Kioa and West [1985] HCA 81; (1985) 159 CLR 550

Abebe and Commonwealth [1999] HCA 14; (1999) 197 CLR 510

Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18 A_pplicant V346/_ 2002 v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 5036

SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80

X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 56

Thevendram v Minister for Multicultural Affairs [1999] FCA 182

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; [1986] 162 CLR 24

Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Pojani v Minister for Immigration and Multicultural Affairs [2002] FCA 1283

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1) That the decision of the Refugee Review Tribunal handed down on

(2) That the Minister is prohibited from acting in reliance upon the decision of the Tribunal.

(3) That the decision of the Tribunal is set aside.

(4) That the matter is remitted to the Tribunal for re-determination according to law.

1. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 September 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant, who is a citizen of Nigeria, arrived in Australia on 25 September 2000. He applied for a protection visa on 7 November 2000. On 27 November 2000 a delegate of the respondent refused the application. The applicant sought review by the Tribunal on 21 December 2000. The Tribunal held a hearing on

2. The applicant claimed to fear persecution by what he described as an ethnic militia in Nigeria known as the Odua Peoples Congress (OPC) for reason of his political opinion or membership of a particular social group. He claimed that after a trader of Ibo ethnicity was allegedly murdered in a confrontation with OPC members aligned with his landlord, there was a protest by Ibo traders and then a clash between OPC members and the traders at the Alaba International Market in Lagos on 14 July 2000. Shops in the market were destroyed or looted and several traders were killed during this `fracas'. The applicant claimed to be `an eyewitness to all this' as the owner of a shop at the market. He claimed that he had reported to the police station as he could identify some of the OPC members who lived locally. He claimed that he was then arrested by the police, detained and tortured for four days. He was then threatened and told to leave the town or have his life terminated. He waited in his village for an opportunity to travel outside Nigeria. He claimed that OPC members had penetrated or controlled the police and other government authorities and that as a result of his complaint to the police the OPC were searching for him throughout Nigeria and the police could not protect him. He also claimed that the OPC had circulated his photograph. He had remained in hiding in his village until departing for Australia from Lagos in September 2000. In his original application he claimed that he was concerned about departing from Lagos without being noticed by members of the OPC and had disguised himself heavily so as not to be noticed during his short stay in Lagos and at the airport. He claimed that government agencies infiltrated by the OPC had a presence at the airport.

3. After his application for a protection visa was refused, the applicant, through his migration agent, provided a considerable amount of material to the Tribunal in support of his application including extensive press clippings about the situation in Nigeria and the OPC. Included in this material was a letter from the Nigerian police force certifying that he had been detained from 17 to 20 July 2000 in connection with the violent fatal clash between OPC members and market traders. Also included was a letter to the applicant's migration agent from Huri-Laws, a Nigerian Human Rights Law Service. This letter, written by the lawyer who had secured the applicant's release from police custody on 20 July 2000, stated that the clash on 14 July 2000 was because of the killing of the Ibo tenant and that the applicant "was a vital eye witness to the gruesome killing of the Alaba businessman Mr Ikechukwu and three of his friends," that he had reported the incident to the police, had been detained, that Huri-Laws had secured his release and that subsequently: `he reported to us of incessant threat to his life and on one occasion an attempted assassination on him by OPC members'.

4. The Tribunal held a hearing on 25 July 2002 the transcript of which was before the Court. At the end of the hearing the Tribunal member invited the applicant to submit any further material to the Tribunal within the next couple of weeks. On 14 August 2002 the applicant's migration agent sent the Tribunal extensive press clippings in relation to the situation in Nigeria, parts of which were highlighted for the attention of the Tribunal. These were accompanied by a letter dated 6 August 2002 from Mr Nsah, Chief Executive of the Media Research and Documentation Library, Lagos an organisation which claimed to investigate and document human rights abuses in Nigeria, which had assembled the press clippings. Mr Nsah provided his organisation's views in relation to the events of July 2000 and the applicant's situation. He repeated the applicant's claims. He suggested that the applicant was one of the OPC's targets and was in danger because of the inability of the government to provide effective protection for reasons given. The letter concluded that it was not safe for the applicant to return to Nigeria at present.

