Promise Dike v Minister for Immigration & Multicultural Affairs

legislative framework 5 Section 36 of the Act provides: (1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 6 Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Protection obligations arise in relation to a person who falls within the definition of "refugee" in the Convention as amended by the Protocol (collectively, "the Convention"). A refugee is defined in Article 1A(2) of the Convention as any person who: 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 … .

applicant's protection visa application 7 In a statutory declaration that accompanied his protection visa application, Mr Promise Dike claimed that he was born "in the village of Bane, in Ken Khane, Ogoni, Rivers State, Nigeria". He further declared that: Since oil was discovered in Ogoni in 1958, the people of Ogoni have protested to protect our lands. … In 1993, during one of the protests in Kaa village, an Ogoni woman was shot in the arm, while protesting, by the Government. … In another incident a man was killed in April 1993 by the government's soldiers during a protest over the laying of pipe-lines. … My family were often involved in the protests. The operations of the oil companies affected all of the Ogoni people and everyone was involved in the fight to protect Ogoni land. On 4 January 1993 there was a massive demonstration against the government to stop the oil companies. This was led by Ken Sara-Wiwa. My whole family were attending this demonstration. … In May 1994, four prominent Ogoni sons were killed during mob violence in Bori. The mob were suspected to be undercover security forces who were sent by the government to deliberately incite violence to justify the Government's entry into Ogoni. … The army descended on Ogoni land on May 21st 1994 following the deaths of the four Ogoni sons. From May until the end of June, the Government security forces would come in the early morning hours and knock on people's doors, arresting adults, children, raping young girls and housewives and shooting those who resisted without showing any remorse. They combed the whole area, burning down houses and using powerful explosives. They arrested up to six hundred people and killed approximately forty. There was no discrimination between the Ogoni people who were arrested. In the eyes of the Government, all Ogoni people were their enemies. … The people who were arrested were taken off to vicious secret detention camps. In May 1994, my father and I were arrested in the sweeps of the homes of the Ogoni people. About three soldiers came to our house. My father and I struggled with them while my mother, sisters and younger brother managed to escape and run off into the bush. … I was held in [a] detention centre until I escaped in November 1996. 8 The conditions in the detention centre were, according to the applicant, very bad, and his father died there. The applicant described his escape in the following terms: In mid November 1996, one of the detention guards took pity on me after hearing of my father's death and my age. … I asked him for his help, appealing to the tradition of family. Family sons were very important in Nigeria because they carry on the family name. I knew the guard would understand this. He was generous and helped me escape from the camp. At midnight in November he opened my cell door. … Once I was outside my cell, I was supposed to climb the wall of the compound. We did not have any money to bribe the other guard to turn a blind eye so I had to go over the wall where I found a car waiting to me. The guard took me to his house in Port Harcourt. … With the help of his relatives, he obtained a passport and an airline ticket for me. The passport was Nigerian bearing a fake name but it was later altered so that it had my photograph on it. The passport was in fact a genuine passport of a real person. It belonged to a relative of the guard who helped me. That person was a businessman. 9 According to the applicant, he travelled from Port Harcourt to Lagos by bus, and then to Hong Kong by air. On the third day after his arrival in Hong Kong, he could bear his hunger no longer and approached a restaurant for food. The applicant continued: As my feet could hardly carry me, I walked into a nearby restaurant and, before I could approach the counter, I collapsed. Before I knew what was happening I found myself in the hands of a white man who would have been in his early forties and made me sit opposite him. He offered me water and juice to drink to bring me back to life. He asked me what was wrong with me. … He took pity on me and bought me food to eat and then offered to help me and I replied that I would be very happy if he could. He took me to the hotel room where he was staying. He was a businessman from Australia who was in Hong Kong on a business trip for six days. … He told me that he would take me to a place where I would be taken care of and safe for the rest of my life. He asked me for my passport which I gave to him and reminded him that it bore a false name purposefully so as to get me out of Nigeria so that I would not rot away in an illegal detention centre or be killed. The Australian businessman told me not to worry as he was taking me to his country. During the last days of his trip he took me to a photographer to have my passport photo taken. Later in the day he came back with a South African passport. … He told me that we would travel to New Zealand where he had business. … From New Zealand, he told me that I would be travelling to Australia. On the third week of November, we travelled to New Zealand and stayed in the home of a family friend of the Australian. … 10 The applicant stated that he travelled by air to Sydney on a Qantas airlines ticket that had been paid for by the Australian businessman. The applicant said: Once inside Australia, … he took my passport away from me. He told me that he destroyed it. He told me that his business was situated in Australia but that his family lived in a place called Melbourne. In return for all of his kindness, the Australian businessman asked me to protect his identity. … Going back to Nigeria will be like signing one's death warrant because the government have an agenda which is in operation to wipe out the Ogoni people who carry out the activities of the MOSOP [Movement for the Survival of Ogoni People] who ask for the legitimate rights of the Ogoni people living in an oil rich area to demand the royalties and compensation from the Shell Oil Company. 