WZAVL v Minister for Immigration & Anor
[2015] FCCA 2388
•9 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAVL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2388 |
| Catchwords: MIGRATION – Judicial review – protection visa – Nigerian citizen – whether judicial review application sufficiently particularised – whether claims considered – use of country information – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 474, 476 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| DZADW v Minister for Immigration & Border Protection [2014] FCA 1338 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 MZADS v Minister for Immigration & Anor [2015] FCCA 1424 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALR 347; (1994) 34 ALD 347 SZLEX v Minister for Immigration & Anor [2007] FMCA 209 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 WZATH v Minister for Immigration & Anor [2014] FCCA 612 WZATH v Minister for Immigration & Border Protection [2014] FCA 969 WZATK v Minister for Immigration & Border Protection [2014] FCA 1174 Zentai v Honourable Brendan O’Connor (No. 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 |
| Applicant: | WZAVL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 424 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 July 2015 (by video link to Darwin) |
| Date of Last Submission: | 3 July 2015 |
| Delivered at: | Perth (by video link to Darwin) |
| Delivered on: | 9 September 2015 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an Igbo interpreter) |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 424 of 2014
| WZAVL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding commenced on 24 December 2014 by the applicant filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 5 December 2014, is at Court Book (“CB”) 112-118. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”).
Background to the Judicial Review Application
The background to the Judicial Review Application is set out below.
The applicant, born on 7 November 1973 in Nigeria, lodged an application for a Protection Visa on 27 June 2014: CB 1-26.
The applicant’s claims were as follows:
a)that he was fearful of returning to Nigeria because of “my village witch craft”: CB 20;
b)that his race is “full of evil doing and demonic people”: CB 18;
c)that in 2001 he was attacked with poison, and had acid poured over his back and front: CB 20;
d)that in 2009, when he was living in Malaysia, “they” killed his father and little brother: CB 18;
e)that “they” were still attacking his family and trying to kill them over “race and religion Islamic problems”: CB 19;
f)that if he was to return they would kill “my little”: CB 19;
g)he was scared as “they facing a war race problems religion going on now Muslim keeping people burning church...”: CB 20; and
h)the authorities would not protect him as the government is bad, does not care about poor people, only cares about themselves, and have no control over the “race killing each other religion killing each bombing churches and houses” occurring in the country: CB 21.
On 16 September 2014 the Delegate refused the Protection Visa application: CB 71-83.
On 25 September 2014 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 84-88.
On 14 October 2014 the Tribunal wrote to the applicant and invited him to attend a Tribunal hearing on 3 November 2014 to give evidence and present arguments in respect of his application: CB 95-96. The Tribunal hearing on 3 November 2014 did not proceed for reasons which are recorded as “facilities not available”: CB 99-101.
On 5 November 2014 the Tribunal once again wrote to the applicant and invited him to attend a Tribunal hearing, to give evidence and present arguments in respect of his application, this time on 4 December 2014: CB 105-106.
The Tribunal hearing on 4 December 2014 proceeded and the applicant attended, gave evidence and made submissions: CB 107-109.
Tribunal Decision
The Tribunal Decision commences with the Tribunal accepting that the applicant is a citizen of Nigeria: CB 113 at [2].
The Tribunal goes on to note the criteria in s.36 of the Migration Act in relation to the criteria that must be met by an applicant for a visa, and in particular the requirements in respect of Australia’s protection obligations under the refugee criterion in s.36(2)(a) of the Migration Act and the complementary protection grounds in s.36(2)(aa) of the Migration Act: CB 113 at [3]-[5].
Noting that the applicant’s spoken English was far superior to his written English expression, the Tribunal indicated that in understanding the particulars of the applicant’s claim it had relied upon clarification provided by the applicant in the course of an interview with the Delegate and in explaining matters to the Tribunal: CB 113 at [7].
The Tribunal noted the claims then made by the applicant as follows:
a)that in 1990 his father was tortured to death in the village in which he lived as a result of his father’s activities against witchcraft practised by some people in the village: CB 113 at [9];
b)that in 2001 as a result of the applicant asking questions about his father’s death which people in the village did not like, he was also attacked by people in the village: CB 114 at [10]; and
c)that the nature of the attack was that the applicant was made to go crazy with charms and left running naked in the street, and when the Tribunal queried this and asked whether he might have been poisoned, and indicated that the Tribunal did not accept that “magic spells could make people go crazy”, the applicant reaffirmed that in Africa “ritualists” were able to make charms that would cause people to go crazy: CB 114 at [11].
