

Applicant’s claim to be homosexual

1. The Tribunal noted the interview with the delegate in which the applicant alleged that he was gay or bisexual and alleged that this was a secret torment which had been going through all his life and that it had been a bone of contention between his father and mother.

2. The applicant alleged that there was another man who was a footballer who had taken him to meet another person at his house, and that the other footballer had then told lots of people that the applicant was gay. The applicant alleged the footballer had gone to the police and that the police had come to expose the other friend, who had given them a huge sum of money. The applicant said he had to pay money to the footballer every month so the footballer did not mention it. The applicant alleged that his last contact with the footballer occurred in 1984 and 1985.

3. The applicant alleges that shortly after the incident at the friend’s house, he was taken somewhere by three other footballers, who shouted particular words at him and began to stone him and started shouting that he was gay. The applicant contended that this is why he moved suburbs. The applicant alleged that despite these events he retained a high profile as a preacher, a political activist and a successful businessman. The Tribunal noted the applicant making reference to the proposition as to why his wife, son and daughter would have gone to Dominica if they had not feared being persecuted in Nigeria.

4. The applicant alleged that he had gone to a gay bar in Adelaide. The applicant alleged that he has had relationships with one of the detainees at the detention centre. The applicant referred to an IHMS report of 11 May 2012 stating that another detainee had complained that he felt uncomfortable in the applicant’s presence. The applicant also referred to an alleged incident in a café in Adelaide with a fellow student at the Adelaide College of Ministries. The applicant alleged that his wife saw him and that he had said it was just brotherly love and that this happened around March 1995.

5. The applicant alleged that he had not been able to put these claims in writing in the numerous submissions he made. The applicant alleged that he talked to his wife about wearing women’s clothes and dressing as a woman and that he used to dress in his wife’s clothes at home. The applicant alleged that there were many gay people in the detention centre but he was not prepared to disclose their identities because this was not his way of life.

6. The applicant maintained that homosexuality was a taboo and unacceptable in Nigeria. The applicant alleged that he would face persecution and discrimination or would be killed. The applicant alleged that if it was known that he was homosexual he would face significant harm in the form of torture from people acting independently of the Government or the community at large. The applicant alleged that Boko Haram would use his sexuality against him if they became aware of it. The applicant alleged that whilst he had been living in Nigeria he had been forced to modify his behaviour to live discreetly. The applicant alleged he had been forced to pay people money regularly to keep his sexuality discreet. The applicant alleged that nowhere was it safe to be homosexual or bisexual in Nigeria.

7. The applicant claimed that he had been threatened with death and exposure if he did not pay the footballer and others, whom he named, every week. The applicant alleged that during his years in prison he had six relationships, and during his time in immigration detention he had three relationships. At the hearing on 5 August 2014, the applicant said, with regard to his delay in raising these claims relating to homosexuality, that there are just some things you do not talk about. The applicant said there were lots of reasons why he had not mentioned his homosexuality before.

8. The applicant alleged that in late 2013, he told his wife and that she had not spoken to him since then. The applicant alleged he had been having a relationship with a Nepalese man in the immigration detention centre, and said this was the man who alleged he was uncomfortable in the applicant’s presence. The applicant alleged that he had moved on and had been in another relationship since that time.

9. In a letter dated 1 September 2014 the applicant said, with regard to his failure to mention these claims based on homosexual earlier, that “there were things you just didn’t talk about as a man and as an African Nigerian man”. The applicant contended that his ethnicity and tribal, community and religious beliefs were opposed to this and there was also the issue of the effect it would have on his position as a pastor, on his family including his children and what his soccer fans would think of him.

10. At the hearing on 12 December 2014, the applicant alleged that a relationship with a particular person had begun while he was working for Niger Motors and that it had continued after he had left. The applicant alleged that he had a relationship with a fellow student in New Zealand. The applicant alleged that the fellow student had died in an accident.

11. The Tribunal referred to the report made by an IHMS counsellor dated 11 May 2012, which included a reference to the applicant watching young women playing bowls and approaching one of them by shouting to her through the fence, to which the applicant said this was nonsense. The applicant contended that the IHMS counsellor just wanted to get him out of the section in the detention centre. The applicant further contended that he was reminding the woman in question about Bible study.

Applicant’s claim of threats in detention

1. In a letter dated 1 March 2014, the Tribunal noted that the applicant said he had been threatened in detention by Nigerians both because of his conviction of sexual offences and because of his perceived sexuality.

2. The applicant alleged that visits had been cancelled on one weekend in 2013 because of a perceived threat to his life. At the hearing, the applicant said that in October 2012, a Nigerian who lived in Japan had come and wanted to hit him during a visit and had been rushed out. The applicant said this man had told him he was going to kill him. The applicant said that in 2013 his visits at the detention centre had been cancelled on one weekend because of internal and external threats. In the letter dated 1 September 2014, the applicant said that he had in fact, been assaulted by the Nigerian man who had visited the immigration detention centre.

3. At the hearing, the Tribunal noted the applicant said that his visits in the immigration detention centre had been cancelled as a result of internal and external threats. The Tribunal noted that the applicant said he had been supposed to be moved to another centre and had refused. The applicant produced a document dated 23 November 2012 which he said related to the incident. The applicant alleged that the Nigerians in the detention centre had accused him of being a police informant. The applicant referred to the fact that he had represented his community in South Australia on the local Neighbourhood Watch before he had been charged with criminal offences.

4. The applicant said that he confronted one of two Nigerians about a scam allegedly giving Nigerians a bad name, and that one of the men had threatened him and pushed him in October 2012 at the immigration detention centre, saying he was going to get what he deserved for the taboo he had breached. The applicant cavilled with his conviction for fraud and said he had intended to pay the money back.

Applicant’s claims relating to the data breach

1. The applicant in his letter dated 1 March 2014, also referred to evidence which he produced, referring to the data breach by the Department concerning information about people in immigration detention.

2. At the hearing, on 5 August 2014, the applicant said the information released in the data breach had involved his claims for protection. The applicant contended that there is no way to find out who had accessed the information and contended that Boko Haram would know. In a letter to the Tribunal, the applicant contended that his name and other personal details had been disclosed and that there was no way of knowing from whom he would face a risk of harm because it might go well beyond the authorities in his home country. The applicant contended that it might include foreign security and intelligence agencies, terrorist organisations, Boko Haram, the Muslims in Nigeria and criminal syndicates.