11 The respondent's Department subsequently raised concerns about the veracity of the applicant's account of his flight from Nigeria to Hong Kong and from Hong Kong to Australia, and concerning his credibility generally. The Refugee Advice and Casework Service (Australia) Inc ("the RACS") sought to meet these concerns by a letter dated 7 August 1997, addressed to the Department. The letter stated that the applicant would not provide the names or other details of the individuals who had assisted him because he did not wish to implicate them in unlawful activities. 12 The RACS provided a further submission to the Department dated 7 April 1998. The RACS stated: Whilst the applicant's identity is legitimately in issue as the applicant arrived in Australia on a false passport, the central issue in the case is what persecution the applicant would face in Nigeria as an Ogoni involved in anti-government protests in 1994 and detained from May 1994 until November 1996. The essential character of a refugee applicant's claims seems often to be obscured or forgotten in the hunt for the facilitators of false passports. If the enquiries made by the Department have been fruitless, we would urge the Department to concentrate on the country information as to the treatment of politically active Ogoni in Nigeria. The submission referred to the Human Rights Watch reports on Nigeria of September 1996 ("Nigeria: Permanent Transition: current violations of human rights in Nigeria") and October 1997 ("Nigeria: Transition or Travesty: Nigeria's endless process of return to Civilian rule"); and the 1997 US Department of State report on human rights practices in Nigeria. The submission further advised that the applicant's brother, Mr Nick Dike, had arrived in Australia and had also made a protection visa application. The submission stated that "[i]t was RACS that put the two brothers in contact with each other". 13 In a submission dated 1 September 1998, the Refugee and Immigration Legal Centre Inc ("the RILC") responded, on behalf of the applicant and Mr Nick Dike, to issues arising out of an interview with the Department on 19 August 1998, including the issue of their identities as Nigerian nationals of Ogoni ethnicity. Under the heading, "Claim that both applicants have previously suffered mistreatment amounting to persecution", the RILC submitted that the claims were consistent with the country information, and set out extracts from a number of sources concerning the treatment of Ogoni people in Nigeria. 14 On 12 January 1999, the RILC provided the Tribunal (to whom the applicant had by then made a review application) with a further statutory declaration dated 11 January 1999 by Mr Promise Dike concerning his Ogoni ethnicity. Mr Dike declared: I have explained previously why I understand only a few words of the Ogonis language. This was due to the fact that I was raised in the Oyibo province as the Biafran Nigerian civil war had resulted in my parents having to flee their homes. The war internally displaced many Ogonis people. Many Ogonis people who fled during the civil war, never returned to Ogonis land. However some did, including my parents however by the time they returned, I was enrolled and studying at a boarding school where I was educated only in the Ibo language. The few words of Ogonis that I know I have picked up from my parents, friends or family members. All the significant people in my life, including my parents, other family members, friends and extended family all communicated primarily Ibo. 15 On 21 January 1999, the RILC forwarded a medical report on Mr Promise Dike from a general practitioner by the name of Dr Janne Randall, and a psychiatric report on Mr Dike by Dr N Mahalingam. Dr Mahalingam diagnosed post traumatic stress disorder. 16 Following the Tribunal hearing on 22 January 1999, the RILC provided a further lengthy submission to the Tribunal dated 12 March 1999. The submission, consisting of some thirty-nine pages, discussed in detail the treatment by the Department and the Tribunal of adverse information regarding the existence of a Ghanaian passport in Mr Promise Dike's name; Mr Dike's Ogoni ethnicity; his detention in Nigeria (and his evidence, medical evidence and country information on the issue); his escape from detention and his mode of travel to Australia; general issues relating to credibility; and, finally, whether Mr Dike had a well-founded fear of persecution in Nigeria, including the possibility of his relocation to another part of Nigeria. 17 Amongst other things, the RILC submitted that "in the case of Nigerian passports in particular, one cannot assume that the person holding the passport and the person using the passport, are one and the same". In this connection, it referred to a recent report on corruption in Nigeria involving passports and border controls. The submission also responded to the Tribunal's doubts regarding the duration of the applicant's detention. The RILC submitted that "neither Amnesty International nor other credible NGO and human rights agencies are able to keep track of or receive reports regarding the plight of low profile political prisoners". Reference was made to the 1998 Amnesty International World Report, and the 1998 US Department of State Report on human rights practices in Nigeria.