The Tribunal also:
a)noted that in the applicant’s written claims he referred to being burnt with acid and that he wished to show the scars on his body to the Tribunal during the hearing: CB 114 at [11];
b)confirmed with the applicant that he left his village after the attack in 2001 and moved to Aba, about 60 miles away, and that he lived there until he moved to Malaysia in 2008: CB 114 at [12]; and
c)noted that the applicant told the Tribunal that he left Aba “because of the problems going on there”: CB 114 at [12], which included people being hurt in the streets by Muslims because they were Christians, and vigilante groups who opposed people smoking marijuana and would attack people with machetes: CB 114 at [13].
The Tribunal indicated to the applicant that the information that it had about Abia State and Islamist attacks on Christians in Nigeria was not consistent with his claims of religious violence in Abia State, and that the information that the Tribunal had was that there was no religious violence in Christian southern Nigeria, and that the documented religious violence occurred between Islamists and Christians in the northern and central belts of Nigeria, and that people fleeing from such attacks would move to the south of Nigeria in order to avoid the violence: CB 114 at [14]. The applicant expressed concern that the Tribunal knew very little about Nigeria and Abia State, and asserted that Abia State was “well known … [as] a dangerous place” and that Islamists carried out attacks across Nigeria: CB 114 at [15].
The Tribunal also raised with the applicant its concern that there was a significant delay in raising his claims for protection, including a period of six months as an unlawful non-citizen before his Protection Visa application was lodged, and that he had not lodged his Protection Visa application until he was in immigration detention. The Tribunal used the procedure in s.424AA of the Migration Act to set out the applicant’s migration history as recited in the Delegate’s Decision, explaining that the Tribunal was concerned that in some cases a lengthy delay in seeking protection indicated that fears expressed were not genuine, and that Protection Visa applications were only lodged when all other avenues for migration had been exhausted: CB 114-115 at [16]. The Tribunal explained that it was providing an opportunity to the applicant to explain to the Tribunal why the delay in seeking a Protection Visa should not be viewed by the Tribunal as being inconsistent with the applicant’s alleged fears about returning to Nigeria being genuine: CB 114 at [17]. The applicant’s response to the Tribunal was:
a)to endeavour to show the Tribunal the scars on his body, which were not visible over the video link, but the existence of which the Tribunal accepted: CB 115 at [18];
b)to indicate to the Tribunal that if he returned to Nigeria he would be killed because he would have been thought of as a rich man and would be killed by “gangsters”: CB 115 at [19]. In response to a question as to whether he feared being the victim of a crime the applicant indicated that he was scared of Muslims: CB 115 at [20]; and
c)to make it clear that he had been remanded in custody by the police between 4 December 2013 and 15 May 2014 and so was unable to attend a Tribunal hearing relating to the cancelation of his spouse visa, or to apply for a Protection Visa: CB 115 at [21]. (The Court notes that the applicant’s Protection Visa application appears to indicate two convictions for assault in Australia: CB 23, the second of these being on 3 December 2013. Later in the Protection Visa application the applicant says he spent time in prison because he “got no address”: CB 44).
