VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 | Case summary

REASONS FOR JUDGMENT LANDER J: 9 This is an appeal from an order of a judge of this Court dismissing the appellant´s application for judicial review of a decision of the Refugee Review Tribunal (the RRT). 10 The appellant is a citizen of Nigeria. He arrived in Australia on 7 April 2001. On 24 April 2001 he applied for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs (the Department) under the Migration Act 1958 (Cth) (the Act). He claimed fear of persecution on the ground of his political opinion and activities as a member of Movement for the Actualisation of the Sovereign State of Biafra (MASSOB). 11 On 2 October 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused his application for the grant of a protection visa. On 5 November 2001 the appellant applied to the RRT for a review of that decision. 12 In a decision handed down on 8 April 2004 the RRT affirmed the decision of the delegate. On 30 April 2004 the appellant applied to this Court for a review of the RRT's decision. On 14 June 2005 a judge of this Court dismissed that application. It is from that dismissal that this appeal is brought. 13 The appellant, who was born on 22 January 1967, is of Igbo (or Ibo) ethnicity and a Christian. After completing his education and obtaining a diploma, in 1991 he worked as a public servant for the Ikeja local government. He was married on 31 January 1999 and lived with his wife in Ikeja, near Lagos. His wife is still in Nigeria. He told the RRT that he was not presently in contact with his wife because they had to be careful because the telephone might be bugged. 14 The appellant is a member of MASSOB, an organisation that aims to establish Biafra as a separate country. The appellant's evidence before the RRT was that he joined MASSOB in mid 2000 in Lagos where there is a secretariat in the leader's house. He said that prior to joining MASSOB he would go to rallies. He said that after he joined he engaged in many activities including distributing leaflets and banners, and communicating information about MASSOB's plans from the people in his home area to MASSOB people in Lagos. He said that after he joined the movement, he had attended two rallies. 15 The RRT summarised the appellant's account of an incident that allegedly occurred in February 2001, which the appellant relied on for his claim for a protection visa: 'The applicant states in his statutory declaration that in the first week of February 2001 the group was meeting as usual in Okigwe in the eastern region of Nigeria when a lorry load of uniformed armed forces invaded the premises and threw hand grenades and started shooting at (the applicant and others present). They threw hand grenades and other explosives into the building. Amidst the confusion (he) escaped through the back door and ran to (his) sister's place where (he) took refuge. Between 10 and 11 pm the same night (the applicant) was asleep when (his) sister woke (him) alarmed at the presence of armed forces at her premises. When (the applicant) peeped through the window (the applicant) could see a marked police vehicle parked in front of (his) sister's house. At that point he realised they were after (him). (The applicant) was afraid of escaping through the window because they might shoot (him) in that process so (his) sister opened her wardrobe and (the applicant) concealed (himself) inside her wardrobe with clothes. While in the wardrobe (the applicant) could hear (his) sister's door kicked open by the officers and heard them ask where the applicant was. The applicant heard an officer order a search of the building. While some did so, one officer remained with his sister and interrogated her and prepared to rape her. The other officers laughed and left the one officer there. The applicant states that 'at this point (he) thought (he) better die than watch him rape (his) sister. (The applicant) slowly opened the wardrobe door and grabbed the officer's gun. He (it appears the applicant) held the gun by the barrel accidentally the gun went off and hit the officer. As the officer fell to the floor (the applicant) could see blood everywhere. … The applicant said that he did not know whether the officer who was shot at his sister's place had died or was injured but it was a serious matter. The applicant and his sister panicked and escaped through the back door and drove to an uncle in a neighbouring town (the applicant said at the hearing that this took about half an hour to an hour). Early the next morning they drove to Lagos and applied for a visa to come to Australia to see their brother … The delegate had asked the applicant about the date of the incident which is at the heart of his claims, it appears because the incident described by the applicant bore a marked similarity to one reported (described below) as having occurred in early December 2000 at Mr Uwazurike's house in Okigwe. The applicant's adviser's submission provided after the interview with the delegate stated that the event of 1 December 2000 was 'the dawn of the subsequent events', the date of the event which affected the applicant was 5 February 2001 and occurred at the MASSOB headquarters in Okigwe and that this was the day after the applicant had left Lagos to go to the meeting in Okigwe.' 16 It was the appellant's case before the RRT that, as a result of that incident, the appellant left Nigeria to avoid being killed and, further, that if he were to return to Nigeria he would be killed. He told the RRT that he had been informed by his relatives that police attend his home on a daily basis looking for both him and his sister. 