Consideration
33 In my opinion, it is important to trace the development of the claim to complementary protection through the various stages of decision-making, noting that the appellant has been represented throughout.
34 In the appellant's statutory declaration dated 15 August 2012 the appellant's fears of suffering significant harm arose out of his claims of payback from the father of one of the students who had lent him money and from the mother of the other student who had lent him money if he failed to go to Sydney to enter an agreement for those students to be enrolled.
35 In the appellant's statement dated 21 September 2012, the appellant gave more details of his contention that he feared he would be harmed if he returned to Nigeria as he would not be able to repay money he owed to those who had lent him money on behalf of students who wanted to study in Sydney. He said it was common in Nigeria for people to take the law into their own hands or to engage others for this purpose. The appellant said he was especially fearful of Mr [C] who made introductions for him. The appellant said that if he was forced to return to Nigeria he also feared the Nigerian police if a complaint was made against him. He said the police were known to engage in corrupt practices and he feared that he would not get a fair hearing. They would not protect him against the harm that he feared.
36 In the submission dated 21 September 2012 to the Department, on behalf of the appellant, from the Refugee & Immigration Legal Centre Inc it was put that if the appellant was returned to Nigeria he feared he would be seriously harmed as a result of not being able to repay the funds to those who had lent him money in Nigeria. The appellant also feared harm from the person who assisted him with introductions because the lenders also held that person responsible for the apparent loss of their funds. Specific reference was made to the complementary protection provisions. It was submitted that the appellant was owed protection under those provisions as a result of a real risk of significant harm from those to whom he owed money and from the Nigerian authorities. Under the heading "Arbitrary Deprivation of Life", it was submitted that there was a real risk that the appellant would be killed by or on behalf of those he owed money to in Nigeria and further that the state authorities would not exercise "due diligence in preventing this". Under the heading "Torture" it was submitted that the appellant was at risk of torture at the hands of those to whom he owed money as well as the Nigerian police/authorities. The words in the definition of "torture" in s 5(1) of the Migration Act: "for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed" were emphasised. Under the heading "Treatment if Detained" it was submitted that there was a real risk that the appellant would be interrogated and detained as a result of complaints by people the appellant owed money to and that despite his innocence he would suffer cruel and degrading treatment at the hands of police and in detention and not receive a fair trial. Under the heading "Degrading Treatment or Punishment" it was submitted that there was a real risk of the appellant being subjected to degrading treatment at the hands of the Nigerian authorities (having been arrested).
37 It was submitted that if the appellant was seen as a person running from debts or suspected of some misconduct he had a right to protest his innocence and clear his name but in trying to do so there was a real chance he would suffer serious harm upon return, either by non-state actors or the Nigerian police. If forced to return to Nigeria the appellant would not be able to repay funds soon enough to avoid serious harm. The Nigerian authorities would not protect the appellant against serious harm from non-state actors. Upon return the appellant was likely to come into contact with the Nigerian authorities as a result of his having sought asylum and also as a person against whom fraud was likely to be alleged. Given the overwhelming country information detailed, there was a real chance the appellant would be tortured and seriously harmed by the Nigerian authorities also.
38 By facsimile dated 22 October 2012, the Refugee & Immigration Legal Centre Inc forwarded a further statement in support of the appellant's Tribunal application and a response to the hearing invitation.
39 The statement by the appellant was dated 22 October 2012. The appellant confirmed that he feared he would be seriously harmed if he was returned to Nigeria as a result of money he owed. He said he also feared harm from the Nigerian authorities. He stated he was worried about the Nigerian authorities causing harm to him upon return if they thought he had defrauded people in Nigeria of money. He said that he had heard that if people are returned from overseas to Nigeria they are interrogated upon return and if you do not have money to pay to be released you are in trouble because the police are so corrupt. The police think that people who have been abroad have money and want to get that money. He referred to country information acknowledged by the delegate indicating problems with Nigerian police including "pervasive corruption and harassment and intimidation of victims". The appellant said this supported his claims of fearing serious harm upon return if he were detained and could not pay a bribe to secure his release. It also confirmed that he would not be protected from harm he feared from those he owed funds to. He also stated that he especially feared Mr [C] who introduced him to Mrs [A].