In relation to the applicant’s claims to fear harm arising from his father’s death and use of witchcraft the Tribunal:
a)accepted the applicant has scars on his body: CB 115 at [18];
b)accepted practices that might be labelled as ‘witchcraft’ take place in Nigeria and that such practices have the potential to physically harm victims: CB 115 at [22];
c)accepted that the applicant’s father was killed in 1990, and in 2001 the applicant was subjected to some harm from villagers, or at the very least perceived that he was in danger: CB 116 at [23];
d)found that in the event the applicant were to return to Nigeria he would return to Aba and not the village where he fears he may be subject to witchcraft practices and as such found that Aba, and not the village of the applicant’s birth, to be the applicant’s home area: CB 116 at [25]. The Tribunal considered the chance of harm in Aba in the reasonably foreseeable future was remote: CB 116 at [25], and consequently found that it did not have substantial grounds for believing that the applicant would suffer harm as a necessary and foreseeable consequence of being returned from Australia to Nigeria arising from the circumstances of his father’s death, the adherents of witchcraft in the village of his birth, or as a result of witchcraft: CB 116 at [26]-[27];
e)in relation to the applicant’s claim to fear harm as a Christian the Tribunal:
i)found that the applicant identifies as a Christian: CB 116 at [29];
ii)discussed with the applicant at hearing the issue of religious conflict in the southern states of Nigeria, and that the southern States were predominantly Christian, and religious conflict was “rare”, and that local conflict tends to be based upon competition for resources especially in the oil rich Delta region of southern Nigeria: CB 116 at [30];
iii)also discussed with the applicant that Christians from the north of Nigeria sought refuge in the Christian states of the south, including Christian Igbos leaving the north for Abia with the support of Igbo community leaders: CB 116 at [30];
iv)as to Abia specifically noted that violence in Abia was related to kidnapping and robbery without reference to Islamist or religious violence: CB 117 at [31];
v)observed that the country information did not support the proposition that Christians in Abia state face more than a remote chance of harm from Muslims: CB 117 at [32];
vi)based its comments upon a Department of Immigration and Citizenship August 2013 Issues Paper on Nigeria (“Department’s 2013 Nigeria Issues Paper”): CB 116 at [30] and footnotes 3 and 4; and
vii)preferring the country information (to which it had referred the applicant in the course of the Tribunal hearing), found that it could not be satisfied that the applicant faced more than a remote chance of being subjected to harm as a Christian at the hands of Muslim or associated groups: CB 117 at [33], and further found that it did not have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria that there was a real risk that he would suffer harm: CB 117 at [34]; and
f)in relation to the applicant’s fear of harm from “gangsters” the Tribunal:
i)accepted that crime is prevalent across all of Nigeria and that the security situation in Aba cannot be described as good: CB 117 at [36];
ii)indicated that it had “taken into account that kidnappings and robbery are cited as the key incidents of violence in Abia state”: CB 117 at [36];
iii)recognised that Abia was “not a ‘good place’”, but found that the applicant put forward no cogent basis on which he would be targeted as a victim of crime: CB 117 at [37], or explanation as to why he might be considered a “rich man”: CB 117 at [38];
iv)could not accept that the applicant would be identified as a ‘rich man’ and considered the applicant’s remarks in that regard to be without foundation, and further was not satisfied that the targeting of rich men in Nigeria by criminal elements would be by reason of their membership of a social group of rich men as opposed to random criminal conduct: CB 117 at [39]; and
v)did not consider that the likelihood of the applicant being a victim of crime was such that there was more than a remote chance of the applicant being subjected to harm, nor did it have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, that there was a real risk that he would suffer harm in that regard: CB 117 at [40].
The Tribunal was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations and that he did not satisfy the criteria in:
a)section 36(2)(a) of the Migration Act; and
b)section 36(2)(aa) of the Migration Act,
and the Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 118 at [41]-[44].
The Judicial Review Application
In the Judicial Review Application the applicant relies upon the following ground of review:
The Refugee Review Tribunal made an error of law and/or jurisdictional error in finding that the applicant was not a person to whom Australia owes protection obligations for the purposes of s.36(2) of the Migration Act 1958 (Cth).
The applicant’s single ground of review is not further particularised in the Judicial Review Application.
Orders were made on 1 April 2015 by a Registrar of the Court permitting the applicant to file and serve an amended Judicial Review Application or any affidavit evidence by 29 April 2015 and written submissions 14 days prior to hearing by the Court which was listed for 3 July 2015. The applicant did not file any documents in accordance with the Registrar’s orders, or at all.
At hearing a bundle of documents which had been sent by the applicant to the Minister’s solicitors, and on-forwarded by the Minister’s solicitors to the Court, were marked as Exhibit 1, and treated by the Court as if they represented submissions that the applicant might have wished to make to the Court, together with accompanying materials.
