SZKMV v Minister for Immigration and Border Protection

Tribunal Decision 7 On 24 December 2014, the Tribunal affirmed the delegate's decision not to grant a protection visa to the appellant. In doing so, the Tribunal set out a number of instances where it considered that the evidence provided to it by the appellant was inconsistent or unconvincing. Those concerns, considered cumulatively, led the Tribunal to find that the appellant was not a witness of truth and that the account of events on which his protection claims were based was false. It also found that the documents that the appellant had provided in support of his claims did not outweigh its concerns about his credibility and it did not give those documents evidentiary weight. As a result, the Tribunal did not believe the appellant's claims that: (1) members of a drug group had visited his family to locate him; (2) his father had reported those visits to the police and had made an affidavit about the visit; (3) his parents moved to another area to avoid the members of the drug group, that members of the drug group went to that other area and shot a relative of the appellant; (4) he belonged to the organisation known as MOSSAB, undertook activities for that organisation, was arrested in Nigeria and was of adverse interest to the Nigerian authorities because of those activities. 8 The Tribunal found at [42] of its decision that there was no credible evidence that the Nigerian authorities were aware of the appellant's conviction for a drug related offence in Australia and, in relation to the appellant's allegation that he feared harm as a result of his drug-related conviction, the Tribunal found at [49] of its decision: On the information before it, the Tribunal finds that it is not at all clear that in the process of the applicant going to Nigeria, voluntarily or otherwise, his drug offence in Australia is going to become known to Nigerian authorities. However, even if the Nigerian authorities became aware of the drug offence … the most recent country information indicates that there have been no prosecutions under Decree 33 [a Nigerian law which provides that any Nigerian found guilty of a drug offence in a foreign country would be guilty of an offence and liable to five years' imprisonment] since 2003. … Accordingly, the Tribunal finds the risk of the applicant suffering serious harm, because of his drug conviction in Australia is remote. 9 The Tribunal also found that the risk of the appellant suffering harm in Nigeria because of his ethnicity was remote and his daughter being deprived of not knowing him or her Nigerian heritage was not harm for a Convention reason. 10 The Tribunal found that there was not a real chance that the appellant would be denied health care by reason of his particular medical condition and, even if the appellant was unable to access health care, it was more likely to be because of the inadequacy of healthcare provision by the Nigerian government generally. 11 Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of being persecuted for a Convention-related reason and it found that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Act. 12 The Tribunal also rejected the appellant's claim to complementary protection. In doing so, it repeated its findings that the appellant was not a witness of truth and that the grounds of his protections claims were false. It found that the risk of the appellant suffering harm because of his ethnic group, his medical condition or his drug conviction in Australia was remote and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Nigeria, there was a real risk that the appellant would suffer significant harm.

