SBMD v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2006-10-13|Before: Finn J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal which affirmed the decision not to grant the appellant a protection visa.

The adjournment application 2 At the beginning of the hearing of this matter the appellant applied to have the hearing adjourned for the purposes of ascertaining whether grounds existed for a proposed amendment to the Notice of Appeal raising an issue of procedural fairness. 3 Counsel for the appellant produced a facsimile of a document purporting to annex a photocopy of a membership card of a separatist political organisation in Nigeria. The Tribunal in this matter had concluded that the appellant was not a member of this organisation and did so for reasons of credibility. The authenticity of the document has not been established although if it is authenticated it would have corroborated the appellant's story and be in sharp conflict with the Tribunal's finding in relation to this matter. The appellant accepts that the document itself cannot be used in this appeal to challenge the Federal Magistrate's decision. Rather, counsel has suggested that the appellant indicated possibly to the Tribunal that he was seeking documents from Nigeria in support of his claims (which included this document) and wishes to enquire as to whether he was given a reasonable opportunity to obtain this document before the Tribunal arrived at its conclusion. To that end an adjournment is sought. I have concluded that the adjournment should not be granted. 4 There is no material before me to suggest the Tribunal did not provide a reasonable opportunity to the appellant to adduce whatever evidence he wished to adduce. Nor is there any evidence suggesting a reasonable opportunity may not have been afforded him to obtain documentation from Nigeria. The question of whether he had such an opportunity relates, in the appellant's submission, to whether or not there was a denial of procedural fairness. My own view of the matter is that there is no reason to believe that a denial of procedural fairness occurred. This, though, would not affect the significance of the membership card evidence, assuming that the card could be authenticated. What the card does is possibly raise an issue for the Minister as to whether she should exercise her discretion under s 48B of the Migration Act 1958 (Cth). The course proposed by the appellant, while obviously designed to circumvent the need to resort to s 48B, is not one which I consider should be permitted in the circumstances. 5 Accordingly, I refuse the application for an adjournment.

Background 6 The appellant is a Nigerian national who, having arrived in Australia, subsequently sought a protection visa alleging a well-founded fear of persecution for reasons of political opinion and religion. When the appellant arrived in Australia at Sydney airport he made a statement in the following terms to DIMA officers in Sydney. "The applicant claimed he had wished to travel to Australia since he was a small child; that he had failed to secure a visa to travel to Australia for the 2000 Olympics; that his mother had died in July 2005 'after being sick for one month'; he explained that his mother had bought a piece of land but the owner had also sold the land to a second person. His mother 'quarrelled' with the vendor and the vendor had 'placed a curse on her'. His mother's leg 'had [then] become rotten' and eventually she had died. The applicant claimed this just left him and his younger brothers and he had to look after them. The applicant then claimed that after his mother died he 'stopped being a student'. He commenced 'learning to be a fire fighter at the Nigerian Petroleum Institute'. By way of corroboration, the applicant claimed that his 'friend, Mr John, can tell you that this is true'. When asked why he came to Australia the applicant claimed inter alia 'it has always been [his] dream to come to Australia. [He] is intelligent and a Christian and it is [his] dream to help this society. [He] wants to be able to send money home to [his] brothers to support them'." 7 The claims he subsequently made both to the delegate and to the Tribunal in support of his visa application were much more detailed. They are captured in the following two paragraphs of his Honour's reasons: "The applicant explained that he was a Christian of Igbo ethnicity. He claimed that he was a supporter of MASSOB, the Biafran Freedom Movement. He claimed that he attended MASSOB meetings regularly and that they were sometimes disrupted by soldiers from the Nigerian Army. The applicant also claimed that he was involved in an incident at an election in 2003 when he was manning a booth. He claimed that three men came to the booth with his cousin and required the applicant to change votes and to give them the ballot box. When the applicant refused the cousin was shot dead in front of him. The applicant told the delegate and the Tribunal that he then did what the three people asked and did not report the incident. The applicant claimed that in 2005, some 2 years after this incident, these five men came to his home and they were the same men who had killed his cousin. They tried to kill him. His mother intervened and she was shot but the applicant escaped. The applicant claimed that his father had been killed in northern Nigeria because he was a Christian pastor who had refused to convert to Islam. The applicant claimed a fear that if he returned to Nigeria the persons who were involved in the election incident would find him and kill him and that as a general matter the Government was opposed to persons who were members of MASSOB and were going about killing members of that organisation." 8 The delegate in very detailed and careful reasons dismissed the visa application in consequence of adverse credibility findings made against the appellant. The Tribunal was satisfied that the appellant was not a witness of truth and that there were reasonable grounds to reject all his material claims. In consequence it did not accept that the appellant had a real chance of persecution for a Convention reason. 9 The Tribunal's first credibility finding inhered in its preferring the appellant's airport interview to his inconsistent claims made in support of his protection visa. It considered and rejected the appellant's explanation for the clear inconsistencies between the two, that explanation being that he was under duress, he was scared and not thinking clearly, he was tired, he had been locked up for a long time, etc. 10 Having described in detail its questioning of the appellant in relation to his alleged activities for MASSOB and membership thereof and having noted what it considered to be attempts by the appellant after the Tribunal hearing to provide further and better evidence to explain away or "remedy" the evidence given at the Tribunal hearing, the Tribunal concluded it was satisfied that he had fabricated his claims to be involved in MASSOB. It did not accept that he was a member of MASSOB. 11 The Tribunal rejected his fear of persecution for reasons of religion in reliance upon country information. 12 The Tribunal equally did not accept that even if the polling booth incident occurred the appellant would have been sought several years later for the reasons he claimed. It concluded in relation to this matter that the applicant had fabricated the claim to have been involved in the polling booth violence for the sole purpose of enhancing his claim to invoking protection obligations in Australia.

