Egbuono v The Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-12-22|Before: Carr J

introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 4 July 2000, affirming the decision of a delegate of the respondent not to grant a protection visa to the applicant.

factual and procedural background 2 The applicant, who is a citizen of Nigeria and is 35 years of age, arrived in Australia on 7 April 2000. On 11 April 2000 he applied for a protection visa. On 18 May 2000 a delegate of the respondent refused to grant that visa. On 22 May 2000 the applicant applied to the Tribunal for review of that decision.

the applicant's claims before the Tribunal 3 The applicant's claims to refugee status were on the twofold, but related, bases of race and religion. The applicant is of Ibo ethnicity and a Roman Catholic. The Ibo People, originally from the south-east of Nigeria were displaced during the Biafran Civil War. 4 The following is a summary of the applicant's claims. As a result of the Biafran Civil War the applicant's family moved to Kano, a northern city. Due to discriminatory practices against Ibos in the north, the applicant was sent by his parents for schooling in their original home state of Enugu in the traditional Ibo south-east. After finishing school the applicant returned to Kano and has lived in the north since that time. He returned to Enugu to marry a local Ibo woman who then accompanied him back to Kaduna (a city some distance south of Kano) where he was then living. 5 In January 1992 the applicant began work as a qualified fireman in the Kaduna Refinery of the National Petroleum Company which was a major enterprise employing some 2,000 people. Muslim workers - the majority of the employees - stopped work at the prescribed Muslim prayer times and the company provided facilities for their prayer sessions. The applicant, as a devout Roman Catholic, decided to instigate a midday observance of the Angelus. Half a dozen other Catholics joined him in a daily participation in this ritual. In early January 1996, on arrival at work, he was handed a letter of dismissal without any explanation. The applicant was unable to find other work in his area of expertise. In January 1997 he accepted employment by the Catholic Church as a catechist. The Church provided a house for him and his family within the church grounds. 6 The applicant claimed to have been well known for his religious activities as a young man in Kano where he was active in the Catholic Youth Organisation, later becoming chairman. He was in the forefront of religious processions, crusades and rallies. He was well known both in Kano and in Kaduna. His brother had also been sacked from his employment (in the State Education Department) for introducing Christian prayer meetings at work. His brother went back to Enugu where the applicant's parents now live in retirement. The applicant was involved in an incident in 1998 when young Muslim men intended to inflict serious injury upon him. He understood the local dialect being spoken, realised what was happening, and ran to safety. Kaduna State (which was once a single State as part of Kano State) has a half Muslim, half Christian population. Earlier this year there was a move by the State Government to introduce Sharia law. Christians rallied to protest against any such move and the Catholic Church, the largest Christian denomination, liaised with all the opponents of Sharia law. The applicant, in his role as chairman of the Catholic Youth Organisation, notified the State Governor (as required) of an orderly rally which the church planned for 22 March 2000. It was a big march, led by the Catholic Youth Organisation members and attended by many family groups, including women and children. En route to Government House, the march was set upon by violent Muslim youths. The Catholic youths decided to fight back. There was great violence, during which the police stood by, doing nothing. The applicant claimed that more than 50 people died. He and the chairman of the church council (a Mr John Ike) ran back to their church, St Anthonys, and sought shelter in the priest's house. The Muslim mob burned down both St Anthony's Church and the house in which the applicant and his family had been living. The applicant's wife and his children eventually joined him at the house of the priest, Father Buckland, an Irishman. They were safe from the Muslim mob because Father Buckland was a foreigner whom the mob would not dare to harm. The applicant claimed that the Muslim mob searched for the applicant and Mr Ike because they were identified as Catholic leaders of the march and important opponents of Sharia law. He claimed that the Kaduna Muslims arranged for Hausa comrades in Enugu State to go to the applicant's family home there. The applicant gave an account of violence which occurred in Enugu on about 24 or 25 March 2000 involving not only local Muslims and/or Hausas but also people who had travelled from Kaduna to Enugu to search out the applicant. When news of this violence reached Father Buckland, he decided that the two men (the applicant and Mr Ike) should leave Nigeria. With the priest's help the applicant escaped, initially to Bulgaria and then, via Vienna, to Australia.

the Tribunal's findings and reasons 7 The Tribunal in its reasons first set out the relevant legislation, the text of Article 1A(2) of the Refugees Convention and referred to the legal principles, explained in the Australian authorities, for assessing whether a person is a refugee. It did this correctly. 8 The Tribunal described the applicant's claims and then referred to extensive independent country information (some 4˝ pages of its reasons). 9 The Tribunal accepted that the applicant lost his job in early 1996 and that the facts indicated that his dismissal was discriminatory. It also accepted the applicant's claims that he was threatened by a group of Muslim men in 1998, but said that it was not satisfied that those two events, even taken with other unspecified instances of harassment, individually or cumulatively constituted harm of a type or severity that might be called persecution. 10 The Tribunal referred to what it regarded as some inconsistencies in the applicant's claims about the riots in which he became involved in Kaduna. The independent country information, to which it had referred, indicated that there had been serious rioting in Kaduna in February 2000 over a period of 3 days which left sections of the city totally destroyed. It will be recalled that the applicant's account of the riots referred to them as having taken place on 22 March 2000. In the end, the Tribunal said that it was prepared to accept either that there was another march on 22 March 2000 or that the applicant mistook the date and meant to say that he was involved in a demonstration on 22 February 2000. It was also prepared to accept that on either date the applicant sought shelter in the priest's house and that this house was not attacked even though the priest's church had been attacked. 11 But the Tribunal rejected the applicant's claim that Kaduna Muslims instigated and/or participated in a search specifically for him and his colleague Mr Ike and that this resulted in rioting in Aba (Mr Ike's home area) and a near-riot in Enugu. The Tribunal referred to independent evidence which, so the Tribunal found, made it quite clear that the rioting in Aba was triggered by the return home for burial of Ibo dead from Kaduna. Ibo anger welled and they retaliated against Hausa People living in Aba and some nearby towns. The Tribunal observed that there was no mention of Hausas - whether local or from elsewhere like Kaduna - being the initiators of the violence in Aba. Nor, so the Tribunal observed, was there any mention in the press reports about any Hausa activities, or the military being called to stop those activities, anywhere in Enugu State, either in February or March 2000. The Tribunal referred to other evidence of steps taken to bring peace to Kaduna, including evidence that a number of Christian leaders had stayed in that city. On the basis of that evidence it drew the conclusion that it was not necessary for the applicant and Mr Ike to flee from Kaduna simply because they were, in the applicant's view, Christian leaders. The Tribunal noted that they were only a small part of a very large group in Kaduna (both the city and the State) who expressed their opposition to the possible introduction of Sharia law. The Tribunal said that it was "… satisfied that it is implausible for the applicant to claim that he and Mr Ike personally are targeted by Muslims not only in Kaduna but in Nigeria generally because of their known opposition to the introduction of Sharia". 12 The Tribunal referred to further country evidence and noted that both the Kaduna State authorities and the Federal authorities had not shown themselves unwilling or unable to protect their citizens. It then drew in its conclusions in the following passages:

"In short, the Tribunal accepts that the applicant has suffered harm and has, at least, feared persecution in the past for reason of his Christian beliefs. However, the Tribunal is satisfied that his own country is willing and able to protect its citizens from sectarian violence. The Tribunal recognises that Kaduna, with its fairly equal numbers of Christians and Muslims, is a more volatile city than the predominantly Muslim ones further north or the predominantly Christian ones in the south. It notes that since the riots in February 2000, sectarian violence flared once again in Kaduna in May, three months later. However, "Extra soldiers and police have been drafted to the northern city of Kaduna, after two days of clashes between Muslims and Christians … Authorities have imposed a night-time curfew which they said would be strictly enforced and would apply until further notice … Christian and Muslim leaders have put out a joint statement appealing for calm, and blaming the clashes on irresponsible youth … The Kaduna State Police Commissioner said 'Anybody found with illegal firearms will not only face prosecution but will be treated as an armed robber'" (World service, BBC News, 24 May 2000, downloaded from BBC News Online). The Tribunal notes further that, a week later, "The first trials have begun in northern Nigeria of about two hundred people who were arrested during last week's riots in the town of Kaduna … Houses, churches and mosques were burnt down in two days of bloody clashes between Christians and Muslims in Kaduna last week" (World Service, BBC News, 30 May 2000, downloaded from BBC News Online). Clearly, sectarian violence can still occur, and may occur in the future, despite the efforts of the authorities.
However, the Tribunal is satisfied that it is reasonable for the applicant to relocate to the safety of the Christian south of Nigeria. It rejects his claim that he was personally the target of a search by Muslims (instigated from Kaduna) in his Ibo homeland and it rejects his claim that he is the subject of a fatwah because of his opposition to sharia law in Kaduna state. It is clear from the independent evidence that Muslim leaders in that state are assisting the authorities to maintain calm and it is also clear that they are meeting with Christian leaders: it is implausible that with such leadership, a Muslim cleric would issue a fatwah against the applicant simply for having an opinion shared by a very large minority (or perhaps even half) of the local population. The applicant has strong connections with Enugu State: he was educated there, his family (including his children) are presently living there, he is a member of the majority ethnic and religious group there and speaks the main language there. The applicant also speaks excellent English, a national language, as well as other Nigerian ones. He has certified vocational skills and is currently undertaking further studies (a part-time degree) in a different field by correspondence with the Enugu State university. In the circumstances, relocation by the applicant to Enugu State is reasonable. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa."

13 Mr A A Jenshel, counsel for the respondent, submitted that it was clear that the Tribunal found that the applicant did not have a well-founded fear of persecution. I do not think that that is at all clear. The manner in which the Tribunal dealt with the question of State protection in Kaduna is, in my view, somewhat ambiguous. I refer to the two passages above beside which I have placed asterisks. However, it is not necessary to resolve this question because the Tribunal can be seen to have decided the matter by considering whether the applicant might reasonably be expected to relocate within Nigeria.

the applicant's case 14 The applicant appears to have filed his original application without the benefit of any legal assistance. In his handwritten application he stated that he was aggrieved by the Tribunal's decision "because my case was not tried based on the facts I provided to Immigration department". No grounds were set out in the form of application. 15 On 12 October 2000 a certificate under Order 80 of the Federal Court Rules was issued to the applicant so that he could receive assistance pro bono publico. Mr G P Mohen of counsel appeared for the applicant at the hearing on that basis. 16 At the hearing Mr Mohen moved to amend the application by, among other things adding three grounds of application. Ground 1 asserted that the Tribunal's decision was "… wrong in law and fact in finding that the Applicant did not have a well-founded fear of persecution for a convention reason …". The basis of that assertion comprised eight findings of fact made by the Tribunal followed by a further assertion that having made those findings of fact the Tribunal should have found that the applicant's fear of persecution was well-founded. In oral submissions, Mr Mohen contended that the Tribunal, having made those findings of fact, could not have found otherwise than that the applicant had a well-founded fear of persecution. 17 Ground 2 comprised an assertion that the Tribunal's decision was wrong in fact in finding that Nigeria was willing and able to protect its citizens from sectarian violence. This ground was based on a recitation of four of the eight facts already recited in Ground 1 as having been found by the Tribunal. 18 In Ground 3 the applicant asserted that the Tribunal's decision was "… wrong in law and fact in finding that the Applicant could reasonably be relocated to another part of Nigeria to avoid persecution in that …". There then followed a reference to the evidence before the Tribunal being to the effect that the Government of Nigeria had not been able to prevent violence towards Christians and as such was not able to afford protection to the applicant from the persecution which he feared. It was asserted that the existence of a fatwah against the applicant could be carried out in the southern parts of Nigeria and, finally, there was a complaint that notwithstanding recent violence against Christians in Nigeria, and the Tribunal accepting that as many as 200 people had died in ethnic rioting directed against Christians in the area where the applicant had been living, the Tribunal had "asserted that it was safe for the Applicant to return to Nigeria."

my reasoning 19 I propose first to consider Ground 3. That is because even if the applicant had a well-founded fear of persecution in relation to Kaduna, if it was reasonable in the circumstances to expect him to relocate to Enugu (as the Tribunal found) he would not be a person to whom Australia owed protection - see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-443, 452 and 453 (a unanimous decision of a Full Court of this Court). 20 The Tribunal rejected the applicant's claims that he had been personally the target of a search in his Ibo homeland by Muslims which had been instigated from Kaduna, and also rejected his claim that he was the subject of a fatwah because of his opposition to Sharia law in Kaduna State. It pointed to evidence from which, in my view, it was entitled to draw those conclusions. The evidence before the Tribunal, in my opinion, was also quite clearly sufficient for it to conclude that the applicant could reasonably be expected to relocate to Enugu State. The applicant was educated there, his wife came from that State, his wife and children were presently living there, he is a member of the majority ethnic and religious group there and speaks the main language. The applicant, as the Tribunal noted, has vocational skills and is currently undertaking a part-time degree in a different field by correspondence with Enugu State University. In view of the findings by the Tribunal (based on evidence before it and for reasons which it gave) that the applicant would not be pursued by the Muslims if he re-settled in Enugu State, I can see no legal error on the Tribunal's part. 21 Mr Mohen, on behalf of the applicant, submitted that the Tribunal had made a fundamental error in treating the violence against Christians as having been confined to certain areas of Nigeria. The Tribunal had not, so it was put, considered whether there was a real chance of the applicant being persecuted in Enugu State due to his Christian beliefs. 22 It is true that in considering the matter of relocation the Tribunal did not express its conclusions in terms of the absence of a real chance of persecution. But the authorities show that its reasons are not to be over-zealously scrutinised for error. The Tribunal had, earlier in its reasons, set out its understanding of the relevant law. No issue was taken about the Tribunal's understanding of that matter. It might have removed any ground for argument if the Tribunal had expressly referred to the "real chance" test when considering the matter of relocation. On the other hand, its reasons show that it knew the law. It is not in the interests of good administrative decision-making to require too much in the way of formal incantation at every stage. When the Tribunal spoke of "… the safety of the Christian south of Nigeria" in the context of the whole of its reasons I think it can properly be taken to have ruled out any real risk of persecution on grounds of Ibo ethnicity or religion if the applicant relocated to Enugu State. 23 In those circumstances it is not necessary to consider Ground 1 or Ground 2 of the amended application - see Syan v Refugee Tribunal (1995) 61 FCR 284 at 288, cited with approval by Moore J in Ravind Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 March 1997, at 3). 24 In reality, the matters urged upon the Court in support of Ground 3 constitute an attempt to have the Court canvass the merits of the Tribunal's decision that, on the facts, it was reasonable in all the circumstances to expect the applicant to relocate to Enugu State. That, of course, is something which the Court may not do. Its role, in this case, is confined to reviewing the Tribunal's decision for error of law. In my opinion, no such error on its part has been disclosed.

Conclusion 25 For the above reasons the application will be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Solicitor for the Respondent: Australian Government Solicitor

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