3. The applicant contended that human resources sections of companies and public service departments would also have access to the information, which would undermine his ability to find employment. The applicant contended that foreign governments might use the information as a reason not to grant him visas. The applicant said that Boko Haram had his personal details and information regarding his refugee claims, his convictions for sexual offences against children and his opposition to the Islamisation of Nigeria and he would suffer significant harm from Boko Haram as a result.

Section 424A letter and response

1. The Tribunal’s reasons record raising with the applicant issues in respect of his claims and the applicant’s response. The Tribunal also prepared a letter pursuant to s.424A of the Act, raising with the applicant the matters discussed during the hearing and providing clear particulars of the information that the Tribunal considered would be the reason, or part of the reason for affirming the decision under review and explaining why the information was relevant to the review and the consequence of it being relied on in affirming the decision under review.

2. The applicant was given until 10 February 2015 to respond to the letter under s.424A of the Act. On 23 January 2015, the Tribunal received a response from the applicant. The applicant contended that he had not applied for a visa when he first arrived in Australia or in New Zealand because he and his wife and his son had valid visas and he had been awarded a scholarship to study at the Adelaide College of Ministries. The applicant alleged that he and his wife had consulted a migration agent who advised them not to apply for refugee status because they would be able to obtain permanent residence on the basis of his wife’s skills. The applicant contended that he trusted the advice received from the migration agent.

3. In relation to the applicant’s failure to raise earlier the claim to be a homosexual, the applicant contended he had not been ready to disclose this previously and the fact that he did not mention it earlier did not mean that he was not a homosexual. The Tribunal noted that the applicant alleged that he was suffering from incapacitating depression and mental illness and that it was very hard for him to remember things, in particular the issues regarding his sexuality. The applicant alleged that he had disclosed his homosexuality to a psychiatrist in 1997. The applicant produced a letter on 9 February 2015 from the psychiatrist in question, who said that he was unable to provide him with the documents relating to his having come to see him in 1997 because he had culled his records in 2004.

1. The psychiatrist said that he had a clear memory of having examined the applicant in 1997 and recalled a diagnosis of depression as well as noting that he had some marital issues which were compounding his problems. In regard to the data breach, the applicant reiterated that he was a refugee sur place as a result of the data breach. The applicant maintained that there was no way of telling who had accessed the information. The applicant contended that the data breach had put his life in danger.

2. The Tribunal referred to the DFAT Country Report in relation to Nigeria which was published on 10 February 2015. The Tribunal made reference to sending the report to the applicant and inviting the applicant to comment on it. The applicant was given until 6 March 2015 to provide comments. On 5 March 2015, the applicant contended that the report only supported and strengthened his claims.

Applicant’s capacity to participate in the hearing

1. The Tribunal made reference to the reports of the psychologists and psychiatrists which had been produced in relation to the capacity of the applicant to participate in the hearing. The Tribunal noted that despite the claimed memory problems, the applicant was able to recall matters relating to his claims with great specificity.

2. The Tribunal noted the applicant was able to respond to questioning in a way that indicated he understood them and was able to address the issues, which the Tribunal raised with him in the course of the hearing. The Tribunal noted that it was satisfied that the applicant was able to participate effectively in the hearing before the Tribunal.

Consideration of claims by the Tribunal

1. The Tribunal noted that there are significant internal inconsistencies in relation to the applicant’s claims of involvement in political activity in Nigeria. The Tribunal explained cogent and rational reasons as to why the applicant’s claims of political involvement was the subject of doubt.

2. The Tribunal made reference to taking into account the applicant’s claimed memory problems and found the applicant’s evidence to be inconsistent with independent evidence regarding the ban on political parties. The Tribunal made reference to the applicant’s delay in applying for protection and found that the delay cast doubt on the genuineness of the applicant’s claimed fear of suffering significant harm in Nigeria. The Tribunal made reference to the documents provided by the applicant and found that some of the documents should not be give any weight, and found other documents were not independently corroborative of the applicant’s claims.

3. The Tribunal did not accept that the post-traumatic stress disorder, anxiety and depression of the applicant provided a corroboration for his claims regarding his experiences in Nigeria. The Tribunal found that the documentary evidence the applicant produced afforded very limited corroboration of his claims. The Tribunal found that the applicant was not telling the truth about his involvement in political activity or the problems he claims to have experienced as a result. The Tribunal did not accept that the applicant was involved in the NCNC or the NPP or the SDP as he claimed, nor that more generally he was involved in opposing the marginalisation of the Delta and its people, what he has referred to as the Islamisation of Nigeria, corruption or the ‘Muslim military dictatorship government’. The Tribunal does not accept that the applicant’s family, or his wife’s family were involved in campaigning against the government or for the cause of the Ogoni people or the people of the Delta more generally. The Tribunal found the applicant was not a witness of truth.

4. The Tribunal did not accept that the applicant’s family home was burnt to the ground by the military and Muslims in 1976, nor that between 1984 and 1990 the applicant himself was arrested, detained, imprisoned, beaten, spat on or tortured, nor that he was prevented from speaking at rallies or from preaching, nor that in October 1990 his wife and son were abducted, nor that in 1990 his house in Lagos was burned down by thugs and the military.

5. The Tribunal did not accept that the applicant hid three of the coup plotters and one of their wives in his house in Lagos for more than three weeks. The Tribunal accepted that the applicant had scars, but did not accept they were caused in the manner claimed by the applicant. The Tribunal did not accept that the applicant had to pay money to get his passport and that he had to pay money to people at the airport to look the other way so that he could board the plane when he left Nigeria. The Tribunal did not accept the claim that the applicant had to have his assets and wealth destroyed by the Nigerian military as true.

6. The Tribunal did not accept that the applicant spoke about Islamisation of Nigeria, the marginalisation of the Delta and its people, the corruption of the Government and Muslims or the torture, brutality and persecution which he claims to have suffered at the hands of the Nigerian authorities and Muslims on radio or at other speaking engagements in New Zealand or Australia between 1991 and 1995. The Tribunal did not accept that the applicant or his wife received a telephone call warning them not to return to Nigeria, or that they were on a hit list. The Tribunal did not accept the faxed document the applicant produced, suggesting that not a single house was standing in the Delta region and that the applicant’s own house had been burned down, and did not accept there is a real risk that the applicant will be targeted because he is known to have been campaigning against the military and for the Ogoni people in Australia.

7. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that the applicant will suffer significant harm on the basis of his claimed involvement in political activity in Nigeria, New Zealand or Australia.

8. The Tribunal did not accept, in particular, that, as the applicant claimed, the Muslims hate him because of his claimed involvement in making sure everyone knew about Nigeria joining the OIC in 1986 and the applicant’s opposition to what the applicant has referred to as the Islamisation of Nigeria nor that Boko Haram, Muslim extremists and Muslims more generally know about his opposition to the Islamisation of Nigeria. The Tribunal accepted that the applicant’s claims had been mentioned in decisions of the courts which were available on the Internet and in the media, both in relation to criminal charges brought against the applicant and in relation to migration matters. The Tribunal rejected the applicant’s claims regarding his involvement in political activity in Nigeria, New Zealand and Australia and considered the people of Nigeria will be aware that the claims which had been made regarding his political involvement in Nigeria in an attempt to obtain Australia’s protection are baseless.

9. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk he would suffer significant harm on the basis of his claims regarding his involvement in political activity in Nigeria, New Zealand or Australia and his claimed political or religious views have been mentioned in court decisions or reported in the media.

10. The Tribunal found that it did not accept there is a real risk that the applicant will be singled out for attack by Boko Haram because of his claimed political or religious views. The Tribunal found that the risk of the applicant would be affected by an attack on Christian targets if he returns to Lagos is very remote. The Tribunal found that the risk to the applicant in the context of terrorist attacks by Boko Haram on the government and civilian targets more generally is a risk faced by the population of the country generally and not a risk faced by the applicant personally. It was therefore excluded from consideration under s.36(2B)(c) of the Act. The Tribunal did not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm at the hands of Boko Haram, Muslim extremists or Muslims more generally because of political or religious views, as the applicant has claimed.

11. On the evidence, the Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk he will suffer significant harm because of his race – half Ogoni and half Isoko – or his religion as a Christian, as the applicant has claimed.

Applicants claimed warning from the Acting High Commissioner

1. The Tribunal rejected the applicant’s claims in relation to the alleged warnings from the Acting High Commissioner and did not accept that the applicant was told of any such warning.

Applicant’s visit from two Nigerian officials in 2008

1. The Tribunal did not accept the applicant’s claims in relation to the two Nigerian officials in 2008, asserting that they came on instructions from ‘headquarters in Nigeria,’ that the security agents were well aware of all the speeches he had made regarding his persecution and torture at the hands of the Nigerian Government, that they had come to get information regarding his discharge date and that when he returned to Nigeria they would be waiting for him. The Tribunal did not accept that the two officials told him that they were aware of all the speeches he had made in Australia and New Zealand on the radio, in churches and at conferences about the government, the plight of the Delta people, and his own family and human rights abuses.

2. The Tribunal did not accept that the two officials told the applicant he would be killed upon entering Nigeria as a result of his opposition to the government in the past and his political comments and activities in New Zealand and Australia regarding his persecution and torture at the hands of the government, Muslims and people acting independently of the government. The Tribunal found that the visit was nothing more than a routine visit by consul officials. The Tribunal did not accept that the visit confirmed or validated the applicant’s fears that he would be tortured or killed if he returns to Nigeria, as the applicant has claimed.

Applicant’s conviction for sexual offences against his daughter

1. In relation to the sexual offences involving his daughter, the Tribunal accepted that members of the Nigerian community know about his conviction, but did not accept that he has received threats from Nigerians in Australia or overseas as a result of the conviction. The Tribunal did not accept that the two officials visiting him in prison told him he would disappear, that the community would kill him or the government would use the taboo that he had breached even though the government would not kill him. The Tribunal accepted that the Nigerian Government was aware of the applicant’s conviction but found that the officials had not made threats against him as the applicant claimed.

2. The Tribunal referred to the different ways in which the applicant sought to advance his fears arising from his sexual convictions. The Tribunal made reference to the fact that double jeopardy was prohibited both by the Nigerian Constitution and the Criminal Procedure Act. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm because he will be exposed to the prospect of double jeopardy, meaning that he will be prosecuted and convicted for the same crime for which he was convicted in Australia.

3. The Tribunal made reference to the applicant’s fears concerning being punished under Decree 33. The Tribunal made reference to the fact that the advice from the DFAT report is that Decree 33 is not being enforced and that the most recent application of which the Department was aware was 2005. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm because he will be prosecuted and convicted under Decree 33.

4. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm because he will be detained under Decree 33, not for the purpose of prosecution but for the purpose of debriefing, including in the course of seeking information that might relate to ongoing trials.

5. The Tribunal identified that the risk that the applicant would be perceived to have money was remote and the Tribunal found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm because he will be targeted for extortion using the threat of action under Decree 33.

6. The Tribunal made reference to the applicant’s claims concerning his own tribal or ethnic group or the community killing him because he breached the taboo on incest. The Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will be prosecuted for the crime which he has been convicted in Australia. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will be arrested and paraded that he committed the crime of which he has been convicted in Australia.

7. The Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm in the form of being arbitrarily deprived of his life as a result of his conviction for sexual offences against his daughter in Australia. The Tribunal made reference to the fact that the applicant said he may be refused employment and that foreign governments may refuse to grant him a visa because of his convictions. The Tribunal did not accept that this, of itself amounts to significant harm as defined for the purpose of the complementary protection criterion. The Tribunal did not accept that refusing employment to a person who has been convicted of fraud or sexual offences against a child amounts to degrading treatment or punishment as defined in s.5(1) in the Act, or an act of omission that causes or intended to cause extreme humiliation which is unreasonable.

8. The Tribunal did not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will be subjected to some form of vigilante justice as a result of his conviction. The Tribunal did not accept that the applicant may be ostracised by some people in his own community, or the wider Nigerian community amounts to ‘significant harm’ as defined. The Tribunal did not accept on the evidence before the Tribunal, that there is a real risk that the applicant will suffer ‘cruel or inhumane treatment or punishment’, or ‘degrading treatment or punishment’, as defined in s.5(1) of the Act as a result of his conviction, nor that he will be denied any means of earning a livelihood such that it can be said to be that there’s a real risk he will be arbitrarily deprived of his life.

