FEDERAL COURT OF AUSTRALIA

Applicant NAFH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 868

NAFH of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 285 OF 2002

SACKVILLE J

SYDNEY

11 JULY 2002

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay fifty per cent of the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (the “RRT”) given on 12 March 2002.  The RRT affirmed a decision of a delegate of the respondent (the “Minister”), made on 20 November 2000, not to grant the applicant a protection (class XA) visa. 

2                     It appears that the applicant was assisted by a migration agent before the RRT.  He appeared unrepresented in this Court, and made his submissions with the assistance of an interpreter.

jurisdiction

3                     The application filed in this Court is expressed to be made pursuant to s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”).  Section 39B(1) of the Judiciary Act confers jurisdiction on the Federal Court

“With respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.

4                     The application was filed on 10 April 2002.  It is therefore subject to the provisions of Part 8 of the Migration Act 1958 (Cth) (“Migration Act”), as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into force on 2 October 2001.  The key provision in Part 8 is s 474, which is in the following terms:

“(1)     A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)               In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…”.

5                     The application filed in this Court appears to have been compiled by someone other than the applicant.  It refers in a discursive fashion to several decisions relating either to s 474(1) of the Migration Act or to privative clauses generally.  The grounds of review upon which the applicant appears to rely are that

• the RRT ignored relevant evidence;
• the RRT’s findings indicated that it was biased; and
• the RRT had failed to investigate the applicant’s claims.

background

6                     According to the RRT’s findings, the applicant is a Nigerian national.  He was born in 1958 in Ozubulu in Anambra state.  He is of Ibo ethnicity and speaks the Ibo language, although he has some limited understanding of English.  He is married.

7                     In his written and oral submissions to the RRT, the applicant claimed to have a Christian background and to have been actively involved in “pro-Christian activities” in Nigeria.  He claimed to have opposed the introduction of Sharia law in Kaduna state, where he had lived since 1985.  He said that, by reason of his opposition to the Islamisation of Kaduna state (which is in the north of the country), he had been threatened by fanatical Islamic organisations.  He also claimed that the army and police in Nigeria do not protect Christians against violence by Muslims.

8                     The applicant claimed that he had actively participated in the work of the Christian Association of Nigeria (“CAN”).  He said that CAN’s agenda included opposition to the imposition of Sharia law in Kaduna.  The applicant claimed that, in consequence of his involvement with CAN, he had suffered persecution at the hands of Muslims. 

9                     The first such incident was said to have occurred in April 2000.  The applicant claimed that he had been abducted by some Muslims, who had come to his shop looking for him.  He had been tied to a tree and tortured.  In consequence, he had received serious physical injuries.  However, he managed to escape his torturers.  In doing so, he struck one of them on the head with an iron bar.

10                  The second incident was said to have occurred in June 2000.  After recuperating in May 2000, the applicant said he left Kaduna to live with his parents in Anambra state.  In June, however, Muslims arrived at the family home, seeking to kill him in retribution for the death of the person whom the applicant had struck with the iron bar in April 2000. 

11                  Following this incident the applicant decided to flee to Cameroon.  However, an Ibo chief suggested that he should flee to Australia instead.  Accordingly, he waited in the Cross River state of Nigeria from July to September, pending the issue of an Australian visa.  He arrived in Australia on 18 September 2000 during the Olympic Games.  His application for a protection visa was lodged on 30 October 2000.

the RRt’s reasoning

12                  The RRT noted that the applicant had held three passports since 1981, his current passport having been issued in 2000.  The passport showed that the applicant had travelled extensively.  On his account, the trips were for the purposes of his motor parts business, although he also imported other equipment.

13                  The RRT recorded that it had put to the applicant that, in his original protection visa application, he had stated that he had travelled to Angola on 25-26 May 2000.  The RRT pointed out that, if correct, this statement directly contradicted his evidence at the hearing that at that time he had been in a hospital in Kaduna receiving treatment following the attack on him in April 2000.  The applicant responded to this query by stating that his previous advisor had been mistaken in recording the dates of travel to Angola.

