FEDERAL COURT OF AUSTRALIA
Nick Dike v Minister for Immigration & Multicultural Affairs [2001] FCA 1030
MIGRATION – protection visa – review of decision of Refugee Review Tribunal refusing visa – applicant a citizen of Nigeria – whether jurisdictional error – whether failure to consider relevant material – whether Tribunal failed to review the decision as required by s 414 – whether the Tribunal failed to comply with s 415 – whether Tribunal erred in law in its consideration of whether the applicant could relocate within Nigeria – whether no evidence to justify Tribunal’s decision – Tribunal’s approach to assessing applicant’s credibility
Migration Act 1958, s 36, ss 54, 57, 414, 415, 476(1)
Migration Regulations 1994, Schedule 2, clause 866.221
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed
Craig v State of South Australia (1995) 184 CLR 163 discussed
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 discussed
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 referred
Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 referred
Promise Dike v Minister for Immigration and Multicultural Affairs [2001] FCA 1029 referred
NICK DIKE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V274 of 1999
KENNY J
1 AUGUST 2001
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 274 OF 1999 |
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BETWEEN: |
NICK DIKE Applicant
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AND: |
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 274 OF 1999 |
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BETWEEN: |
Applicant
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AND: |
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application under s 476(1) of the Migration Act 1958 (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 April 1999, affirming a decision of the respondent, by his delegate, not to grant the applicant a protection visa. The application is separate from, but related to, another review application (No V 273 of 1999) made by Mr Promise Dike. The two applications were heard together, although I have prepared separate reasons for each of them. These reasons relate to Mr Nick Dike.
background facts
2 The applicant, Nick Dike, claims that he and Promise Dike are brothers, and that they are citizens of Nigeria of Ogoni ethnicity. Mr Nick Dike, who was born on 22 September 1979, arrived in Australia on 15 January 1998 and applied for a protection visa on 5 March 1998. Mr Promise Dike arrived in Australia on 28 November 1996, and applied for a protection visa on 28 January 1997.
3 By letter dated 22 September 1998, a delegate of the respondent notified Mr Nick Dike that his protection visa application had been refused. On 30 September 1998, Mr Nick Dike applied to the Tribunal for review of the delegate’s decision. At a hearing on 22 January 1999, Nick and Promise Dike gave evidence to the Tribunal. Both were subsequently notified of the Tribunal’s decision to affirm the decisions in respect of them.
4 The decision under review in this proceeding is the Tribunal’s decision that it is not satisfied that Mr Nick Dike has a well-founded fear of being persecuted in Nigeria by reason of his Ogoni ethnicity and political opinion. The applicant claimed that he had a well-founded fear of persecution if he returned to Nigeria because he was an Ogoni, in particular, a young Ogoni man, and because of the political opinion imputed to him.
legislative framework
5 Section 36 of the Act provides:
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
6 Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively, “the Convention”). A refugee is defined in Article 1A(2) of the Convention as any person who:
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 … .
applicant’s protection visa application
7 In a statutory declaration that accompanied his protection visa application, Mr Nick Dike claimed that he was “a native of Bane, Ken Khana in Ogoni, Bori Local Government Area, River State”. Mr Dike referred to the deleterious effect of oil mining by the Shell Oil Company on traditional Ogoni lands, and to the fact that, in 1993, Ken Saro-Wiwa had formed a political party called MOSOP (Movement for the Survival of Ogoni People), to challenge oil mining activities. Nick Dike said:
I considered myself a member of MOSOP. All members of my family were members of MOSOP also.
8 He claimed that he had participated in demonstrations against the activities of Shell Oil in January and in April 1993. He referred to the fact that, in May 1994, “four prominent Ogoni men” were killed, and that, following the killings, the Nigerian military “were … permanently deployed in the Ogoni area”. He related that:
Early one morning in May 1994, around 2.30am, three Nigerian military officers came to our house. They questioned my father. All of us woke up. They asked him whether anyone in the family had been involved in the demonstrations. My father said yes. They told him that he was under arrest. They told him that all the male members of the family were under arrest. Promise, my older brother and my father, began fighting with the military. Whilst this fighting was going on, my mother, my sister and myself ran away from our village. A villager drove us to Port Harcourt. We did not go back to our village.
According to Mr Nick Dike, he and his mother and sister stayed on with friends in Port Harcourt, and he enrolled in a new school there. He claimed that his mother told him that his father had been killed in prison, and that the family house had been “demolished by the military”.
9 Mr Dike claimed that:
In June 1996, another terrible thing happened. Early one morning there was a knock at the door. The man we were staying with opened the door. There were four military officers who ran into the house and grabbed the man who had opened the door and came and grabbed me. They arrested me because I am an Ogoni man. I do not know how they got information that I was living in Port Harcourt. They put us both in a black van with no windows. … The drive was for less than one hour. The van eventually stopped, and we were taken out and put into a prison.
10 The applicant stated that he was detained in prison until March 1997. He claimed to have been beaten twice “very harshly”. Of the second occasion, in March 1997, when Mr Dike was beaten after a man had died, Mr Dike said:
On the day of his death, they came to remove his body. I challenged the officers and asked them ‘What have I done?’ ‘Why am I being held in here?’ ‘How could you treat the other man like that?’ They used their rifle butts and a baton to beat me. They knocked out my three front teeth, they broke my hip, they cut my head. I fell unconscious and the next thing I knew, I was in a hospital.
Mr Dike claimed that he escaped from the hospital with the help of a nurse. He said, “She told me how I could escape at night through a back door”.
11 After his escape, he travelled to a family friend’s house in Oyibo in the River State. The family friend, who was a businessman, arranged for him to travel on a passport in the name of another Nigerian, and bought him a ticket to South Africa.
12 Once in South Africa, the applicant claimed to have obtained work at a restaurant, the proprietors of which were from Australia and New Zealand. He recounted that he was unhappy in South Africa and sought their help.
[The Australian] agreed to provide the money she owed me in wages, to buy a ticket instead. She told me that she would take me to her country. She told me that if I went to her country I would be safe. In December 1997, she began making arrangements for me to go to Australia. She obtained a South African passport for me. … She gave me the passport of a man called Frank Khumalo. He looked quite similar to me.
13 According to Mr Nick Dike, he and the proprietors travelled from South Africa to Australia, via New Zealand, in January 1998. He subsequently applied for refugee status in Australia, and was reunited with his brother, Promise, when he consulted his lawyers. He claimed that:
If I was forced to return to Nigeria, I would be a dead man. I was very lucky to escape from the prison or I could have been killed in prison like my father and like the other man I shared a cell with. … The authorities believe that all young Ogoni men are politically involved in the resistance movement. In my case it is true, but there are many young Ogonis locked up who have never done anything against the Government. The Nigerian Government continues to persecute Ogonis. They continue to work with Shell and oppress MOSOP.
14 Messrs Promise and Nick Dike were interviewed by officers of the respondent’s Department (“the Department”) on 19 August 1998. Following the interview, the Refugee and Immigration Legal Centre Inc (“the RILC”) responded on their behalf, by letter dated 1 September 1998, to issues arising out of the interview, including the issue about their identities as Nigerian nationals of Ogoni ethnicity. Under the heading, “Claim that both applicants have previously suffered mistreatment amounting to persecution”, the RILC submitted that their claims were consistent with the country information, and set out extracts from a number of sources concerning the treatment of Ogoni people in Nigeria.
15 The submission also referred to Mr Nick Dike’s description of the injuries resulting in his hospitalisation. The submission said in part:
When questioned about his ability to walk on his broken hip, Nick was unclear about whether his hip was actually broken or not. It was clear that he was communicating that his hip was injured. … He indicated that the treatment for his injured hip was massage. It is unlikely that the hospital would treat a broken hip with massage and in fact the opposite, complete immobility would be more expected. … [O]n the evidence it is more likely that his hip was injured and not ‘broken’ as stated. Similarly, we do not know the extent of injuries to his leg from that time either.
16 On 13 January 1999, the RILC provided the Tribunal with a letter and report, both dated 12 January 1999, from Ms Roslyn Leary, counsellor/advocate, the Victorian Foundation for Survivors of Torture Inc. Ms Leary stated:
The symptoms experienced by Mr Dike relate directly to his past experiences, the hopelessness of his current situation and the uncertainty of his future. These symptoms are manifest in Mr Dike’s current state of depression, anxiety, sleeplessness, loss of concentration, dissociative states, loss of interest in life, nightmares and intrusive thoughts. The extent to which Mr Dike experiences these symptoms are severe and embrace his whole existence. Diagnostically Mr Dike is suffering from Posttraumatic Stress Disorder (DSM 1V 1994) and he has a Major Depressive Disorder.
On 21 January 1999, the RILC forwarded to the Tribunal a medical report, dated 20 January 1999, from Dr Janne Randall concerning Mr Nick Dike.
17 Following the Tribunal hearing on 22 January 1999, the RILC provided a further lengthy submission to the Tribunal dated 10 March 1999. The submission, consisting of some thirty-two pages, addressed the medical evidence before the Tribunal; Mr Dike’s evidence and its consistency with the country information; the plausibility of his evidence; whether his fear of persecution was well-founded; the current situation in Nigeria; and the possibility of relocation within Nigeria. The submission concluded:
The applicant has been singled out for persecution in the past, based on his Ogonis ethnicity and his age/gender. Given that the conflict in Ogoni land is certainly far from resolved and if anything is ‘winding up’, in our submission the risks to the applicant as falling within the most at risk group, cannot be dismissed. Moreover, his particular circumstances and Nigeria’s poor human rights record generally, render it at minimum, unreasonable for the applicant to relocate. We urge a finding that the applicant meets the Convention definition of a refugee.
18 In a letter to the RILC dated 24 March 1999, the Tribunal referred to inquiries that it had made concerning Mr Nick Dike’s claim regarding his flight from South Africa to New Zealand and Australia. The letter stated, amongst other things:
The Tribunal has made enquiries with the New Zealand authorities who have advised that Frank Khumalo, d.o.b. 13/08/1976, passport no. 404087634, arrived in Auckland on 12 January 1998 on flight GA866 from Brisbane.
Inquiries with Garuda Airlines have revealed that on 12 January 1998 flight GA866 originated in Bali then flew to Brisbane and thence to Auckland. Garuda airlines does not operate any flights out of South Africa.
The RILC responded by a submission dated 31 March 1999, enclosing Mr Dike’s statutory declaration of 28 March 1999. In that declaration, Mr Nick Dike stated, “[m]y mind is not normal. I have a problem with my memory”.
reasons for the tribunal’s decision
19 After describing the applicable legal regime in terms familiar to this Court, the Tribunal turned to the applicant’s “Claims and Evidence”. It began by stating:
The applicant’s claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on Friday, 22 January 1999.
In the course of its discussion, the Tribunal specifically referred to evidence given by Mr Nick Dike to the Department at an interview on 19 August 1998; the reports from Ms Leary and Dr Randall; Mr Nick Dike’s evidence at the hearing on 22 January 1999; the post-hearing submission received by the Tribunal on 10 March 1999; and the Tribunal’s letter of 24 March 1999, as well as the applicant’s response.
20 Turning to its “Findings and Reasons”, the Tribunal first addressed “Credibility”. After a general discussion of the law regarding credibility findings by the Tribunal, the Tribunal referred to the applicant’s submission “that his credit should be assessed individually and independently” and added “given that the applicant has claimed to be the brother of [Promise Dike] and have some shared experiences, the Tribunal believes that it is proper to take into account inconsistencies between their accounts and the high number of coincidences in their accounts when coming to a view as to his credibility”.
21 Notwithstanding this, the Tribunal accepted that Mr Nick Dike “is an Ogoni and that he was affected by the oil exploration that was carried out where he lived and the unrest that occurred there in April 1993”. The Tribunal did not, however, accept that he was “actively involved in MOSOP apart from attending two mass demonstrations”. The Tribunal stated:
The applicant was ignorant of many aspects of MOSOP’s activities that the Tribunal would have expected him to know if he was actively involved in demonstrations, such as the existence of the youth wing, the meaning of the flag and the songs that are chanted at demonstrations. Despite the adviser’s submission that he was too young to know about the MOSOP young wing other details the Tribunal would expect him to at least be familiar with such as the songs that were chanted at the demonstrations. The applicant’s account of his involvement in MOSOP was at odds with [Mr Promise Dike] who indicated that the applicant took part in many demonstrations. The Tribunal notes the applicant’s adviser’s submission that his involvement was only to attend two mass demonstrations and accepts that he did this along with a significant number of the Ogoni population but that he did not take any prominent role.
22 The Tribunal did not accept Mr Nick Dike’s claims regarding the detention of his father and brother and the death of his father. The Tribunal found that it was “inconsistent with country information … that low profile participants in mass demonstrations would be arrested a year after a mass demonstration”. The Tribunal took into account its finding that Mr Promise Dike had “fabricated the account of his arrest and imprisonment” and its decision not to accept Mr Promise Dike’s account of his father’s death. The Tribunal added:
[T]here are inconsistencies between the applicant’s account and [Mr Promise Dike’s] account. This applicant said his mother told him the home was demolished after they lived in Port Harcourt yet [Mr Promise Dike] stated the house was destroyed in the police raid.
The Tribunal concluded that it was “unable to determine” and was “left in doubt as to whether there was a raid on the applicant’s home that caused the applicant, his mother and sister to flee or what the reasons were for the family’s move to Port Harcourt”.
23 The Tribunal did not accept the applicant’s claim that he was arrested in Port Harcourt and imprisoned. It found that Mr Nick Dike did not have a “prominent political profile” and it did not accept that:
[t]he authorities would have arrested him 2 years later for his involvement in two mass demonstrations when he had no other involvement in the activities of MOSOP, especially given the applicant was aged 13-14 at the time of the demonstrations.
It referred to the fact that the applicant was able to attend school without incident in the intervening period. The Tribunal described his account of his detention as “extremely vague”. It added that he was also “vague and evasive about who he was staying with in Port Harcourt and the details of his life there”.
24 In this context, the Tribunal referred to the applicant’s adviser’s submission of 10 March 1999 and the country information to which it referred. Of a Human Rights Watch report, the Tribunal said:
[W]hen the report is looked at in context it is clear that it is indicating that there was ongoing harassment of MOSOP activists. … The applicant was not a MOSOP activist nor has he ever purported to be at any time. Further the report refers to arrests of MOSOP activists at the time of the military action not 2 years later. This material does not provide support for the proposition that people who merely participated in mass demonstrations were arrested and detained for lengthy periods of time, 2 years after the demonstration when they were no longer living in the conflict area.
25 The Tribunal expressly mentioned other country information referred to by the applicant’s advisers, finding that:
This information does not support the proposition that someone who has taken no part in demonstrations or any political activities for 2 years and is living in the city away from the conflict area would be arrested in a situation not connected with any demonstration or protest. The Tribunal finds that the applicant’s account is implausible and at odds with the country information.
26 The Tribunal did not accept that Mr Nick Dike was “tortured or injured whilst in detention” and did not accept “his account of his escape from hospital”. It described that account as “implausible”, and noted that the applicant was also “vague as to the circumstances of his detention in hospital and he was unable to provide details of injuries he sustained or the treatment he received”.
27 The Tribunal did not accept the applicant’s account of his escape from Nigeria. It said:
The Tribunal does not accept that a friend would arrange a fake passport and pay his airfare in the circumstances described by the applicant. The person was a friend of the family who was willing to spend a great deal of money for the applicant to escape in circumstances where there was no real need for him to leave Nigeria given the Tribunal has found he was never arrested or detained as claimed. Further the applicant was unable to recall any of the details of his escape.
28 The Tribunal did not accept that the applicant’s employers assisted him in coming to Australia. It found that he had “not been truthful about his travel” and it did not “accept his explanation for the discrepancies in the account of how he arrived here”. The Tribunal referred to his failure to find out what had happened to his mother and noted:
[A]t all stages of the proceedings the applicant was extremely vague and evasive. He appeared to be particularly vague in relation to information that could be checked and verified either with [Mr Promise Dike] or with independent sources. This leads the Tribunal to the view that he has fabricated a story for claiming refugee status.
29 Referring to the adviser’s submission that the applicant’s “vagueness, evasiveness and contradictions with [Mr Promise Dike] can all be explained by his psychological condition”, the Tribunal turned to the reports of Ms Leary and Dr Randall. It accepted that the applicant had suffered “trauma in his life and this has led to some sort of psychological disorder and that he also suffers depressive illness”. It did not accept that the psychological injury was caused by the events described by the applicant nor did it accept that “the vagueness and inconsistencies in the applicant’s account can be explained by his psychological condition”. The Tribunal added:
The Tribunal observed in the hearing that the applicant was able to answer non controversial questions without undue distress. However whenever contradictions or questions going to credit were put his symptoms markedly increased; he hyperventilated and was unable to answer. The applicant became markedly distressed when asked to recall information about when his brother went to school yet the Tribunal was not asking him to recall a traumatic event. The applicant appeared to exaggerate his condition when asked about his and his brother’s shared childhood, a point on which the Tribunal has not found the applicant nor [Mr Promise Dike] credible … .
30 The Tribunal accepted that the applicant had a hip injury but did not accept that it was “sustained in detention [in] the manner claimed”. The Tribunal did not accept the adviser’s submission that “as the applicant’s trauma counsellor has seen the applicant for a lengthier period of time than either the Delegate or the Tribunal Member her views as to the applicant’s credibility should be preferred”.
31 The Tribunal repeated its finding that, even if Promise and Nick Dike were biological brothers, “they have not had a shared childhood nor grown up together”. The Tribunal also referred to the coincidences between the accounts given by Nick and Promise Dike. It found that “the sum of these coincidences together with all the other credibility issues already discussed indicates the applicant has fabricated a claim for refugee status”.
32 The Tribunal referred to the applicant’s adviser’s request for a further opportunity to make submissions in the event that the Tribunal did not accept the substance of Mr Nick Dike’s claims. It said:
[H]owever it is not prepared to allow further time to the adviser for further submissions. The adviser has had adequate time to prepare submissions and has provided lengthy submissions to the Tribunal. The applicant and the adviser were informed at the hearing that all issues were in question and it should not be assumed that the Tribunal accepted the applicant’s claims.
33 Turning to the “Substantive claims”, the Tribunal said:
The Tribunal is satisfied that the applicant is from Ogoniland and has witnessed or been involved in some type of trauma which has resulted in some type of psychiatric condition.
Given the credibility findings the Tribunal has made it is left to consider whether a young Ogoni male who was involved in two mass demonstrations when he was 13-14 years old, who then moved away from Ogoniland, attended school and lived an uneventful life, was never arrested or detained, faces a real chance he will be persecuted for a Convention ground if he returns to Nigeria. The adviser submitted that he will be persecuted for his ethnicity, an actual or imputed political opinion as a supporter of MOSOP and his membership of a particular social group namely young Ogoni males.
34 The Tribunal noted that as it did not accept the applicant’s claims of past persecution, it did not have to consider whether there had been a substantial change in Nigeria. The Tribunal described the focus of its inquiry as “whether there is a real chance [Mr Nick Dike] will be persecuted for either being a young Ogoni male or for an imputed political opinion for being involved in MOSOP”. The Tribunal added:
The Tribunal does not accept that the applicant is known to the authorities as submitted by the adviser. The applicant has only had very minor involvement in MOSOP demonstrations. He is not an activist and he has not been instrumental in opposing the oil company activities in Ogoniland. He was only 13-14 at the time he participated in two mass demonstrations. The applicant would not have the profile of an activist.
35 After referring to Amnesty International reports, Human Rights World reports and a Human Rights Watch report, the Tribunal stated that whilst they indicated that “Nigeria has an appalling human rights record and that demonstrations are violently suppressed”, they also indicated that “it is activists who are targeted by the security forces”. Mr Nick Dike, so the Tribunal found, did not fit this profile. Referring to the country information provided by Mr Dike’s adviser, the Tribunal found that the material did not support “the submission that young Ogoni men are at risk of persecution for being young Ogoni men”. The Tribunal did not accept “even on the information provided by the adviser, that there is a real chance that the applicant will be persecuted in the reasonably foreseeable future …”. The Tribunal found that the applicant did not fall “into any of the categories of Ogonis who are at risk from the authorities”. It found that he had “only minimal involvement in MOSOP organised activities therefore there is no real chance that he will be persecuted in the reasonably foreseeable future for reasons of a political or imputed political opinion”. It found that the country information did not support the contention that “being a young Ogoni male will result in the applicant being imputed with an adverse political opinion”.
36 Finally, the Tribunal stated that:
Even if the applicant was at risk of persecution within Ogoniland the Tribunal finds that he would be able to relocate and it would be reasonable for him to do so.
The Tribunal concluded that, “[h]aving considered the evidence as a whole”, it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention.
grounds of review
37 By his application in this Court, the applicant sought review of the Tribunal’s decision on all the grounds set out in s 476(1) of the Act other than s 476(1)(f). Some grounds were abandoned in written contentions filed on 23 April 2001. At the hearing, the applicant relied on pars 476(1)(a), (e) and (g). The submissions advanced on behalf of Messrs Nick and Promise Dike were virtually the same.
38 The applicant’s primary submission was that the Tribunal failed to have regard (as it was bound to do) to various matters. As best I can see, these matters were as follows:
(1) Covering letter and report dated 12 January 1999 from Ms Leary;
(2) Report dated 20 January 1999 from Dr Randall;
(3) Psychiatric report dated 18 January 1999 from Dr Mahalingam on Promise Dike;
(4) Letter dated 5 March 1998 from the Refugee Advice and Casework Service (Vic) Inc (“the RACS”) to the Department, with attachments, including Mr Nick Dike’s statutory declaration of 5 March 1998 and his Form 866 protection visa application;
(5) Letter dated 1 September 1998 from the RILC to the Department;
(6) Article in “The Australian” newspaper, “Nigeria Backs Civilian Rule”, appearing on 4 July 1997;
(7) Letter dated 7 April 1998 from the RACS to the Department regarding Mr Promise Dike;
(8) Letter dated 28 September 1998 from the RILC to the Tribunal;
(9) Letter dated 30 September 1998 from the RILC to the Tribunal;
(10) Letter dated 10 March 1999 from the RILC to the Tribunal (received on 12 March 1998);
(11) DFAT answers to MOSOP questions; and
(12) The testimony of Mr Promise Dike.
39 At the hearing in this Court, the applicant’s counsel referred to some other matters, including country information. Further, he relied on aspects of his s 430 submissions in connection with his submissions on jurisdictional error.
40 The applicant submitted that the Tribunal’s failure amounted to jurisdictional error, because it had failed to take into account relevant material. He also submitted that, by not taking into account these matters, there was a failure to review the decision of the respondent’s delegate as required by s 414(1) of the Act, and a failure to comply with ss 54 and 57 as required by s 415(1) of the Act. The applicant submitted that the Tribunal erred in law in failing “to deal separately with the issues of relocation to the country of [the] applicant’s nationality and persecution in that country”, and by failing to address the situation likely to face the applicant upon his return to Nigeria. Referring to s 476(1)(g) and s 476(4) of the Act, the applicant further submitted that:
The Tribunal made findings of fact upon which its conclusions as to credibility of the applicant were made when those facts did not exist.
The applicant made further submissions in its written contentions. I shall mention these below.
was there any reviewable error?
41 The applicant contended that his primary submission was supported by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. In a joint judgment, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held that pars 476(1)(b), (c) and (e) permitted an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error.
42 At common law, the term “jurisdictional error” covers a number of kinds of error, including ignoring relevant material. In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court said:
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. … If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
A failure to take account of a relevant consideration will only constitute a reviewable error, however, if the consideration was one that a decision-maker was bound to take into account.
43 After noting that the limitation in s 476(3) of the Act applied to only s 476(1)(d), the joint judgment in Yusuf stated at [83]-[84]:
[T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’. If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act.
Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. … No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts as it found. If that is so, the ground in s 476(1)(e) is made out.
44 In a separate concurring judgment, the Chief Justice said at [4]:
As McHugh, Gummow and Hayne JJ point out, a failure by the tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the tribunal’s decision, either in the Federal Court or in this court, quite apart from whatever consequences it may have under s 476(1)(a).
45 Although Gaudron J differed from the majority on the outcome of Ms Yusuf’s application, her Honour’s analysis of the relationship of the relevant statutory provisions and the common law concept of “jurisdictional error” was similar to that of the joint judgment. See 180 ALR 1 at [38]-[44].
46 There may be numerous matters that a decision-maker may take into account (and that are not in law irrelevant), although the decision-maker would not be bound at law to take them into account. The position is best explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39. His Honour said at 39-40:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (Citations omitted).
47 The relevant consideration ground, as it is understood at common law, does not permit inquiry into the merits of the administrative decision under review. As Mason J added in Peko-Wallsend at 40-41:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … . (Citations omitted).
48 It is unnecessary in this case to explore further the nature of the relevant consideration ground. The applicant has not shown that the Tribunal failed to take into account the matters to which it referred.
(1) Covering letter and report dated 12 January 1999 from Ms Leary
(2) Report dated 20 January 1999 from Dr Randall
49 As already indicated, the Tribunal specifically referred to the reports of Ms Leary and Dr Randall when it discussed the applicant’s “Claims and Evidence”. It also considered the evidence constituted by these reports in its “Findings and Reasons”. The applicant’s submission that the reports were not taken into account must be rejected. Questions of weight and cogency of evidence are matters for the Tribunal.
(3) Psychiatric report dated 18 January 1999 by Dr Mahalingam on Mr Promise Dike
50 The applicant did not press his claims concerning this report that concerned his brother, Promise Dike.
(4) Letter dated 5 March 1998 from the RACS to the Department with its attachments (namely, the applicant’s 5 March 1998 statutory declaration and his Form 866 protection visa application)
51 Under the heading “Claims and Evidence”, the Tribunal summarised the matters contained in the applicant’s 5 March 1998 statutory declaration and in his Form 866 application. Much of its “Findings and Reasons” concerned the matters contained in this summary. The applicant’s submission that the letter and its attachments were not taken into account must fail.
(5) Letter dated 1 September 1998 from the RILC to the Department
52 I have already referred to the contents of this letter, which was in the nature of a submission to the respondent’s delegate. The Tribunal referred to submissions such as these in its reasons for decision. The Tribunal expressly turned its mind to the nationality and ethnicity of the applicant and his relationship with Mr Promise Dike. It also turned its mind to the question whether it accepted the applicant’s claims of past persecution, and to the possibility of persecution if the applicant were to return to Nigeria. Whilst it referred to some sources of country information and not to others that were before it, I cannot infer from this that some material was not considered at all. On the contrary, the Tribunal’s reasons and the transcript of the hearing on 22 January 1999 indicate that it took account of all the country information before it. In any event, since the Tribunal was not obliged to refer specifically to each item of country information, one cannot infer that an item (or a submission or another piece of evidence) was not considered simply because it was not expressly mentioned by the Tribunal.
(6) Article in “The Australian” newspaper, “Nigeria Backs Civilian Rule”, appearing on 4 July 1997
53 There is nothing in the Tribunal’s reasons to show that the Tribunal failed to consider this 1997 article. It is to be borne in mind that the Tribunal is not bound to refer to every item of material relied on by the applicant: see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 and Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 (overruled on a different point).
(7) Letter to the Department dated 7 April 1998 from the RACS in relation to Promise Dike
54 Although the letter referred specifically to Promise Dike, it contained general country information about Nigeria. There is nothing in the Tribunal’s reasons in the case of either Nick or Promise Dike to indicate that the Tribunal did not consider this information in making its decisions on both their applications in so far as it was required to do.
(8) Letter dated 28 September 1998 from the RILC to the Tribunal
55 The applicant made no claims concerning this letter at the hearing. I can detect no error arising in relation to this letter, which concerned the nature of Nick Dike’s review application (dealt with in the letter discussed immediately below) and enclosed a Request for Access to Documents.
(9) Letter dated 30 September 1998 from the RILC to the Tribunal;
56 This letter advised that the RILC had initially attempted to include Mr Nick Dike in his brother’s application, although the RILC subsequently accepted that he should lodge a separate application. The applicant made no claims concerning this letter at the hearing. I can detect no error of the kind alleged arising in the Tribunal’s decision.
