NAYU v Minister for Immigration and Multicultural and Indigenous Affairs

NAYU v Minister for Immigration and Multicultural and Indigenous Affairs - [2004] FCAFC 300 - FCAFC 2004 case summary — Zoe

Reasons of the Tribunal: 4 The reasons of the Tribunal are brief and it is convenient to set out the relevant part as follows: 'The Tribunal rejects the applicant's claim that the police in Nigeria were seeking to arrest the applicant prior to the applicant's arrival in Australia. The Tribunal rejects this claim because the Tribunal considers the claim to be lacking substance and unconvincing in the following aspects. The applicant's only basis for believing that the police wish to arrest him is that a friend inside the police force warned him that his name was on a list. In the hearing the applicant was particularly vague as to the nature of this so-called list. The applicant claims that the police started looking for him in April 1999. The applicant arrived in Australia in September 2000. Over this sixteen-month period the applicant was at no point in time actually arrested. The applicant claims that he moved around over this sixteen-month period to avoid arrest. The applicant in the hearing was particularly vague at to where and for what periods of time he was in hiding in different locations. The applicant claims that the police wished to arrest him because he was a financial contributor to MASSOB. When asked in the hearing how the police would know that he was a financial contributor the applicant claims that police agents working inside MASSOB would have informed the police. The Tribunal considers this explanation to be implausible. These points considered collectively ["the collective points reference"] lead the Tribunal to reject the applicant's claim that prior to his arrival in Australia the applicant was been sought by the police in Nigeria. In addition the Tribunal considers it inconsistent that the applicant claims on the one hand to have spent much of his time before coming to Australia moving from one hiding place to another to avoid arrest. On the other hand the applicant then claims to have participated in the flag-raising incident at Aba where MASSOB according to the country information (cited above at page 7) anticipated that there would be a police presence. Taken together these factors lead the Tribunal to reject the applicant's claim that prior to his arrival in Australia the police wished to detain him because of his association with MASSOB. As a logical consequence of rejecting this claim … the Tribunal also rejects the applicant's claim that he faces arrest on his return to Nigeria because of his association with MASSOB. The Tribunal does not accept that the applicant faces persecution because of his racial or political association as suggested by the adviser in the submission dated 16 December 2001. The Tribunal rejects the claim that the applicant faces persecution on return to Nigeria because he has a political profile in terms of a substantial connection with MASSOB. The Tribunal is not convinced that the applicant has a political profile whatsoever. In the hearing when the applicant was asked why the police would wish to arrest him the applicant only stated that he was a financial contributor to MASSOB. The applicant did not suggest that he had any other association with MASSOB. The Tribunal also rejects the claim that the applicant faces persecution because of his race. The Tribunal notes the country information from the UK Home Office (cited above at page 7), which indicates that there is no federal policy of discrimination against any of Nigeria's ethnic groups. The same report also indicates that the Igbo are one of the major ethnic groups and that they are predominant in the south of Nigeria. The Tribunal notes that the applicant stated in the hearing that he was living in Lagos prior to coming to Australia and that he had set up his own business in Lagos in 1987. Given that the applicant lives and works in the southern Nigeria and given that the Igbo is a major not a minor ethnic group in Nigeria the Tribunal rejects the applicant's claim that he faces persecution because he is Igbo. Accordingly the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution on returning to Nigeria.'

[4]

The Application for Review 5 Before the primary judge the appellant, who was self-represented, relied on four grounds. First, the appellant contended that his case was identical to Muin v The Refugee Review Tribunal (2000) 76 ALJR 966 (Muin). The primary judge rejected this ground because the reasoning in Muin depended on the claimant being misled by a communication from the Tribunal, and relying on the communication to his detriment. In this case, the primary judge held that there was no evidence that the appellant was misled or had relied to his detriment on any communication from the Tribunal. 6 Secondly, the appellant contended that the Tribunal had failed to investigate his claim. The primary judge observed that the Tribunal determined the case on an assessment of the truthfulness of the appellant's claims. The Tribunal rejected his evidence as vague and implausible. His Honour then referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 and outlined the circumstances in which a Tribunal might be required to investigate or make further investigations of a claim. His Honour determined that those circumstances did not exist in this case. 7 Third, the appellant contended that there had been a breach of s 418(3) of the Migration Act 1958 (Cth) (the Act). This section requires the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (the Department) to forward to the Registrar of the Tribunal any document in the possession or control of the secretary and considered by the secretary to be relevant to the review of the decision. The primary judge rejected the challenge because, on the authority of Muin, even if there had been a breach of s 418(3), the appellant would not be entitled to relief, and in any event, there was no evidence to establish that the documents had not been forwarded. 8 Fourth, the appellant contended that the Tribunal had failed to provide country information relied on by it in breach of s 424A. That section relevantly provides:- '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 9 The Tribunal relied upon a Reuters article dated 23 May 2000, which it concluded indicated that MASSOB anticipated that there would be a police presence at the flag raising rally, and on information from the UK Home Office to the effect that there was no federal policy of discrimination directed against Nigerian ethnic groups. 10 The primary judge held that this latter information was within the exception provided in s 424A(3)(a). The information was not about the appellant, and was just about a class of persons of which the appellant was a member. In relation to the first piece of information, his Honour discussed several possibly inconsistent authorities on whether such information fell within the exception. In the end, the primary judge did not need to resolve any possible inconsistency because he held that a breach of s 424A does not attract relief where there has been no disadvantage to the appellant. In this case, there was no disadvantage to the appellant because the conclusion that there was an inconsistency between the appellant's action and his attendance at the flag raising rally was only a supplementary reason for rejecting the appellant's claim that the police wanted to detain him. Further, the article was referred to in the delegate's decision, and hence, was brought to the attention of the appellant. His Honour considered that the failure to comply with s 424A(2) alone did not necessarily give rise to jurisdictional error.