40 By facsimile dated 24 October 2012, the Refugee & Immigration Legal Centre Inc forwarded an eight-page submission signed by a solicitor and migration agent. The submission restated that the appellant was at real risk of significant harm under the complementary protection provisions. Under the heading "Refugee Convention grounds - Membership of a particular social group - 'forced returnees to Nigeria suspected of criminal offending' and 'failed Nigerian asylum seekers'" the submission said:
Information was provided [to the delegate]… to indicate the existence of the particular social group posed, and also to indicate the view the Nigerian authorities take in relation to Nigerian citizens forcibly returned from overseas who are perceived to have engaged in criminal conduct.
There was later set out a paragraph from the United Kingdom Country of Origin Report for Nigeria January 2012:
8.15 The Human Rights Watch report of August 2010, Everyone's in on the Game - Corruption and Human Rights Abuse by the Nigeria Police Force, stated: "Numerous police officers, legal professionals, and civil society leaders characterized the problem of unlawful detention of citizens by Nigerian police officers with the apparent motivation to extort money as a widespread and growing problem throughout Nigeria. They described how the police use specific incidents of crime, and the high levels of crime in general, as a pretext to randomly arrest and detain individuals and groups of citizens.
"Once a person is arrested by the police and refuses, or is unable, to pay the money demanded, they are often detained until they negotiate an amount for their release. In many cases, this unlawful detention may last for days or even weeks. Those who do not pay face threats, beatings, sexual assault, torture, or even death. Extended periods of detention leave victims and their friends and family vulnerable to repeated threats and demands for bribes. Using police terminology, a civil society leader in Lagos explained that the police "tend to cast the net very wide so they can arrest as many suspects as possible. This affords the more chances for extortion and corruption."
8.19 … Despite international and domestic law prohibiting the use of torture, the Nigerian police routinely used torture and other cruel, inhuman, and degrading treatment, and are rarely held accountable for it. Human Rights Watch found that corruption in the police force has both directly and indirectly contributed to the use of police torture in Nigeria."
This was put as adding to the significant country information already provided about the Nigerian police in support of the appellant being denied state protection.
41 Under the heading "Complementary Protection" reference was made to submissions previously made in relation to the appellant being owed complementary protection in relation to fearing significant harm from those he owed money to or their agents and from the Nigerian authorities and it was submitted it was necessary to assess the application for complementary protection in the context of life in Nigeria where people were unfortunately regularly duped by fraudulent conduct and where people were forced to take law enforcement matters into their own hands or to engage criminal or vigilante groups for that purpose because of the endemic corruption within the Nigerian police. It was said that despite the appellant having not engaged in any fraudulent conduct it was assumed in Nigeria that he had. The appellant was at risk of significant harm including torture, cruel inhuman and degrading treatment or punishment if the police were involved. He was also at risk of significant harm including deprivation of life, torture and cruel and inhuman treatment or punishment from non-state actors.
42 By facsimile dated 9 November 2012, the Refugee & Immigration Legal Centre Inc forwarded a further statement of the appellant in support of his review application. This statement was dated 9 November 2012. The appellant said that he believed that the Nigerian authorities would know that he had stayed in Australia longer than his visa allowed and would cause problems for him upon return. He said he was certain that they would "try to bribe him by asking for money", based on the fact that he had brought shame to the country by breaching immigration laws overseas and that they would punish him severely if he did not pay. He said he was also worried that people he now owed money to and feared harm from in Nigeria had reported him to the authorities which would also result in him suffering serious harm upon return because of the way the Nigerian police behave.