reasons for the tribunal's decision 18 After describing the applicable legal regime in terms familiar to this Court, the Tribunal turned to the applicant's "Claims and Evidence". It began by stating: The applicant's claims are set out in written submissions to the Department, an interview with officers of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on Friday, 22 January 1999. In the course of its discussion, the Tribunal specifically referred to evidence given by Mr Promise Dike to the Department at an interview on 8 July 1997, during a telephone conversation on 30 July 1998, and at a second interview on 19 August 1998. It also referred to the post-interview submission of 1 September 1998. The Tribunal discussed Mr Dike's statutory declaration received on 12 January 1999, the reports from Drs Randall and Mahalingam, Mr Dike's evidence at the hearing on 22 January 1999, and the post-hearing submission received by the Tribunal on 15 March 1999. 19 Turning to its "Findings and Reasons", the Tribunal first addressed "Credibility Issues". After a general discussion of the law regarding credibility findings by the Tribunal, the Tribunal stated its finding that Mr Promise Dike had not grown up in Ogoniland. It explained its finding in the following terms: The applicant cannot speak any of the four dialects spoken by Ogonis in particular the Khana dialect. The Tribunal does not accept the applicant's explanation for his failure to speak Khana. The applicant claimed that his parents both spoke Khana and that they communicated with each other in Khana. He has given two different explanations as to the reasons why he cannot speak Khana. In the telephone conversation with the delegate and post interview submission dated 1 September 1998 he said that he returned to his parents when he was 5-6 after staying with an Ibu family but later in submission to the Tribunal and at evidence in the hearing he confirmed his parents were with him when he was living with the Ibu family. In both versions his explanation for failing to speak Khana was that he was young when he moved from Ogoniland. However his parents communicated with each other in Khana. Given his parents were speaking Khana in front of him when they communicated with each other the Tribunal would expect him to pick up some Khana with which he could communicate even if the main language he spoke to his parents in was Pidgin English (and the Tribunal finds it implausible that he would communicate with his parents who he lived with up until the age of 6 in Pidgin English). At the hearing the applicant claimed his family communicated in Ibu. When he started primary school he returned to Ogoniland which would have given another opportunity to acquire some of the local dialect. Even if it was not formally spoken at school the students would have spoken the local dialect outside of school and the applicant's brother could speak Khana. Further the Tribunal has doubts about the applicant's explanation for the move from Ogoniland which was the Biafran war due to the fact this war was over when he was born in August 1971. The ceasefire was in January 1970 which further makes his explanation for failing to speak Khana implausible. The Tribunal places little weight on the material in the applicant's statutory declaration where he outlines some of the Ogoni customs. These are very general matters provided after he has been in Australia for a period of time and after he knew there was a doubt about his identity as an Ogoni. The applicant's adviser has submitted that the applicant was not in a position to conduct research as he is computer illiterate and the information the applicant provided was not available in books. However the Tribunal finds that the information could have been acquired from discussions with Ogonis since his arrival in Australia or other sources such as magazines. Knowing this information does not establish he grew up in Ogoniland. 20 The Tribunal found that, even if Promise and Nick Dike were biological brothers, "they have not had a shared childhood nor grown up together". The Tribunal based this finding "on their inability to describe their childhood experiences, their lack of knowledge of each others schooling, the contradictions between their accounts as to their and their family's involvement in MOSOP and their differing explanations as to how school enrolments are determined". The Tribunal also referred to the fact that Mr Nick Dike could speak an Ogoni dialect whilst the applicant, Mr Promise Dike, could not. 21 The Tribunal found that Mr Promise Dike had not "been involved in demonstrations organised by MOSOP to the extent claimed" although "he may have attended a mass demonstration". The Tribunal did not accept that Mr Promise Dike was arrested and imprisoned for two and a half years as he claimed. After referring to 1995 and 1996 reports on Nigeria by Amnesty International, the Tribunal concluded that the applicant's account was inconsistent with the country information before it "as to the detention of low profile Ogonis". The Tribunal stated: The Tribunal could find no reports of low profile Ogonis being held for extended [periods]. The Tribunal accepts that low profile Ogonis could be arbitrarily arrested in the context of mass demonstrations but not that they would be detained for lengthy periods as the applicant has claimed. The Tribunal has considered the adviser's submission that low profile people are simply forgotten about and were only released after payment of a bribe. Firstly the applicant has given an inconsistent account as to whether it was possible to be released by payment of bribes … . Further the Amnesty reports appear comprehensive and there are no indications in their reports that low profile people are missing or have failed to be released which the Tribunal would expect if people who could not pay bribes remained detained for lengthy periods of time. Therefore the Tribunal does not accept the adviser's assertion. 