Federal Circuit Court Decision 13 By an application filed on 3 February 2015, the appellant applied to the Federal Circuit Court for review of the Tribunal's decision. The application included five grounds (as written): 1). The Tribunal made a legal error in failing to consider the full integers of my claim with respect to the complimentary protection criteria. Particulars a) At [44] the Tribunal erred in failing to consider the real risk to my liberty posed by the application of Nigerian criminal law. 2). The Tribunal made a legal error in failing to consider the real risk of harm faced by me. Particulars a) At [48] the Tribunal erred in making a qualitative assessment of the serious harm faced by me, beyond a de minimus consideration of the harm I faced. 3). The Tribunal made a legal error by making an unreasonable decision. Particulars a) At [43] the Tribunal made an unreasonable decision by failing to consider the guidance on the assessment of credibility with respect to expert evidence when determining the effect of Decree 33 and my risk of being detained. b) The Tribunal erred in relying upon the report of DFAT and treating the report as expert opinion as to the effect of Nigerian law when there was no basis upon which to make this assumption. c) The Tribunal acted unreasonably in relying upon an assessment undertaken by a non-expert as to the effect of Nigerian law. d) Furthermore the Tribunal failed to undertake steps establish proof of the content of the foreign law through the admission of expert evidence by a qualified expert in Nigerian law. e) The Tribunal further erred by failing to interpret and apply the foreign law consistently with the law of the forum after failing to establish the effect of the foreign law. 4). The Tribunal made a legal error in failing to consider the real risk of harm to me under s91R(2)(d). Particulars a) The Tribunal erred in failing to consider the risk of me facing significant economic hardship that would threaten me and my family's capacity to subsist and also the threatening and violence of this drug members. b) Furthermore the Tribunal erred in failing to consider the interest of daughter in Australia and the psychological impact of a minor child in Australia. 5). The Tribunal made a legal error in failing to consider the real risk of serious harm to me under s91R(2)(f). Particulars a) The Tribunal erred in failing to consider the risk of the applicant facing serious harm through the denial of capacity to earn a livelihood of any kind because of the discrimination in Nigeria against people with my medical condition in so many ways even up to medical assessment. b) The at (36) failed to investigate the mistaken death of my relative and as a result subject me to the same death position after failing to acknowledge and examine the evidences before the tribunal. I was interviewed on the 23rd of December 2014 and decision was made and published the following day. c) The tribunal's inductive assumption was based on the fact that I have made an unsuccessful claim in the past which was not believed by the old tribunal therefore any decision can be made against me having been posed as not a witness of truth. 14 The appellant made additional allegations in written submissions which the primary judge considered. While the appellant also raised further allegations in his affidavit filed in support of his application, the primary judge observed that these allegations were not referred to at the hearing or in the applicant's written submissions. 15 On 15 June 2015 the primary judge delivered written reasons in which he considered and dismissed each of the grounds raised by the appellant in his application and in his written submissions and thus dismissed the applicant's application.

Appeal to this Court 16 The appellant filed a Notice of Appeal on 6 July 2015 which sets out five grounds of appeal. Those grounds are identical to the grounds raised in the application filed in the Court below.

Application for Adjournment 17 At the commencement of the hearing of the appeal, the appellant, who was unrepresented, made an application to adjourn the hearing so that he could retain a legal advisor to assist him in his appeal. The application was made orally and without any evidence in support. In support of the application, the appellant submitted that he had been unable to secure pro bono assistance and that he was, with the assistance of friends and other supporters, attempting to obtain funds to enable him to retain a lawyer. When pressed, the appellant told the Court that the Law Society had declined his request for pro bono assistance in mid-August and that he would need a two month adjournment to allow him to obtain legal advice. 18 The Minister opposed the application for an adjournment. While the Minister's counsel could not point to any prejudice that the Minister would suffer by reason of an adjournment, she submitted that the appeal had been commenced in July 2015 giving the appellant sufficient time to seek legal assistance, no prior notice of an application for an adjournment had been given and there was no evidence in support of the application. Counsel for the Minister noted that in his Notice of Appeal, the appellant had sought an order that "[a] legal representative be provided for me by the federal court". In response the Court, by letter dated 28 July 2015, declined to make an order pursuant to rule 4.12 of the Federal Court Rules 2011 and provided the appellant with details of the Law Society Pro Bono Scheme and the NSW Bar Association. 19 I declined to adjourn the hearing of the appeal. The Notice of Appeal was filed on 6 July 2015 and the appellant was notified by the Court that it did not propose to make an order appointing a pro bono legal adviser on 28 July 2015. There was no evidence before the Court of the steps the appellant had taken to retain a legal advisor since that time, the current status of his attempts to retain a legal adviser and the time it would take to finalise the retainer of a legal advisor. Ample time had passed for the appellant, even taking into account that he is in immigration detention, to take steps to obtain legal assistance. No earlier attempt had been made to seek an adjournment of the proceedings, either on an agreed basis, or by making an application to the Court.

Submissions 20 Pursuant to Orders made by the Court on 13 November 2015, the appellant was given the opportunity to provide written submission in support of his grounds of appeal but he did not do so. The appellant did not take up the opportunity to make any oral submissions at the hearing of the appeal but indicated that he relied on his Notice of Appeal. While I declined to adjourn the proceedings and proceeded to hear the appeal, at the conclusion of the hearing, on the assumption that the appellant may retain solicitors and, even if he did not, I made Orders allowing the appellant to file written submissions in support of the grounds in his Notice of Appeal and for the Minister to file any submissions in reply. 21 Despite the Order made at the hearing allowing the appellant to file written submissions, he did not do so by the required time.