5. The Tribunal made its decision on 29 August 2002. On 2 September 2002 the Tribunal wrote to the applicant advising that the decision would be handed down on 19 September 2002. On 2 September 2002 the applicant's migration agent wrote to the Tribunal enclosing faxed documents provided by the applicant as additional evidence supporting his claims. This material consisted of a letter to the applicant from Mr Nsah, at the Media Research and Documentary Library in Lagos which enclosed two further articles from Nigerian national newspapers and noted that one article, dated 30 August 2002, was `directed' at the applicant. The article dated 30 August 2002, which purported to be from page 3 of the Daily Times newspaper headed `FG advised on sustainable peace', reported comments made by the liaison officer of the Alaba International Market Association to the effect that more than two years after the clash of July 2000 death threats were still hanging on the neck of one of the traders, the applicant (who was referred to by name in the article). He was described as having remained in hiding due to a lingering manhunt by OPC militants accusing him of contributing to the casualties they had suffered during the crisis. The article went on to record an account of the events of July 2000 consistent with that detailed in the applicant's original application. It suggested that the applicant had information concerning the identity of some ringleaders of the militant OPC group and their meeting place and had passed this information to the police station but had been detained and tortured for four days. It continued that the police had notified the OPC of this and had searched his property and that the OPC had a photograph of the applicant. The article also reported a claim by the liaison officer that on 2 August 2002 (that is after the Tribunal hearing but before the decision was handed down) the applicant's father and wife had reported that OPC militants had accosted the applicant's wife, asked her to disclose the applicant's whereabouts and had attacked her with a machete (evidenced by deep cuts on some part of her body) when she could not give a satisfactory answer.

6. In the course of these proceedings the solicitors for the respondent provided to the Court a copy of a document from the Refugee Review Tribunal file headed "Material received after signing of decision" indicating that material (in a quantity consistent with the material submitted by letter of 2 September 2002) was received by the Tribunal on 3 September 2002. This document bears a signature, apparently that of the Tribunal member, and is dated 4 September 2002. It indicates that the Tribunal member had considered the material and had decided not to recall the decision. The reason given was `newspaper articles considered but do not change the decision'. Consistent with this document the decision handed down on 19 September 2002 makes no reference to this material.

7. The Tribunal found that the applicant was not a credible witness. It did not accept that he had any role in the events of July 2000 that resulted in him becoming a target of the OPC because it considered that the applicant was not credible in key aspects of this claim. The Tribunal referred to the fact that the applicant had claimed that he had gone to the police station to report and identify OPC members who had attacked him and other traders as he returned from a demonstration whereas the letter from Huri-Laws stated that the applicant was an eye witness to the killing of the Alaba businessman Mr Ikechukwu and three of his friends and had reported that incident to the police station. In its reasons for decision the Tribunal indicated that at the hearing it had pointed out to the applicant the inconsistency about why he went to the police. The applicant had responded that the lawyer had made a mistake. (The transcript records that the applicant stated that there was a mix up and that the lawyer misinterpreted some of the statements the applicant made to him). The Tribunal had regard to the fact that the Huri-Laws lawyer was the lawyer who had gone to the police station to organise release of the applicant. In light of that claimed level of involvement, the Tribunal did not consider the inconsistency between the applicant's evidence and that of his lawyer could be satisfactorily explained as merely a mistake.

8. The Tribunal also had regard to the fact that the applicant had stated that while hiding outside Lagos before coming to Australia he had not encountered any harm (although he was in fear) whereas the letter from Huri-Laws stated that after his release from detention the applicant `reported to us of incessant threat to his life and on one occasion an attempted assassination on him by OPC members'. The Tribunal considered these inconsistencies between the applicant's account of events and the letter of support from his lawyer related to central aspects of the applicant's claims and as such raised serious doubts as to the veracity of his claims and the authenticity of the supporting documents. The Tribunal also considered aspects of the claims (as to the use of official channels to circulate his photo so that OPC members who had infiltrated such bodies could identify him) to be implausible based on country information as to hostility between the police and the OPC.

9. The Tribunal noted the claim of the applicant that he would be detected through immigration checks on return to Nigeria but found it anomalous that he chose to exit Nigeria on his own passport after the claimed circulation of his photo to enable the OPC to detect him. The Tribunal also noted that when the applicant departed Nigeria he did so legally and on his own evidence without event. The Tribunal concluded that considered collectively, the inconsistencies and implausibilities outlined led it to reject the applicant's claim that he reported members of the OPC to the police, was detained by the police and that he was now a target of the OPC.

