SZKMV v Minister for Immigration and Citizenship

Federal Court of Australia|2009-02-25|Before: Stone J

INTRODUCTION 1 The appellant is a citizen of Nigeria who arrived in Australia on 16 May 2004. On 4 December 2006 a delegate of the first respondent refused his application for a protection visa which had been lodged on 7 November 2006. The Refugee Review Tribunal on 2 March 2007 affirmed the delegate's decision however, by consent, on 18 July 2007 a Federal Magistrate ordered that the matter be remitted to the Tribunal, apparently because of the Tribunal's failure to comply with s 441G of the Migration Act 1958 (Cth). 2 On 27 November 2007 a differently constituted Tribunal affirmed the delegate's decision. The Federal Magistrates Court dismissed the appellant's application for review of the Tribunal's decision on 7 August 2008; SZKMV v Minister for Immigration & Anor [2008] FMCA 1116. The appellant now appeals from that decision to this Court. The notice of appeal was filed on 28 August 2008. On 31 October 2008 the first respondent filed submissions outlining why the appeal should be dismissed. The appeal was originally scheduled for hearing on 5 November 2008. On 4 November, the Court received a medical certificate together with a request from the appellant to have the hearing vacated. The medical certificate certified that the appellant had injured his back during football training and would not be able to attend on 5 November. Accordingly the hearing was vacated and attempts were made to reschedule it for hearing early this year. Initially it was scheduled for 13 February 2009 and the appellant was advised by letter dated 8 January 2009. When the letter was returned to the Court on 19 January 2009 a member of the Registry staff telephoned the appellant to inquire if he had changed his address. The appellant advised that he was still at the same address and the letter was resent. Subsequently the hearing was moved to 25 February because the court was unable to secure an Ibo interpreter on the earlier date. 3 Two days ago (23 February 2008) the Court received a letter from the appellant seeking to have the appeal scheduled for today vacated and rescheduled for a later date. The appellant's letter stated: My council's [sic] father has recently died and due to this my council [sic] has had to travel overseas to attend the burial and has not yet returned. I have not been able to contact him by phone. I tried to contact him via email but have heard no response. I have also contacted colleagues that his firm who have advised me they are unable to take on his case load at the moment. 4 The appellant was advised that the hearing had not been vacated and that he should attend the Court as scheduled. Before commencing to hear the appeal I questioned the appellant about the matter. He told me, from the bar table, that he last had contact with his counsel early in December. Although the appellant indicated that he expected Mr Asuzu, who had appeared for him in the Federal Magistrates Court, to act for him on the appeal, I am not satisfied that Mr Asuzu had been briefed to appear in the appeal or that he had undertaken to do so. Despite the appeal originally having been scheduled for 5 November (and vacated only on 4 November) no submissions had been filed on behalf of the appellant. In any event Mr Asuzu had appeared before the Federal Magistrate where the grounds of review were comprehensively discussed by his Honour. The grounds of appeal are essentially the same as the grounds of review. In all the circumstances, especially given the significant delay that has already occurred in the hearing of this appeal, I declined to the vacate the hearing and

The appellant's claims before the Tribunal 5 The appellant claimed to have a well-founded fear of persecution from the authorities in Nigeria because he was a member of the proscribed organisation, Movement for the Actualisation of the Sovereign State of Biafra ("MASSOB") and because of his Ibo ethnicity. The factual background to the appellant's claims is set out in some detail in [7] of the Federal Magistrate's decision. For present purposes a brief summary will suffice. 6 The appellant claimed that he was involved in various activities with MASSOB, including fund raising and recruitment. He said his name was given to authorities and that he was constantly watched and followed by the secret service. The appellant also claimed that he would suffer harm in Nigeria as he spoke out in support of the cause of Ibo people who, he says, are oppressed in Nigeria. 7 The appellant alleged that he was threatened, detained and ill treated by authorities and was expelled from University because of his support for MASSOB. He claimed that in 2002 he relocated to the capital, Abuja, however after his attendance at a political rally he was arrested and detained for 3 weeks, during which time he was beaten and tortured. He said he was released in April 2003 and went into hiding until he left Nigeria in May 2004. He said that during this time he had lived in a "little hamlet" or grass shelter and that MASSOB members brought him food. The appellant also provided the Tribunal with a further statement concerning his involvement with MASSOB and his alleged persecution by the police. The Federal Magistrate summarised this statement at [9] of his reasons for decision. 8 The appellant alleged that he was able to leave Nigeria legally, using a passport issued in his own name, because he bribed the relevant officials by putting money in his passport.

