SBTD v Minister for Immigration and Citizenship

The Tribunal's findings and reasons 6 The Tribunal found that the appellant is a citizen of Nigeria. 7 The appellant was born on 15 October 1973. He attended St Peter's Primary School, a school said to have been conducted by the Anglican Church, from approximately 1981 to 1985, Renascent High School and then Ladoke Akintole University of Technology. It seems that Renascent High School was in Ibadan, Oyo State, Nigeria. At all events, the appellant was not in Kano, a city in northern Nigeria, during his school and university studies although he did go to Kano during holidays. The appellant's father died in 1996 and his mother died in 1998. The appellant served in the National Youth Service Corps in 2000 and 2001 in Imo State and at about that time he converted from Islam to Christianity. The appellant lived and worked in Kano from July 2001 until December 2002. At the start of that period, he lived with his uncle and worked as a teacher. In about early 2002 the appellant's uncle found out about his conversion and was very angry. The appellant left his uncle's house and went to live in accommodation arranged by the church. At the end of 2002 the appellant left Kano and went to live in Lagos. Other than short visits to Ghana, the Benin Republic and Venezuela, and attendance at a Christian Youth conference in Kano in June 2004, the appellant stayed in Lagos from the beginning of 2003 until the latter part of 2005. During that time, he was employed teaching students privately. As I have said, the appellant arrived in Australia on 11 October 2005. 8 The appellant claimed that after his uncle learnt of his conversion from Islam to Christianity he became the target of attacks by fanatical Muslims or fundamentalists or "Jihadists" as the Tribunal member referred to them. I will also use that description. These attacks occurred during 2002, and while he was living and working in Kano. He said that he was targeted on five occasions and that on the second occasion his pursuers found the house in which he was living. The Tribunal member found that no harm actually befell the appellant during 2002 and she rejected as "far-fetched" the appellant's claims that Jihadists were searching for him in order to harm him. She noted that throughout 2002 the appellant was employed as a teacher at a secondary school and that that was the same job he had before he was allegedly targeted. The Tribunal member also rejected as "far-fetched" the appellant's belated claim that one of the Jihadists was secretly warning him about impending harm. 9 The appellant also claimed that there were large communal riots between Muslims and Christians in Kano in 2002. The Tribunal member rejected that claim although she did not reject the possibility that there was "undocumented violence on a small scale between individuals or small groups of differing religions and/or ethnic groups". The Tribunal member said that communal riots in Nigeria were well-documented by local and international press agencies and by human rights groups and that although there was evidence of communal riots in Kano in October 2001 and again in May 2004, there was no evidence of communal riots in 2002. 10 The Tribunal member found that the appellant had remained in his employed position at his college in Kano throughout 2002 and that he put in his notice "in an orderly fashion" and then left Kano. The Tribunal member found that there was no reason for the appellant to return to Kano and that although his brother and sister may still be there, they are adults and free to travel to see the appellant elsewhere in Nigeria. The Tribunal member found that the appellant was a well-educated man with a university degree and an employment record established during his service in the National Youth Service Corps and his time at the Rasifar College. The Tribunal member found that the appellant spoke both English and Yoruba and that both these languages were national languages. The Tribunal member found that the appellant has lived a large part of his life, that is to say, nearly two decades, in Ibadan and other places in Oyo State, among other Yoruba people with no problems. He returned to Kano only during holiday periods. The Tribunal member said that the appellant had a certificate stating that he was a native of Ibadan in Oyo State. The Tribunal member said that there was no reason why the appellant should return to Kano or any of the other northern Islamic states in Nigeria. 11 The Tribunal member found that the appellant had been away from Kano since the end of 2002. He spent his time in Lagos other than a period where he made an overland trip to Ghana and a boat voyage to Venezuela and back. It was not claimed by the appellant that any Jihadists located him or harmed him during that time. The appellant explained this by saying that he kept a "low profile". The Tribunal member said: However, an alternative explanation is simply that there is no concerted search for the applicant. I am of the view that in a country of 130 million people, half Christian and half Muslim, the individual religious affiliation of the applicant is not a matter that will provoke Jihadists to action nationwide. 12 The Tribunal member found that less than a month after major religious riots in Kano the appellant returned there in June 2004 for a Christian Youth conference. The Tribunal member found that the appellant's asserted reason for doing so having regard to his claim to fear Jihadists working at the instigation of his uncle was "far-fetched and implausible". The Tribunal member found that the appellant suffered no harm while in Kano in June 2004. The appellant then returned to Lagos and spent in excess of a year in Lagos while waiting for promised assistance with his travel documents. It was not claimed by the appellant that he suffered any harm during his final year in Lagos. 13 The Tribunal member accepted that the appellant was a Christian convert, and that his uncle, in whose house he had been living, was very upset when he discovered the fact that the appellant had converted. The Tribunal member noted that the Kano State is one with Sharia law and, therefore, not "a comfortable place for Christians generally". The Tribunal member said that she understood why the appellant wished to leave Kano but, on the evidence of his finishing the year and handing in his notice at the college where he worked, she found that he had left at a time of his own choosing. She rejected his claim that he left Kano because he was fleeing for his life. The Tribunal member found that the chance that the appellant's uncle, or Jihadists at his uncle's behest, would cause serious harm to the appellant in the reasonably foreseeable future was remote. 14 The Tribunal member expressed her conclusions as follows: For reasons already stated above, I am satisfied that it is reasonable for the applicant to return to Nigeria and settle in a variety of places including Lagos, where he spent much of his last three years in Nigeria without harm, or in Oyo State. This latter option is particularly reasonable given that it has a predominantly Yoruba population (speaking a language in which the applicant is fluent); he did all his education there; he is thus very familiar with its larger city of Ibadan (with a population of nearly 4 million); and he has a certificate stating that he is a native of Ibadan. That is, he has the certificate stating that historically he belongs to that place. … On all the evidence before me, I am not satisfied that serious harm, let alone harm amounting to persecution, has befallen the applicant in the past for a Convention reason. I find that he (sic) chance that such harm will befall him in the reasonably foreseeable future is remote. It follows that I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. He is not a refugee.