17 He said that his family was presently in disarray as a result of the appellant's conduct in the incident to which reference has been made. He said that his father had died of a heart attack as a result of which his brothers had to leave. He no longer knows where his brothers are. An uncle had been shot in December 2002. 18 At the hearing before the RRT the appellant, in support of his claims, provided a copy of PM News dated 2 May 2003. Included on page 7 was an article entitled '2 declared wanted over riot' which included photographs of the applicant and his sister. 19 On 7 October 2003 the RRT wrote to the appellant in the following terms: 'The purpose of this letter is to draw your attention to three issues of concern to the Member and invite you to comment on them in accordance with s.424A of the Migration Act 1958… The first matter concerns your evidence about when you joined MASSOB. You advised the Member at the hearing that you had joined MASSOB about six months before the incident which occurred in February 2001, so in mid 2000. It appears to the Member that you told the delegate that you had gone to the meeting in Okigwe in February 2001 to join. The Member pointed out this apparent discrepancy at the hearing and you said that the delegate had misunderstood. The Member remains concerned that it appears that you told the delegate that you were to join the organisation in February 2001 whereas you told her that you had joined some six months previously. The discrepancy in the evidence could indicate that you have not given accurate evidence about your involvement with the group. The second matter concerns an aspect of your account of what occurred in Okigwe in February 2001 which does not appear to accord with what was reported as having actually occurred. Your evidence was that the attack occurred during the day but the article from Newswatch of 26 February 2001, which is set out in the attached account of independent information and which accords with other articles which the member has seen, indicates that the attack occurred at 4:00 or 4:30am, not during the day as you described. This discrepancy gives rise to doubt about whether you were present at the time and so whether you have been sought by the police at the home of your sister as you have claimed. The Member has further noted that the account you gave about the timing of the attack is consistent with the timing of an attack in December 2000 which is also referred to in the article from This Day mentioned in the account of independent information she has prepared. The third matter concerns your claim to have been in hiding in Lagos and unable to go out between early February 2001 and your departure in April 2001. The Department's file includes documents which appear to indicate that you had a medical examination in this period which was necessary for you to obtain the visa for Australia, that your annual leave was to commence on 1 March 2001 that there were transactions in your bank account on 2, 9, 15, 20, 26 and 28 February 2001. In view of this apparent activity, the Member finds it somewhat difficult to see that you could be described as having been in hiding.' 20 In response to the RRT's invitation to comment on the matters raised in this letter, the appellant's adviser provided a submission on 20 November 2003 in which he denied that the appellant went to the meeting in February 2001 to join MASSOB and further that the appellant had told the delegate that he went to that meeting to join MASSOB. He further contended that the information provided did not reveal discrepancies in the appellant's account of the February 2001 incident. 21 On 19 February 2004 the RRT again wrote to the appellant, in the following terms: 'The Member has asked that I raise again your evidence about the time of the raid in February 2001. Your evidence was that the attack occurred during the day but information the Member has read indicates that the attack occurred at 4.00 or 4.30am, not during the day as you have stated. The discrepancy gives rise to doubt about whether you were present at that time and so whether you were sought by the police at the home of your sister as you have claimed. The account of relevant independent information prepared by the Member and provided with the Tribunal's letter of 7 October 2003 provided an article from Newswatch which stated that the attack took place on Wednesday 8 February 2001 at 4.00am. The Member noted in that account that 8 February 2001 was a Thursday. The Member cited and quoted from another article which indicated that the attack occurred on 7 February 2001 at 4.30am ('Crackdown on MASSOB' The News 19 February 2001 CX60941). Your adviser, in his submission of 20 November 2003, has questioned the accuracy of these reports on the basis of the differences in the reported date of the raid. After receipt of your adviser's submission of 20 November 2003, the Tribunal looked again for information about the time of the raid. Two other articles about the episode stated that the raid took place on Wednesday 7 February 2001, not 8 February, and that it occurred at 4.00 or 4.30am ('MASSOB flays invasion of headquarters by policemen' Vanguard Daily 21 February 2001; PM News of 19 February 2001. You will note that the articles all indicate that the raid took place at 4.00 or 4.30 in the morning. The Tribunal has found nothing to indicate that it occurred during the day. The Member has verified that the