10. The applicant commenced proceedings in the High Court on

24 October 2002. These proceedings were remitted to the Federal Court by consent and then transferred to this Court. In the draft order nisi filed at the commencement of these proceedings the applicant relied on four grounds. It was claimed first that there was a denial of natural justice in that the Tribunal had made a finding as to credit adverse to the applicant without giving him the opportunity to answer the Tribunal's unexpressed concerns. Secondly, there was said to be a jurisdictional error in that the Tribunal had failed to consider the application on its merits assuming the claims made by the applicant to be correct. It was also claimed that there was an error of law in that the Tribunal failed to consider properly the relevant legal principles relating to "credit_"_ in refugee cases and that the Tribunal had failed to apply the relevant principles in the decision of MIEA and Wu Shang Ling [7 March 1996] (I take this to be a reference to MIEA v Wu Shan Liang [1996] HCA 6; (1998) 185 CLR 259). The applicant, who is self-represented, also raised a number of other matters in oral submissions before the Court.

11. It was submitted that there was a denial of natural justice in that the Tribunal made adverse credit findings without giving the applicant the opportunity to answer the Tribunal's unexpressed concerns. It is not necessary for the Tribunal to the warn the applicant that he may not be believed although in fact this occurred in this instance. The transcript of the Tribunal hearing makes it clear that at the conclusion of the hearing the Tribunal member indicated to the applicant that she had not formed a definite view, would note what she had been told in terms of accepting his stories and then look at whether or not there was protection in the event that she accepted all the things he said had happened to him. It is also apparent from the transcript that in the course of the hearing the Tribunal raised with the applicant the discrepancy between his account that he was an eye witness to the fight between the OPC and the traders and the statement in the supporting letter from his lawyer that he was an eye witness to the killing of the tenant. The Tribunal drew to the attention of the applicant to the critical issues in the hearing to (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587 per Mason J and Abebe and Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ). No error in this respect is established.

12. The claim that the Tribunal failed to consider the application on its merits does not established jurisdictional error. The complaint is, in essence, that the Tribunal did not accept the claims made by the applicant. However the Tribunal's findings that the applicant was not credible and that his claims were untrue are matters of fact for the Tribunal par excellence (Re MIMIA; Ex parte Durairajasingham (2001) 68 ALR 407 at [67] per McHugh J). So long as the Tribunal's credibility findings were open to it no error is demonstrated in such conclusions (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-559 and W14H/00A v MIMA [2001] FCA 679; (2001) 185 ALR 703 at [64] - [69] per Tamberlin and R D Nicholson JJ).

13. Apart from complaining about the Tribunal's failure to accept his explanation in certain respects (for example in relation to the inconsistencies between his evidence the account given in his lawyer's letter as simply being a mistake on the part of the lawyer), the applicant complained that in assessing his credibility and in considering his claims generally the Tribunal failed to take into account country information which was corroborative of his claims. It is necessary to consider separately the country information which was submitted by the applicant up to 16 August 2002 and the further information submitted on 2 September 2002 and received by the Tribunal on 3 September 2002. The former material included three volumes of press clippings prepared for the applicant by the Media Research Documentary Library in Lagos together with a supporting covering letter. The material dealt with security in Nigeria and issues such as ethnic violence, the OPC and the police and included press clippings relating to corruption, extortion, detention, brutality, extrajudicial killings and other matters. The applicant claimed that such material was consistent with his account of circumstances in Nigeria, in particular the role of the OPC and the powerlessness of police and the ability of the police to retain people indefinitely. The existence of such material and the fact that the applicant provided it to the Tribunal does not establish jurisdictional error. The Tribunal had regard to applicant's claims in relation to the position of the OPC and of the police. However it did not accept that the applicant had any role in the events that occurred at the Alaba International market in Lagos between OPC members and traders on or around 14 July 2000. It did not accept this claim because it considered the applicant was not credible in key aspects of his claim. It did not, in particular, accept that he had reported members of the OPC to the police and was detained by the police and that he was now a target of the OPC. As the Tribunal did not accept these claims, the fact that the applicant provided country information that in general supported his view that the police were inefficient or that the OPC was powerful does not establish jurisdictional error in the Tribunal decision. Furthermore, insofar as there was conflicting independent country information, the weight to be attached to any particular evidence was a matter for the Tribunal. It is not necessary for the Tribunal to deal expressly with every item of evidence before it.