43 I do not accept the appellant's submission that the finding by the Tribunal at [190] was sufficient to raise a claim under complementary protection as now articulated. The claim as articulated was always linked to the actual or perceived fraud arising from the alleged debts owed by the appellant, or to other cause: it was not free-standing. Further what is set out at [190] is not free-standing in any event as it is referable to the practices of the Nigerian police in circumstances where a crime is suspected of being committed.
44 In my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material.
45 These expressions are derived from Htun v Minister for Immigration (2001) 194 ALR 244 at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [22]-[24], [27] and NABE v Minister of the Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[61] and M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [90].
46 In Htun Allsop J, with whom Spender J agreed, said that there had been a failure to deal with one part of the claim for asylum on the basis of the applicant's imputed political opinion. It was true, Allsop J said, that when called on at the hearing to articulate his fears the applicant did not expressly identify his friendships as a Karen with people in organisations such as the KNLA, as distinct from his activities in Australia. However, Allsop J said, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, this basis of the claim had not been abandoned. Conceptually, and in a commonsense way, Allsop J said, that claim was quite distinct from his claim based on his participation in the Karen community and the political groups.
47 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 does not, in my opinion, assist because in that case, as the majority held, the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts, being that the Tribunal did not deal with his claim to be a member of the social group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
48 In M61/2010E at [90] the Court said, with reference to Dranichnikov at [24] and [95] that failing to address one of the claimed bases for the plaintiff's fear of persecution was a denial of procedural fairness.
49 NABE discussed, at [58], the proposition that the Tribunal was not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raised a case not articulated. The Court said that a claim not expressly advanced would attract the review obligation of the Tribunal when it was apparent on the face of the material before the Tribunal. Such claim will not depend for its exposure on constructive or creative activity by the Tribunal. At [59] the Court discounted as a general rule that the Tribunal could disregard a claim which arose clearly from the materials before it. The Court approved, at [60], the following statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [18]:
The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
The Court said that this did not mean that the Tribunal was only required to deal with claims expressly articulated by the applicant. It was not obliged to deal with claims which were not articulated and which did not clearly arise from the materials before it.
50 At [62], the Court cited with approval the statement by Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]:
Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.
The Court said at [63] that every case must be considered according to its own circumstances.
51 Applying these principles, the Court in NABE said that although the claim might have been seeing as arising on the material before the Tribunal it did not represent, in any way, "a substantial clearly articulated argument relying upon established facts" in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal failed to consider a claim which is not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
52 As I have said, in my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material. The claim as now put is taken out of its original context both in the submission of the appellant's representative and the relevant paragraph, [190], of the Tribunal's decision.
53 Counsel for the appellant accepted that this ground of appeal was the gateway to the second ground and that if he failed on this point the subsequent ground did not arise. Nevertheless, for completeness, I shall consider the second ground.
54 The factual basis of the claim under the complementary protection provisions was rejected by the Tribunal. Thus the claim as articulated under the complementary protection provisions failed. The claim could not succeed in light of the Tribunal's rejection of the various causes in relation to which the appellant claimed he would be harmed, with or without detention.
55 I reject the appellant's submission that the Tribunal's "dealings" with the complementary protection claim was "bound up" in Refugee Convention-related thinking. In the paragraphs I have set out, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact.
56 There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant's other claims.
57 As to SZFSK v Minister for Immigration [2013] FCCA 7, each case must depend on its own facts and on what the decision-maker's reasoning in fact was. As I have said, in the present case, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact which led to the conclusion that the Tribunal did not accept the appellant's claim.
58 The suggestion that the Tribunal did not apply a "real risk" but a balance of probabilities test when considering complementary protection is unsustainable in light of the frequent references by the Tribunal to that test in [192]-[194] where it considered this claim. I reject the submission that the Tribunal or the primary judge "assumed a higher burden of proof to the test under the complementary protection to that posed by the Refugee Convention". I also reject the submission that the Tribunal did not apply a "significant harm" test in light of the references to that test in [192]-[194] where the Tribunal considered this claim.