article in PM News was published. The Department of Foreign Affairs and Trade (DFAT) has advised the Tribunal in relation to that article that 'the number of newspapers in Nigeria is prolific', that 'the Nigerian press is free and fearless in what it can publish but that its professional standards are low' and that 'should the (PM News) article have been published, it is likely that the Nigerian state security service would have taken careful note of the information so as to lead to the named individuals coming to their attention'. A copy of the Tribunal's request to DFAT is enclosed along with a copy of the DFAT advice. The Member makes the following observations about the article in PM News. It was published in May 2003, some two years after you and your sister left the country, and six weeks after you were first invited to give evidence about your case at a hearing of the Tribunal. The Tribunal has looked extensively through the databases available to it and has found no other article which indicates that you and your sister were being sought. The article refers to your involvement in mobilising youths for MASSOB in the first week of February, the time of the raid at the heart of your claims which occurred some two years before the article was published. The Member has also found nothing to indicate that the authorities continued to seek people in connection with the February 2001 raid long after the event as the article appears to indicate occurred. The Member has noted the advice from the DFAT that it is likely that the Nigerian state security service would have taken careful note of the PM News article so as to lead the named individuals coming to their attention. However, in view of the concerns about the credibility of your account of the attack and your presence there, she is concerned that the content of the article - that you and your sister have been declared wanted on account of what you did in connection with MASSOB - may not be true. As well, she does not consider that the publication of the article would lead the security authorities to want people who were not wanted, as the advice from the Department of Foreign Affairs and Trade appears to state.' 22 The appellant was again invited to comment on the matters raised in that letter. On 12 March 2004 the appellant's advisor provided a submission, in relation to which the RRT said in its reasons: 'It is stated in this submission that the applicant noted that the articles indicated that the raid started at 4.00am and lasted till 10.00am and that he had given 'oral evidence at the hearing by which (he) indicated that the 4 am could have been when the armed police first arrived at Ralph Uwazurike compound, and not when the shooting started'. The submission states: The meaning of the word 'day', according to the Oxford English Dictionary is "time between sunrise and sunset". Notwithstanding this definition, if the word "day" means something else in Australian English language, then the Member should remember that English language is my second language and should not strictly rely on my grammar usage. I remember that the Member stated at the hearing that she finds it difficult to understand West Africans. Therefore the Tribunal should not rely on my grammatical expression whereas the intention was clearly understandable. The applicant states that the remarks in the Tribunal's letter about the article in PM News are ambiguous and submits that his 'response to this particular issue is that as a person who has brought a claim for refugee status in Australia in (his) own right, (his) case should be assessed individually and independently from any other application, evidence and country information. This is particularly the case in relation to the Department of Foreign Affairs and Trade (DFAT) advice to the Tribunal about the low professional standards of newspapers in Nigeria'. The applicant states that he has not been provided with evidence to justify the remark that 'the publication of the article may not be true' (the letter had stated that the Tribunal had verified that the article had in fact been published but that I was concerned that the content of the article - that the applicant and his sister have been declared wanted - may not be true). He states that such an opinion is questionable given that I 'had provided a copy of PM News to support (my) claim in relation to the time of the raid at Okigwe'. Referring to the remark that the Tribunal had searched extensively yet found no other article to indicate that the applicant and his sister were wanted, the applicant questions 'why the Tribunal has provided only two newspaper publications to prove the time of the raid at Okigwe'. He states that there are 'more than 15 news media operating in Nigeria. Nigeria is a country with salient political division. As most newspaper companies are owned by non-Ibos, (the applicant) would not expect the Housas and the Yorubas to use their newspaper companies to the advantage of the Ibos'. This might explain why another article was not found indicating that the applicant and his sister were wanted. ….The applicant provided four news articles 'confirming that the brutality against MASSOB members continued after the February 2001 episode'. They were dated May and June 2001.' 23 In its correspondence the RRT made it perfectly clear that it was concerned about a number of aspects of the appellant's claims: first, when the appellant had joined MASSOB; secondly, as to the incident in February 2001; thirdly, as to the appellant's conduct following the incident; and fourthly, as to the article in the PM News. It gave the appellant every opportunity to address the inconsistencies in the appellant's own accounts and the inconsistencies between the appellant's accounts and independent accounts. 