THE APPEAL 13 The appeal to this court alleges jurisdictional error in finding that the story given at the airport interview was true and that the appellant's claim to have a well-founded fear of persecution was fabricated. The Notice of Appeal alleges that the Tribunal ought to have found that the appellant had plausibly explained the falsity of the story given at the airport and that it was not a basis for discrediting his claim. A similar error was ascribed to the finding that the appellant's alleged assailants after the polling booth incident were unlikely to have behaved towards him in the manner alleged. The basis of these errors as enlarged upon in written submissions is said to be that in each of the matters the Tribunal engaged in irrational reasoning processes. 14 I will deal with each of these in turn.

(i) The airport interview 15 The Tribunal's reasoning in this matter is encapsulated in the following paragraphs: "I am aware that care needs to be taken when drawing adverse conclusions arising from inconsistencies between an applicant's 'port of entry' interview and claims they may subsequently provide. I accept for instance, that many applicant's may be tired, anxious and even fear the authorities in the state where 'asylum' is sought given their own adverse experiences with the authorities in their country of origin. However, the mere fact that an applicant claims to eg fear (or mistrust) the local authorities in the country in which refugee protection is proposed to be sought, does not always constitute a sufficient explanation for any subsequent inconsistencies. As put to the applicant at the Tribunal hearing on more than one occasion, his credibility may be a significant issue in his case. Again, as put to the applicant at the Tribunal hearing, I had seen many 'port of entry' transcripts and in my own (at least prima facie) view the claims he had provided at his airport interview appeared to be coherent and detailed. Thus, his reasonably detailed and apparently coherent claims at the airport interview did not appear to be 'conjured' relatively instantly by a person eg either 'caught off guard' and/or subject to fatigue and duress. Furthermore, and for instance, the applicant did not claim to have formulated his false claims at the airport interview prior to his arrival. Therefore, and notwithstanding his claims to the contrary, I do not accept the reasons for the inconsistencies (between the airport interview and his protection visa application) were satisfactorily explained due to his being eg tired and under duress at the airport interview. I am therefore satisfied the claims he provided at his airport interview constitute a more accurate reflection of the applicant's experiences in Nigeria than those claims subsequently provided (in support of his Protection Visa application). I am thus satisfied his later claims (at least to the extent they are inconsistent with his claims provided at the airport interview), were provided for the sole purpose of enhancing his claims to invoke protection obligations in Australia. This is the first adverse credibility finding that ultimately satisfied me the applicant was not a witness of truth": emphasis added. 16 The highlighted sentence contains the key to the submission. It is said that the appearance of coherence and detail afforded the reason or part of the reason for the Tribunal's accepting the truth of the airport interview. That in my view is an over-simplification of the process engaged in by the Tribunal. It acknowledged in the opening sentence of the above quotation the need to take care in dealing with "port of entry" interviews and it exemplified reasons for this in the following two sentences. The Tribunal's characterisation of the story provided at the airport interview as coherent and detailed was not addressed as such to the truth of its content. Rather it was used as part of the reasoning process rejecting the appellant's explanation of the inconsistency between that interview and the claims that he subsequently made in his protection visa application. 17 Counsel for the appellant accepted that coherence and detail may be relevant considerations to the extent that the appellant relied upon tiredness and duress. Nonetheless, it was submitted it was irrational to use them when the appellant was relying as well upon fear and mistrust of the local authorities. In the context of this matter I would have to say I do not consider that the alleged irrationality is demonstrated. It may well be the case that a person, because of a fear he or she entertains, may fabricate a coherent and detailed story for the purposes of providing an explanation where interrogation is apprehended. But as the Tribunal noted, the appellant did not claim to have formulated his interview story prior to his arrival in Australia. Indeed he arrived in Australia with a visa to enter the country but was nonetheless challenged by immigration officials. It was in this setting that the Tribunal took the view that the interview did not appear to be "conjured" relatively instantly but neither did the appellant claim to have formulated it in advance. These considerations were apparently relied upon as part of rejection of the explanations given for the inconsistencies. As the Tribunal noted in the second of the above quoted paragraphs, the inconsistencies not being satisfactorily explained it considered the first to be a more accurate reflection of the applicant's experiences than those subsequently provided in support of his protection visa application. 18 In these circumstances I am of the view that what the appellant is seeking of me is to impugn the merits of the Tribunal's decision. There is, in my view, no question of there being such a want of logic or irrationality betrayed in the Tribunal's reasoning process as would amount to a jurisdictional error: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. As the Full Court observed in NBKG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 238 at [9]: "The level of so-called irrationality necessary to demonstrate some underlying jurisdictional error or failure to carry out the task of review, which is the Tribunal's statutory duty, is a high level indeed." It has nowhere near been met in this case: see also SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [14]. 19 Though the appellant's outline of argument refers to the Tribunal asking itself the wrong question, i.e. whether the airport story was detailed and coherent, and taking account of an irrelevant consideration, i.e. that the airport story appeared to be detailed and coherent, I do not consider that these alleged errors add anything to the essential nature of the challenge made to the decision, namely that the Tribunal engaged in an irrational reasoning process. 20 I equally do not accept the submission, made in passing, that the credibility finding the Tribunal made in relation to the airport story infected the rest of its findings in relation to the substance of his claims for a protection visa which the Tribunal independently considered. Some of those, which are not presently in issue in these proceedings, were rejected because the Tribunal was not willing to accept the evidence advanced by the appellant at the Tribunal hearing, or else advanced after the Tribunal hearing to overcome his inability to give adequate explanations at the hearing, e.g. in relation to his involvement with MASSOB.