Applicant’s claim to be a homosexual

1. The Tribunal made reference to the numerous opportunities the applicant had to raise his claim of homosexuality. The Tribunal did not accept that the letter from the psychiatrist confirms the applicant’s claim that he disclosed his homosexuality either to the general practitioner or the psychiatrist in 1997. The Tribunal did not accept the IHMS counsellor report of May 2012 as providing independent corroboration of the applicant’s claims to be a homosexual. The Tribunal did not accept that the applicant is a homosexual or bisexual as he claims, nor that he likes to dress up in women’s clothing.

2. The Tribunal does not accept that the applicant was threatened or chased outside the stadium in Lagos, nor that he had to pay money to people in Nigeria to conceal his homosexuality. The Tribunal did not accept that the applicant had to modify his behaviour or to live discreetly to conceal his sexual orientation. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer harm because of his sexual orientation as claimed.

Applicant’s claimed threats in detention

1. The Tribunal made reference to the applicant’s alleged threats whilst in detention. The Tribunal did not accept that the applicant is regarded by anyone as a police informant. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm because he is regarded as a police informer as he claimed.

2. Although the Tribunal accepted that there were people, including those who were inmates in detention that knew of his conviction of sexual offences, the Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will face some form of vigilante justice whether at the hands of Boko Haram, Muslim extremists, Muslims more generally or the Nigerian community as a result of his conviction for sexual offences against his daughter.    

3. The Tribunal did not accept from the evidence that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk he will suffer significant harm at the hands of Boko Haram, Muslin extremists or Muslims more generally because of his political or religious views.

Applicant’s claims relating to the data breach

1. The Tribunal made reference to the very limited nature of the information the subject of the data breach and did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that the applicant will suffer significant harm as a result of the data breach.

Applicant’s claim as a failed asylum-seeker

1. The Tribunal made reference to the applicant being a failed asylum seeker. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that the applicant will suffer significant harm because the applicant will be known to be returning to Nigeria as a failed asylum seeker.

Applicant’s claim as to medical problems

1. The Tribunal made reference to the applicant’s medical problems. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will be arbitrarily deprived in his life as a result of poor access to health care.

1. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that the applicant will be subject to torture, cruel or inhumane treatment or punishment or degrading treatment or punishment by s.5(1) of the Act as a result of poor access to health care as claimed by the applicant.

Conclusions

1. The Tribunal did not accept on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that the applicant will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhumane treatment or punishment, or that he will be subjected to degrading treatment or punishment as defined.

2. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm as defined in s.36(2A) of the Act.

3. For these reasons, the Tribunal was not satisfied the applicant was a person in respect of whom Australia had a protection obligation under s.36(2)(aa) of the Act and accordingly, affirmed the decision under review.

Proceedings Before this Court

1. The applicant pursuant to orders of the Court was given an opportunity to put on affidavit evidence, an amended application and submissions. The applicant’s most recent consolidated amended application has 30 grounds omitting the particulars which are as follows:-

   l. The Refugee Review Tribunal erred for its failure to make obvious inquiry that could have been made easily by the Tribunal in the circumstances of this case and my claims, which might and that could have a determinative effect and conclusive impact on the decision by the tribunal.

   2. The material was treated by the Tribunal as relevant, credible and significant.

   3. The tribunal's decision was and is affected by jurisdictional error in that the tribunal failed to comply with section 425 of the Act by affirming the decision under review for reasons which were not put to me, and which I could not have reasonably anticipated. This is irrational and legally unreasonable.

   4. Procedures required by the Migration Act (the Act) or the Regulations to be observed in connection with the making of the decision were not observed by the Tribunal.

   5. The tribunal's decision was and is affected by jurisdictional error in that the tribunal failed to comply with section 425 of the Act by affirming the decision under review for reasons which were not put to me, and which I could not have reasonably anticipated. This is irrational1and legally unreasonable.

   6. The tribunal failed to raise a dispositive issue(s) with me at the hearing conducted pursuant to section 425 of the Migration Act 1958(Cth)(the Act), and as such failure constituted a breach of section 425 of the Act: SZBEL V Minister for Immigration and Indigenous Affairs (2006) 228 CLR 152.

   7. The Tribunal denied me procedural fairness and constructively failed to exercise jurisdiction when it made its decision and the decision is vitiated and affected by jurisdictional error. In that, the Tribunal failed to make a finding or any findings on and regarding my substantial relevant and credible significant claim to fear retuning to Nigeria on the grounds of persecution, and he killed and subjected to degrading, inhuman punishment and Treatment and be prosecuted and jailed for harbouring and keeping the coup plotters in my home for 3 weeks and aiding and helping them to escape and flee Nigeria and that this has become known to and by the government and authorities in Nigeria and it is Treason punishable by Death or the death penalty. (Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26,(2003), 77 ALJR 1088 at 124 J (Gummo''' and Callinan JJ. , Hayne .J agreeing);’

   8. Procedures required by the Migration Act (the Act) or the Regulations to be observed in connection with the making of the decision were not observed by the Tribunal in that the Tribunal failed to find that I was entitled to Complementary Protection visa on account of my claims for harbouring and keeping the coup plotters in my home for 3 weeks and aiding and helping them to escape and flee Nigeria and that this has become known to and by the government and it is Treason punishable by Death or the death penalty and this failure amounts to and vitiated the Tribunal's decision for jurisdictional error.

   9. The Tribunal ignored and failed to take into account Relevant materials and Information from credible relevant independent evidence from other sources regarding the coup and my claims.

   10. It was and is irrational, illogical and unreasonable for the Tribunal to prefer evidence from the report of Mr Thompson dated 25 May 2009 in preference to the report of Mr Harrison dated earlier in May 2009 giving the context of Mr Thompson's statement that: “As referred to above, Mr Thompson said in his report dated 25 May 2009 that the extent to which the conflicting complex realities of Mr Akpata's situation were related to the trauma of the past remained to be explored.

   11. The tribunal failed to give genuine consideration to or dismissed without a rational justification, independent expert psychological evidence before it concerning my psychological condition, histories and claims.

   12. The tribunal erred by fai1ing to consider whether Australia had protection obligations under the Refugees Convention and Protocol.