[5]

Grounds of Appeal 11 The grounds of appeal referred to in the notice of appeal are formulaic and un-particularised. They refer to breaches of s 424A(1) and s 418(3) of the Act and failure to accord procedural fairness. The notice of appeal is filed by the appellant. He also filed written submissions which, although signed by the appellant, bear the clear imprint of assistance from a lawyer. If that be so the identity of the lawyer should have been disclosed to the Court: NADG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 893 at 8-11. 12 The submissions are not helpful in identifying any alleged errors made by the primary judge. Much of the submission repeats the four arguments which were dealt with by the primary judge. But even in this respect the submission does not particularise or explain the basis of the alleged error. 13 To the extent that the submissions raise these arguments they do not disclose any error on the part of the primary judge. We agree that each of the arguments was properly rejected by the primary judge and, with one reservation, for the reasons he gave. 14 Our reservation relates to the s 424A argument concerning country information about the anticipated presence of the police at the flag raising ceremony. We agree with the primary judge's conclusion that, if there was a failure to comply with s 424A(1), the appellant suffered no disadvantage as a result. It is not clear beyond doubt that the anticipated presence of police at the flag raising rally was, as the primary judge held, a supplementary reason for rejecting the appellant's claim that the police were seeking to detain him. His Honour relied on the collective points reference (see paragraph 4 of these reasons) made by the Tribunal. However, in the paragraph following the collective points reference the Tribunal dealt with the evidence of the flag raising rally as an additional factor. Then, it opened the next paragraph with the words "taken together these factors lead the Tribunal to reject the applicant's claim" that the police wish to detain him. This sentence suggests that the flag raising rally evidence was part of the reason for the rejection of the appellant's claim. But even if that were so, and there was a breach of s 424A, the appellant suffered no disadvantage because the appellant provided material to the Tribunal to the same effect, including a Newswatch article dated May 29 2000 which included the following: 'The much publicised re-declaration of the defunct Republic of Biafra by the Movement for the Actualisation of the Sovereign State of Biafra, MASSOB, comes up this Saturday, May 27. The event is scheduled to hold in a yet-to-be named Igbo state in the South-East. The group has released a detailed programme of the event but Newswatch found last week that the odds against the group and its leader, Ralph Uwazurike are many. Security agencies have mounted surveillance in Lagos and all the Eastern states to stop the declaration. The police have also formally declared Uwazurike wanted. He went underground to avoid arrest. His deputy, A.B. Onuegbu denied that Uwazurike went underground. He told Newswatch last week at the head quarters of the group in Agunlejika near Ijesha, Lagos, that no member of MASSOB needed to fear arrest. "We are a legal organisation, committed to achieving our objectives through non-violent means. So why must we be arrested?" he asked. He insisted that their programme for May 27 would go ahead inspite of security threats from government.' It may be that the provision of the same information by the appellant in another document brought the Reuters article within the exception in s 424A(3)(b). 15 Further, there is reference to the UK Home Office report in the submission of the appellant's migration agent provided to the Tribunal before the hearing. Thus, the appellant, through his migration agent, had a copy of the information before the hearing. 16 The appellant's submission states in various places that the Tribunal was affected by actual bias. This allegation is not particularised. It seems to be based on no more than the fact that the Tribunal rejected the appellant's claims. There is also an assertion that the decision of the Tribunal was so unreasonable that a reasonable Tribunal could not have arrived at it. Neither ground was raised before the primary judge. The respondent objected to the appellant arguing these additional grounds on the appeal. As these grounds are entirely without foundation, it would serve no purpose to give the appellant leave to pursue them. 17 Finally, the appellant attached to his submissions a number of articles and documents concerning the recent activities of MASSOB. All but possibly one of these articles post-date the Tribunal's hearing and are irrelevant to any issue raised on the appeal. The remaining article was undated and was not before the Tribunal. It cannot bear on the question whether the primary judge erred in his consideration of the Tribunal's decision. In these circumstances the Court does not take these documents into account in determining the appeal. 18 For these reasons, the appeal must be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

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