Exhibit 1 comprised the following:
a)four handwritten pages of notes and submissions from the applicant (“Handwritten Submissions”);
b)a copy of a letter from the High Commission of the Federal Republic of Nigeria in Canberra to the Director of the Yongah Hill Immigration Detention Centre (“Yongah Hill IDC”) dated 24 March 2015, in which the High Commissioner sought information concerning a Nigerian detainee allegedly “bashed” at Yongah Hill IDC on 5 March 2015 (“High Commission Letter”);
c)a copy of Short Minute of Orders signed by the applicant and the Minister’s solicitors, dated 1 April 2015, which is in essence identical to the orders of the Registrar of this Court dated 1 April 2015;
d)various pages extracted from the Delegate’s Decision and the Tribunal Decision; and
e)a copy of all but the first page of a 24 page document entitled “The Legitimisation of a Murder and Torture” seemingly taken from the Human Rights Watch (“HRW”) website, the documents electronic address being /2002/nigeria2/nigeria 0502-03.htm (“HRW Website Article”).
Consideration
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court if, as here, the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
Having regard to the above authorities – which are well-established – the sole ground of review cannot succeed. If it does anything, it does no more than assert factual error by the Tribunal, which does not and cannot of itself constitute jurisdictional error. The sole ground of review is merely an unparticularised assertion that the Tribunal made a mistake. As such, it cannot disclose jurisdictional error in the Tribunal Decision. The failure to particularise a ground of review is sufficient basis for it to be dismissed: SZLEX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM, followed in WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (from which an appeal by the applicant was dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCA 969).
The Tribunal was not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant: Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALR 347; (1994) 34 ALD 347 at 348 per Heerey J (“Selvadurai”); Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J.
The Court also observes that it is well recognised that a delay in making a Protection Visa application is a proper and rational matter for consideration in determining whether there was not a genuine fear of serious or significant harm in the applicant’s country of origin, or, at the very least, that the delay is inconsistent with the existence of such a fear: Selvadurai ALD at 349 per Heerey J: DZADW v Minister for Immigration & Border Protection [2014] FCA 1338 at [19] per Mansfield J; MZADS v Minister for Immigration & Anor [2015] FCCA 1424 at [19] and [21]-[22] per Judge Scarlett.
It is apparent from the outline of the Tribunal Decision set out above: see [10]-[18] above, that the Tribunal identified the relevant issues, asked the right questions, relied on appropriate factual material, did not ignore any relevant factual material, and exercised its power properly and within jurisdiction: Yusuf. The Tribunal clearly considered each of the applicant’s claims as they were there made, and ultimately found that there was no real risk that the applicant would suffer harm if he were to return to Nigeria. Such findings were open to it on the evidence available and the merits of the Tribunal’s findings in this regard are not open to review by the Court. As such the ground amounts to nothing more than a plea for impermissible merits review based on the applicant’s dissatisfaction with the Tribunal Decision: Wu Shan Liang.
No jurisdictional error arises in respect of the ground of review.
The Court turns then to consider Exhibit 1. It can immediately be said that the High Commission Letter is of no significance, as it relates to events which occurred after the Judicial Review Application was filed, and events which bear no relationship to the matters which were before the Tribunal on review of the Delegate’s Decision, and which are incapable of constituting jurisdictional error by the Tribunal.
The Short Minute of Orders and the various pages extracted from the Delegate’s Decision and the Tribunal Decision are also of no moment as grounds of review, as they are merely on the one hand a proposed Court document, reflecting orders ultimately made by a Registrar of this Court, and on the other hand the decisions which, in the case of the Delegate’s Decision was under review in the Tribunal Decision, which in turn, is the decision under review by this Court. Obviously, the Court will have regard to the Tribunal Decision as it appears in the Court Book in considering the Judicial Review Application.
In relation to the Handwritten Submissions the Court observes that they refer to:
a)the “Bakassi Boys” in Abia state torturing the applicant in 2001, and the injuries he thereby suffered;
b)the applicant’s being “bashed” in the Yongah Hill IDC on or about 5 March 2015, and being admitted to hospital in a critical condition, having been “nearly killed” by “people from New Zealand”, and that he has suffered head injuries giving rise to dizzy spells;
c)the “immigration and tribunal saying I will not be targeted [presumably in Nigeria] but in detention where they keep [S]erco to guard us in detent[ion] did not protect me and others”; and
d)his transfer to an Immigration Detention Centre in Darwin, and his transfer being in handcuffs, which obviously caused him concern.