The Federal Magistrate's reasons 15 It seems from the Federal Magistrate's reasons that it was argued before him that the Tribunal had failed to consider a claim that the appellant had a well-founded fear of persecution by Jihadists who would pursue those persons who had converted from Islam to Christianity. It seems to have been accepted by the appellant in his submissions to the Federal Magistrate that it was open to the Tribunal to conclude that the appellant's claim that he had a well-founded fear of persecution by a particular group of Jihadists, being those Jihadists acting at the instigation of his uncle, should be rejected. The appellant also accepted that the Tribunal had addressed the broad question of whether a Christian would or may face persecution in Nigeria, but he argued that it had not addressed the question of whether a Christian who had converted from Islam would or may face persecution in Nigeria. Secondly, it was argued before the Federal Magistrate that the Tribunal had not considered in the context of the question of whether it was reasonable for the appellant to relocate within Nigeria the practical reality facing the appellant as a person with symptoms of depression, anxiety and post-traumatic stress disorder and with no familial connections in parts of Nigeria. 16 The Federal Magistrate referred to the Tribunal's reasons and the respective submissions of the parties. He referred to authorities (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1) ("NABE") which had considered whether a failure to deal with a claim amounted to jurisdictional error. 17 The Federal Magistrate said that the Tribunal had considered what he called the "appellant's most significant claim", namely, that he feared harm at the hands of Jihadists acting at the instigation of his uncle in Kano. The Tribunal had rejected that claim, and it was not disputed by the appellant that it was open to the Tribunal on the evidence before it to reject that claim. The Federal Magistrate said that the question for him was whether "it is a jurisdictional error for the Tribunal to fail to consider properly the applicant's more general claim". 18 The Federal Magistrate referred to the Tribunal's finding that the appellant had been able to leave Kano at the end of 2002 in an orderly fashion, and its finding that the appellant had suffered no harm during his time in Lagos. The Federal Magistrate said that the Tribunal had in effect concluded that the appellant had not come to the notice of any "generic Jihadists" in Lagos. 19 The Federal Magistrate noted that the appellant sought to meet the inferences which might be drawn from those facts by submitting that he had not come to the notice of any persons because he had adopted a low profile and not because of the absence of the potential persecution of which he was fearful. The appellant submitted that the Tribunal had not considered the consequences for the appellant of practising his Christianity openly in Lagos, particularly by attending larger church gatherings or services. The Federal Magistrate rejected that submission. He said that the Tribunal had considered the appellant's submission that he had modified his behaviour in Lagos because of his fear of all manner of Jihadists in the context of his employment history, and that the Tribunal member's reason for rejecting that submission applied equally to his alleged modified behaviour in terms of the way in which he practised his Christianity. The Federal Magistrate said: Accordingly, a proposition was put forward by the applicant about the modification of his behaviour in Lagos, although a different one to that concerned with his church observances. It was rejected by the Tribunal because of findings it made about the demographic basis of Lagos. Essentially, that the applicant would excite no interest in a huge city, in a country which was just as much Christian as Muslim. In my view, even if the Tribunal has misconstrued the applicant's case regarding the modification of his behaviour in Lagos, by not attending the larger churches, this misconstrual has been subsumed in findings of greater generality regarding the circumstances prevailing in Lagos and parts of Nigeria other than Kano. In my view, it is clear that considerations of this kind formed the basis of the Tribunal's finding that the applicant's religious affiliations were unlikely to provoke Jihadists' actions in a country of 130 million, half of whom were Christian. This finding must be placed in context with the Tribunal's finding that Kano, being a state which imposed Sharia law and which was generally uncomfortable for Christians and its specific finding that the applicant had been able to leave Kano safely at the end of 2002. Accordingly, the Tribunal having rejected the factual premise upon which the applicant's most substantial fears were based and given its findings about the circumstances in Nigeria generally, I do not accept that it amounts to an error of jurisdiction on its behalf, that the Tribunal has not specifically considered the issue of the applicant's purported change of behaviour in Lagos, between 2003 and his departure to Australia, in a specific way regarding his church observances. 20 The Federal Magistrate then noted that the Tribunal doubted the credibility of the appellant because of his acknowledgment that he had travelled to Kano to attend a Christian Congress in 2004. 21 The Federal Magistrate said that having reached the conclusions set out above, it was not necessary for him to consider the issue of internal relocation in any detail. However, he said that in relation to the submission that the Tribunal had failed to consider the individual personal circumstances of the appellant and in particular his psychiatric condition, that was not an issue which was squarely raised by the appellant. The Federal Magistrate said that the medical reports "came into play" only because of issues raised by the Tribunal regarding the appellant's credibility "generally" and that the impact on the appellant's psychiatric health on his possible relocation to Lagos was not one which emerged clearly from the materials before the Tribunal.

Issues on appeal 22 The principal submission put in this Court is that the Tribunal, although referring to the fact that the appellant was a convert from Islam to Christianity, did not consider his claim that he had a well-founded fear of persecution because of, or based on, that fact. It was not made clear in submissions whether it was accepted (as it appears to have been before the Federal Magistrate) that the Tribunal had considered the appellant's claim that he had a well-founded fear of persecution by a particular group of Jihadists, being those Jihadists acting at the instigation of his uncle. 23 In support of his principal submission to this Court that the Tribunal had failed to consider a claim, the appellant referred to material he contended was before the Tribunal and which comprised articles about the harsh treatment of converts from Islam to Christianity in certain parts of Nigeria. That material, it was said, is not referred to in the Tribunal's reasons. It appears that the material was before the first Tribunal and, therefore, submitted the appellant, must be taken to have been before the second Tribunal. The Minister submitted that it is not the case that material before the first Tribunal must be taken to be before the second Tribunal. In any event, the Minister submitted that the issue was of no real significance because there was material of a broadly similar nature before the second Tribunal. 24 At this point, it is convenient to set out briefly what material was before the first Tribunal and the second Tribunal. 25 Relevantly, the material before the first Tribunal was sent to it by the appellant's solicitors on 30 January 2006. It included articles referring to the harsh treatment of converts from Islam to Christianity in certain parts of Nigeria. The first Tribunal handed down its decision on or about 21 February 2006. 26 The consent orders made by the Federal Magistrates Court in relation to the first Tribunal decision were made on 23 June 2006. The second Tribunal hearing took place on 29 September 2006. On 21 September 2006, the appellant, who was represented by a firm of solicitors, forwarded submissions and material to the Tribunal. He also forwarded material to the Tribunal after the hearing, that is to say on or about 12 October 2006. For present purposes, it is significant that within that material the appellant forwarded to the Tribunal there was the following:

1. Ms Marie O'Neill is a psychologist and she evaluated the appellant's psychological condition on 1 May 2006. It is clear from her report that she based a number of her conclusions on the appellant's account of what had happened to him. She diagnosed his condition as involving post-traumatic stress caused by trauma in his childhood and later associated with his religious affiliation. His condition had worsened as a result of his experiences in detention in Australia.
2. In response to matters raised by the Tribunal member at the hearing on 29 September 2006, the appellant, through his solicitors, provided a number of articles and country information discussing the harsh treatment in certain parts of Nigeria of persons perceived to be anti-Islamic or who had converted from Islam to Christianity.
3. A further report from Ms O'Neill was sent to the Tribunal on 12 October 2006. That again referred to the appellant's post-traumatic stress symptoms and seems to have been put forward by the appellant in an attempt to explain why he could not recall specific dates or things at the second Tribunal hearing. 27 I would wish to hear full argument before deciding that all material before a first Tribunal should be assumed by a second Tribunal on a reconsideration to be before it. I do not need to decide the question because the material before the second Tribunal was, relevantly, to broadly similar effect to that before the first Tribunal. Although the second Tribunal referred to the material in a somewhat general way, there is in its reasons sufficient indication that it had regard to it. In my opinion, the fact that the second Tribunal did not specifically refer to the material does not of itself establish that it failed to consider a claim advanced by the appellant. 28 That still leaves for consideration whether, by reference to its reasons as a whole, the Tribunal failed to consider a claim advanced by the appellant. I do not think that it did, and in order to explain my reasons for so concluding it is necessary for me to summarise in a succinct way the key findings made by the Tribunal. First, the Tribunal found that the appellant was not harmed while he was in Kano in 2002 and Jihadists were not searching for the appellant in 2002. There were no communal riots between Muslims and Christians in Kano in 2002, although there may have been "undocumented violence on a small-scale between individuals or small groups of differing religions and/or ethnic groups". The appellant stayed in Kano in 2002 and left after putting in his notice in an orderly fashion at the college where he was employed. The appellant left Kano at a time of his own choosing. Secondly, the Tribunal found that the appellant was not located or harmed by Jihadists from the end of 2002 to the time he left Nigeria in September or October 2005, and there was no concerted search for the appellant by such a group. The appellant went to Kano for a Christian Youth Conference in June 2004 and he was in no way harmed during that visit. Since leaving Kano at the end of 2002 the appellant spent nearly three years in Nigeria and he was not harmed during that time. The appellant has had no contact with his uncle. Thirdly, the Tribunal found that although communal riots based on ethnic or religious factors, or both, do erupt from time to time in Nigeria, they are not State-sanctioned, State-supported or tolerated by the State. If a situation cannot be handled locally, the Federal Government sends in national police and the army. Finally, the Tribunal found that the appellant has not been harmed, let alone persecuted, for a Convention reason in the past and any chance that he would be harmed in the future was remote. 29 There can be no doubt, as the appellant submitted, that the Tribunal was required to review the delegate's decision (s 414) and a failure by the Tribunal to deal with a "substantial, clearly articulated argument relying on established facts" made by an applicant will constitute jurisdictional error because it constitutes a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24]- [25] per Gummow and Callinan JJ. A judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made: NABE at 22 [68]. 30 It is also true, as the appellant submitted, that the Tribunal commits an error of law if it imposes a requirement on an applicant to modify his or her behaviour or if it fails to consider the reason(s) for modified behaviour and, if fear of persecution is a reason, if it fails to consider if the fear of harm is well-founded and whether the threat of harm itself constitutes persecution: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2004) 216 CLR 473 ("Appellant S395/2002"). 31 In my opinion, the Tribunal did not fail to consider whether the appellant had a well-founded fear of persecution based on his conversion from Islam to Christianity. It must be remembered that the focus of the appellant's claim was that Jihadists were pursuing him at the instigation of his uncle. The Tribunal clearly rejected that claim. It rejected the appellant's assertion that there had been five incidents involving the appellant and Jihadists in Kano in 2002 and it rejected the assertion that Jihadists were searching for him. It rejected his explanation for travelling to Kano in June 2004 in light of his evidence that Jihadists were pursuing him as "far fetched and implausible". Any suggestion that the Tribunal was not entitled to make those findings on the evidence must be rejected. 