14. The information submitted by the applicant's migration agent by letter of 2 September 2002 raises different issues. First it is relevant that at the conclusion of the Tribunal hearing conducted on 25 July 2002 the Tribunal member advised the applicant that she would not be writing the decision instantly and if he came across any material he would like to submit in the next couple of weeks, he should feel free to do so. The applicant submitted further material on 16 August 2002 as well as on 2 September 2002. It is apparent from the Tribunal reasons for decision that the Tribunal decision was made on 29 August 2002 but was not handed down until 19 September 2002. An issue therefore arises as to whether or not the material received by the Tribunal on 3 September 2002 (that being after the decision was signed but before the decision was handed down) had to be, and if so was, given any consideration by the Tribunal. It is well established that the Tribunal is not functus officio until its decision is handed down (see Semunigus v MIMA [2000] FCA 240; (2000) 96 FCR 533, Singh v MIMA [2001] FCA 73; (2001) 109 FCR 18 and Applicant V346/ 2002 v MIMA (2001) 111 FCR 5036). The document from the Refugee Tribunal file headed `Material Received after Signing of Decision' is relevant. This document, which bears identifying details of the file in question, stated that material at folios 348-353 was referred for the consideration of the member. It bears a signature in the name of the Tribunal member and indicates that such material had been considered but it had been decided not to recall the decision as "Newspaper articles considered but do not change the decision". Consistent with this document there is no reference in the Tribunal decision to the material received on 3 September 2002. These circumstances do not establish that Tribunal regarded itself as functus officio at anytime prior to the handing down of its decision. This is not a case where the Tribunal considered it had no power to consider the applicant's case after the signing of the decision. Nor is it a case where material was inadvertently overlooked or withheld by Tribunal staff from the presiding member with the consequence that she was unaware of it. It has not been suggested nor is it apparent that the presiding member was unaware of or failed to receive the submitted material. Rather the Tribunal member considered the material in the submission of 2 September 2002 but decided not to recall the decision. The respondent argues that such consideration by the Tribunal met its obligation to consider whether it would receive material submitted after the decision was made but before it was handed down relevant to the issues it was required to determine (cf Singh at 33). However this does not dispose of the applicant's complaint in relation to this material.

15. The complaint in essence is that the Tribunal failed to have regard to the article from the Daily Times newspaper of 30 August 2002 headed "FG advised on sustainable peace' which described remarks by the liaison officer of the Alaba International Market Association to journalists that a person named in the article (the name being the same as that of the applicant) still had death threats `hanging on his neck' and provided an account of the activities of a person with the name of the applicant consistent with the account that the applicant gave to the Tribunal. Moreover the article contains the further element that, according to the liaison officer, the applicant's father and wife complained to him on 2 August 2002 that OPC militants had questioned and assaulted the applicant's wife. This article is thus significantly different from the other newspaper articles submitted by the applicant in that it is said to relate to him and it expands upon his claims. It is not simply general country information. It is material specifically purporting to relate to the applicant and his situation and the continuation of his claimed fear of persecution. It is material supportive of the applicant's claims. The material involves an additional claim not only that the applicant continues to be pursued actively by OPC militants but also that his wife had recently been approached and assaulted by OPC militants in pursuit of him. Taken as a whole the applicant's claims to the Tribunal include not only claims as to what occurred to him while in Nigeria but also claims that he and his family continue to be pursued by the OPC. The fact that the claims were made by submission of a newspaper article rather than by direct claim by the applicant to the Tribunal does not mean that such claims were not raised clearly and sufficiently. (See SCAT v MIMIA [2003] FCAFC 80 at [19] - [24]). The letter accompanying the press clippings makes a link between the article and the applicant himself. The newspaper article related to central elements of the applicant's claims and was relevant to a proper assessment of his case.