22 The Tribunal noted "discrepancies in the applicant's accounts of the life in the camp" and "material … that suggests that at the time the applicant claims he was detained he was in fact travelling in the South East Asian region" and concluded: Due to the large number of discrepancies and overall implausibility of his account the Tribunal is unable to determine and is left in doubt as to whether there was a police raid on the applicant's home as described by the applicant that caused his family to flee or what the fate of his father was. Due to the Tribunal's finding as to the applicant's account of his own imprisonment it finds the applicant was not imprisoned with his father as claimed or that his father died as a consequence of detention. 23 The Tribunal found that the applicant's account of his escape from detention was "farfetched and fanciful". The Tribunal accepted that "it may not be unreasonable for a Nigerian prison guard to assist a prisoner escape for altruistic motives but the Tribunal finds that the extent of the help provided by the guard raises a number of difficulties". The Tribunal pointed out, amongst other things, that: Not only was there no gain for the guard but he also paid the applicant's airfare which would have been in the order of $5000, which the Tribunal believes is a substantial sum for a guard, particularly a guard who was at risk of disciplinary action because of the escape. The Tribunal concluded that the applicant had "fabricated an account of his escape from prison and from Nigeria". 24 Similarly, the Tribunal did not accept "the applicant's account of his experiences in Hong Kong", including his claim to have met an Australian businessman who felt sorry for him. In relation to the coincidences between the accounts of Promise and Nick Dike, the Tribunal stated: The Tribunal accepts that coincidences do occur in life but finds that in the applicant's account the coincidences with [Mr Nick Dike] are so many that his account is not believable. … The applicant was on two occasions able to meet fortuitously, total strangers who were willing to provide him with assistance at a detriment to themselves and out of all proportion to the circumstances. When the applicant's claims are compared to [Mr Nick Dike] the numerous coincidences and parallels between their two supposedly independent escapes from Nigeria become apparent. Both travelled from Nigeria to an intervening country on a photo-substituted Nigerian passport. In both cases the airfare was paid by someone else as an act of kindness. Both travelled from the intervening country to New Zealand on a South African passport which was not photo-substituted but in which the photograph of the real holder looked similar enough to the respective applicant to enable them to clear immigration. They both travelled as a result of a benevolent act of someone else. Both went via New Zealand to Australia, incurring additional expense to the person who was benevolently paying their airfare. Both independently came to Australia rather than escaping to some other country. Not only did they both travel to Australia they both ended up in Melbourne despite the applicant arriving in Sydney and [Mr Nick Dike] arriving in Melbourne. They both consulted the same advisers where they were re-united. The Tribunal finds that the sum of these coincidences indicates they have fabricated a claim for refugee status. 25 The Tribunal referred to information "from a reliable official source" that "someone travelling on a passport in the name Promise Odene Dike with the same date of birth as the applicant was travelling in South East Asia at the time [the applicant] claimed he was detained in Nigeria". The Tribunal stated: [I]n the Tribunal's view the coincidence is too great and the Tribunal finds that the applicant has travelled in South East Asia at a time he alleges he was in custody in Nigeria. After referring to procedural fairness issues, the Tribunal turned to the medical evidence. It accepted that Mr Promise Dike might have had traumatic experiences that resulted in post traumatic stress disorder, but found that it was "not the torture in custody that has resulted in this condition". 26 Turning to the "Substantive claims", the Tribunal said: Given the credibility findings outlined above the Tribunal is left to consider whether someone who: has not grown up in Ogoniland, does not speak an Ogoni dialect, who may have played a minor role in MOSOP demonstrations and who has never been arrested or detained is at risk, if he returns to Nigeria. The Tribunal finds that someone with this profile would not be at risk if they returned to Nigeria and refers to the country material cited … . Having rejected the applicant's claim that he had been persecuted in the past, the Tribunal did not consider whether there had been any substantial change in Nigeria. Instead, the Tribunal turned its mind to the question "whether there is a real chance that [the applicant] will be persecuted for being a young Ogoni male". 27 After referring to Amnesty International reports, Human Rights World reports and a Human Rights Watch report, the Tribunal stated that whilst they indicated that "Nigeria has an appalling human rights record and that demonstrations are violently suppressed", they also indicated that "it is activists who are targeted by the security forces". Mr Promise Dike, so the Tribunal found, did not fit this profile. Referring to the country information provided by Mr Dike's adviser, the Tribunal found that the material did not support "the submission that young Ogoni men are at risk of persecution for being young Ogoni men". The Tribunal did not accept "even on the information provided by the adviser, that there is a real chance that the applicant will be persecuted for being a young Ogoni male now or in the reasonably foreseeable future …". The Tribunal found that the applicant did not fall "into any of the categories of Ogonis who are at risk from the authorities and finds that being a young Ogoni male would not result in the applicant being imputed with an adverse political opinion". The Tribunal concluded that the applicant did not have a well-founded fear of persecution "for being a young Ogoni male" or "for merely being Ogoni". 28 Finally, the Tribunal stated that: Even if the applicant was at risk of persecution within Ogoniland the Tribunal finds that he would be able to relocate and it would be reasonable for him to do so. 29 The Tribunal concluded that, "[h]aving considered the evidence as a whole", it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. grounds of review 30 By his application in this Court, the applicant sought review of the Tribunal's decision on all the grounds set out in s 476(1) of the Act other than s 476(1)(f). Some grounds were abandoned in written contentions filed on 23 April 2001. At the hearing, the applicant relied on pars 476(1)(a), (e) and (g). 