Ground 1 22 In this ground, by reference to [44] of the Tribunal's decision, the appellant alleges that the Tribunal erred in failing to consider the full integers of his claim for complementary protection. Paragraph 44 of the Tribunal's decision is in the following terms: The Tribunal discussed this country information with the applicant at the hearing in general terms and put to him that on the basis of this information the risk of the applicant suffering serious harm in Nigeria because of his drug conviction in Australia was remote. This was because according to available country information there have been no prosecutions under Decree 33 since 2003. The Tribunal can acknowledge the possibility that there is the risk of officials using this law to extort money from someone in the applicant's position and also he could undergo a brief interview on return to confirm his identity. However, the Tribunal considers that if there was a real chance of the applicant suffering serious harm in this process there would be country information which says precisely that. The Tribunal has set out above what available country information there is in this respect and it does not assert that Nigerians returning to their country after seeking asylum abroad or who have been convicted of a drug offence in another country suffer serious harm (either when interviewed on return to confirm their identity or with respect to Decree 33). 23 The primary judge addressed this ground at [10]-[11] of his reasons. He held that the Tribunal considered the appellant's complementary protection claim based on Decree 33 at [60]-[61] of its decision. Further, insofar as the appellant particularised this ground by reference to [44] of the Tribunal's decision, the primary judge correctly observed that [44] was concerned with the Tribunal's consideration of s 36(2)(a) of the Act and not the complementary protection criterion. 24 The Minister relies on NABE v Minister for Immigration and Multicultural and Indigenous Affair (No.2) (2004) 144 FCR 1 at [63] to support a submission that there is no merit to the allegation that the Tribunal failed to consider a claim raised by the evidence, information or contentions before it, or that it misconstrued a critical factual claim made by the appellant. I accept that submission. 25 The primary judge was, in my view, correct in his finding that the Tribunal considered the appellant's complementary protection claim based on Decree 33. Based on ground 1, there is no error of law in the decision of the primary judge.

Ground 2 26 The appellant's allegation in this ground of appeal is that the Tribunal made an error in that it failed to consider the risk of harm the appellant would face if he returned to Nigeria. The appellant particularises this claim by reference to [48] of the Tribunal's decision which provides: In his protection visa application the applicant said that his removal from Australia would reveal his drug conviction to Nigerian authorities and that would lead to him being handed over to the drug law enforcement agency and being prosecuted again for his drug offence in Australia. The applicant has not explained how removal from Australia somehow reveals to Nigerian authorities that he has a drug conviction in Australia. There is no credible evidence before the Tribunal that Nigerian authorities are even aware of this conviction. In the decision to refuse the application the delegate stated there was conflicting information as to whether foreign governments provided the Nigerian government with information about the conviction of Nigerian nationals overseas when they are deported (those sources being issued in 2007 and 2008 and, therefore, very dated). The delegate also referred to the advice from DFAT mentioned above where DFAT stated that the Australian Federal police did not advise host governments of ''the details of forced repatriation'. The applicant submitted to the department a statement from the Nigerian Drug Law Enforcement Agency issued in June 2013 stating that Nigerian law required the Ministry of Foreign Affairs (informed by the heads of Nigerian diplomatic missions abroad) to provide statistics of Nigerians in jail abroad for drug offences and complaining that the ministry was not complying and western countries were not cooperating. 27 In considering this ground, the primary judge observed at [13] of his reasons that in [48] the Tribunal was saying that the evidence did not support a finding that the Nigerian authorities knew of the appellant's drug convictions which was a necessary pre-condition to the appellant's claim he would face a risk of harm because of that conviction. The primary judge found that the Tribunal considered whether the appellant would face serious harm in Nigeria because of his criminal conviction at [43]-[48] of its decision and that it concluded at [49] that such a risk was remote. The primary judge also found that the Tribunal reached a similar conclusion in respect of the complementary protection criterion at [60] of its decision: SZKMV at [14]. 28 In my view, in the paragraphs identified by the primary judge, the Tribunal thoroughly considered the risk of harm the appellant would face if he returned to Nigeria. Ground 2 does not disclose any error in the reasoning of the primary judge.