(10) Letter dated 10 March 1999 from the RILC to the Tribunal
57 I have described this letter earlier. There is nothing in the Tribunal’s decision or reasons to warrant the conclusion that the Tribunal failed to consider it. The Tribunal specifically noted its receipt of this post-hearing submission, together with some of the contentions advanced in it. It returned to a number of these matters in its “Findings and Reasons”. (There is another letter dated 12 March 1998 from the RILC to the Tribunal constituting Mr Promise Dike’s post-hearing submission. There is nothing in the Tribunal’s decisions or reasons with respect to Nick or Promise Dike to justify the conclusion that the Tribunal did not consider that letter to the extent it was required to do.)
(11) DFAT answers to MOSOP questions
58 There is nothing in the Tribunal’s decision to warrant the view that the Tribunal failed to consider this matter in so far as it was required to do. (Before passing to the next item, I note that the written contentions filed on the applicant’s behalf also referred to a letter of 11 January 1999 from the RILC to the Tribunal. At the hearing, the applicant’s counsel did not make any specific comment about this letter, which was entitled “Re: Further information in support of case, request for internal review of FOI decision”. I can detect no error on the Tribunal’s part in connection with its consideration of it.
(12) The testimony of Mr Promise Dike
59 The Tribunal compared and contrasted the evidence of Mr Promise Dike with the evidence of Mr Nick Dike at a number of points in its reasons for decision. There is no warrant for holding that the evidence of Mr Promise Dike was not taken into account in relation to Mr Nick Dike in so far as the Tribunal was required to do.
60 Further, the applicant has not shown that the Tribunal made any reviewable error of this jurisdictional kind because of its approach to any country information or any matter referred to in connection with its s 430 submissions.
61 For the above reasons, the applicant, Mr Nick Dike, has not shown that the Tribunal failed to take into account the matters mentioned. He has not made out any claim of jurisdictional error of the kind referred to in Yusuf. Even if the applicant had established some failure to have regard to one or other of the matters mentioned, it would not, of course, follow that jurisdictional error was shown. This would depend on whether the matter was one that the Tribunal was bound to take into account in the sense referred to by Mason J in Peko-Wallsend. See also Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-237.
62 For the reasons given in the case of Promise Dike v Minister for Immigration and Multicultural Affairs [2001] FCA 1029, I would reject the submissions that there has been a failure to review the delegate’s decision as required by s 414(1) of the Act, or that there has been a failure on the Tribunal’s part to fulfil its duties under s 415(1) of the Act. Similarly, for the reasons given in that case, I would reject the applicant’s submissions that the Tribunal erred in its approach to the relocation issue, or that error of the kind referred to in ss 476(1)(g) and (4) of the Act has been shown.
63 Counsel submitted, particularly in Mr Nick Dike’s case, that the Tribunal committed reviewable error in failing to put to Mr Dike that he and his brother had “got together … and conspired to concoct a story”, in order to support a claim for refugee status. Assuming that this failure might in some way constitute reviewable error (bearing in mind s 476(2) of the Act), there is no substance in this complaint. Perusal of the transcript of the hearing before the Tribunal on 22 January 1999 and of the Tribunal’s reasons, together with the submissions made on the applicant’s behalf, shows that the Tribunal drew the applicant’s attention to discrepancies between his and his brother’s accounts and acquainted the applicant with the substance of adverse country information and other material. The applicant had an opportunity to respond at the hearing, and by way of post-hearing submissions. These post-hearing submissions make it plain that the applicant’s advisers were well aware that the Tribunal might rely upon such matters to make adverse findings regarding the credibility of the applicant and his brother.
64 In the cases of Messrs Nick and Promise Dike, counsel’s written contentions included some submissions that were not abandoned but were not addressed in any way at the hearing in this Court. They were the same submissions in both cases. I rejected them in Promise Dike v Minister for Immigration and Multicultural Affairs. I do so for the same reasons in this case.
65 For the reasons stated, I would dismiss the application with costs.
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I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 1 August 2001
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Counsel for the Applicant: |
Mr B F Monotti appeared pro bono |
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Solicitor for the Applicant: |
Not represented |
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Counsel for the Respondent: |
Mr C G Fairfield |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
11 July 2001 |
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Date of Judgment: |
1 August 2001 |