31 The applicant's primary submission was that the Tribunal failed to have regard (as it was bound to do) to the following matters: (1) Report dated 18 January 199 from Dr Mahalingam; (2) Letter dated 24 January 1997 from the RACS to the Department with its attachments (namely, the applicant's 24 January 1997 statutory declaration and his Form 866 protection visa application); (3) Letter dated 7 August 1997 from the RACS to the Department; (4) Article in "The Australian" newspaper, "Nigeria Backs Civilian Rule", appearing on 4 July 1997; (5) Letter dated 7 April 1998 from the RACS to the Department; (6) Letter dated 1 September 1998 from the RILC to the Department; (7) Letter dated 12 March 1999 from the RILC to the Tribunal; (8) DFAT answers to MOSOP questions; (9) Report by Roslyn Leary; (10)The applicant's statutory declaration of 11 January 1999; (11)Letter dated 11 January 1999 from the RILC to the Tribunal; and (12)The testimony of Mr Nick Dike. 32 At the hearing in this Court, the applicant's counsel referred to some other matters, including country information. Further, he relied on aspects of his s 430 submissions in connection with his submissions on jurisdictional error. 33 The applicant submitted that the Tribunal's failure amounted to jurisdictional error, because it had failed to take into account relevant material. He also submitted that, by not taking into account these matters, there was a failure to review the decision of the respondent's delegate as required by s 414(1) of the Act, and a failure to comply with ss 54 and 57 as required by s 415(1) of the Act. The applicant submitted that the Tribunal erred in law in failing "to deal separately with the issues of relocation to the country of [the] applicant's nationality and persecution in that country", and by failing to address the situation likely to face the applicant upon his return to Nigeria. Referring to s 476(1)(g) and s 476(4) of the Act, the applicant further submitted that: The Tribunal made findings of fact upon which its conclusions as to credibility of the applicant were made when those facts did not exist. The applicant made further submissions in its written contentions. I shall mention these below.

was there any reviewable error? Jurisdictional error 34 The applicant contended that his primary submission was supported by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. In a joint judgment, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held that pars 476(1)(b), (c) and (e) permitted an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error. 35 At common law, the term "jurisdictional error" covers a number of kinds of error, including ignoring relevant material. In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court said: At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. … If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. A failure to take account of a relevant consideration will only constitute a reviewable error, however, if the consideration was one that a decision-maker was bound to take into account. 36 After noting that the limitation in s 476(3) of the Act applied to only s 476(1)(d), the joint judgment in Yusuf stated at [83]-[84]: [T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers'. If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision he or she made, and the decision 'was not authorised' by the Act. Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. … No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts as it found. If that is so, the ground in s 476(1)(e) is made out. 37 In a separate concurring judgment, the Chief Justice said at [4]: As McHugh, Gummow and Hayne JJ point out, a failure by the tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the tribunal's decision, either in the Federal Court or in this court, quite apart from whatever consequences it may have under s 476(1)(a). 38 Although Gaudron J differed from the majority on the outcome of Ms Yusuf's application, her Honour's analysis of the relationship of the relevant statutory provisions and the common law concept of "jurisdictional error" was similar to that of the joint judgment. See 180 ALR 1 at [38]-[44]. 39 There may be numerous matters that a decision-maker may take into account (and that are not in law irrelevant), although the decision-maker would not be bound at law to take them into account. The position is best explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39. His Honour said at 39-40: What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (Citations omitted). 40 The relevant consideration ground, as it is understood at common law, does not permit inquiry into the merits of the administrative decision under review. As Mason J added in Peko-Wallsend at 40-41: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … . (Citations omitted). 41 It is unnecessary in this case to explore further the nature of the relevant consideration ground. The applicant has not shown that the Tribunal failed to take into account the matters to which it referred. (1) Report dated 18 January 1999 from Dr Mahalingam 42 As already indicated, the Tribunal specifically referred to Dr Mahalingam's report when it discussed the applicant's claims and evidence. It also considered the evidence constituted by the report in its "Findings and Reasons". The applicant's submission that Dr Mahalingam's report was not taken into account must be rejected. Questions of weight and cogency of evidence are matters for the Tribunal. (2) Letter dated 24 January 1997 from the RACS to the Department with its attachments (namely, the applicant's 24 January 1997 statutory declaration and his Form 866 protection visa application) 43 Under the heading "Claims and Evidence", the Tribunal summarised the matters contained in the applicant's 24 January 1997 statutory declaration and in his Form 866 application. Much of its "Findings and Reasons" concerned the matters contained in this summary. The applicant's submission that the letter and, more importantly, its attachments were not taken into account