The applicant’s being “bashed” in the Yongah Hill IDC, his injuries, and his subsequent transfer to an Immigration Detention Centre in Darwin are all matters which have arisen after the filing of the Judicial Review Application, and were not matters which were before the Tribunal on its review of the Delegate’s Decision. There can be no doubt that the incidents are regrettable, both generally and, particularly in relation to the applicant, but they bear no relationship or relevance to a review of the Tribunal’s consideration of whether or not the applicant met the relevant criteria for the grant of a Protection Visa under s.36 of the Migration Act, and are incapable of constituting jurisdictional error by the Tribunal.
Before considering the reference to the applicant being tortured and suffering injury at the hands of the “Bakassi Boys” in 2001, it is necessary to make some observations with respect to the HRW Website Article. The 23 out of 24 pages of the HRW Website Article which have been included in Exhibit 1 set out in significant detail reported activities of the “Bakassi Boys” in the years 1996 to 2001, seemingly in or about the Nigerian state in which the applicant then lived. Included are detailed reports on the detention and killing of prominent persons, reports of summary execution of, and the arbitrary arrest and unlawful detention of, so-called “criminals”, who appear to be persons ranging from actual criminals, to possible opponents of the “Bakassi Boys”, and unfortunate civilian bystanders. There is also commentary in relation to the conditions in a detention centre run by the “Bakassi Boys”, and the “Bakassi Boys” intervention in private disputes and civil matters where they are “effectively … hired thugs” in matters ranging from debt collection to landlord and tenant disputes, land ownership disputes and domestic disputes.
The Court has carefully read the contents of the Court Book, including the Protection Visa application (which includes the claims originally made by the applicant), the Delegate’s Decision and the Tribunal Decision, and certain information provided by the applicant to the Delegate. In none of the material in the Court Book is reference made to the “Bakassi Boys”. Thus, what the applicant now says in the Handwritten Submissions about the “Bakassi Boys”, and the references to the “Bakassi Boys” in the HRW Website Article, was not evidence put, by reference to the “Bakassi Boys”, before either the Delegate or the Tribunal, and is therefore not material which can now be considered by this Court in considering whether the Tribunal committed jurisdictional error. To have regard to that material would be to have this Court re-assess the evidence under the guise of failure to take into account relevant evidence (when the evidence was never referred to the Delegate or the Tribunal), and to do so would be to impermissibly re-weigh the evidence, and to engage in impermissible merits review: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v Honourable Brendan O’Connor (No. 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J. The claims and evidence put before the Tribunal were precisely those which the Tribunal (and the Delegate before the Tribunal) considered, and which are summarised above: see [13]-[14] and [16(a) and (b)] above.
The Tribunal has had regard to more recent and authoritative country information concerning Nigeria, being the Department’s 2013 Nigeria Issues Paper, which deals with issues of re-location within Nigeria for Christians, and appears to specifically deal with issues of “Ethnicity and Religion”: CB 116 at [29] at footnote 2, and re-location to the south of Nigeria and security in southern Nigeria: CB 116 at [30] at footnotes 3 and 4. Thus, in relation to the claims made by the applicant, the Tribunal had regard to relevant contemporaneous country information to inform its decision. As has often been said by the Federal Court and this Court, the choice and the assessment of the weight of country information are matters for the Tribunal, and this Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal, provided that the most current information available to the Tribunal at the time of the Tribunal Decision is considered: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] and [13] per Gray, Tamberlin and Lander JJ; WZATK v Minister for Immigration & Border Protection [2014] FCA 1174 at [17] per Siopis J (“WZATK”). As in WZATK, so it is in this case: “the deployment and assessment of country information” is a matter for the Tribunal, and the applicant has “not demonstrated that the Tribunal had fallen into jurisdictional error” and “not identified any other country information, nor the respects in which the country information relied on was incorrect”: WZATK at [17] per Siopis J.
In the circumstances, there is nothing contained in the Handwritten Submissions or the HRW Website Article which, even if that information was able to properly be put before the Court and considered by it (which for reasons set out above is not the case), would establish jurisdictional error by the Tribunal.
For the above reasons, no jurisdictional error in the Tribunal Decision has been established by the applicant, and as there is no jurisdictional error, the Tribunal Decision is a privative clause decision within the meaning of s.474 of the Migration Act.
Conclusions and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 9 September 2015
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