   13. The tribunal erred for failing to find that I am a member of a particular social group in regards and relation to the Taboo in Nigeria in accordance with the authority in Applicant S V Minister for Immigration and Multicultural Affairs 120041 HCA 25.

   14. The Refugee Review Tribunal denied me procedural fairness for failing to have regard and failing to take into account and ignoring relevant critical information and consideration regarding my claims to be homosexual outlined in the Psychological Assessment Report of STARTTS prepared by Tajana Opacis in the Tribunal's decision record of 24 March 2015. These arc recorded and outlined at (pages 6, 7, 9 and 10), of the STARTTS Report.

   15. The Refugee Review Tribunal failed to comply with the procedure laid down in section 430(1) of the Migration Act 1958 (“the Act”) in that the Tribunal failed to give reasons as to ''why it did not ascribe any weight to the relevant information and consideration regarding my claims to be homosexual mentioned in the report of STARTTS prepared by Tajuna Opacis a Clinical Psychologists dated 12 January 2015 in its decision record of 24 March 2015.

   16. The Refugee Review Tribunal's decision is legally unreasonable in that A particular (error was committed by the Tribunal in its reasoning. it ignored relevant and critical information and consideration material evidence in my first response to its section 424A response in which I had directed the Tribunal to the Tribunal's decision record of 19 May 2000, differently constituted, the independent evidence that corroborated my claims with respect to the advice I received from a migration agent contained in that decision as found by the Tribunal and the relevant independent evidence which the current Tribunal have in its possession and I did quote the previous tribunal word for word and failed to give any weight to that evidence.

   Further, and more the decision of the Refugee Review Tribunal's is legally unreasonable, for the following grounds and basis:

   ·A particular error was committed by the Tribunal in its reasoning.

   · The Tribunal gave great weight to a matter (s) of little importance.

   ·The Tribunal gave little weight to a matter (s) of great importance.

   ·The Tribunal's reasoning is illogical and irrational and

   ·While the precise nature of the error is not apparent, the outcome “bespeaks error,” because it is “unreasonable. plainly unjust” and lacks an evident and intelligible justification.

   18. The Tribunal failed to find and denied me procedural fairness and misconstrued and misinterpreted the fact that I would be put in prison in Nigeria again for crimes committed in Australia and for which I have already served the whole of the time in Australia against and in breach of the principles of double jeopardy not withstanding that I will be prosecuted for bringing the name Nigeria into disrepute regarding the Taboo and other convictions in Australia. It is still double jeopardy as I will be prosecuted and convicted and sentenced for the same crimes that I have already served time for in Australia.

   19. The Refugee Review Tribunal failed to comply with the procedures laid down in section 430(1) of of the Migration Act 1958(“the Act”), in that the Tribunal failed to give reasons as to why it failed to ascribe any weight or make a finding regarding the independent evidence in the decision of the Tribunal differently constituted of 19 May 2000 and which I did provide the tribunal with the relevant information in my section 424A response regarding the advice I received from a migration agent in the independent evidence in the letter of the Austrian Red Cross

   20. The Refugee Review Tribunal denied me procedural fairness by its failure to give proper consideration to the independent evidence in the document and material provided by the 'People Libration Union'

   21. The Refugee Review Tribunal denied me procedural fairness and natural justice for failing to provide me with an opportunity to put my case and meet the case against me in writing and to give me the opportunity to put in submissions and response under section 424 and 424A of the Migration Act 1958 regarding the independent evidence provided in a letter dated 12 October 2012 from the 'People Libration Union in Lagos before making its decision on 24 March 2015, regarding the type of organisation and the letter was going to be the reason or part of the reasons for affirming the decision under review and invite my comments (paragraph107) of the Tribunal's decision.

   22. The Tribunal's decision is legally unreasonable for giving the disproportionate and little weight and or no weight at all to the this document from the People Libration Union a matter of great importance. This was an independent evidence that corroborated my claims that I will be killed in regards to the Taboo and be sent to jail on account of my past political speeches that I have made in Australia. This was a very crucial and relevant information particularly about me.

   23. Further, and more the decision of the Refugee Review Tribunal's is legally unreasonable for the following grounds and basis:

   ·A particular error was committed by the Tribunal in its reasoning.

   ·The Tribunal gave great weight to a matter (s) of little importance.

   ·The Tribunal gave little weight to a matter (s) of great importance.

   ·The Tribunal's reasoning is illogical and irrational and

   ·While the precise nature of the error is not apparent, the outcome “bespeaks error,” because it is “unreasonable. plainly unjust,” and lacks an evident and intelligible justification.

   24. The Refugee Review Tribunal failed to consider the whole of my claims in their full context, in particular, my claims that the government and authorities could not protect me nor can I obtain the authorities protection because the authorities have visited me and threatened me in 2008 due to my past opposition to the government and the sex conviction (the Taboo), my sexuality and the fact that I have been called and seen to be a police informer by criminal syndicates and their associates and the fact that all the torture and brutality that I suffered in Nigeria happened and occurred in Lagos. The Tribunal rather treated my claims and fears as a member of a social or particular social group of being a member of failed asylum-seekers returned to Nigeria and not separately

   25. The decision of the Refugee Review Tribunal is void and affected by and for reasonable apprehension of bias.

   26. The Refugee Review Tribunal in coming to a decision made statutory jurisdictional errors in that it misconstrued section 36(2A)(aa), the Complementary Protection Legislation of the Migration Act 1958, misconstruing what amounts significant Harm for the purposes of section 36(2A)(aa) of the Act.

   27. The Refugee Review Tribunal constructively failed to exercise jurisdiction denied me procedural fairness in that it failed to find that I am a Refugee Sur-Place given its findings and conclusions and its acceptance that: " I accept that aspects of the applicant’s claims have been mentioned in decisions of the Courts which are available on the internet and media reports both in relation to the criminal charges brought against him and and in relation to migration matters ... "

   28. The Refugee Review Tribunal breached its duty to act and failed to act .Judicially when it made its decision on 24 March 20 IS. The Tribunal erred and its decision is vitiated by jurisdictional error for making its own findings of fact.

