FEDERAL COURT OF AUSTRALIA

IMMIGRATION – Refugee Review Tribunal findings based on material not put to applicant – failure to comply with procedures required by Migration Act 1958 (Cth) – whether matter should be remitted for rehearing – whether any relief would be futile.

ADMINISTRATIVE LAW – procedural fairness – whether futile to remit matter for reconsideration.

Migration Act 1958 (Cth), ss 36, 420, 476(1)(a) and 481

Migration Regulations, regs 866.112, 866.211(b) and 866.222

Administrative Decisions (Judicial Review) Act 1976 (Cth), s 521

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300,

considered

Kioa v West (1985) 159 CLR 550, followed

Gilson v Minister for Immigration and Multicultural Affairs (Federal Court, 21 July 1997, unreported), considered

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990)

92 ALR 93, considered

Singh v Minister for Immigration and Multicultural Affairs (Federal Court, 29 October 1998, unreported), approved

Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100,

considered

Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223, considered

Kumaraperu v Minister for Immigration and Multicultural Affairs (Federal Court,

Weinberg J, 22 October 1998, unreported), considered

Nguyen Thanh Trong v Minister for Immigration, Local Government and Ethnic Affairs (1996) 45 ALD 507, applied

Stead v State Government Insurance Commission (1986) 161 CLR 141, considered

Jaswal v Minister for Immigration and Multicultural Affairs (Federal Court, Tamberlin J,

24 September 1998, unreported), considered

STEPHEN OGHO AKPATA, FORTRESS AKPATA, PRECIOUS AKPATA, and TREASURE JEMIMA AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

SG 60 of 1998

MANSFIELD J

ADELAIDE

20 NOVEMBER 1998

THE COURT ORDERS THAT:

1.                  Application allowed.

2.                  Decision of Refugee Review Tribunal given on 3 April 1998 set aside.

3.                  Application to Refugee Review Tribunal remitted to Refugee Review Tribunal for rehearing.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

This is an application for review by Stephen Ogho Akpata (“Mr Akpata”) and Fortress Akpata (“Ms Akpata”) of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 3 April 1998.  The Tribunal’s decision was that it was not satisfied that Mr Akpata and Ms Akpata were refugees, and it affirmed the decision of the delegate of the respondent (“the Minister”) refusing to grant to them a protection visa under s 36 of the Migration Act 1958 (Cth) (“the Act”).

The applicants Precious Oghenemaro Akpata (“Precious”), who was born on 20 March 1990 in Nigeria, and Treasure Jemima Akpata (“Treasure”), who was born in New Zealand on 17 September 1993, are the children of Mr Akpata and Ms Akpata.  They claim also to be entitled to a protection visa under the Act, but only as members of the family unit of one or both of their parents:  regs 866.112 and 866.211(b) and 866.222 of the Migration Regulations.  In the case of Treasure, because she was born in New Zealand, there may be considerations relevant to her status distinct from those of her parents and of Precious.  They do not arise upon this application and it is unnecessary to refer to them further.  To date, she has been treated as a citizen of Nigeria.

The initial application for a protection visa was lodged on 22 December 1995, and was refused on 7 November 1996.  Application was then made to the Tribunal for review of that decision on 19 November 1996.  I shall refer to Mr Akpata and Ms Akpata together as “the Akpatas” except where it is necessary to distinguish between them.  I do not need to refer further to the position of their children.

BACKGROUND

A criterion for a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  The relevant provision of the Convention is that a person is a refugee in accordance with Article 1A(2), which provides that that person:

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”

The High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 indicated that the expression “well-founded fear of being persecuted” encompasses within it both a subjective and an objective element.  There must be a subjective fear of being persecuted, and that fear must be well-founded.  The objective component requires that there be a real chance of persecution for a Convention reason if that person were to be returned to the country of nationality.  There is no suggestion that the Tribunal has misdirected itself, or has misapplied the law, in that regard.

Mr Akpata was born on 24 November 1962 in Nigeria, and Ms Akpata on 22 December 1966 also in Nigeria.  They are nationals of Nigeria.  They claim protection visas based upon claims for persecution for the Convention reasons of religion, race and political opinion.