14                  The RRT then set out at some length country information relating to Nigeria.  The material quoted by the RRT addressed the question of freedom of religion in Nigeria and, in particular, attempts made in some Nigerian states to introduce Sharia law.  On the basis of this country information, the RRT accepted that there had been conflict between Muslims and Christians in Nigeria and that this conflict had intensified with the introduction of Sharia law in some of the northern states.

15                  The RRT continued as follows:

“The [RRT] does not accept that the applicant has himself been targeted by Muslims because he is a Christian.  The [RRT] does not accept this because the [RRT] found the applicant’s evidence unconvincing in several ways.

The applicant did not impress the [RRT] as credible in respect of key aspects of his claims made at the hearing.  The applicant claimed in the hearing to have been tortured and tied to a tree by Muslims and that he escaped by killing his attacker with an iron bar and as a result some Muslims pursued him.  The [RRT] considers it incredulous [sic] that the applicant having been tortured and tied to a tree had the physical ability to kill a person.

The applicant claimed that after he escaped he spent a month recuperating and receiving medical attention.  The applicant stated that this was in May 2000.  In the applicant’s protection visa application he states that on 25 May 2000 he was on a business trip in Angola.  When this was pointed out to the applicant at the hearing, he responded that his previous adviser had made mistakes in filling out his protection visa application.  The [RRT] considers this to be an unsatisfactory explanation as the [RRT] does not consider that an adviser would state that the applicant was on a business trip when in fact he was recuperating from injuries.  Further the applicant was given an opportunity at the beginning of the hearing to correct or modify any aspects of his protection visa application.  The applicant stated that there were no aspects of his application that required correction or modification.

The applicant claimed that he was attacked in April, spent May recuperating and then went to his parents place in June where he claims a Muslim came looking for him.  The applicant states that he then fled from his home and decided to cross the border into the Cameroons.  He was however persuaded instead to come to Australia and waited in the Cross River State from July until September while his visa to Australia was organised.  The [RRT] considers that the applicant’s willingness to wait for three months for a visa to come to Australia rather than go to the Cameroons indicates to the [RRT] that the applicant was not in fear of persecution.

The adviser provided considerable documentation on the conflict between the Christians and Muslims in Nigeria in general, but very little detail of direct relevance to the applicant.  The [RRT] put to the applicant in the hearing that the [RRT] was not satisfied as to the applicant’s claims.  The adviser asked for a month delay in the decision in order to provide further documentation to the [RRT].  The advisor failed to provide any further evidence to the [RRT] two months after the hearing date.”

16                  Accordingly, the RRT was not satisfied that the applicant had a well-founded fear of persecution on his return to Nigeria.

reasoning

17                  The applicant did not file any written submissions.  In his oral submissions, he merely reiterated the principal factual claims he had made to the RRT.  He also asserted that, contrary to the RRT’s finding, he had not been to Angola on 26 May 2000.

18                  The complaints made by the applicant relate exclusively to the RRT’s factual findings.  These complaints, even if well-founded (a matter as to which I express no view) provide no basis for granting relief pursuant to s 39B(1) of the Judiciary Act.  They do not establish any jurisdictional error on the part of the RRT, and amount only to an attempt to revisit the merits of the RRT’s decision.

19                  The applicant’s assertion that he was not in Angola on 26 May 2000, does not establish that the RRT committed an error, let alone one that would lead to relief being granted pursuant to s 39B(1) of the Judiciary Act.  There was evidence before the RRT that the applicant was in Angola on that date, since that is what he said in his own application for a protection visa.  The RRT rejected the applicant’s explanation that his adviser had made a mistake.  There was no error in the RRT making these findings.  Nor was the RRT obliged to undertake further inquiries into the applicant’s case.

20                  There is no substance to the claim of bias made in the application filed in this Court.  The applicant did not refer to this claim in his oral submissions and there is nothing to support it.

21                  The application must therefore be dismissed.

costs

22                  The usual principle is that costs follow the event.  In this case, however, there were two factors suggesting that it might not be appropriate to apply the usual rule.

