Eshetu v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT This is an application for review by Stephen Ogho Akpata ("Mr Akpata") and Fortress Akpata ("Ms Akpata") of a decision of the Refugee Review Tribunal ("the Tribunal") given on 3 April 1998. The Tribunal's decision was that it was not satisfied that Mr Akpata and Ms Akpata were refugees, and it affirmed the decision of the delegate of the respondent ("the Minister") refusing to grant to them a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"). The applicants Precious Oghenemaro Akpata ("Precious"), who was born on 20 March 1990 in Nigeria, and Treasure Jemima Akpata ("Treasure"), who was born in New Zealand on 17 September 1993, are the children of Mr Akpata and Ms Akpata. They claim also to be entitled to a protection visa under the Act, but only as members of the family unit of one or both of their parents: regs 866.112 and 866.211(b) and 866.222 of the Migration Regulations. In the case of Treasure, because she was born in New Zealand, there may be considerations relevant to her status distinct from those of her parents and of Precious. They do not arise upon this application and it is unnecessary to refer to them further. To date, she has been treated as a citizen of Nigeria. The initial application for a protection visa was lodged on 22 December 1995, and was refused on 7 November 1996. Application was then made to the Tribunal for review of that decision on 19 November 1996. I shall refer to Mr Akpata and Ms Akpata together as "the Akpatas" except where it is necessary to distinguish between them. I do not need to refer further to the position of their children. BACKGROUND A criterion for a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The relevant provision of the Convention is that a person is a refugee in accordance with Article 1A(2), which provides that that person: "… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …" The High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 indicated that the expression "well-founded fear of being persecuted" encompasses within it both a subjective and an objective element. There must be a subjective fear of being persecuted, and that fear must be well-founded. The objective component requires that there be a real chance of persecution for a Convention reason if that person were to be returned to the country of nationality. There is no suggestion that the Tribunal has misdirected itself, or has misapplied the law, in that regard. Mr Akpata was born on 24 November 1962 in Nigeria, and Ms Akpata on 22 December 1966 also in Nigeria. They are nationals of Nigeria. They claim protection visas based upon claims for persecution for the Convention reasons of religion, race and political opinion. Mr Akpata undertook tertiary education in Nigeria. He was employed in various firms in Lagos from about 1980. He was a member of the national youth soccer team, travelling often in Nigeria due to his involvement in soccer. He commenced formal studies in theology in 1982. From early 1987 until February 1991 he had a permanent address and a job in Lagos. In February 1991 he and his family went to New Zealand where they remained whilst he studied, until they arrived in Australia in early 1994. It was during that period Treasure was born. The application for protection visas was not made until some considerable time later, on 22 December 1995. CLAIMS Mr Akpata claimed persecution extending over a considerable number of years between about 1984 and 1990, as a result of his activity in politics and his promotion of his religion. He is a member of the Isoko Ogoni ethnic group from the Niger Delta region. He claims that his father had a long term involvement in politics, as a consequence of which his family was beaten and imprisoned. His claims include arrests and serious mistreatment of himself over a period of time in 1984 after addressing a rally about politics and religion, in 1985 when he was prevented from holding a crusade to speak against the Government when he wished simply to exercise his right of religious expression, in 1987 when he was again arrested and detained and mistreated for preaching, in 1988 when he was detained for preaching and criticising the Government and again mistreated severely, and in 1990 when he feared arrest after a speech in October 1990 about the violation of the rights of Ogoni people. He had by that time become the publicity secretary of the local branch of the Nigerian People's Party ("the NPP"), which he had joined in 1987. Following the speech in October 1990, his wife was arrested but released about four days later. He also claimed shortly thereafter that soldiers had gone to the family home, when he and his wife were not present, and the house was burned down because they were not present. Shortly after that he claims that the family went into Zimbabwe under the guise of one of the children attending a soccer festival, and from there procured visas to go to New Zealand where he undertook Bible studies. He says he has not heard from his parents from about 1993 other than a facsimile in mid-1995, and that whilst in Australia he has had threatening phone calls giving rise to his fear that Nigerian nationals living overseas have his activities monitored. He also claims that his speaking out against the Nigerian Government both in Australia and in New Zealand, and a recently published book by him, have rendered him vulnerable to persecution should be return to Nigeria. The background and claims of Ms Akpata should also be noted. Her father was, from 1974, a Christian Pastor, and often spoke out against the Government. She claims that he was often tortured and imprisoned as a result. She confirms that after the speech of her husband in October 1990 about the violation of the rights of the Ogoni people, she was detained and beaten. Since leaving Nigeria, she has had some contact with her family. In late 1993 or thereabouts, when she wanted to return to Nigeria, she was advised by her father by telephone that she should not do so because the family had been placed on a hit list. In other respects she confirmed the evidence of Mr Akpata. THE TRIBUNAL'S REASONS The Tribunal's reasons indicate that its rejection of the claims of the Akpatas was very largely based upon its assessment of the reliability of those complaints. The