16. The applicant claims that the Tribunal did not have regard to this material. This raises an issue as to whether the Tribunal failed to have regard to relevant considerations. While it has been described as `trite' (SCAT at [26]), the Tribunal's obligation to come to what it considers the correct or preferable decision on all the material before it is of significance. As the Full Court said in SCAT at [26] `It is implicit in that task that the Tribunal should carefully attend to such material'. Gray J suggested, in X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 56 at [24], that the Tribunal has an obligation to look at material provided until the time it makes it decision to determine the relevance and weight of that material. In this case the only evidence that the Tribunal did so is the file note headed `Material Received After Signing of Decision'. There is no discussion in the Tribunal reasons for decision of the relevance or lack of relevance of the material submitted on 2 September 2002. The Tribunal did consider whether to recall its decision, but the material before the Court gives no indication that it made any findings as part of the decision making process on any material questions of fact raised by that material and evidence (cf Thevendram v Minister for Multicultural Affairs [1999] FCA 182 at 37). Given that the Tribunal does not become functus officio until it has handed down the decision, if it receives any material up to that time it is obliged to consider it (X v Minister for Immigration and Multicultural Affairs at [23]). If such material raises fresh claims the Tribunal has an obligation to address such claims. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; [1986] 162 CLR 24 at 44 "There may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker".

17. The failure to address the claims made in the Daily News article was not simply silence in the Tribunal reasons for decision as to some of the evidence going to an issue. Rather an issue raised by the material submitted on 2 September 2002 was not addressed. The Tribunal failed to examine all the integers of the applicant's claim (Htun v MIMIA (2001) 194 ALR 244 at 259 per Allsop J). The contemporaneous aspect of the applicant's claims raised by the article should have been addressed by the Tribunal. It failed to do so. The Tribunal form headed `Material Received after Signing of Decision' does not constitute an examination of the fresh aspects of the applicant's claim but rather supports the view that the Tribunal overlooked or misunderstood the specificity of the article and the manner in which it raised fresh claims (as well as corroborated aspects of other claims). The failure to refer to this article was a failure to deal with one of the ingredients or integers of the claim based on events which were claimed to have occurred after the Tribunal hearing but before the time when the decision was handed down. Such claims are considerations made mandatorily relevant by the Migration Act 1958 in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 34 at 39 per Mason J and MIMA v Yusuf [2001] HCA 30; (2001) 180 ALR 1. In determining whether the applicant had a well-founded fear of persecution it was necessary for the Tribunal to consider all the integers of his claims in its decision. The Tribunal failed to deal with a basis for the claimed fear of persecution distinct from other bases. It cannot be said that the Tribunal findings or other elements of the claim necessitated rejection of the claim so far as it depended on this issue (Pojani v MIMA [2002] FCA 1283 at [30]). The decision on credibility was based on a number of factors - but it did not take into account the contemporaneous (not just corroborative) aspect of the applicant's claims based on what was said to have happened to his wife. As Allsop J said in Htun `To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on' (at [42]). There has not simply been a failure by the Tribunal to deal with part of the body of evidence but rather a failure `to address and deal with how the claim was put to it, at least in part' (Allsop J in Htun at [42]) and see Paul v MIMA [2001] FCA 1196 at [79]). By failing to deal with this aspect of the applicant's claim the Tribunal failed to take into account relevant considerations in such a way as to have affected the exercise of its powers. It failed to perform an imperative duty. It thus fell into jurisdictional error (Yusuf at [82] - [84] and SCAT at [30]).

18. It is not for the Court to determine whether such claims would in fact be accepted by the Tribunal. The error that it made is in failing to take into account the contemporaneous aspect of the applicant's claims. No criticism can be made of the applicant for failing to draw such elements of his claim to the attention of the Tribunal prior to the time at which he did so. The report relates to events alleged to have occurred in August 2002 after the Tribunal hearing on the 25 July 2002. It is clear that the applicant drew this material to the attention of the Tribunal as soon as reasonably possible. It may well be the case that, faced with what appeared, on first reading perhaps, to be yet more newspaper articles about the current situation in Nigeria (in addition to the extensive articles provided on 16 August 2002), the Tribunal failed to give close attention to the content of such articles. However the letter dated 31 August 2002 from the Media Research and Documentary Library to the applicant specifically draws attention to the article directed at the applicant. In circumstances where the Tribunal had invited the applicant to make further submissions after the hearing, when the applicant then provided further submissions in the form of a newspaper article relating to his claim (rather than to the general situation in Nigeria) it was incumbent on the Tribunal to at least address the material contained in the particular newspaper article in so far as it effectively made claims as to the ongoing interest of the OPC militants in pursuing the applicant**.** It follows that the decision of the Tribunal should be set aside and the matter remitted to be dealt with according to law. There should be no order as to costs as the applicant is self-represented.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM