FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 1868

MIGRATION – appeal from a decision of a single Judge affirming the decision of the Refugee Review Tribunal to refuse the appellant’s protection visas – whether the appellants had a well-founded fear of persecution – application of the “real chance” test – the appellants’ previous experience of persecution

MIGRATION – bias – reasonable apprehension of bias – whether Judge should be disqualified because of previous exposure to information in the media concerning the appellant

Migration Act 1958 (Cth), s 476

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, applied

Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277, applied

STEPHEN AKPATA, FORTRESS AKPATA AND PRECIOUS AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 50 OF 2001

GRAY, DOWSETT AND STONE JJ

21 DECEMBER 2001

SYDNEY (HEARD IN ADELAIDE)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellants pay the respondent’s costs of the proceedings.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of O’Loughlin J reviewing a decision of the Refugee Review Tribunal (the “Tribunal”) refusing protection visas pursuant to the Migration Act 1958 (Cth) (the “Act”).  The appellants are Stephen Ogho Akpata, his wife Fortress Akpata and their son Precious Akpata.  All three appellants were born in Nigeria, Mr Akapta on 24 November 1962, Mrs Akpata on 17 June 1966 and Precious Akpata on 20 March 1990.  They left Nigeria in February 1991, travelled to New Zealand and arrived in Australia on 10 February 1994.  Mr Akpata held a student visa which apparently entitled them to entry.  They returned to New Zealand briefly in 1995 but re-entered Australia on 31 July in that year.  On 22 December 1995 they applied for protection visas.  Their applications were refused, which refusal was affirmed by the Tribunal.  That decision was set aside by this Court on 10 February 1998, and the matter was remitted to the Tribunal.   On 18 May 1999 a differently constituted Tribunal reaffirmed the decision to refuse the visas.  On 29 November 1999, this Court ordered by consent that the decision be overturned.  The matter was again remitted to the Tribunal.  On 19 May 2000 a differently constituted Tribunal again affirmed the original decision.  That decision was the subject of the application for review which was refused by O’Loughlin J.  That refusal is the subject of this appeal.

2                     A person will qualify for a protection visa if he or she is a person to whom Australia has protection obligations as defined in the Act.  For present purposes he or she must have a well-founded fear of persecution, in his or her country of origin for reasons of race, religion, nationality, membership of a particular social group or political opinion.  The present appellants claim to have such a well-founded fear for reasons of race, religion and political opinion.  It appears to have been accepted that the claims of all three appellants stand or fall together, depending primarily upon Mr Akpata’s claim.  It should be noted, however, that Mrs Akpata also claimed to have suffered harassment in Nigeria.

3                     The claim based on race relied upon the assertion that both Mr and Mrs Akpata were members of the Ogoni ethnic group.  This group comes from the south of Nigeria.  It was the first ethnic group to object to the activities of petroleum companies in traditional lands.  As a result it came into conflict with the Nigerian government.  The Tribunal accepted that the Ogoni were persecuted.  However it found that neither adult appellant was an Ogoni and that they had sought to identify themselves as such in order to take advantage of that history of persecution.  As far as we are aware, there is no appeal against this factual determination. 

4                     Mr Akpata held numerous jobs prior to leaving Nigeria.  He was also active politically and was a pastor of a Christian denomination described as the “Jesus Crusade Church”.  In that role he frequently spoke in public, often addressing political issues.  He said that in Nigeria there is little difference between being politically active and being an active minister of the Church.  Mr Akpata claimed that he and his family (meaning his parents and siblings) had long been associated with a political party known as the “NPP”, previously known as the “NCNC”.  He claimed that as a result of this association, his parents’ home had been burnt down in 1976, resulting in the death of one of Mr Akpata’s brothers, and that this event had been politically motivated.  The Tribunal rejected this claim, apparently because there were no political parties in Nigeria at that time.  It considered that Mr Akpata had made numerous inconsistent assertions as to his political activities in Nigeria.  Nonetheless, it accepted that Mr Akpata had been a member of the NPP and a local branch publicity secretary until the proscription of the party in late 1983.  It also accepted that he was involved in various political activities which involvement continued until the elections in late 1983.  The Tribunal accepted that Mr Akpata may also have been involved in non-party political activity, although it had few details of such activities.  He had claimed that his activities were largely associated with the Ogoni people, which claim the Tribunal rejected.

5                     Mr Akpata also claimed that in Nigeria, he would be at risk of persecution because he has spoken out against the “Muslim military dictatorship” both in Nigeria and whilst he has been away.  A substantial part of the population of Nigeria is Muslim and a substantial, although smaller part is Christian, primarily Anglican or Roman Catholic.  The Muslim population is mainly in the north and the Christian, in the south.  Both adult appellants come from the south.  Prior to the imposition of military rule in December 1983, the government had been frequently headed by Christians.  From December 1983 until the recent return to civilian democratic rule, the leadership was Muslim.  Mr Akpata claimed that from the beginning of 1984 until his departure in 1991, he had numerous confrontations with the Muslim authorities, including periods of detention and ill-treatment.  This confrontation was, he said, attributable to his activities as a Christian minister.

6                     The Tribunal accepted that in some of his preaching, Mr Akpata had made “unflattering references to the Muslims in power” and to his perception of the increasing “Islamisation” of Nigeria.  It was also satisfied that attempts had been made to prevent him speaking or to disrupt his meetings and that he had been given beatings or otherwise mistreated.  It also accepted that he had been detained for short periods of time, including overnight.  The Tribunal was not satisfied that he had been tortured as he claimed, noting that this allegation was raised by Mr Akpata quite late in these protracted proceedings.  The Tribunal identified from his account of events, eight alleged incidents of “adverse attention or treatment” over a period of eight years.  It accepted that at least some of these incidents had occurred.  The Tribunal also accepted Mrs Akpata’s claim that she had been detained by authorities for up to four days.  One of her children was with her at the time.  This event occurred at a time of heightened tension in Nigeria following an attempted coup.  Mrs Akpata was detained after Mr Akpata had spoken at a public meeting. 

7                     The adult appellants claimed that following this incident, their house was burnt down in November 1990.  However the Tribunal found their versions of this event to be unsatisfactory and noted that they had used the relevant address in various documents thereafter.  When questioned about this, they said that they had no other address.  The Tribunal also found other aspects of their accounts of the fire to be unsatisfactory.  It seems to have concluded that upon their version, their neighbours had seen the fire being lit by members of the military who departed thereafter.  The Tribunal considered that the neighbours should have been able to extinguish it and concluded that:

“It is more probable that a fire occurred in the house for accidental reasons while the applicants were out, that the neighbours put it out and generally assisted them; and that this incident has been “embroidered” with the story of soldiers committing arson in order to support the applicant’s claims that they were subject to adverse attention by the authorities.”

8                     Whether this explanation was available to the Tribunal on the evidence might be doubted, but it is clear that it was not willing to act upon the evidence of the appellants as to the fire.  That is the only relevant consideration for present purposes.

9                     The Tribunal also rejected Mr Akpata’s claim that he had experienced difficulty in obtaining a passport prior to leaving Nigeria and placed some weight upon the fact that Mr and Mrs Akpata’s passports were renewed in 1994 and 1995 respectively.  Since they have been in Australia they have also had dealings with the Nigerian High Commission concerning a passport for their son. 

10                  In summary, the Tribunal accepted that Mr Akpata had spoken out against the military regime and that he had received “adverse treatment” from the authorities, including beatings and detention.  It was also satisfied that Mrs Akpata had been detained.  It was not satisfied that she had been persecuted in the past but was of the view that the difficulties experienced by Mr Akpata may have amounted to persecution, although it found it difficult to determine whether that was so.

11                  The Tribunal found that there have been substantial changes in Nigeria since 1998.  Democracy has been restored to the extent that a democratically elected president was installed on 29 May 1999.  This man is a Christian.  It is said that the military forces are now under government control, and that officers with links to the old political regime have been replaced with “non-political soldiers”.  There have been some prosecutions of members of the former regime for corruption.  The influence of the Muslims is primarily in the north, but the adult appellants come from the south.  It seems that the Nigerian government maintains an even-handedness towards Christianity and Islam.  In the north there have been proposals for the adoption of Shari’a, that is Islamic law, but such proposals appear, for the moment, to be in abeyance.  The Tribunal pointed out that the appellants had been away from Nigeria for nine years.  In those circumstances the Tribunal concluded that the chances of the adult appellants being harmed in the foreseeable future, should they return to Nigeria, were remote and that any fears were not well-founded.  The decision to refuse protection visas was upheld. 

12                  The application for review of the Tribunal’s decision was upon the following grounds:

“1.       The decision was an improper exercise of the power conferred by the Act and regulations in that it was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the applicant’s particular case and his family.

2.                  There was no evidence or other material to justify the making of the decision in that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

3.                  Procedures that were required by the Migration Act or the regulations were not observed.  Pursuant to section 476(1)(a).

4.                  The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

13                  These grounds were apparently translated at the hearing before O’Loughlin J into two complaints, namely that:

•                 the Tribunal had misconstrued “the real chance” test; and

•                 the Tribunal had fallen into error when it failed to put before the applicant certain background material about Nigeria which it relied upon in coming to its decision.

14                  O’Loughlin J dismissed both criticisms.  That decision is challenged upon the following grounds:

“

•                 the learned Judge fell into error;

•                 the learned Judge was biased, even (if) it does not appear on the judgment;

•                 the learned Judge did not address all of the issues raised in the submission of the applicants;

•                 the learned Judge did not take into consideration that the applicants were persecuted in the south of the country and not the north of Nigeria;

•                 there were and was considerable bloodshed in the south of Nigeria;

•                 a state of emergency was being considered by the president who was a puppet to the military;

•                 the issues raised at the first Tribunal hearing;

•                 the total and continued chaos in the Delta and oil-producing areas;

•                 the fact that I, Stephen Akpata and Fortress Akpata with Precious Akpata are not prepared to go back to Nigeria on Convention grounds for fear of being persecuted and killed.”

15                  Clearly enough, many of the above grounds would not constitute proper bases for intervention by this Court.  At the hearing Mr Akpata referred frequently to the conditions in Nigeria as he understood them to be and generally demonstrated an unwillingness to accept the Tribunal’s view that conditions had changed in the time that he has been away and in particular, over the last few years.  As best we were able to ascertain, he raised three issues which might constitute appropriate grounds for intervention.  They were:

•                 application of the “real chance” test;

•                 that the Tribunal had overlooked the appellants’ previous experience in assessing whether their fears were well-founded; and

•                 an allegation of bias against the learned Judge at first instance.

“A real chance”

16                  This test is based primarily upon the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  In that case it was established that an applicant for a protection visa will have a well-founded fear of persecution “if there is a real chance that the refugee will be persecuted if he returned to his country of nationality”. (Per Mason CJ at 389.)  However, as the High Court pointed out in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572:

“… to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.

No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as a direct application of that phrase.  …  Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term.  …  A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.  In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it.  Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.”

17                  Chan established that the question is to be determined upon the facts as they exist when the person concerned seeks recognition as a refugee (per Mason CJ at 387, Dawson J at 399, Toohey J at 405-406, Gaudron J at 414-415 and McHugh J at 432). 

18                  It is clear that the Tribunal both understood and correctly applied the test.  This appears particularly from three paragraphs at p 67 of its reasons as follows:

“In these circumstances, the Tribunal is satisfied that the applicants will not suffer harm, let alone harm amounting to persecution, in the reasonably foreseeable future, for reason of their Christianity or even for reason of their particular type of Christianity. 

The applicants have been away from Nigeria for more than nine years.  Circumstances in Nigeria have changed substantially.  The Tribunal has accepted that the applicant had suffered some mistreatment during the time that Nigeria was ruled by a military government.  However, the question to be answered is whether the Applicant and his family face a real chance of persecution if they return to Nigeria and in that regard, the Tribunal has set out information about the conditions that prevailed when the applicants were there and the conditions that prevail currently and in the reasonably foreseeable future.

After considering all the evidence before it, the Tribunal is satisfied that the chance of harm amounting to persecution for a Convention reason befalling either adult applicant in the reasonably foreseeable future is remote.  It follows that the Tribunal is not satisfied that the applicants’ fear of persecution for a Convention reason is well-founded.”

19                  Although this passage deals specifically with religion, it will be recalled that in most respects, the issues of religion and political opinion were treated together.  Further, we understand the approach taken to be consistent with that taken by the Tribunal throughout.  It concluded in the first paragraph quoted above that it was objectively satisfied that the appellants would not suffer harm because of their religion were they to return to Nigeria.  Having so determined, the Tribunal then considered whether there might, nonetheless, be a real chance of persecution which might justify the appellants’ fears.  It concluded that any chance of harm in the reasonably foreseeable future was “remote”.  From this it followed that any fear was not well-founded.  This treatment indicates a clear understanding of the difference between the objective position as perceived by the Tribunal on the one hand, and the subjective fear of the appellants and possible reasons for it on the other.  There is nothing in this ground of appeal.

The appellants’ previous experience of persecution

20                  It is quite clear that the Tribunal took great pains to identify firstly, the various allegations of misconduct experienced by both adult appellants and secondly, those which it accepted.  The paragraphs from the reasons to which we have referred indicate that this was done for the purpose of identifying whether there was any continuing risk of persecution and also for the purpose of assessing whether or not any subjective fear was well-founded.  There is nothing in this criticism.

Bias

21                  Mr Akpata asserted that at an early stage in proceedings, prior to the hearing, he had asked O’Loughlin J to disqualify himself because of certain publicity concerning Mr Akpata and his family which had appeared in the Adelaide press earlier this year.  His Honour indicated that he had seen the material in question.  Mr Akpata obviously considered that the material was potentially prejudicial to him.  On 5 February 2001 he applied for transfer of these proceedings to New South Wales.  The application was dismissed on 21 February.  As far as we can see he has not appealed from that decision.  He now asserts bias on the part of O'Loughlin J but does not point to any actual bias or any justification for asserting it.  This ground is better treated as an allegation of apparent bias.

22                  The relevant test is whether “… a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”  See Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277 at par 6 (per Gleeson CJ, McHugh, Gummow and Hayne JJ).  We have difficulty in imagining any circumstances in which a Judge should be disqualified from hearing a matter merely because he or she had been previously exposed to information which might be thought to be prejudicial to a litigant’s case.  A Judge must frequently determine whether or not evidence is to be received.  The resolution of that question often requires that the evidence be heard, or at least described so that its relevance can be assessed and rules of admissibility applied.  It would be both expensive and inconvenient to litigants to require that questions of admissibility be determined by a Judge other than he or she who is to constitute the ultimate tribunal of fact. 

23                  Although it is not always easy to identify the way in which a fair-minded lay observer might respond, we consider it most unlikely that such a person would entertain for a moment the possibility that a Judge would allow him- or herself to be adversely influenced by a newspaper report.  Mr Akpata’s position appears to be derived from newspaper coverage of jury trials in which it is sometimes suggested that there should be a change of venue because of adverse publicity.  It may be that he has assumed, wrongly, that similar considerations apply to trial before a Judge without a jury.  In any event we can see no basis for the suggestion that his Honour ought to have disqualified himself.

24                  In those circumstances the appeal must be dismissed with costs.

Associate:

Dated:              21 December 2001