Mr Akpata undertook tertiary education in Nigeria.  He was employed in various firms in Lagos from about 1980.  He was a member of the national youth soccer team, travelling often in Nigeria due to his involvement in soccer.  He commenced formal studies in theology in 1982.  From early 1987 until February 1991 he had a permanent address and a job in Lagos.  In February 1991 he and his family went to New Zealand where they remained whilst he studied, until they arrived in Australia in early 1994.  It was during that period Treasure was born.  The application for protection visas was not made until some considerable time later, on 22 December 1995.

CLAIMS

Mr Akpata claimed persecution extending over a considerable number of years between about 1984 and 1990, as a result of his activity in politics and his promotion of his religion.  He is a member of the Isoko Ogoni ethnic group from the Niger Delta region.  He claims that his father had a long term involvement in politics, as a consequence of which his family was beaten and imprisoned.  His claims include arrests and serious mistreatment of himself over a period of time in 1984 after addressing a rally about politics and religion, in 1985 when he was prevented from holding a crusade to speak against the Government when he wished simply to exercise his right of religious expression, in 1987 when he was again arrested and detained and mistreated for preaching, in 1988 when he was detained for preaching and criticising the Government and again mistreated severely, and in 1990 when he feared arrest after a speech in October 1990 about the violation of the rights of Ogoni people.  He had by that time become the publicity secretary of the local branch of the Nigerian People’s Party (“the NPP”), which he had joined in 1987.  Following the speech in October 1990, his wife was arrested but released about four days later.  He also claimed shortly thereafter that soldiers had gone to the family home, when he and his wife were not present, and the house was burned down because they were not present.  Shortly after that he claims that the family went into Zimbabwe under the guise of one of the children attending a soccer festival, and from there procured visas to go to New Zealand where he undertook Bible studies.  He says he has not heard from his parents from about 1993 other than a facsimile in mid-1995, and that whilst in Australia he has had threatening phone calls giving rise to his fear that Nigerian nationals living overseas have his activities monitored.  He also claims that his speaking out against the Nigerian Government both in Australia and in New Zealand, and a recently published book by him, have rendered him vulnerable to persecution should be return to Nigeria.

The background and claims of Ms Akpata should also be noted.  Her father was, from 1974, a Christian Pastor, and often spoke out against the Government.  She claims that he was often tortured and imprisoned as a result.  She confirms that after the speech of her husband in October 1990 about the violation of the rights of the Ogoni people, she was detained and beaten.  Since leaving Nigeria, she has had some contact with her family.  In late 1993 or thereabouts, when she wanted to return to Nigeria, she was advised by her father by telephone that she should not do so because the family had been placed on a hit list.  In other respects she confirmed the evidence of Mr Akpata.

THE TRIBUNAL’S REASONS

The Tribunal’s reasons indicate that its rejection of the claims of the Akpatas was very largely based upon its assessment of the reliability of those complaints.

The Tribunal accepted that the parents of both the Akpatas had a long involvement in politics and in religious teaching.  Nevertheless, it noted that Mr Akpata was able to continue his education uninterrupted through to technical college, and to develop his sporting talent so that he was selected in a national under 23 team, and later appointed coach of various soccer teams.  He was also able to practice his Christian faith, and from about 1982 began training as a pastor.  It noted his evidence that, at least up to 1984, he did not encounter serious harm by reason of any activity of his parents.  It concluded that the prospect that he would do so by reason of any political or religious activity of his parents or parents-in-law is remote.

In respect of his complaints during the period from 1984 to 1990, the Tribunal observed that there were “discrepancies” in his initial statement in support of his claim for a protection visa, and his claims made at the hearing.  These discrepancies had obviously been the subject of discussion with him at the hearing.  The initial statement had omitted matters relating to his imprisonment and mistreatment in significant respects.  The Tribunal was not satisfied by his explanation for those omissions.  It found that his claim of imprisonment and torture in 1984 lacked credibility.  It concluded:

“The Tribunal is not satisfied by the applicant’s explanation as to the reasons for key omissions when lodging his initial application for a protection visa and finds that his claim of imprisonment and torture in 1984 lack [sic] credibility.  For parallel reasons the Tribunal rejects the applicant’s belated claim that he was detained and mistreated in 1987, 1988 or 1989.”