   29. The Refugee Review Tribunal failed to make relevant enquiries regarding my homosexual partner in Villa wood Immigration Detention Center which I had provided the Tribunal with his name and phone numbers at both hearings and in my section 424A response that the Tribunal should take evidence from him, and the matters regarding the scars on my body requesting from a forensic Pathologists the cause of the scars which Dr. Michael Lee thoroughly outlined and detailed in his report regarding the scars on my body and the reasons why my visits were cancelled and and if there were threats from both internal and external sources and from Nigerians in November· 2012 regarding critical facts and information the existence of which was easily available from the Department of immigration and Border Protection and its agents Serco and in particular from the Operations Manager Mr. Arnoud Pascoa who informed me about the intelligence that they received which resulted in my visits being cancelled given the circumstances of my case and claims pursuant to section 424 and 427(1)(d) of the Migration Act 1958 in accordance with and in the sense of what 6 judges of the High Court of Australia said in Minister for Immigration and Citizenship V SZIAI (2209) 83 ALJR 1123 in the contest of an RRT decision.(paragraph (104).

   30. The Refugee Review Tribunal ignored relevant materials that were favourable and which supported my and corroborated my claims but rather was selective in the materials and information that it applied and used in its decision. e.g. the DEFAT'S Report,  Independent Report in the Tribunal's decision regarding the evidence of Australian Red Cross regarding the advice that I received from a migration agent and so on and so on etc., etc. and Mr Mr Michael Harrison's Report which it called a letter.

   (All errors in original)

2. These proceedings were listed to be heard concurrently and the original hearing date was listed for 3 December 2015, pursuant to orders made on 15 September 2015. The original hearing date did not proceed as a result of an application for leave to appeal pursued by the applicant that was partially successful.

3. These proceedings continued to be case managed for a concurrent hearing which was rescheduled for hearing on 19 October 2016. That hearing date was vacated as a result of a further application by the applicant for leave to appeal, and the matter was rescheduled for hearing over two days on 19 and 20 December 2016.

4. The Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that this meant in summary, the Court was considering whether the Tribunal’s decision was unlawful and whether the Tribunal’s decision was unfair.

5. The Court explained that the evidence had been identified by the Court’s earlier rulings on 6 December 2016 and that after hearing submissions in matter SYG 3004 of 2014, the Court would hear submissions from the applicant, then hear submissions from the solicitor for Counsel for the first respondent and then hear submissions from the applicant in reply.

6. The applicant confirmed that he understood the nature of the hearing as explained by the court.

7. Both the applicant and the first respondent filed written submissions addressing each of the grounds. In substance, the applicant relied orally on his written submissions as well as the recent decision of the Full Court of the Federal Court of Australia in Singh v Minister for Immigration and Border Protection [2016] FCAFC 183. The respondent maintained that the reason for the Full Court of the Federal Court of Australia decision was distinguishable in substance for the same reasons as MZAFZ v Minister for Immigration and Border Protection [2016] FCCA 2464 was submitted to be distinguishable.

Ground 1

1. None of the matters particularised by the applicant support any basis from which it could be said that there was an obvious inquiry in respect of a critical fact that should have been pursued by the tribunal. Ground 1 is in substance, an impermissible challenge to the adverse findings of fact by the Tribunal. No jurisdictional error is made out by Ground 1.

Ground 2

1. Ground 2 appears, in substance, to be an expansion upon the same alleged failure to make an obvious inquiry as raised by Ground 1. Nothing in Ground 2 identifies any jurisdictional error.

Ground 3

1. In relation to Ground 3, on the face of the material before the court, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal complied with its statutory obligations in relation to the conduct of the hearing. The applicant was invited to attend, and did attend, a hearing consistent with s.425 of the Act to give evidence and present arguments. No breach of s.425 of the Act is made out on the material before the Court. The reasoning of the Tribunal in relation to whether the applicant was accepted in respect of his credit in the dissipation of his assets was an adverse finding that was open to the Tribunal.

2. The adverse credit finding cannot be said to lack an evident and intelligible justification. It was open to the Tribunal to find that the solicitor’s evidence did not corroborate the applicant’s claims as a result of coming from instructions from the applicant. The Tribunal’s reasons reflect an orthodox approach to the assessment of the applicant’s claims in respect of complementary protection. The adverse findings were open on the material and cannot be said to be irrational or unreasonable. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to Ground 4, the Court notes that the Tribunal is not required under s.424A(3)(a) of the Act to give the applicant particulars in relation to country information. It is clear from the material before the Court that the applicant was well alive to the challenge to his credit. There was no obligation from the Tribunal to raise with the applicant every piece of evidence in relation to the adverse credit findings. There was no failure by the Tribunal to comply with the procedures required under the Act or the Regulations.

2. On the face of the material, the Tribunal’s review complied with the statutory obligations and accorded with the dictates of procedural fairness. Ground 4 fails to make out any jurisdictional error.

Ground 5

1. Ground 5 is, in substance, a reformulation of the same ground raised in relation to Ground 3. There was no failure by the Tribunal to comply with s.425 of the Act. Ground 5 fails to make out any jurisdictional error.

Ground 6

1. In relation to Ground 6, this is not a case where there were positive findings in favour of the applicant by the delegate which enlivened any obligation of the kind identified in SZBEL v Minister for Immigration and Indigenous Affairs [2006] 228 CLR 152. There was no breach by the tribunal of s.425 of the Act as alleged in Ground 6. Ground 6 fails to make out any jurisdictional error.

Ground 7

1. Ground 7 is in substance an impermissible challenge. The adverse findings of fact made by the Tribunal of the applicant’s disagreement to the adverse findings does not identify any jurisdictional error. The adverse findings were open on the material before the tribunal and cannot be seen to make an evident intelligible justification. The Tribunal complied with its obligations under s.430 of the Act. There was no failure by the Tribunal to comply with s.420 or s.425 of the Act. Ground 7 fails to make out any jurisdictional error.

2. It was a matter for the Tribunal to determine what evidence it accepted and the other particulars provided by the applicant in relation to Ground 7 are in substance an invitation to this Court to engage in impermissible merits review. The contention that the adverse finding by the Tribunal was irrational, illogical or unreasonable is not made out. The Tribunal’s reasons identify a rational and cogent basis for the adverse credit findings.