must fail. The applicant submitted that the Tribunal cannot have had regard to this material, when it stated that it "would expect" the applicant "to pick up some Khana with which he could communicate …". I reject that submission. It was open to the Tribunal to take this view. Evidentiary matters of this kind, relating to cogency and weight, are matters for the Tribunal. The applicant also submitted that the Tribunal failed to take account of his knowledge of Ogoni customs. This was, however, specifically considered by the Tribunal. As already noted, for the reasons given by the Tribunal, the Tribunal chose to give this consideration "little weight". This assessment was open to it, and was entirely a matter for it. (3) Letter dated 7 August 1997 from the RACS to the Department 44 The applicant's submission that the Tribunal failed to take account of the submissions outlined in the RACS letter of 7 August 1997 must also fail. As already noted, the Tribunal observed that the applicant had set out his claims in written submissions. In its "Findings and Reasons", the Tribunal considered and made findings about the plausibility of the applicant's account of his journey from Nigeria to Australia. This was, for the most part, the subject of the RACS letter of 7 August 1997. It may be inferred that the Tribunal took account of the letter when it turned to the applicant's claims about his journey. Plainly enough, the Tribunal was neither obliged to accept the applicant's account, nor his explanation as to why he declined to provide further evidentiary support for it. The Tribunal was not, moreover, obliged to address specifically every submission made by the applicant in support of his case: cf Nagarajah v Minister for Immigration & Multicultural Affairs [2000] FCA 1003 at [10]. There is nothing in the Tribunal's reasons, taken as a whole, that would support the proposition that the Tribunal failed to consider this letter. (4) Article in "The Australian" newspaper, "Nigeria Backs Civilian Rule", appearing on 4 July 1997 45 There is nothing in the Tribunal's reasons to show that the Tribunal failed to consider this 1997 article. It is to be borne in mind that the Tribunal is not bound to refer to every item of material relied on by the applicant: see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 (overruled on a different point). The applicant also referred to the article in connection with his submission that there was an error of law disclosed in the Tribunal's discussion of relocation. I shall deal with this below. (5) Letter dated 7 April 1998 from the RACS to the Department 46 I have already referred to the contents of this letter, which was in the nature of a submission to the respondent's delegate, and to the Tribunal's reference to submissions such as these in its reasons for decision. In its reasons, the Tribunal directly addressed what the author of the letter called "the central issue", namely, "what persecution the applicant would face in Nigeria as an Ogoni involved in anti-government protests in 1994 and detained from May 1996 until November 1996". The Tribunal expressly turned its mind to the conditions in Nigeria, especially in connection with Ogonis in Ogoniland, in the 1990s and after, including the foreseeable future. Whilst it referred expressly to some sources of country information and not to others that were before it, one cannot infer from this that some material before it was not considered. On the contrary, the Tribunal, in its reasons, indicated that it took account of all information before it. It is only on this basis that it could say, as it did, that it found no reports of "low profile" Ogonis being held for extended periods. In any event, as already noted, since the Tribunal was not obliged to refer specifically to each item of evidence and every submission, one cannot infer that an item of evidence or a submission was not considered simply because it was not expressly mentioned by the Tribunal. (6) Letter dated 1 September 1998 from the RILC to the Department 47 I have already described the contents of this letter, which was also in the nature of submissions. The applicant relied on the fact that there was so much material in the letter that the Tribunal's failure to refer to it was indicative of the fact that the Tribunal had not taken it into account. I reject that submission and I refer to my earlier observations in connection with the letter of 7 April 1998. (7) Letter dated 12 March 1999 from the RILC to the Tribunal 48 I have described this letter earlier. The Tribunal specifically noted its receipt of this post-hearing submission on 15 March 1999, and some of the matters addressed in it. It returned to a number of these matters in its "Findings and Reasons". There is nothing in the Tribunal's decision or reasons to justify the conclusion that the 12 March 1999 letter was not taken into account. (8) DFAT answers to MOSOP questions 49 There is nothing in the Tribunal's decision to warrant the view that the Tribunal failed to consider this matter in so far as it was required to do. (9) Report by Roslyn Leary 50 This report concerned Mr Nick Dike. At the hearing, the applicant made no submission on this matter. No basis for the submission made in his written contentions has been made out. (10) The applicant's statutory declaration of 11 January 1999 51 The Tribunal specifically referred to the 11 January 1999 statutory declaration in its reasons for decision, and described it in some detail. It turned to consider the matters raised in that declaration under its "Findings and Reasons". The applicant's submission that the Tribunal did not take the statutory declaration into account is not made out. (11) Letter dated 11 January 1999 from the RILC to the Tribunal 52 This letter sought access to certain documents or information in the possession of the Tribunal. The Tribunal replied to the letter by letter dated 13 January 1999, and subsequently considered the related issue of procedural fairness at some length in its reasons for decision. The applicant's claim that the Tribunal did not consider the 11 January 1999 letter is not made out. (12) The testimony of Mr Nick Dike 53 The Tribunal compared and contrasted the evidence of Mr Nick Dike with the evidence of Mr Promise Dike at a number of points in its reasons for decision. There is no warrant for holding that the evidence of Mr Nick Dike was not taken into account in relation to Mr Promise Dike in so far as the Tribunal was required to do. 54 Further, the applicant has not shown that the Tribunal made any reviewable error of this jurisdictional kind because of its approach to any country information or any matter referred to in connection with its s 430 submissions. 