The Tribunal separately addressed the claim that in 1985 Mr Akpata was thwarted from holding a religious celebration because it was thought he would speak out against the Government.  It said:

“In view of his lack of a formal political affiliation at the time, his lack of convincing evidence of any history of overt political activity; and his capacity to continue his theological studies, the claim by the applicant that he sought and was unable to express publicly his political or religious views seems implausible.”

It also noted, in the context of that finding, the absence of any specific reference to that event when lodging his initial statement, as well as the absence of evidence that the very considerable Christian population in Nigeria was unable to practice its faith openly.  It concluded that the reason why he may have been denied a permit for a religious celebration in 1985 was for particular regulatory reasons.

In respect of his claim that he had been targeted because of his employment by, and activities in, the NPP the Tribunal said:

“In assessing all the relevant material the Tribunal is not satisfied that the applicant was ever in the employ of the NPP or that he was targeted at any time due to any real or perceived association with it.”

An associated claim that Mr Akpata was vulnerable to persecution for having been an active member of MOSOP, the Movement for the Survival of Ogoni People, a claim which it noted was made only subsequent to the decision of the delegate, it concluded that:

“… in assessing all the available material, there is no basis for a finding that he has encountered serious harm by reason of any real or perceived association with MOSOP or CAN [Christian Association of Nigeria], or that he would do so in the foreseeable future.”

In relation to the detention of his wife in 1990 and the burning of the house, and then the death of his elder brother, the Tribunal said it was “implausible” that the authorities would kill his brother and yet allow the applicant to remain free to continue religious and political activities.  It observed that at least between 1987 and February 1991 the Akpatas had a permanent address and jobs in Lagos.  It then said:

“In reviewing all the available evidence the Tribunal is not satisfied that either the applicant or his wife encountered any difficulty at all in 1990 as a result of any speech made by the applicant at the [festival].”

Thus it concluded that neither of the Akpatas had a well-founded fear or persecution for a Convention reason at the time they left Nigeria.  It noted in addition that they had been able to leave Nigeria legally on their own passports.  It was not satisfied that Mr Akpata’s sporting status would have allowed him to depart Nigeria if he had been of interest to the authorities.  It also noted that the application for refugee status was not made until almost five years later.  It regarded the explanation for that delay, that they made no timely application for asylum as they were hoping the situation would settle down, in the light of the concerns expressed, as “unsatisfactory”.  It also noted evidence to indicate that the Akpatas planned to return to Nigeria for a visit in 1994.  The Tribunal concluded that there was no real impediment to the Akpatas returning to Lagos rather than to their home villages and that there was no real chance of persecution for a Convention reason if they were to do so.

The Tribunal then proceeded to refer to evidence on the departmental file.  It introduced that section of its reasons with the words:

“Additionally, there is strong evidence on the Departmental file (in notes dated 26 July 1994 and 21 October 1996) that the applicant and his wife planned to return to Nigeria for a visit in 1994.  The applicant claims that he wanted to go to the Cameroons, on his way to North America, so that he would elicit help in finding out what was happening to his family.  He claimed not to have been in touch with his family from 1993 until mid-1995, after which he again lost contact with them.  The letter of July 1995 indicates communications about the applicant’s alleged activities in Australia.  Newspaper reports at the time of the applicant’s Australian trial indicate that he advised his solicitor he had been sending money to his family in Nigeria in late 1995 (see, for example Adelaide Advertiser, 31 July 1996) …

…

Newspaper reports such as that cited above indicate that the applicant and his family had considerable wealth in Nigeria, and that property and other assets were destroyed or taken from them by the authorities.  That claim, made by the applicant at his criminal trial, has not been made in the same degree in the course of his application for a protection visa, despite the clear relevance of it.  While accepting the possibility that the applicant’s home was destroyed by fire, the Tribunal, in assessing all the relevant material in this case, is not satisfied that any such destruction occurred at the hands of the authorities in relation to a Convention ground.  The applicant has not pursued in the course of his application for asylum, as he did in the context of a criminal trial where the motivation for a substantial fraud was a relevant matter requiring explanation, at least in terms of submissions regarding an appropriate sentence, a claim that other assets, of a substantial nature, were seized.  The Tribunal concludes that the claim by the applicant that he had assets seized, for a Convention reason, lacks credibility.”