Ground 8

1. In relation to Ground 8, this is in substance an impermissible challenge to the adverse findings made by the Tribunal. Ground 8 fails to make out any jurisdictional error. For reasons already given, the tribunal complied with its obligations under s.430 of the Act. There was no breach of s.420 and s.425 of the Act as alleged. The repetition in the particulars of the alleged irrationality, illogicality and unreasonableness is without substance. This ground is again an impermissible invitation for this court to engage in merits review. Ground 8 fails to make out any jurisdictional error.

Ground 9

1. In relation to Ground 9, the particulars provided do not identify any relevant fact to which the tribunal was required to have regard under the statutory regime. It is clear the tribunal did identify the applicant’s claims of evidence. For the reasons already given, there was no breach of s.430, s.420 or s.425 of the Act by the Tribunal. The allegation that the adverse finding by the Tribunal was irrational, illogical or unreasonable is without substance. The Tribunal did take into account the applicant’s claims and made adverse credit findings that were open. Ground 9 is in substance an impermissible challenge to the adverse findings made by the Tribunal and does not identify any jurisdictional error.

Ground 10

1. In relation to Ground 10, it was a matter for the Tribunal to determine what weight to give the psychologist’s evidence. Ground 10 is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal. No jurisdictional error is made out by Ground 10.

Ground 11

1. It is apparent from the Tribunal’s reasons that it did take into account the psychological evidence adduced in relation to the applicant, and it was open to the Tribunal to find that the applicant’s psychological condition did not corroborate in the applicant’s claims. It was also open to the Tribunal to determine whether or not the applicant was able to meaningfully participate in the hearing on the material before the Court. It is apparent that the applicant did meaningfully participate in the hearing. Ground 11 fails to make out any jurisdictional error.

Ground 12

1. The Tribunal was correct to confine the review to whether the applicant was entitled to a protection obligation under s.36(2)(aa) of the Acton the grounds of complementary protection. No jurisdictional error of the kind alleged in Ground 12 is made out.

Ground 13

1. In relation to Ground 13, it was a matter for the Tribunal to determine the applicant’s claims and it is clear the Tribunal took into account the applicant’s claim concerning his alleged breach of a taboo in Nigeria. The adverse findings in relation to the applicant’s claim for complementary protection were open to the Tribunal. Ground 13 fails to make out any jurisdictional error.

Ground 14

1. Ground 14 is again in substance an impermissible challenge to the adverse findings of fact by the Tribunal in relation to the applicant’s alleged homosexuality. The adverse findings by the Tribunal were open. Ground 14 fails to make out any jurisdictional error. The Tribunal’s reasons reflect a proper and genuine assessment by the Tribunal of the applicant’s claims in relation to his sexuality.

Ground 15

1. Ground 15 is in substance again, an impermissible challenge to the adverse findings made by the Tribunal. It was a matter for the tribunal to determine the credibility of the applicant. It is clear from the Tribunal’s reasons that the Tribunal did refer to the psychologist’s reports. The adverse findings in relation to the applicant’s sexuality were open to the Tribunal. In the circumstances of the present case, Ground 15 fails to make out any jurisdictional error.

Ground 16

1. Ground 16 is, in substance, submitted and it has been challenged, the addressed parties affected by the Tribunal. It was found that the Tribunal did take into account the applicant’s response to the s.424A of the Act of the letter. That adverse findings by the tribunal in that regard were open to the Tribunal. Ground 16 makes out no jurisdictional error.

Ground 17

1. Ground 17 is in substance an impermissible challenge to the adverse finding of fact in relation to the applicant’s credibility given the delay in applying for protection. The delay was a rational, logical and reasonable matter for the Tribunal to take into account. There was no obligation from the Tribunal to contact the former South Australian State Parliamentarian or the applicant’s migration agent. Neither person was the subject of an obvious inquiry in respect of an easy ascertainable critical fact. Ground 17 fails to make out any jurisdictional error.

Ground 18

1. In relation to Ground 18 it is clear the Tribunal did consider the issue of double jeopardy and it was open to the Tribunal to make the findings made. Ground 18 is in substance an impermissible challenge to the evidence of findings made by the Tribunal. Ground 18 makes out no jurisdictional error.

Ground 19

1. In relation to Ground 19 it is clear the Tribunal did refer to the applicant’s response to the s.424A of the Act letter. The Tribunal was not required to refer to the whole of the evidence before it. No jurisdictional error is made out by Ground 19.

Ground 20

1. In relation to Ground 20 it was a matter for the Tribunal to determine what weight to give to the documentary evidence produced by the applicant. Ground 20 fails to make out any jurisdictional error.

Ground 21

1. In relation to Ground 21 the information provided by the applicant is not information that enlivens any obligation under s.424A of the Act. Ground 21 fails to identify any jurisdictional error. There was no obvious inquiry that the Tribunal was required to pursue in relation to the People Liberation Union. It was a matter for the Tribunal to obtain the documentary evidence. Ground 21 fails to make out any jurisdictional error.

Ground 22

1. Ground 22 is again an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 22 fails to make out any jurisdictional error.

Ground 23

1. In relation to Ground 23, the applicant’s request for an adjournment of the 12 December 2014 was made on 1 December 2014. The Tribunal provided reasons for refusing the adjournment. Nothing in those reasons identifies any unreasonableness. The decision to refuse the adjournment cannot be said to lack an evidence and intelligible justification. The fact that the review was allocated to a particular member does not identify any unreasonableness.

2. The other particulars to Ground 23 are in substance identification of adverse findings with which the applicant disagrees. It was a matter for the Tribunal to determine what weight to give to the documentary material before the Tribunal. There was no basis for the assertion that the Tribunal had predetermined the matter. The Tribunal’s reasons reflect an orthodox approach to the hearing.

3. On the material before the Court, the Tribunal conducted the review in accordance with statutory provisions and there is no material to suggest the Tribunal had predetermined the matter. The adverse findings made by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial, and fair-minded determination of that on its merits.

4. The applicant is not entitled to select who is to be the member of the Tribunal. In this case the bias is not made out. Bias is an allegation that must be clearly alleged and properly proven. No case of bias is made out. The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 23 fails to make out any jurisdictional error.