24 The RRT considered various pieces of independent information about Nigeria. In particular, it considered information from the October 2003 Nigeria: Country Assessment reports compiled by theUnited Kingdom Immigration and Nationality Directorate and, in particular, that part of the report which provided: '… There is no federal policy of discrimination against any of Nigeria's ethnic groups and legislation is designed not to favour one group over another… Ibos formed the Biafran rebels during the 1967 to 1970 civil war, but are prominent in the professions and commerce. Ibos have also been prominent in politics, and do not encounter government repression.' 25 The RRT referred to a Department of Foreign Affairs and Trade (DFAT) advice in November 2002 that 'unless they have been proscribed as the result of criminal activity, organisations such as MASSOB have free rein in Nigeria, which, under the Obasanjo administration since 1999, has seen the introduction of genuinely free speech and freedom of activity by a wide range of opposition organisations'. 26 More particularly and more relevantly, having regard to the matters raised on this appeal, the RRT continued: 'The Department of Foreign Affairs and Trade advised the Tribunal on 27 November 2003 that this advice generally still applied although the post was aware "of claims and reports (NGO and media) that MASSOB has been subject to arbitrary arrests, ill-treatment, extrajudicial executions and restrictions on freedom of speech, freedom of association and freedom of assembly". The post advised that as far as it was aware MASSOB had not been officially proscribed by the Nigerian government (DFAT report 264 27 November 2003).' 27 The RRT referred again to the Immigration and Nationality Directorate's April 2003 assessment on Nigeria which said: '… the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) is a mostly Ibo (or Igbo) group which advocates greater autonomy for the south-east of Nigeria, where most of the Ibo population live. 28 It further noted that publication stated: 'MASSOB appears to be generally able to pursue some of its political objectives without interference from the authorities. However, the authorities have acted against members of MASSOB involved in politically motivated criminal activity. In light of the civil war in the south-east in the late 1960s and early 1970s, which sought to create a Biafran State, the Nigerian authorities are sensitive to any assertions of nationalism within the south-east of the country. As MASSOB is associated with a specialist agenda, by supporting a Biafran State, its members have faced some harassment from the security services, especially at meetings and protests. However, some of their activities have also been provocative, such as the raising of the Biafran flag and chanting pro-Biafran songs. MASSOB activists continue to be targeted by police, and in March 2003 at least seven were killed at a political rally in Imo State. The police claim that they were attacked, but MASSOB has denied this saying the police's actions were unprovoked.' 29 The RRT also noted that: 'In October 2003, after the preparation of the account of relevant independent information which was provided to the applicant by the Tribunal on 7 October 2003, an updated Assessment was issued. Its content in relation to MASSOB is the same as that which was published in April 2003.' 30 The RRT also referred to information concerning the leader of MASSOB, Mr Ralph Uwazurike and the fact that he had been arrested on several occasions. The RRT referred to a Canadian Immigration and Refugee Board Research report in 2002 and a report in PM News dated 14 May 2001 that stated that a number of members of MASSOB had been imprisoned in Nigeria. 31 The RRT referred to an Amnesty International Report of 2002 covering January to December 2001 which reported that leading members and supporters of MASSOB were arrested on a regular basis, often to be released without trial. 32 The RRT said it was 'aware that certain MASSOB members were sought in 2001' as they were alleged to have been 'terrorising lawful citizens of the state' and 'recruiting new members'. 33 The RRT referred to Amnesty's Report 2003, noting that it 'did not mention MASSOB in particular although drew attention to a range of continuing human rights concerns in Nigeria'. 34 The RRT noted that Human Rights Watch reported the following in its 2002 World Report: 'The police clamped down on the activities of the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB), a group which advocates autonomy for the Igbo people. MASSOB meetings were repeatedly and violently broken up by police, their offices raided and hundreds of MASSOB members arrested; many were detained without charge. Their leader, Ralph Uwazuruikc, was arrested several times. Police summarily executed several MASSOB members, in particular during a police attack on their office in Okigwe in Abia state, in February (2001), when at least ten MASSOB members were reportedly killed.' 35 The RRT stated that although the Human Rights Watch World Report 2002 reported on a range of human rights concerns in Nigeria, it did not mention MASSOB. 36 Again, relevantly, for the purposes of this appeal, the RRT referred to a Human Rights Watch Report published in December 2003 which reported on 'persistent harassment of MASSOB members by the police, arrests and detentions on the clash in March 2003'. The RRT continued and, in doing so, referred to BBC News 31 March 2003 'Political Violence in Nigeria' CX75617: 'The Department of Foreign Affairs and Trade advice of November 2002 reported that 'according to Nigerian police, 17 members of MASSOB have appeared in a Federal Court in Umuahia on treason charges following a clampdown on their activities in August 2002' (MASSOB membership: Country information report No 338/02, cited above). A report of the clash between MASSOB people and the police in Owerri in March 2003, in which a number of people were shot and which was referred to by the Human Rights Watch and in the UK Assessment, remarked that MASSOB had been 'officially banned' ('Political violence in Nigeria' BBC News 31 March 2003 CX75617). 'Thirty-two members of MASSOB were (in June this year') arraigned before an Asaba Chief Magistrate's Court on a three-count charge of alleged unlawful assembly and wearing of army camouflage uniform but were granted bail… another batch of eight including their leader, Chief Ralph Uwazurike, … was transferred to Owerri' ('32 MASSOB members arraigned in Asaba' Vanguard 4 July 2003 CX80800). A vigilante group, the Bakassi Boys, has reportedly been used by the government in Abia state to target MASSOB and there have been some violent clashes between the two groups (Nigeria: Update to NGA35938.E of 12 December 2000 on the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) NGA39090.E, cited above). In July 2001, the governor of Abia state banned the group from that state ('Nigerian police arrest pro-Biafran leader' Reuters 23 July 2001'). The applicant's adviser's submissions of 20 November 2003 and 12 March 2004 provided copies of a number of news reports. There is an article from This Day of 22 May 2000 about a planned week of activities, about how they constitute a form of protest and about how attention to the issues of the Ndi Igbo people could serve to dissipate the more extreme actions of MASSOB and its leaders. Further articles dated May and June 2001 were provided. These are from the Nigerian press and report on certain MASSOB members being sought (as was reported in 'Manhunt for MASSOB members', cited above). One of these articles states that the Imo State Police Command 'said that the MASSOB activists have been declared wanted for their attempt to subvert the present civilian administration in the state', apparently because of MASSOB's plans to stop petroleum products being transported out of the south east and south of the country. It as well reports that MASSOB had claimed that there were high-level plots to kill some of its members. Another article dated 22 May 2001 reports on the arrest of 22 members of MASSOB in Enugu on their way to Okigwe to 'independence' celebrations while a report dated 30 May 2001 reported that there had been a renewed crackdown on MASSOB and that 126 people were detained by the police, again in connection with plans to mark Biafra. An article dated 24 May 2001 states that three people were feared killed when the police fired on a group which raised the Biafran flag in Obigbo. The Tribunal has seen an article published in a Lagos weekly news magazine Newswatch on 26 February 2001 which appears to be about the incident at the heart of the applicant's claims ('No hiding place for law-breakers' Newswatch 26 February 2001 CX60937).' 37 It then set out the text of the article and continued: 'This report states that the attack took place on Wednesday 8 February 2001 at 4.30am (8 February 2001 was a Thursday). Another report describes it as having occurred on 7 February 2001 at 4.30am and having involved some 150 police attacking the national headquarters of MASSOB in Okigwe which had more than 300 occupants at the time. Several people were killed and Ralph Uwazuruike was arrested. Governors of the south eastern states met a few days later and 'affirmed that MASSOB is a non-violent pressure group that should be treated better than violent groups like OPC, Egbesu and others' (Crackdown on MASSOB' The News 19 February 2001 CX60941). After receipt of the applicant's adviser's submission of 20 November 2003, the Tribunal looked again for information about the time of the raid. Two other articles about the episode stated that the raid took place on Wednesday 7 February 2001, not 8 February, and that it occurred at 4.00 or 4.30 am and lasted for some hours ('MASSOB flays invasion of headquarters by policemen' Vanguard Daily 21 February 2001; PM News 9 February 2000). One of the articles provided by the applicant's adviser reported that the Senate Committee on National Security had commenced an inquiry into the clash between the National Police and MASSOB in February 2001 ('Senate probes police, MASSOB clash' The Guardian (Lagos) 12 June 2001). There was an earlier police action in Okigwe. It took place in early December 2000 ('Soldiers, policemen storm Okigwe' This Day (Lagos) 3 December 2000 CX 46889).' 38 The RRT set out the text of that article which does not need to be repeated and continued: 'The Tribunal has seen another report which indicates that the raid in December 2000 took place around 1.30 in the afternoon ('Several dead in raid on southeast Nigerian town: report Agence France Presse 2 December 2000). Again, this was found when further checking was undertaken after receipt of the adviser's submission of 20 November 2003. DFAT report 264, cited above, was provided in response to the Tribunal's request for information about MASSOB and the article published in PM News which was submitted by the applicant. The post observed that 'the number of newspapers in Nigeria is prolific', that 'standards are low' and that 'should the (PM News) article have been published, it is likely that the Nigerian state security service would have taken careful note of the information so as to lead to the named individuals coming to their attention.' 39 It can be seen that the RRT had considerable material before it by way of country information. It used that material for the purpose of assessing the accuracy of the appellant's account of the events of February 2001 and in considering whether a member of MASSOB would be likely to be subject to any form of persecution if he or she returned to Nigeria. 40 In its 'Findings and Reasons' section, the RRT notes: 'Central to the applicant's claim is his association with MASSOB. His evidence about whether he had joined or not was not consistent and this has given rise to concerns about whether he has provided accurate evidence; he told the delegate quite clearly that he was to have become a full member when he went to the meeting in Okiwe in February 2001 and that he had for about six months previously participated in activities in support of MASSOB. Yet he told me that he joined MASOB some six months before the February 2001 meeting and that the delegate had misunderstood him. The applicant also claimed that MASSOB used him to pass information back to MASSOB people in Lagos about what was planned for the group in his home area. The applicant was a very new recruit to a large and well-established organisation, especially in the area of the country from which the applicant originates (the south east), and I am unable to accept that he had, or would have been thought to have had, any significant role in this regard. Regardless of whether he joined in 2000 or planned to do so at the meeting in February 2001, the applicant's evidence indicated to me that he had at most a very marginal and short-lived association with the organisation. Independent information indicates that it is not all members or supporters of MASSOB who face a real chance of persecution for that reason. It appears to me from the information I have read that it is the leading members of the group who have been sought and arrested. I do not accept that the applicant was a person with a profile in MASSOB of a kind which would lead the authorities to pursue him as he has claimed occurred.' 41 The RRT determined that the appellant's account of the police raid in February 2001 did not accord with independent information which indicated that the police raid occurred at 4.00am or 4.30am. It rejected his attempt to explain the discrepancy between his account and the independent accounts. 42 The RRT considered four different newspaper accounts of the raid that occurred in February 2001. It noted that each of them stated that the raid occurred at 4.00 or 4.30 in the morning, which was inconsistent with the appellant's claim that it had occurred during the day. 43 The RRT found that the appellant had probably read about raids which had occurred in December 2000 and confused those with what occurred in February 2001. 44 The RRT rejected the appellant's claims that he was at the MASSOB meeting at the time of the raid in February 2001 and rejected the appellant's version of events involving his sister and the police invasion of his sister's home. 45 In particular, the RRT rejected the appellant's account that he entered his sister's place and, when the police followed, he hid in a wardrobe and was present when his sister was at risk of being raped by a police officer. 46 The RRT also rejected the claim that the police attended the appellant's home daily looking for him and that there was an arrest warrant which could lead him to be charged with injuring or killing a police officer upon return to Nigeria and as a consequence, being imprisoned in harsh or life-threatening conditions. 47 Moreover, the RRT rejected the appellant's claim that his association with MASSOB had led to his family being in disarray or that it resulted in the death of his father or the shooting of his uncle. 48 The RRT turned its attention to the article in PM News in May 2003 which stated that the appellant and his sister had been declared to be wanted. It found the date of the article puzzling. It was published two years after the appellant and his sister had left the country but six weeks after they were first invited to give evidence before the RRT. Moreover, the article referred to involvement in mobilising youths for MASSOB in the first week of February, which was some two years before the article was published. 49 The RRT said of the article that 'it appears as if the article may have been written in 2001 yet not published until 2003'. 50 Having rejected the appellant's account, the RRT found that there was no real chance that the appellant and his sister could face serious harm if they were to return to Nigeria. It found: 'There is no credible evidence that the applicant has in the past come to the attention of the authorities in connection with anything he has told of in connection with making his application for a protection visa and I do not accept that his very limited association with MASSOB would lead him to come to such attention if he were to return. I do not accept that the mere publication of the article gives rise to a real chance that the applicants would face serious harm.' 51 In a sense, that finding concluded the matter so far as the appellant was concerned. The RRT, having rejected his account of the incident which underscored his claim for a protection visa, found that the appellant would not face any form of persecution if he were to return to Nigeria by reason of his very limited association with MASSOB. In those circumstances, he was not a person who had a well-founded fear of persecution. By rejecting his account, the RRT rejected his claim that he had a fear of persecution and, logically, that the absent fear was well founded. 52 However, notwithstanding that finding, the RRT turned its attention to whether a person with a very limited association with MASSOB would be likely to suffer any persecution if he were to return to Nigeria. 53 In relation to the risk to the appellant by reason of his involvement in MASSOB, the RRT said: 'Independent information indicates that MASSOB is able to promote its aims and act in an organised way. While it also indicates that there has been continuing harassment by the authorities, including a number of arrests and detentions, and some serious conflicts between the organisation and the authorities, it is not all members or supporters of MASSOB who face a real chance of persecution for that reason. Neither Amnesty International nor Human Rights Watch reports covering 2002 mentioned MASSOB as a particular target although the human rights situation in Nigeria remains of concern to both organisations. As I have already noted, it appears to me from the information I have read that it is the leading members of the group who have been arrested although it is possible that some of those arrested or killed or injured in violent encounters have not been leaders. It also appears that the harassment and violence which has occurred can be attributed in part to provocative or criminal activity on the part of some MASSOB elements. I have not accepted that the applicant has suffered any adverse consequences on account of his association with MASSOB in the past. I have found that the nature of his association was short-lived and marginal. There is no evidence that he has been involved in provocative or criminal activity in connection with his association with MASSOB. Against the background, I do not consider that there is anything more than a very remote chance that the applicant would come to the adverse attention of the authorities if he were to return to Nigeria in the reasonably foreseeable future and resume his support for MASSOB.' 54 The RRT concluded that if the appellant were to return to Nigeria he would not face a real chance of his persecution because of his political opinion, ethnicity or his membership to a particular social group, namely MASSOB. 55 In the proceedings in this Court on the application for judicial review, the appellant contended that the RRT committed jurisdictional error because it ignored country information about MASSOB which was the most recent and accurate information. There were two pieces of country information which the appellant argued before the primary judge had been ignored: the DFAT report of 27 November 2003 and the Human Rights Watch Report of December 2003. 56 On 11 July 2005 Heerey J delivered reasons dismissing the appellant's application for review. Heerey J identified the appellant's contention and said: '4 Before going to this argument in detail two things need to be said. The Tribunal carefully examined the applicant's evidence in relation to his participation in the MASSOB meeting and rejected it. That was a finding of fact and not challenged before the Tribunal. On one version of the applicant's case he had gone to the meeting to join MASSOB. On another, and perhaps inconsistent version, he had done some work for MASSOB in Lagos from about the middle of the previous year. The Tribunal found that on either view his association with MASSOB was "short-lived and marginal". Secondly, as counsel for the Minister pointed out, all the country information that was referred to was sought for and found by the Tribunal and set out in its reasons. In that setting a conclusion that it ignored this material simply because it did not refer to it item by item in its concluding paragraphs is not easy to sustain.' 57 He referred to the RRT's reasons which we have included at [45] and stated (at [16]-[21]): '16. I do not accept that that paragraph is to be read, as counsel for the applicant suggests, as hinging everything on what happened in 2002. The whole paragraph is a conclusion in general terms of what the evidence showed as to the activities of MASSOB, the vulnerability of those connected with it and, of particular importance, the applicant´s connection with MASSOB, or lack thereof. 17. Counsel for the Minister presented a careful analysis of the text of this passage. There is reasonable ground for concluding that there is actual reference there to the reports said to have been ignored. 18. For example, the Human Rights Watch report of December 2003 reported on " persistent harassment" of MASSOB members by the police etc. The Tribunal in the passage under consideration refers to independent information which indicates there has been "continuing harassment" which seems to be essentially the same thing. It refers to "some serious conflicts" between the organisation and the authorities. There is reference in the reports to the February 2001 events at Okigwe and the March 2003 killings which took place in the year that the applicant now alleges has been overlooked. 