That gives rise to the first ground argued on this application for review.  It is accepted that the Tribunal did not draw to Mr Akpata’s attention that it had available to it the information disclosed in the newspaper reports as to his wealth in Nigeria and as to the destruction of the home, and did not invite Mr Akpata to comment on why that aspect was not pursued.  It is apparent from the Tribunal’s observations set out above that his non-pursuance of that matter in the present circumstances was regarded by the Tribunal as relevant to his credibility.

The second matter said to give rise to a ground of review is said to emerge from the following passage:

“The applicant’s claim that he has been outspoken against the Nigerian government in Australia and in New Zealand in unsupported by independent information.  The applicant has made a number of bloated statements in the course of his application for refugee status.  A letter dated 31 July 1996 from the Adelaide College of Ministries also indicates that he falsely informed the college his application for a protection visa had been approved and that he had been granted a full scholarship to a university in the United States of America, notwithstanding the fact that the college had refused to graduate him and had not released his academic transcript.  While it is apparent that he has undertaken a number of speaking engagements in Australia the Tribunal is not satisfied that his oratory as an under-graduate in biblical studies has involved overt criticism of the Nigerian government such that he faces a real chance of persecution (see material cited below).  He has never provided specific detail of overt political activity and has a history of deceit and hyperbole.  Moreover, his preparedness to contemplate a return to Nigeria in 1994 or 1995 is completely at odds with his claim that he fears persecution partly on the basis of his alleged political outspokenness in New Zealand and, later, in Australia.”

Again it is accepted that the letter from the Adelaide College of Ministries of 31 July 1996 was not put to Mr Akpata.  It is said to show that Mr Akpata falsely informed that College that his application for a protection visa had been approved and that he had been granted a full scholarship to the University in the United States whereas, according to the letter, the College had refused to graduate him and had not released his academic transcript.  That material has also been treated as relevant to his credibility.  As the Tribunal observed, he did not provide detail of overt political activity and “has a history of deceit and hyperbole”.

The Tribunal found that neither of the Akpatas were witnesses of truth. It rejected Ms Akpata’s evidence confirmatory of Mr Akpata because of the legality of their departure from Nigeria, and “a range of other reasons outlined above in assessing the credibility of [Mr Akpata’s] claims”.  The two matters specifically identified were in the reasons of the Tribunal preceding that conclusion.

The Tribunal referred to other factors also indicating that the Akpatas’ complaints were not credible, including:

·             information that persons with whose political activity in opposition to the Nigerian regime had been explicit and broadly published do not face persecution unless they are regarded by the regime as ““major dissidents” with the capacity effectively to marshal opposition”

·             that Mr Akpata has no history of overt political activity so as to give him the status of a prominent political dissident

·             that about forty per cent of the population of Nigeria are Christians, who are able to practise their faith openly, save for restrictions on open air meetings away from places of worship

·             that the Akpatas were not Ogonis and so were not eligible to join MOSOP, but even if they were there is no evidence to indicate that all Ogonis face a real chance of persecution throughout Nigeria.

The result of that process was to conclude that the Akpatas do not have a well-founded fear of persecution for a Convention reason, and thus to affirm the decision to refuse a protection visa.

THE CONTENTIONS

The contentions on appeal to this Court were short.  For the Akpatas, it was submitted that, in the two respects identified, the Tribunal had taken into account information available to it without giving the Akpatas the opportunity to comment upon that information.  It was contended that the conclusions of the Tribunal as to their credibility, and consequently its conclusions generally, were impeachable.  It was said that the Tribunal was obliged under s 420 of the Act to provide a review in which it acted according to substantial justice and the merits of the case:  s 420(2)(b) and which was fair and just:  s 420(1) and that it had failed to do so in those respects.  Thus, it was said, that the Tribunal failed to comply with procedures required by the Act to be observed in connection with the making of the decision:  s 476(1)(a).  Those submissions were based upon the decision of the Full Court of this Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. To reinforce the submission, counsel for the Akpatas referred in particular to the decision in Kioa v West (1985) 159 CLR 550, in particular per Brennan J at 628-629 where his Honour said:

“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise …  The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.  Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made …

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.  He will be neither consoled nor assured to be told that the prejudicial information was left out of account.”

Deane J at 633 said:

“Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness.  Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.”

