FEDERAL COURT OF AUSTRALIA

NAAS/2002 V Minister For Immigration & Multicultural Affairs [2002] FCA 415

MIGRATION – application for review of a decision of Refugee Review Tribunal affirming decision of Minister’s delegate not to grant a protection visa – where applicant Nigerian citizen – whether Tribunal constructively failed to exercise its jurisdiction – no error of law demonstrated – application dismissed.

Migration Act 1958 (Cth) s 474

Judiciary Act 1903 (Cth) s 39B

NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335 applied

NAAS OF 2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

NO N 28 OF 2002

BEAUMONT J

3 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the costs of the respondent.

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

REASONS FOR JUDGMENT

BEAUMONT j:

Introduction

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 November 2001 whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The original application for review was filed on 14 January 2002.  The application therefore falls within the “privative clause” regime, for the reasons stated, by way of background, in the respondent’s submissions dated 28 March 2002.

Grounds of the Application

2                     The applicant has filed a further amended application for an order of review today claiming declaratory and other relief by way of appropriate constitutional writs pursuant to s 39B of the Judiciary Act 1903 (Cth). 

3                     There is only one ground of the application, namely, that the Tribunal constructively failed to exercise its jurisdiction.

4                     The particulars in the further amended application are that the Tribunal failed to address the central matter for its consideration being whether the applicant had a well-founded fear of persecution by reason of his membership of the social group known as the Egbesu.

The Respondent’s Reliance upon Section 474(1)

5                     The respondent contends that s 474(1) of the Migration Act 1958 (Cth) (“the Act”) operates to validate the Tribunal’s decision.  (For his part, the applicant contends that s 474 is invalid or otherwise inapplicable.) 

Background

6                     The applicant is a citizen of Nigeria who arrived in Australia on 22 September 2000.  He claims that he is from the Ibo ethnic group and a Christian. 

7                     On 30 October 2000 he lodged an application for a protection visa and on 22 November 2000 the delegate of the Minister refused that application.  On 20 December 2000 the applicant applied for review of that decision.

8                     The Tribunal had before it the Departmental file and the applicant also gave oral evidence before the Tribunal on 8 November 2001.  The transcript of those proceedings is in the Court Book. 

9                     Before the Tribunal, the applicant claimed that he had fled Nigeria because he belongs to the Egbesu group which is fighting for the rights of the citizens of Nigeria, particularly the citizens of the Delta State, where the applicant was born. 

10                  The applicant claimed that the Delta is an oil-producing State which produces the majority of Nigeria's income.  Despite this, the current government has not used any of the money to benefit the people of the Delta.  The Egbesu have, therefore, planned an upheaval of Nigeria’s political system, through sabotaging the oil pipelines. 

11                  The applicant claimed that he was caught in the act of draining an oil pipeline, and arrested and tortured by the police.  He also claimed that he was harassed by the police following this incident. 

12                  The applicant claimed that he ran away to Lagos.  However, he also claimed that the Odua People’s Congress (“OPC”) threatened the lives of non-Yorubas in Lagos and he did not feel safe there.

13                  The applicant then decided to leave Nigeria.  He claimed that in Nigeria the authorities are looking for him because he belongs to the Egbesu group.  He claimed that if he returned to Nigeria, he would face persecution and may be killed.

 Tribunal Hearing

14                  As mentioned, the applicant gave evidence to the Tribunal on 8 November 2001. 

15                  Certain inconsistencies in the applicant’s version of events emerged before the Tribunal.  For example, on his application form he had stated that he had lived in one place from 1965 to 2000.  However, before the Tribunal, he stated that he had moved around a lot, because of the problems he had with the police.  These inconsistencies were put to him by the Tribunal. 

16                  Before the Tribunal, the applicant also claimed that he, and other members of the Egbesu group, sometimes took the oil and sold it on the black market.  In addition, the applicant claimed that he had been arrested on three occasions by the police (all during 1996) for stealing oil from the pipeline.  The applicant said that he did this because he had no money and no employment. 

17                  The Tribunal put to the applicant that there was a large amount of independent evidence which stated that it was necessary to belong to the Ijaw tribe to be a member of the Egbesu.  However, the applicant rejected this, saying that all that was required was sponsorship by a trustworthy person. 

18                  The Tribunal put to the applicant that he was pursued by the police because of his criminal activity.  However, the applicant said that the Egbesu were fighting for their political rights. 

19                  The applicant was also asked by the Tribunal about his time in Lagos.  He said that nothing adverse had happened to him personally and there had been no personal threat by the OPC.  The Tribunal put to the applicant that the Nigerian Government had now outlawed the OPC.

Tribunal's Decision

20                  The Tribunal referred to a body of independent evidence and “country information” relating to the following topics:  the Egbesu; Delta State - Oil Stealing; and OPC in Lagos.

21                  After noting that an applicant whose claims are credible and plausible should be given the benefit of the doubt, the Tribunal found that it had “serious reservations regarding the applicant’s claim that he is a member of the Egbesu group”.  This was particularly so in light of the fact that the applicant’s own evidence was that he stole oil for personal financial gain and also that he was a member of the Ibo tribe.  However, the Tribunal held that, given the ambiguity in the independent evidence, the Tribunal could not be satisfied that the applicant was not a member of the Egbesu group. 

22                  The Tribunal also found that the reason the applicant came into adverse contact with the authorities was because he was caught committing criminal offences and not because of a Convention ground (i.e. that he was perceived to belong to the Egbesu group). 

23                  The Tribunal also found that although the treatment suffered by the applicant at the hands of the authorities was “harsh”, it was not sufficient to amount to persecution in the Convention sense.

24                  In relation to the activities of the OPC in Lagos, the Tribunal found that it did not accept that the applicant faced a chance of persecution at the hands of the OPC, and in any event, the OPC was a group of individual vigilantes who were outlawed by the Nigerian Government. 

Conclusion on the Respondent’s Reliance on Section 474(1)

25                  Given the approach taken by the Tribunal as aforementioned, it is clear, I think, that it is not open to the applicant to submit, as his counsel sought to do, that there was here a constructive failure to exercise jurisdiction on the part of the Tribunal.  In this connection, it is submitted for the applicant that:

“4.       The [Tribunal] does not make any finding in relation to the chance that the Nigerian government might learn that he was a member of the Egbesu group in the future.  The [Tribunal] makes no finding about the applicant’s claim that he feared that he will be killed by the local and Federal police because of his involvement with the Egbesu group.”

26                  But, in my view, when the Tribunal’s reasons are read, as they must be, as a whole and in context, it becomes clear even from the above summary that the applicant is, in truth, now seeking to re-agitate the facts.  At the very least, in my opinion, s 474 of the Act effectively and validly operates to preclude this exercise. 

27                  For these reasons, and those given in my judgment in NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335, I uphold the respondent’s reliance upon s 474(1) of the Act. 

28                  Accordingly, I dismiss the application with costs.

Associate:

Dated:                April 2002