55 For the above reasons, the applicant, Mr Promise Dike, has not shown that the Tribunal failed to take into account the matters mentioned. He has not made out any claim of jurisdictional error of the kind referred to in Yusuf. Even if the applicant had established some failure to have regard to one or other of the matters mentioned, it would not, of course, follow that jurisdictional error was shown. This would depend on whether the matter was one that the Tribunal was bound to take into account in the sense referred to by Mason J in Peko-Wallsend. See also Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-237. Sections 414 and 415 of the Act 56 The applicant also relied on the asserted failure to take account of these matters in submitting that the Tribunal failed to review the decision as required by s 414(1) of the Act. This submission fails because, first, the applicant has not established that there was any want of consideration on the Tribunal's part and, secondly, because he has not established any failure to "review" the decision in the sense referred to in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [78]. (I make this comment upon the assumption that the approach taken in Anthonypillai is consistent with Yusuf and offers an additional test for reviewable error.) See also Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [24]. 57 The applicant also relied on the asserted failure to take account of the matters already mentioned to support a submission that the Tribunal had breached its duties under s 415(1) in that it did not exercise the powers and discretions supposedly conferred by s 54. (As the applicant's counsel noted, the decision under review in this proceeding was made before the commencement of s 424A of the Act.) The submission that the Tribunal was in breach of its duties under s 415(1) because it failed to exercise powers and discretions conferred by s 54 fails. The nature of the obligation imposed by s 54(1) of the Act on the Minister (and his delegate) was considered by Sackville J in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389 at [52]-[57]. This submission fails because, first, the applicant has not established that the Tribunal did not have regard to the pertinent information. Secondly, the obligation imposed by s 54(1) is one imposed on the Minister (and his delegate) and not the Tribunal: see the authorities referred to below in connection with s 57 of the Act. 58 I also reject the submission that the Tribunal was in breach of its duties under s 415(1) because it failed to exercise the powers and discretions supposedly conferred by s 57. In written contentions, counsel for the applicant submitted that the breach of s 415(1) arose because of the Tribunal's failure to give particulars of relevant information in compliance with s 57(2)(a) of the Act. The applicant listed some twenty-five separate items as constituting "relevant information" for the purposes of this provision. 59 The applicant did not address any argument to the Court in support of his proposition that all or any of these twenty-five items constituted "relevant information" as defined in s 57(1) of the Act. Some of the twenty-five items clearly did not fall within this description. Leaving this issue to one side, however, I accept, as the respondent submitted, that s 57 does not impose an obligation on the Tribunal. Section 57 only applies to information that is given by the Minister or his delegate at the primary decision-making stage: see Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at 327; Pasini v Boland (1999) 92 FCR 438 at 448; and Thanh Phat Ma v Billings (1996) 71 FCR 431 at 444 per Drummond J. Relocation submission 60 There were two further submissions made by the applicant's counsel at the hearing. The first concerned the relocation issue. It is, I think, plain enough that the Tribunal addressed the correct questions. The Tribunal considered whether it was reasonable to relocate, taking into account all the circumstances, and, having relocated, whether the applicant would be likely to suffer persecution for a Convention reason. This is reflected in its findings that, even if the applicant were at risk of persecution, he "would be able to relocate and it would be reasonable for him to do so". It is implicit in this finding that the Tribunal found that the applicant would not be likely to suffer persecution for a Convention reason if he were to relocate within Nigeria. 61 I reject the applicant's submission that the Tribunal acted on only the DFAT cable (to which it referred) without taking into account the applicant's particular position and the submissions made by the applicant's advisers on the issue. The Tribunal expressly referred to the applicant's personal circumstances, including his relationship with the police, education, linguistic knowledge, that he had lived outside Ogoniland when young, and the whereabouts of family members. Further, it expressly referred to the post-hearing submission made by his advisers. The Tribunal treated these matters, as well as the DFAT cable, as material to its findings about relocation. I reject the applicant's submission that these matters were incapable of supporting its findings, or that it may be inferred that the Tribunal failed to have regard to other relevant information (as the applicant submitted it was bound to do) simply because it did not specifically refer to that information. 