That decision was applied by Lehane J in Gilson v Minister for Immigration and Multicultural Affairs (Federal Court, 21 July 1997, unreported).  One ground of review in that case was that the decision-maker had failed to provide Mr Gilson with access to certain material contained on the Departmental file to which the Tribunal had regard, and which was adverse to his interests.  There was an issue as to whether those documents should have been produced or were protected from production on the ground of public interest immunity.  That was a problem addressed, for example, in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 per Gummow J at 123-124.  Notwithstanding issues as to confidentiality, Lehane J concluded that if material was to be before the Tribunal for its consideration, then Kioa required that it be put to Mr Gilson for his comments.  That was not done.  It was material to which the Tribunal had regard in making adverse findings on Mr Gilson’s credibility.  Lehane J in that case decided that the matter should be remitted to the Tribunal for re-hearing.

It does not appear that the Minister contended in Gilson, as contended in this matter, that notwithstanding such a failure the matter should not be remitted for re-hearing because it was futile to do so.

The Minister did not argue in this matter that the obligations under s 420 are not, on the basis of Eshetu’s case, sufficient to have obliged the Tribunal to have given the Akpatas the opportunity to comment upon that material, nor that a failure to do so does not constitute a procedure which is reviewable by reason of s 476(1)(a).  It is not therefore necessary in this matter to address the content of the procedural obligations under s 476(1)(a) which arise by virtue of s 420, and in particular whether those procedural obligations extend to have obliged the Tribunal to have given the Akpatas the opportunity to have commented upon the two pieces of information referred to.  Weinberg J in Singh v Minister for Immigration and Multicultural Affairs (Federal Court, 29 October 1998, unreported) has recently reviewed many of the decisions of the Court touching on such issues.  The Minister contended however that the Tribunal’s decision ought not to be disturbed, because to do so would be of no utility.  The making of orders under s 481 of the Act is discretionary, and it was said that no order should be made because there were ample independent grounds for the Tribunal to have formed the view which it did on the issue of the Akpatas’ credibility.  There was, therefore, no point in remitting the matter for reconsideration or for further consideration.

CONSIDERATION OF CONTENTIONS

There are cases where the Court has declined to remit a matter for reconsideration by the Tribunal notwithstanding that a finding has been made of a particular error because it would be futile to do so:  see eg. Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 per Wilcox J at 136; Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 per Sackville J at 238; Kumaraperu v Minister for Immigration and Multicultural Affairs (Federal Court, Weinberg J, 22 October 1998, unreported).

The issue as to relief should be granted under s 481 when it is said that to do so would be futile was addressed by Merkel J in Nguyen Thanh Trong v Minister for Immigration, Local Government and Ethnic Affairs (1996) 45 ALD 507.  His Honour’s observations relate to relief under s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1976, but his Honour suggested at 521 that similar considerations would apply in respect of s 481(1) of the Act.  I see no reason why that should not be the case.  It was submitted in that case, as here, that the same decision would have been made in any event, so that notice and an opportunity to be heard on certain material would have made no difference to the result.  His Honour said at 519:

“The onus on the minister to make good any such submission as a matter of fact is a difficult one.  As no opportunity was afforded to the claimants to put their case against the issue of the certificates it must be a matter of speculation as to what may have occurred had that opportunity been afforded.  Further, as the issue of the validity of the Indonesian screening processes was treated by the minister as relevant to his decisions I fail to see how direct evidence from the claimants on that very issue could be irrelevant to his decisions.  I have no doubt that the failure to afford the claimants an opportunity to be heard on the law and the facts applicable to the minister’s decisions had the capacity to work to their prejudice.  Accordingly, I do not accept that there is a sound factual basis for the submissions on behalf of the minister.”

His Honour accepted that relief may be refused if it is futile to grant it:  Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146.  However, his Honour added:

“It is difficult to conceive of circumstances where the discretion would be exercised adversely to the applicant if it is “possible” that the end result might not be the same:  see Santa Sobina College v Minister for Education (1985) 58 ALR 527 at 540 per Beaumont J.”