23                  First, the Minister’s written submissions, which were due to be filed and served by Thursday 4 July 2002, did not, according to the applicant, reach him until late on Friday 5 July 2002, the last working day prior to the hearing.  According to Mr Kennett, who appeared for the Minister, the submissions were posted by ordinary mail on 2 July 2002.  Mr Kennett was unable to dispute the applicant’s claim that the submissions had not been received until late on the Friday.  Nor did Mr Kennett offer any explanation as to why the submissions were entrusted to the vagaries of ordinary mail, rather than being sent by express post or some other means that guaranteed timely delivery.

24                  The applicant said that he had not had the opportunity to have the submissions (which were fourteen pages in length) translated prior to the hearing.  While the applicant made somewhat inconsistent statements as to what he would have done had the submissions reached him on 4 July 2002, the fact is that they did not reach him on that date.  In consequence, the hearing had to be adjourned for ninety minutes to allow time for the submissions to be translated to the applicant.  Had the sensible step been taken of ensuring that the Minister’s submissions reached the applicant’s address for service on or before 4 July 2002, the need for this adjournment might well have been obviated.  It seems to me that there are clear dangers, when the Minister’s representatives deal with an unrepresented applicant, if they do not take reasonable steps to ensure that the Minister’s written submissions reach the applicant by the date contemplated by the orders of the Court.

25                  Secondly, the Minister’s written submissions proceeded on a basis – asserted rather than argued – that the Court should first address the question of construction of s 474 of the Migration Act.  The submissions acknowledged, without citing any cases, that it had

“not been uncommon for single Judges of the Federal Court to seek to identify the nature of the error in terms applicable in conventional judicial review proceedings, before considering the operation of the pivotal clause in s 474”.

Nevertheless, the submissions asserted that this approach should not be followed and that it was appropriate to commence with a question of construction.

26                  Because of this approach, twelve of the fourteen pages of the written submissions address the construction of s 474 of the Migration Act.  They do soin terms that closely resemble submissions put forward in other cases.  It was only at the very end of the submissions that the point is made that the RRT simply did not accept the applicant’s claims at a factual level.  Even then, the analysis seems to assume that the question facing the Court must be resolved by reference to the so-called Hickman conditions (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at 616, per Dixon J).

27                  In fact, there is a substantial body of opinion in this Court that it is not necessary, on an application for review of a decision of the RRT pursuant to s 39B(1) of the Judiciary Act, to address the question of construction of s 474 of the Migration Act, before considering whether the RRT has committed an error of the kind that would attract relief under s 39B independently of the application of s 474: see VAAC v Minister of Immigration and Multicultural Affairs [2002] FCA 573, at [29], per Marshall J; Alam v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 630, at [5]-[12], per Merkel J (and cases cited there).

28                  It seems to me it would have been far more helpful for the Minister’s representatives not to have assumed, without attempting to demonstrate the point, that the case should be disposed of on the question of construction of s 474 of the Migration Act.  A clear statement that the applicant had raised only factual issues going to the merits of the RRT’s findings may well have alerted the applicant to the fundamental difficulty he faced.

29                  The applicant said that, had he appreciated the difficulty confronting his case, he would have withdrawn his application prior to the hearing.  I have considerable doubts as to whether I should take that statement at face value.  But it does suggest that the Minister’s representatives should take particular care in dealing with unrepresented applicants to put the arguments in a manner designed to direct the applicant’s attention to the issues that need to be addressed.

30                  In my opinion, some allowance should be made in relation to costs to take account of the two matters I have identified.  Since the Minister has succeeded, I do not think it right to deprive him entirely of an order for costs.  On the other hand, it is important that the Minister’s representatives, especially when dealing with unrepresented applicants, should  take all reasonable steps to ensure that written submissions are received in a timely fashion and that the issues are presented as clearly as the nature of the case allows.  In the circumstances, I think the appropriate order is that the applicant should pay fifty percent of the Minister’s costs.

Associate:

Dated:              11 July 2002

The applicant was self-represented.