(ii) The polling booth incident 21 The Tribunal's findings in relation to this matter are encapsulated in the following paragraphs: "… based on his evidence, the incident at the named tertiary institution (a matter of a few weeks after the May 2003 election), and at which time the applicant fled; and the mid 2005 incident (at which time the applicant's mother was allegedly killed), relate to the aforementioned polling booth incident in May 2003. Without finally deciding, even if for the purposes of this decision I were to accept the polling both incident of May 2003 had occurred, I do not accept it is plausible the men responsible would subsequently seek the applicant for the reasons he claimed (or for any other reason/s). The aforementioned reasons provided by the applicant included that he may have been held responsible for the PDP election loss in Lagos State. The applicant did not claim the men responsible for the death of his cousin were aware of his (ie the applicant's) alleged political allegiance; only that he was held responsible for the PDP loss. Given the applicant allegedly complied with these men and did not advise the authorities, I do not accept this explanation was plausible. Further, if the men feared the applicant may ultimately report their actions to the Nigerian authorities; or they were interested in him due to his alleged political allegiance/convictions; I would have anticipated for instance, that a closer watch may have been kept for the applicant in and around his named tertiary education institute. But based on his claims, once he had returned to this institute (a month or two later), he had no further problems until the men allegedly visited his home in mid 2005 (ie approx 1 month prior to his departure from Nigeria). That said, even though it is plausible the applicant could have been subject to, witnessed, or otherwise have been advised of the polling booth violence to which he claimed to have been subject, I do not believe it is plausible the men or group responsible would continue to (periodically) trace the applicant (as he claimed). I am not satisfied that he would be of any continuing adverse interest to these men. Therefore, and for the purposes of this decision, I am satisfied the applicant has fabricated the claim to be involved in the polling booth violence for the sole purpose of enhancing his claim to invoke protection obligations in Australia. I also do not accept the applicant fled from his named tertiary institute as he claimed (in May/June 2003); nor that his mother was killed in mid July 2005, as he claimed": emphasis added. 22 The essence of the complaint made here is that the Tribunal rejected the appellant's claims in relation to the polling booth incident and its alleged aftermath by ascribing to his alleged assailants rational modes of behaviour and by so doing engaged in an irrational reasoning process. It made the credibility of the appellant's testimony depend, it is said, on an unproven assumption. 23 Whether or not a differently constituted Tribunal would necessarily have arrived at the same conclusion on this matter is not to the point. The reasoning engaged in was not devoid of logic. I would note in passing that the substance of the above two paragraphs was put to the appellant at the hearing and comment was invited upon it. It cannot be said, in my view, that in any relevant sense the Tribunal asked itself the wrong question, ignored any relevant consideration or took into account any irrelevant consideration in assessing the plausibility of the appellant's account of the polling booth incident and its alleged aftermath. Neither can it be said that its evaluation of that matter was so tainted with irrationality as to give rise to jurisdictional error. 24 While for the purposes of evaluating the appellant's evidence it was prepared to entertain the possibility that his cousin had been killed as claimed, the Tribunal was not for that reason required to accept the appellant's evidence about the polling booth incident and its aftermath. It was entitled to and did test its veracity. The view it took of the plausibility of the appellant's account of events was in a sense informed by a particular appreciation of human behaviour, but that appreciation was related to a context where, allegedly, action adverse to the appellant was not taken for a considerable period of time after the polling booth incident, when such might otherwise have been expected if those responsible bore him the animus alleged.

CONCLUSION 25 I will order that the appeal be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 13 October 2006 Counsel for the Appellant: Mr M Manetta

Solicitor for the Respondent: Australian Government Solicitor

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