19. One of the matters which it was claimed was overlooked or ignored was the fact that MASSOB had been banned. Yet the most recent of all the reports, that is, the DFAT report of 27 November 2003, said that as far as it was aware MASSOB had not been officially proscribed by the Nigerian government. 20. Necessarily assessments of this nature cannot be made with mathematical precision. The Tribunal acknowledges that in saying that it is possible that some of those arrested and killed have not been leaders. Yet the conclusion remains, which seems to be well supported in the evidence, that having regard to the critical element of the applicant´s own connection with MASSOB there was nothing more than a very remote chance that he would come to the adverse attention of the authorities if he were to return to Nigeria.' 58 In his notice of appeal brought against the order of Heerey J dismissing the application for judicial review, the appellant asserts that: '1. His Honour erred in not finding that the Refugee Review Tribunal ("the Tribunal") had failed to take account of relevant considerations and/or complete its jurisdictional task by not making a decision whether the criterion pursuant to s 36 of the Migration Act and subcl. 866.221 of the Migration Regulations that the appellant was a non-citizen to whom Australia had protection obligations under the Refugees Convention was satisfied at the date of its decision on the basis of the most recent and accurate country information available to it. 2. His Honour should have held that the Tribunal had failed to take account of relevant considerations and/or complete its jurisdictional task by not making a decision whether the criterion pursuant to s 36 of the Migration Act and subcl. 866.221 of the Migration Regulations that the appellant is a non-citizen to whom Australia has protection obligations under the Refugees Convention was satisfied at the date of its decision on the basis of the most recent and accurate country information available to it.' 59 The appellant contended on this appeal, as he had before the primary judge, that whilst the RRT did have at hand the most recent and accurate country information, being the DFAT Report 264 dated 27 November 2003 and the Human Rights Watch Report of December 2003 ('HRW Report'), it selectively ignored this material and instead relied upon earlier material that was less favourable to the appellant, including the Amnesty International ('AI') and Human Rights Watch Reports which related to the year 2002. 60 The appellant took 'issue with the finding of the primary Judge (at [17]-[18]) that there was actual reference to the reports said to have been ignored'. The appellant contended that the DFAT Report and HRW Report did not limit the risk of persecution to those holding leadership positions but spoke more widely of a range of human rights violations believed to have been inflicted on MASSOB and its members extending to extra-judicial executions. In its written submissions, the appellant said that: '17. On any view of the Tribunal's reasons there is no reference, either expressly or implicitly to the range of matters appearing in the DFAT report as at 27 November 2003 (all of which could be said to affect a person in the Appellant's situation) of MASSOB being subject to arbitrary arrests, ill-treatment, extra-judicial executions and restrictions on freedom of speech, freedom of association and freedom of assembly.None of these violations of fundamental humal rights can on any stretch of the imagination be described as 'harassment' - persistent or otherwise. 18. The DFAT report even on its own paints a very different picture particularly when put against the finding that it is not all members or supporters of MASSOB who face a real chance of persecution for that reason, which was linked immediately to the manifestly out of date, redundant and superseded information that "neither [AI] or [HRW] reports covering 2002 mentioned MASSOB as a particular target although the human rights situation in Nigeria remains of concern to both organisations'. 19. Specific reliance on these two sources is quite misleading in view of the most recent statement from an authoritative source of the occurrence of a range of egregious human rights abuses targeted at MASSOB in 2003. One can ask rhetorically what is the purpose of referring specifically to country reports about a year which has clearly ceased to be of any relevance, in a way which is integral to the Tribunal's reasoning process, and not to the most recent reports which equally clearly are relevant? 20. The DFAT and HRW information which dealt with the risks of harm facing MASSOB in 2003 up to the time of publication of these reports a few months before the RRT decision, when contrasted with other earlier country information, casts a qualitatively worse light on the risks facing someone who is a member or associated with MASSOB than the earlier material on which the Tribunal relied, particularly the material concerning 2002. Yet this material relating to the year 2002 was the only information to which specific reference was made in the critical paragraph of its reasoning (at CB 167-168). In the Appellant's respectful submission there can be no justification for such selective reliance on irrelevant and unfavourable information to the exclusion of current material that was favourable to him.

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs

At a glance

Court

Decision date

Before

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Judgment (15 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

Cited By (26)