32 Once the appellant's claim that he was being pursued by Jihadists at the instigation of his uncle is rejected and (as was the case) in the absence of any evidence or material to support a conclusion that the appellant would be identified by Jihadists as a convert, it was appropriate that the Tribunal consider, as it did, the general situation in Nigeria and, in particular, the fact that half of the country's population is Christian. In other words, it was appropriate for the Tribunal at that point to consider whether the appellant would or may face persecution by reason of the fact that he was a Christian. 33 I do not think the Tribunal made the error of treating what has happened as decisive in terms of whether there is a well-founded fear of persecution (see the discussion in Appellant S395/2002 at 498 [72]-[77]). It dealt with the principal case advanced by the appellant and rejected it. There was no evidence that the appellant's conversion would be discovered and the mere fact that he was a Christian would not give rise to a well-founded fear of persecution. 34 Furthermore, I do not think the Tribunal erred in its approach to the appellant's modified behaviour. It is not clear to me whether the Tribunal accepted the appellant's evidence that he had modified his behaviour. It appears that the Tribunal may have proceeded on the basis that even if the appellant had modified his behaviour in Lagos and even if that was because he feared persecution, the fear of persecution was not well-founded. I do not think there is any error in that approach. Once the Tribunal member made the findings she did and in particular once she rejected the appellant's principal claim it was open to her to conclude that even if the appellant genuinely feared persecution the fear was not well-founded. 35 The appellant's third and final submission was that in considering relocation the Tribunal member failed to consider the appellant's symptoms of post-traumatic stress and the difficulties he would experience in terms of relocation in view of those symptoms. I was referred to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 and SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 150 FCR 448. 36 The High Court recently considered the issue of relocation in SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659. The appellant was a journalist in the Ukraine. He had a well-founded fear of persecution in the city of Chernovtsy. However, the Tribunal held that he could relocate within the Ukraine if he avoided working as a journalist. The High Court said that the Tribunal's approach involved an error of law. Gummow, Hayne and Crennan JJ said (at 1665-1666 [32]): The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine, and live "discreetly" so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his "relocation" in Ukraine. It presents an error of law, going to an essential task of the Tribunal. This was determination of whether the appellant's fear of persecution was "well-founded" in the Convention sense and thus for the purposes of s 36(2) of the Act. 37 As the Minister submitted, there is a question as to whether this case really raises an issue of relocation. If, on the Tribunal's findings, the appellant had a well-founded fear of persecution in Nigeria it was only if he resided in Kano or perhaps other cities or towns in the northern part of Nigeria. He had not done that for about three years prior to his departure from Nigeria. He had a certificate stating that he is a native of Ibadan in Oyo State and the Tribunal member found that there was no reason for him to return to Kano or any of the other northern Islamic states. It is fairly arguable that Kano is not part of the appellant's home area (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 74 ALJR 405 at 410-411 [27]-[28]. 38 In any event, even if Kano is part of the appellant's home area and the question of relocation is relevant, I do not think there was an error of law in the approach of the Tribunal. It considered the relevant factors and I refer to the passage in its reasons set out in [14] above. I do not think it erred in not referring to the appellant's symptoms of post-traumatic stress because the reports of Ms O'Neill were put forward in an attempt to explain the appellant's inability to remember certain dates and things at the second Tribunal hearing and not on the question of relocation. In other words, I am not persuaded that the Federal Magistrate's conclusions on this topic (summarised in [21] above) involved error.

Conclusions 39 For the above reasons, the appeal must be dismissed and the appellant must pay the first respondent's costs of the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Counsel for the Appellant: Dr S C Churches

Solicitor for the Appellant: Bourne Lawyers

Solicitor for the First Respondent: Sparke Helmore

Date of Hearing: 10 August 2007

Date of Judgment: 20 December 2007