Ground 3 29 In this ground of appeal the appellant alleges that the Tribunal made an error by making an unreasonable decision. The appellant relies on five particulars in support of this ground. 30 The primary judge held that: (1) the first particular raised by the appellant failed to identify the guidance to which the appellant referred or why its application was mandatory. Accordingly, any breach of duty said to have occurred had not been proved; (2) the meaning and operation of Decree 33, referred to in the first to fourth particulars, were factual matters and the Tribunal was free to inform itself on those matters as it chose. Further, the primary judge inferred from [43]-[49] and [60] of the Tribunal's decision that the Tribunal considered the information before it. Thus the facts did not point to reviewable error on the Tribunal's part; (3) in relation to the fifth particular, there was no principle or law which required the Tribunal to "apply the foreign law consistently with the law of [Australia]" and therefore the particular did not support a finding of error by the Tribunal. 31 The primary judge properly considered ground 3 including each of the particulars raised by the appellant. There is no error of law disclosed in his reasoning. 32 Further, insofar as the appellant challenges the Tribunal's reliance on information from the Department of Foreign Affairs and Trade and country information, a Tribunal is not limited to the evidence that is formally put before it. The statutory basis for this approach is found in s 353(2) of the Act, as it was in force at the time of the Tribunal's decision (now s 353(1) of the Act). In SFGB v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 77 ALD 402 at [21] the Full Court observed that: In considering the argument now put it must be remembered that the tribunal is not limited to the evidence that is formally put before it: s 353(2) of the Act. Subject to the other provisions of the Act, including the implied and express requirements of procedural fairness, the tribunal can inform itself as it thinks fit, including acting on information that is "public". Nor should it be forgotten in this context that in the course of their duties tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world. Within the limits imposed by the Act itself there is nothing to prevent members from using this information. 33 The Tribunal was, in relying on the country information and information emanating from the Department of Foreign Affairs and Trade, acting in conformity with that accepted principle. There is no error in its approach in that regard.

Ground 4 34 The appellant's allegation in this ground of appeal is that the Tribunal failed to consider, pursuant to s 91R(2)(d) of the Act, the real risk of serious harm to the appellant. Section 91R(2)(d), which has now been repealed, includes as an instance of serious harm, significant economic hardship that threatens the person's capacity to subsist. The particulars in support of this ground assert that the appellant would suffer economic harm as a result of the conduct of the drug cartel in Nigeria and that the Tribunal failed to take into account the interests of the appellant's daughter in Australia and the psychological impact on her. 35 The primary judge considered each of the particulars raised in support of this ground: SZKMV at [17]-[20]. The primary judge found that the appellant had not made a claim that he feared harm in the form of significant hardship which would threaten his capacity to subsist to the Tribunal or the Minister's department and that such a claim did not clearly arise on the material before the Tribunal. As a Full Court noted in Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 at [5] and, as relied on by the primary judge, a "decision of the Tribunal must be considered in light of the basis upon which the application was made". I agree with the primary judge that no such claim was made before the Tribunal. 36 The primary judge also found at [18] of his reasons that, as the Tribunal did not accept that a drug group had made threats in respect of the appellant, it did not need to consider how s 91R might apply to them. There is no error in the primary judge's reasoning in this regard. 37 Finally, in relation to the particular relating to the position of the appellant's daughter, the primary judge found that the Tribunal was required to consider his situation and not his daughter's and that it did so at [52] and [58] of its decision. The Tribunal found that any harm to the appellant caused by separation from his daughter is as a result of the fact that he is not entitled to remain in Australia and not for a Convention-related reason. The primary judge was correct to reject this particular. 38 In my view ground 4 of the Notice of Appeal is not made out.