The Minister has identified a number of significant reasons for the Tribunal taking an adverse view as to the credibility of the Akpatas, and which are independent of the two grounds of appeal referred to above.  Those include comparison of the allegations in the initial application for protection visas with the later claims, the fact of having lived in Lagos apparently without problems from 1987 until February 1991, other omissions from the initial claim, the belated claim regarding his membership of MOSOP, the circumstances of departure from Nigeria, the proposed return to Nigeria in 1994, and the independent material suggesting that in any event Mr Akpata was not a high profile dissident and therefore would not attract the attention of authorities.

Reliance was also placed upon Jaswal v Minister for Immigration and Multicultural Affairs (Federal Court, Tamberlin J, 24 September 1998, unreported).  The relevant complaint in that case was that the Tribunal had failed to give to the applicant for a protection visa the opportunity to produce certain evidence.  Tamberlin J found that that opportunity had been provided to him, but that in any event the proposed evidence would not necessarily have had any significant impact on the decision of the decision-maker.  The decision as to the unreliability of the evidence of the applicant in that case was based upon the evidence before the Tribunal upon which the applicant had had the opportunity to make submissions and to comment.  That case does not apply directly to the present circumstances.  It provides an illustration of the application of the futility test, as an alternative basis for the decision.

In the instant case, the Tribunal’s reasons, in the section addressing the evidence and its findings, proceed in stages.  It considers each of the claims made, and rejects them.  It then concludes that neither of the Akpatas have a well-founded fear of persecution for a Convention reason at the time they left Nigeria.  It is only after that finding that it addresses the additional material which attracts the complaints now made.  On the basis of that consideration, it rejected the claim that substantial assets were seized by the authorities in Nigeria.  It also observed that a number of statements in Mr Akpata’s original application were “bloated” and that he “has a history of deceit and hyperbole”.  Those matters featured directly in the Tribunal’s rejection of the corroboratory evidence of Ms Akpata.  It is at the conclusion of that consideration, that the Tribunal expresses its view that neither of the Akpatas are witnesses of truth.  It then separately addressed the question whether, notwithstanding its finding that the Akpatas did not encounter the difficulties which they claimed whilst in Nigeria, they would face a real chance of persecution if they were to return to Nigeria “on the basis, inter alia, of their ethnicity”.  Much of the subsequent discussion again concerns the significance of Mr Akpata’s political activities in Nigeria, as well as the claimed ethnicity as Isoko Ogonis.  The Tribunal rejected their evidence that they were Ogonis.

The material relied upon by the Tribunal, about which the complaint is now made, has played a part in the overall assessment of the creditworthiness of the Akpatas.  That assessment, in particular concerning Mr Akpata, has fed the assessment of the corroborating evidence of Ms Akpata.  To a degree, it seems to have fed the assessment of the measure of Mr Akpata’s political activities in Nigeria, even if the particular incidents claimed by him are rejected.  It also seems to have fed the assessment that the Akpatas are not Ogonis, although if that were the only relevant matter, the relief claimed would be futile because the Tribunal has separately concluded that Ogonis as an ethnic group do not face persecution in any event.  It is also appropriate to observe that the overall perception of a witness’s credibility, based upon his presentation and demeanour and upon objective matters is a cumulative one.  Although the Tribunal’s reasons appear in the staged sequence referred to, it is not necessarily the case that the matters which played a part in the Tribunal’s conclusion that the Akpata’s were not witnesses of truth did not inform the rejection of the specific claims dealt with earlier in the reasons.

In my judgment, those considerations result in the conclusion that it is possible that the end result might not be the same if Mr Akpata had been given the opportunity to respond to the material identified.  It is a matter of speculation, at present, what that response would be.  There are a range of possibilities.  If that material were not given the significance attributed to it by the Tribunal, it is possible that a different conclusion may have been reached on Ms Akpata’s creditworthiness, and the weight to be given to her corroborating evidence, and to the claims made by Mr Akpata.

Accordingly, the Court is not of the view that it would be futile to remit the matter for rehearing.  The application should be allowed, and the matter remitted to the Tribunal for rehearing.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:                    20 November 1998

Counsel for the Applicants:                                           Mr J A Gibbons

Solicitors for the Applicants:                                          Sutherland & Associates

Counsel for the Respondent:                                         Ms S Maharaj

Solicitors for the Respondent:                                        Australian Government Solicitor

Date of Hearing:                                                           27 October 1998

Date of Judgment:                                                         20 November 1998