VWTC v Minister for Immigration

[2006] FMCA 26

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWTC v MINISTER FOR IMMIGRATION [2006] FMCA 26

MIGRATION − Claim for refugee visa − whether tribunal failed to consider claim of persecution because of ethnic background.

Migration Act 1958  

SGBD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 59
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003] 197 ALR 389 at 394 [24]

Applicant: VWTC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG273 of 2005

Judgment of: Phipps FM

Hearing date: 2 August 2005

Last Submission: 2 August 2005

Delivered at: Melbourne

Delivered on: 24 January 2006

REPRESENTATION

Counsel for the Applicant: Mr Gibson

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the Respondent: Mr Fairfield

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs fixed at $5,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG273 of 2005

VWTC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nigeria who arrived in Australia on 1 April 2003.  He applied for a protection visa and his application was rejected.  The Refugee Review Tribunal affirmed the rejection.  The applicant claims that the Tribunal failed to consider an aspect of his claim.

2. The applicant’s father was a Yoruba man and his mother was from the Ibo tribe.  The Tribunal considered the applicant’s claim that he feared persecution because of his ethnic background.  He feared persecution because he refused to join, or left, the Oodua People's Congress and he feared persecution from a group known as the Bakassi Boys.

3. The issue raised in the applicant’s argument is a claim of jurisdictional error for failing to consider a claim by the applicant that he feared persecution because he is Ibo.

History

1. The applicant arrived in Australia on 1 April 2003 and lodged an application for a protection visa on 9 April 2003.  On 22 October 2003, the application was refused and on 19 November 2003 the applicant applied for review to the Refugee Review Tribunal.  The Tribunal affirmed the decision not to grant the protection visa on 29 September 2004.  He filed an application for review in the Federal Court on

   
   

   16 March 2005.  The application was transferred to the Federal Magistrates Court.

The tribunal’s findings

1. The applicant said that he had lived all his life in the one town until he fled to Lagos after an incident. He claimed he was beaten, forced to sign documents and hospitalised.

2. After attending school in the town he worked in the town market. 

   
   

   He claimed he was a member of the Town Traders Association and that a group, known as the Bakassi boys wanted him to join them.  He said they were a vigilante group acting in the area which had been used to politically legitimise murder and torture.

3. He claimed he was forced to join the Oodua People's Congress by relatives and that he feared persecution by them for having left.

4. The Tribunal did not accept the applicant's claims about the Bakassi boys or the Oodua People's Congress.  The Tribunal considered country information concerning both bodies and what had occurred.  The applicant was unaware of a number of matters in the information which he should have been aware of if things had occurred to him as he claimed.

5. The Tribunal considered it implausible that the applicant’s relatives were forcing him to join the OPC.  Again, the Tribunal considered country information and referred to the applicant's lack of knowledge about the OPC.

6. Having rejected the applicant's claims about the Bakassi Boys and the OPC, the Tribunal concluded that the applicant did not have a well grounded founded fear of persecution if he was to return to Nigeria.

The applicant's argument

1. The applicant argues that his claim was based on his ethnicity, that he was identified as an Ibo, and that the Tribunal did not consider this claim.  Failure to consider the basis for the claim of a well founded fear of persecution is a jurisdictional error, or may be considered as a failure to afford natural justice to the applicant (SGBD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 59 at [24], Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003] 197 ALR 389 at 394 [24]).

2. The applicant's argument involves a consideration of the claim as originally put by the applicant and the transcript of the hearing.

3. The claim set out in the application for the protection visa says that he fears persecution because of his ethnic background.  He says that his father is a Yoruba man and his mother is from the Ibo tribe and that he is identified as being Ibo.  He then says that because he refused to join the OPC and the Bakassi boys, he fears persecution.

4. His evidence has references to his ethnic background but it is in the context of what he says happened to him in relation to the OPC and the Bakassi boys.  It is clear that he claims that his identity as Ibo is relevant to his treatment by the OPC and possibly the Bakassi boys.

5. It is true that the claim in his visa application says he fears persecution on ethnic grounds and that the Tribunal, in its reasons, identified fear of persecution on ethnic grounds as the applicant's claim.  It is also clear that the harm the applicant claims to fear is harm from the OPC and the Bakassi boys.  It is possible to interpret what the applicant is claiming, that the significant reason why these organisations wish to harm him is his identification as an Ibo.  But it is clear that while the applicant claims to fear harm from the OPC and harm from the Bakassi boys, he does not make a general claim that he fears persecution as an Ibo.

6. The Tribunal has considered the applicant's claim of fear of harm by the OPC and the Bakassi boys and has rejected both.  It has dealt with the applicant's claim.  There is no jurisdictional error and no failure to afford procedural fairness.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:  Sherryn Kwong

Date:  24 January 2006