Ground 5 39 The appellant's allegation in this ground of appeal is that the Tribunal failed to consider, pursuant to the now repealed s 91R(2)(f) of the Act, the real risk of serious harm to the appellant as a result of the denial of his capacity to earn a livelihood. 40 The first particular in support of this ground alleges that the real risk of serious harm arises in this respect because of discrimination associated with the appellant's medical condition. The primary judge found, contrary to the first particular, that the Tribunal had considered the discrimination that the appellant said he may encounter because of his medical condition at [53] to [56] of its decision. As the Minster has submitted, the Tribunal did not consider that there was a real chance that the appellant would not receive healthcare in Nigeria due to discrimination against people with his medical condition but rather that restricted access to healthcare was more likely due to the inadequacy of healthcare provided generally by the Nigerian government. 41 In the second particular to this ground the appellant alleges that the Tribunal failed to investigate the death of his relative. In this regard, the primary judge found that the appellant did not identify why the "comparatively rare duty to make inquiries arose in this case" and it was not apparent that it did. 42 In my view, there is no error in the approach of the primary judge. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25], the High Court found that: … The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. … 43 I agree with the Minister's submission that there is no suggestion, either from the appellant or on the face of the decision, that there was "an obvious inquiry about a critical fact, the existence of which is readily available or ascertainable" that the Tribunal failed to make. Accordingly, it cannot be suggested that there is a failure that could give rise to jurisdictional error in this regard. 44 The appellant also alleges as a further particular to this ground that the Tribunal failed to properly consider the evidence before it because it published its decision the day after the hearing. The primary judge observed that the fact that the Tribunal was able to produce a decision quickly is not itself demonstrative of a closed mind. In his Honour's opinion, the content of the Tribunal's decision "indicate[d] a careful and considered weighing of the [appellant]'s evidence and claims, not prejudgment": SZKMV at [24]. I agree with the primary judge's characterisation of the Tribunal's decision. It is clear on the face of the Tribunal's decision that it fully and carefully considered the appellant's claims and evidence and gave the appellant the opportunity to persuade it to the requisite degree of satisfaction in relation to his claims. 45 The appellant alleges as a final particular in support of this ground that the Tribunal's "inductive assumption" was based on the findings of the First Tribunal that he was not a witness of truth. The primary judge found that the Tribunal "as secondly constituted" did not evidence any predisposition that it had not believed the appellant because he had been disbelieved by the first constituted Tribunal. On the contrary, as the primary judge noted, the Tribunal discussed the relevant allegations in [31] to [35] and [38] of its reasons and assessed the factual claims itself setting out its own reasons why it did not accept those claims. In my view, the primary judge was correct in his approach. 46 In my opinion ground 5 of the Notice of Appeal is not made out.

The Appellant's Affidavit 47 In his affidavit filed with his Notice of Appeal, the appellant includes at [9] to [15] various allegations in relation to the Tribunal's decision and the primary judge's decision which may rise to the category of submissions. Those paragraphs are in the following terms: 9. The Tribunal Was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me. 10. The Tribunal had constructively failed to exercise Jurisdiction. 11. The Tribunal had ignored relevant materials. 12. The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power. 13. The Tribunal failed to make relevant enquiries into critical facts the existence of which was easily ascertained under the Migration Act 1958. 14. That the Tribunal and the delegate failed to engage and invoke Australia's International Obligation under the International Covenant for Civil and Political Rights ( ICCPR ) and its second Optional Protocol aiming at the abolition of the Death Penalty and the Covenant against Torture. 15. The Federal circuit court made an error by affirming to the decision of the Tribunal. 48 The Minister submits that [9]-[12] and [15] of the affidavit are formulaic allegations devoid of any meaningful particulars and do not identify any error of law in the decision of the primary judge. I agree with that characterisation. Those paragraphs do not advance the appellant's grounds of appeal. 49 Paragraph 13 of the affidavit repeats ground 5 of the Notice of Appeal insofar as the appellant alleges in that ground that there was a failure by the Tribunal to undertake an inquiry. The allegation contained in the affidavit is wider in that it does not allege failure to undertake an inquiry in relation to a particular aspect of the appellant's claims but rather in relation to unspecified "critical facts the existence of which was easily ascertained". For the same reasons as I have set out above at [39]-[46] I do not think this ground is made out either on the more narrow basis included in the Notice of Appeal or on the wider unparticularised basis. 50 In relation to [14] of the affidavit, I agree with the Minister's submission that, it is clear from the Tribunal's decision, it considered Australia's obligations under the Refugees Convention but ultimately determined that the appellant did not have a well-founded fear of persecution based on any ground in that Convention.

Conclusion 51 In light of my findings in relation to each of the grounds of appeal and the further matters raised in the appellant's affidavit, the Notice of Appeal should be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.