62 In any event, the operative reason for the Tribunal's decision was that it was not satisfied that the applicant had any well-founded fear of persecution for a Convention reason. Strictly, the Tribunal's finding concerning relocation was unnecessary. Therefore, any error in this aspect of its decision would not vitiate the decision: see, e.g., Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-341 per Mason CJ and 387 per Toohey and Gaudron JJ. No evidence 63 Finally, the applicant's counsel submitted at the hearing that there was no evidence or other material to justify the making of the decision since the decision was based on the existence of particular facts which did not exist. The relevant facts that were said not to exist related to the Tribunal's conclusions on credibility. In support of this submission, the applicant's counsel relied on the decision in Minister for Immigration & Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495 where the Full Court said at 502: Often, the tribunal rejects a visa applicant's claims because the applicant is found not to be a credible witness. There is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in s 476(4)(b). Whether or not such a finding does so qualify will depend on the circumstances of a particular case. Similarly, there is no reason in principle why, if it is shown that that fact did not exist, the ground of review available under s 476(1)(g) and (4)(b) should not be made out. For example, if the tribunal rejected a visa applicant's evidence because it attributed to that applicant the claim that event A happened, when there was other evidence showing that event A did not happen, the tribunal might reject that applicant's evidence as not credible. If that applicant, by examination of the transcript upon which the tribunal relied, can show that he or she did not say that event A happened, the ground of review might well be made out. The particular fact which was shown not to exist in that example is that the applicant claimed that event A happened. The Full Court noted, however, at 502: [T]he conclusion of the tribunal that a visa applicant is not a credible witness may be based upon the impression of the tribunal having had the benefit of seeing and hearing the evidence of the visa applicant. In such a case, it is difficult to conceive of circumstances in which the ground of review in s 476(1)(g) could be made, simply because it would not be possible to prove (except in the most exceptional circumstances) that the tribunal did not form the impressions which it asserted. 64 As the Full Court pointed out in Rajamanikkam at 505, no submission was made in Rajamanikkam that "the overall approach of the tribunal to assessing the respondent's credit itself attracted a ground of review under s 476(1) of the Act". Neither Rajamanikkam nor Ismail v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 773 (also relied on by the applicant) indicate that it is not open to a Tribunal to draw inferences concerning credibility from inconsistencies in the applicant's evidence. 65 The Tribunal did not accept the applicant's evidence on a number of crucial matters. His counsel did not, however, identify any finding concerning the applicant's credibility that depended on a fact that, according to him, did not exist in the sense explained in Rajamanikkam. The applicant's counsel submitted that the Tribunal did not give any reason for rejecting the applicant's evidence that also showed that the Tribunal had approached its task correctly. In substance, the applicant challenged the Tribunal's rejection of his evidence by contending it had no proper basis to do so. This, so it seems to me, amounted to a contention that invites the Court to review the merits of the Tribunal's decision rather than the process by which it arrived at its decision: cf Abebe v Commonwealth (1999) 197 CLR 510 at 579. 66 As McHugh J observed in Ex parte Durairajasingham (2000) 168 ALR 407 at 423, "a finding on credibility … is the function of the primary decision-maker par excellence". His Honour added: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged. 67 These observations apply to the Tribunal's reasons in this case. The applicant has not identified any fact for which there was no evidence and which did not exist, and on which the decision was based: see Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 221. The ground of review is not made out: see also Pun Choi v Minister for Immigration and Multicultural Affairs [2001] FCA 555 at [24]-[25] per Gyles J. Further submissions 68 For the reasons given in Nick Dike v Minister for Immigration and Multicultural Affairs [2001] FCA 1030, I reject the applicant's counsel's submission that there was reviewable error in Mr Promise Dike's case as a consequence of the Tribunal's failure to put to him that he and his brother had "got together … and conspired to concoct a story", or as a consequence of failing to put other adverse material to him. 69 In written submission, the applicant by his counsel, made a number of submissions that were not addressed at the hearing. They were: (1) There was a failure to accord substantial justice or to act according to the merits of the case. (2) There was a failure to comply with s 430(1) of the Act. (3) There was a failure to form an opinion as to what was likely to occur if the applicant was returned to Nigeria. (4) There was a failure to take into account the chance that the applicant was persecuted and there was a burden of proof erroneously imposed upon the applicant. (5) There was an error in that the Tribunal did not consider "the facts asserted by the applicant which it rejected in accordance with law, as it did not, and could not, conclude that it had no real doubt as to the correctness of its rejection of those facts". (6) There was an error in that the Tribunal "did not consider the essential questions as to whether the applicant was a refugee, which it was required to do". (7) There was an error in that the Tribunal "failed to take into account the chance that the applicant was persecuted". 70 These submissions find little support in the authorities: see, e.g., Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Yusuf; Minister for Immigration and Multicultural Affairs v Rajalingam (1993) 93 FCR 220; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559; and Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. In so far as the authorities provided for any relevant reviewable error, no such error is made out. 71 For the reasons given, there is no reviewable error shown. I would dismiss the application with costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 1 August 2001 Counsel for the Applicant: Mr B Monotti appeared pro bono

Solicitor for the Respondent: Australian Government Solicitor