5. Reliance upon the applicant’s delay was not illogical or otherwise unreasonable. It was open to the Tribunal to find that the applicant’s delay in applying for protection cast debt on the genuineness of his claims. The way in which the Tribunal dealt with the reports of Mr Harrison and Mr Thompson do not bespeak legal unreasonableness. The way in which the Tribunal dealt with the People Liberation Union document was open and was not unreasonable. It was a matter for the Tribunal to determine the weight to be given to inconsistencies in the evidence. The inconsistencies were open and the reasoning cannot be said to lack an evident and intelligible justification. The way the Tribunal dealt with the applicant’s allegation of being a homosexual was open and cannot be said to be irrational or unreasonable. It was a matter for the Tribunal to determine what weight to give to the IHMS report. The Tribunal’s reasoning in relation to the applicant’s alleged threats was open and not unreasonable. The Tribunal’s reasons logically explain why it gave weight to the inconsistencies in the applicant’s claims concerning the death of his brother. The Tribunal took into account the applicant’s memory problem. Nothing in the particulars to Ground 23 identifies any jurisdictional error.

Ground 24

1. In relation to Ground 24 it is apparent that the Tribunal did consider the applicant’s claims relating to alleged visit in 2008. The adverse findings made by the Tribunal in that regard were open on the material before the Tribunal.

Ground 25

1. In relation to the particulars provided in Ground 25, the applicant refers to a refusal to adjourn the matter and give the applicant extra time as well as adverse finding made by the Tribunal. As referred to above, it was open to the Tribunal to refuse the adjournment application and it was not unreasonable for the Tribunal to do so. The Tribunal gave reasons in support of the refusal which cannot be said to lack an evident and intelligible justification.

2. This is a matter that had already been heard by an earlier Tribunal, the determination of which was set aside by consent orders. The applicant has had ample opportunity to provide information to the Tribunal. For the reasons already given, the adverse findings made by the Tribunal are not a basis upon which bias can be said to be made out.

3. What was open on the material before the Tribunal to conclude that the applicant’s attempts to delay the matter did not just supply an adjournment and that the applicant’s mental condition was not one which required an adjournment. On the material before the Court, it is apparent that the applicant was able to meaningfully participate in the hearing before the Tribunal. There was no unreasonableness in the Tribunal’s exercise of the power not to adjourn the hearing. There was no proper basis upon which the Tribunal member should have disqualified himself rather than fail to make any jurisdictional error.

4. Ground 25 is in substance is in substance an impermissible challenge to the adverse findings made by the Tribunal. No jurisdictional error is made out by the particulars. No case of bias is made out.

Ground 26

1. In relation to Ground 26 the Tribunal correctly identified the relevant law of the annexure to the Tribunal’s reasons that were incorporated in the reasons. The Tribunal’s reasons reflect correct identification of the relevant steps for consideration in respect of complementary protection. Ground 26 is in substance an impermissible merits review to challenge the adverse findings made by the Tribunal. No jurisdictional error is made out by Ground 26.

Ground 27

1. Ground 27 is in substance an impermissible challenge to the adverse findings of the Tribunal made in relation to the applicant’s claim of being a refugee because of the data breach.

2. The Tribunal considered the applicant’s claims and made an adverse finding in relation to the applicant’s claims concerning data breach that were open on the material before the Tribunal. The adverse findings did not reflect any denial of procedural fairness. No jurisdictional error is made out by Ground 27.

Ground 28

1. In relation to Ground 28 it was a matter for the Tribunal to determine whether it accepted the applicant’s credit. The adverse findings made by the Tribunal do not lack an evident and intelligible justification. There is no substance in the contentions that the Tribunal failed to act traditionally, rationally and reasonably. The Tribunal’s adverse findings were open. Ground 28 failed to make out any jurisdictional error.

Ground 29

1. In relation to Ground 29 there is no easily identifiable source in respect of a critical fact to support any alleged duty by the Tribunal to make inquiry. The Tribunal clearly took into account the applicant’s response in relation to s.424A of the Act.

2. Ground 29 is in substance an impermissible challenge to the evidence and findings of fact made by the Tribunal. Ground 29 fails to make out any jurisdictional error.

Ground 30

1. In relation to Ground 30 there are no relevant materials identified that the Tribunal was required to take into account in the conduct of the statutory review. The Tribunal was not required to refer to every piece of evidence that was before the Tribunal. It was a matter for the Tribunal to determine the applicant’s claims, and it was open for the Tribunal to take into account the DFAT report. It was a matter for the Tribunal to determine what country evidence it accepted. The suggestion in Ground 30 that the Tribunal selectively use materials and information is without substance. Ground 30 is in substance again, an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 30 fails to make out any jurisdictional error.

Certificate under s.438 of the Act

1. The affidavit of Ms Buchanan identifies various certificates purportedly made under s.438 of the Act. There is nothing in the Tribunal’s reasons which suggests that it considered or otherwise relied upon the certificates or the documents the subject of the certificates. In the present case, on the basis of the Tribunal’s reasons and on a review of the documents the subject of the certificates, it is apparent that the documents could not have assisted the applicant. I accept the first respondent’s submission that the failure to disclose the documents, the subject of the certificates has not occasioned any practical injustice. The case of MZAFZ v Minister for Immigration and Border Protection [2016] FCCA 2464 and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 are distinguishable from the present case because of the tender of the documents, the subject of the certificates. The Court has carefully looked at each of the documents the subject of the certificates and considered the same in light of the issues in the review and the findings made by the Tribunal. The issues do not support any of the documents being relevant to the review. None of the documents were taken into account by the Tribunal and none of the documents could have advanced the applicant’s claims and arguments. Given the findings made by the Tribunal, including the acceptance of visitors to the applicant whilst in prison, none of the documents are in any way relevant or could have advanced the issues in the applicant’s case. The applicant was not denied a real and meaningful hearing and there was no breach of s.425 of the Act.

2. The applicant was not the subject of any denial of procedural fairness as a result of the s.438 certificates in the present case. No jurisdictional error is made out by the failure to disclose the s.438 certificates or by reason of any alleged invalidity of the certificates. Further, this is a case in which the documents the subject of the certificates could not possibly have affected the outcome of the proceedings, occasioned no practical injustice and a grant of relief should be refused on discretionary grounds as being futile if contrary to the above findings an error were made out.

Conclusion

1. Nothing said by the applicant in the written or oral submissions established any jurisdictional error. The consolidated amended application fails to make out any jurisdictional error and should be dismissed.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 20 December 2016