The Tribunal decision 9 The Tribunal accepted independent country information indicating that occasional violence and human rights abuses are perpetrated by Nigerian authorities against members of MASSOB and Ibo people. However, the Tribunal also found that the appellant was not a truthful witness. It did not accept that the appellant was, in fact, harmed, threatened or detained by Nigerian authorities. The Tribunal found the appellant's evidence relating to these claims to have been invented to assist his application. 10 The Tribunal commented on the paucity of the appellant's account of where and how he had lived in the period from his release from detention in Nigeria until he came to Australia. It did not accept his explanation of the ease with which he had been able to leave the country legally by bribing officials when, on his own account, he was of interest to the authorities. The Tribunal also commented on the lengthy period of time which elapsed between the appellant's arrival in Australia in May 2004 and his application for a protection visa in November 2006. 11 The appellant had provided a number of documents to the Tribunal, being: a report referring to an alleged incident on 29 March 2003, a copy of his student identity card, a copy of his MASSOB membership identity card, copies of documents relating to his MASSOB membership and a document about MASSOB casualties between 2000 and February 2006. In light of its finding that the appellant was not a truthful witness, the Tribunal did not accept that the documents he produced were reliable. The Tribunal also found that there was no plausible evidence before it to support the claim of attacks on his family and noted that the appellant told the Tribunal that his parents and siblings continued to live in his home state. 12 The Tribunal did not consider that the situation in Nigeria would be any different for the appellant than it previously had been. The Tribunal found that the appellant lived and studied in Nigeria for many years before coming to Australia and that there was no plausible evidence before it that the appellant suffered or will suffer persecution for a Convention reason in the reasonably foreseeable future.

THE FEDERAL MAGISTRATE'S DECISION 13 The Federal Magistrate summarised the grounds of review put forward by the appellant as follows: (1) The [Tribunal] failed to take into account the degree of the applicant's political commitment as a member of proscribed group (MASSOB), in assessing whether his inability to express his political opinion in a repressive regime constituted persecution. (2) The [Tribunal] misconstrued the meaning of 'persecution' by failing to appreciate that selective discriminatory harassment can constitute persecution, particularly if it results in exclusion from government educational institution. (3) Constructive failure of jurisdiction under section 424A, [of the Migration Act 1958 (Cth)] as the Tribunal's decision fell into error because the approach it adopted to implausibility and/or credibility led it into making assumptions that were not warranted on the evidence and it failed to comply with procedural fairness in relation to notification provisions for the purposes of extending invitations to the applicant to comment on adverse credibility information. 14 The Federal Magistrate found the first ground of review was a challenge to the adverse finding as to the appellant's credibility, a finding of fact that was not open to review in the Federal Magistrates Court. 15 In relation to the second ground of review the Federal Magistrate was satisfied that the Tribunal's decision record disclosed that it did understand the tests which it was required to apply and did identify Nigerian federal authorities as those whom the appellant allegedly feared as well as identifying and acknowledging his claims to Ibo ethnicity and MASSOB membership and activity. The Federal Magistrate found that the Tribunal's rejection of those claims was logically and reasonably open to it on the evidence and did not disclose an error on its part. 16 Thirdly, the Federal Magistrate stated that the Tribunal's subjective appraisals, thought processes or determinations are not information as that term is understood by s.424A. Consequently, none of the Tribunal's concerns as to the appellant's credibility were required to be put to him.

This appeal 17 The notice of appeal filed on 28 August 2008 sets out three grounds of appeal all of which take issue with the Tribunal's approach to the issue of the appellant's credibility. Although the appellant alleges that the Tribunal made multiple legal errors including breach of natural justice, failure to have regard to relevant considerations, misapplication of the "real chance test" and a failure to ask the right question, it is clear from the particulars provided that his fundamental complaint is with the Tribunal's finding on the merits. 18 At the hearing of the appeal before me the appellant was given every opportunity to explain, in his own words and without having to adopt legal terminology, his complaints about the Tribunal's decision. He spoke for some time and it was clear that the only issue was that the Tribunal did not believe him. In his view this was unfair and therefore he felt that he had been denied natural justice. In other words, the appellant was seeking merits review which is not possible in this Court. 19 I have carefully reviewed the Tribunal's reasons the decision and those of the Federal Magistrate. In my view his Honour was correct in finding no apparent jurisdictional error in the reasons of the Tribunal and, for that reason, I find no error in his Honour's judgment. 20 For these reasons the appeal must be dismissed with costs I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 26 February 2009 The Appellant appeared in person.

Solicitor for the First Respondent: Sparke Helmore

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