Tribunal accepted that the parents of both the Akpatas had a long involvement in politics and in religious teaching. Nevertheless, it noted that Mr Akpata was able to continue his education uninterrupted through to technical college, and to develop his sporting talent so that he was selected in a national under 23 team, and later appointed coach of various soccer teams. He was also able to practice his Christian faith, and from about 1982 began training as a pastor. It noted his evidence that, at least up to 1984, he did not encounter serious harm by reason of any activity of his parents. It concluded that the prospect that he would do so by reason of any political or religious activity of his parents or parents-in-law is remote. In respect of his complaints during the period from 1984 to 1990, the Tribunal observed that there were "discrepancies" in his initial statement in support of his claim for a protection visa, and his claims made at the hearing. These discrepancies had obviously been the subject of discussion with him at the hearing. The initial statement had omitted matters relating to his imprisonment and mistreatment in significant respects. The Tribunal was not satisfied by his explanation for those omissions. It found that his claim of imprisonment and torture in 1984 lacked credibility. It concluded: "The Tribunal is not satisfied by the applicant's explanation as to the reasons for key omissions when lodging his initial application for a protection visa and finds that his claim of imprisonment and torture in 1984 lack [sic] credibility. For parallel reasons the Tribunal rejects the applicant's belated claim that he was detained and mistreated in 1987, 1988 or 1989." The Tribunal separately addressed the claim that in 1985 Mr Akpata was thwarted from holding a religious celebration because it was thought he would speak out against the Government. It said: "In view of his lack of a formal political affiliation at the time, his lack of convincing evidence of any history of overt political activity; and his capacity to continue his theological studies, the claim by the applicant that he sought and was unable to express publicly his political or religious views seems implausible." It also noted, in the context of that finding, the absence of any specific reference to that event when lodging his initial statement, as well as the absence of evidence that the very considerable Christian population in Nigeria was unable to practice its faith openly. It concluded that the reason why he may have been denied a permit for a religious celebration in 1985 was for particular regulatory reasons. In respect of his claim that he had been targeted because of his employment by, and activities in, the NPP the Tribunal said: "In assessing all the relevant material the Tribunal is not satisfied that the applicant was ever in the employ of the NPP or that he was targeted at any time due to any real or perceived association with it." An associated claim that Mr Akpata was vulnerable to persecution for having been an active member of MOSOP, the Movement for the Survival of Ogoni People, a claim which it noted was made only subsequent to the decision of the delegate, it concluded that: "… in assessing all the available material, there is no basis for a finding that he has encountered serious harm by reason of any real or perceived association with MOSOP or CAN [Christian Association of Nigeria], or that he would do so in the foreseeable future." In relation to the detention of his wife in 1990 and the burning of the house, and then the death of his elder brother, the Tribunal said it was "implausible" that the authorities would kill his brother and yet allow the applicant to remain free to continue religious and political activities. It observed that at least between 1987 and February 1991 the Akpatas had a permanent address and jobs in Lagos. It then said: "In reviewing all the available evidence the Tribunal is not satisfied that either the applicant or his wife encountered any difficulty at all in 1990 as a result of any speech made by the applicant at the [festival]." Thus it concluded that neither of the Akpatas had a well-founded fear or persecution for a Convention reason at the time they left Nigeria. It noted in addition that they had been able to leave Nigeria legally on their own passports. It was not satisfied that Mr Akpata's sporting status would have allowed him to depart Nigeria if he had been of interest to the authorities. It also noted that the application for refugee status was not made until almost five years later. It regarded the explanation for that delay, that they made no timely application for asylum as they were hoping the situation would settle down, in the light of the concerns expressed, as "unsatisfactory". It also noted evidence to indicate that the Akpatas planned to return to Nigeria for a visit in 1994. The Tribunal concluded that there was no real impediment to the Akpatas returning to Lagos rather than to their home villages and that there was no real chance of persecution for a Convention reason if they were to do so. The Tribunal then proceeded to refer to evidence on the departmental file. It introduced that section of its reasons with the words: "Additionally, there is strong evidence on the Departmental file (in notes dated 26 July 1994 and 21 October 1996) that the applicant and his wife planned to return to Nigeria for a visit in 1994. The applicant claims that he wanted to go to the Cameroons, on his way to North America, so that he would elicit help in finding out what was happening to his family. He claimed not to have been in touch with his family from 1993 until mid-1995, after which he again lost contact with them. The letter of July 1995 indicates communications about the applicant's alleged activities in Australia. Newspaper reports at the time of the applicant's Australian trial indicate that he advised his solicitor he had been sending money to his family in Nigeria in late 1995 (see, for example Adelaide Advertiser, 31 July 1996) … … Newspaper reports such as that cited above indicate that the applicant and his family had considerable wealth in Nigeria, and that property and other assets were destroyed or taken from them by the authorities. That claim, made by the applicant at his criminal trial, has not been made in the same degree in the course of his application for a protection visa, despite the clear relevance of it. While accepting the possibility that the applicant's home was destroyed by fire, the Tribunal, in assessing all the relevant material in this case, is not satisfied that any such destruction occurred at the hands of the authorities in relation to a Convention ground. The applicant has not pursued in the course of his application for asylum, as he did in the context of a criminal trial where the motivation for a substantial fraud was a relevant matter requiring explanation, at least in terms of submissions regarding an appropriate sentence, a claim that other assets, of a substantial nature, were seized. The Tribunal concludes that the claim by the applicant that he had assets seized, for a Convention reason, lacks credibility." That gives rise to the first ground argued on this application for review. It is accepted that the Tribunal did not draw to Mr Akpata's attention that it had available to it the information disclosed in the newspaper reports as to his wealth in Nigeria and as to the destruction of the home, and did not invite Mr Akpata to comment on why that aspect was not pursued. It is apparent from the Tribunal's observations set out above that his non-pursuance of that matter in the present circumstances was regarded by the Tribunal as relevant to his credibility. The second matter said to give rise to a ground of review is said to emerge from the following passage: "The applicant's claim that he has been outspoken against the Nigerian government in Australia and in New Zealand in unsupported by independent information. The applicant has made a number of bloated statements in the course of his application for refugee status. A letter dated 31 July 1996 from the Adelaide College of Ministries also indicates that he falsely informed the college his application for a protection visa had been approved and that he had been granted a full scholarship to a university in the United States of America, notwithstanding the fact that the college had refused to graduate him and had not released his academic transcript. While it is apparent that he has undertaken a number of speaking engagements in Australia the Tribunal is not satisfied that his oratory as an under-graduate in biblical studies has involved overt criticism of the Nigerian government such that he faces a real chance of persecution (see material cited below). He has never provided specific detail of overt political activity and has a history of deceit and hyperbole. Moreover, his preparedness to contemplate a return to Nigeria in 1994 or 1995 is completely at odds with his claim that he fears persecution partly on the basis of his alleged political outspokenness in New Zealand and, later, in Australia." Again it is accepted that the letter from the Adelaide College of Ministries of 31 July 1996 was not put to Mr Akpata. It is said to show that Mr Akpata falsely informed that College that his application for a protection visa had been approved and that he had been granted a full scholarship to the University in the United States whereas, according to the letter, the College had refused to graduate him and had not released his academic transcript. That material has also been treated as relevant to his credibility. As the Tribunal observed, he did not provide detail of overt political activity and "has a history of deceit and hyperbole". The Tribunal found that neither of the Akpatas were witnesses of truth. It rejected Ms Akpata's evidence confirmatory of Mr Akpata because of the legality of their departure from Nigeria, and "a range of other reasons outlined above in assessing the credibility of [Mr Akpata's] claims". The two matters specifically identified were in the reasons of the Tribunal preceding that conclusion. The Tribunal referred to other factors also indicating that the Akpatas' complaints were not credible, including: · information that persons with whose political activity in opposition to the Nigerian regime had been explicit and broadly published do not face persecution unless they are regarded by the regime as ""major dissidents" with the capacity effectively to marshal opposition" · that Mr Akpata has no history of overt political activity so as to give him the status of a prominent political dissident · that about forty per cent of the population of Nigeria are Christians, who are able to practise their faith openly, save for restrictions on open air meetings away from places of worship · that the Akpatas were not Ogonis and so were not eligible to join MOSOP, but even if they were there is no evidence to indicate that all Ogonis face a real chance of persecution throughout Nigeria. The result of that process was to conclude that the Akpatas do not have a well-founded fear of persecution for a Convention reason, and thus to affirm the decision to refuse a protection visa. THE CONTENTIONS The contentions on appeal to this Court were short. For the Akpatas, it was submitted that, in the two respects identified, the Tribunal had taken into account information available to it without giving the Akpatas the opportunity to comment upon that information. It was contended that the conclusions of the Tribunal as to their credibility, and consequently its conclusions generally, were impeachable. It was said that the Tribunal was obliged under s 420 of the Act to provide a review in which it acted according to substantial justice and the merits of the case: s 420(2)(b) and which was fair and just: s 420(1) and that it had failed to do so in those respects. Thus, it was said, that the Tribunal failed to comply with procedures required by the Act to be observed in connection with the making of the decision: s 476(1)(a). Those submissions were based upon the decision of the Full Court of this Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. To reinforce the submission, counsel for the Akpatas referred in particular to the decision in Kioa v West (1985) 159 CLR 550, in particular per Brennan J at 628-629 where his Honour said: "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise … The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made … Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account." Deane J at 633 said: "Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious."