FEDERAL COURT OF AUSTRALIA

SBKC v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2005] FCA 1456

SBKC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 188 of 2005

MANSFIELD J

14 OCTOBER 2005

ADELAIDE

REASONS FOR JUDGMENT

1                     The applicant is a Nigerian national.

2                     On 22 December 1995 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  His wife and one of his children was also an applicant for a protection visa.  That application was refused by a delegate of the respondent on 7 November 1996.  The Refugee Review Tribunal (the Tribunal) affirmed the decision of the delegate on 19 May 2000.  In the interim period, there had been two earlier decisions of the Tribunal affirming the decision of the delegate which had been set aside by the Court for error, and which required in each instance the matter to be reconsidered by the Tribunal.

3                     The present application was instituted on 16 August 2005, some five years after the Tribunal decision.  It seeks to have the decision of the Tribunal quashed for jurisdictional error:  see Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.  The application does not identify the nature of the jurisdictional error asserted.  The supporting affidavit of the applicant indicates that the jurisdictional error is twofold:

(1)        that the Tribunal had regard to certain information (which I shall call ‘the information’) about the state of affairs in Nigeria as reported in:

(a)                the ‘Economist’ on 15 January 2000;

(b)               a book “Freedom of Religion and Belief:  A World Report’, Boyle and Sheen, Routledge, London, 1997;

(c)                BBC News World Service, 4 April 2000.

and that the information was not information to which the Tribunal was entitled to have regard because it all related to a period of time after the date of the application for the protection visa.

(2)        that the Tribunal did not inform the applicant that it proposed to have regard to the information in deciding the review of the application for the protection visa when it was obliged to do so.

4                     The first respondent has applied by motion of 1 September 2005 to summarily dismiss the application on the ground that it has no prospect of success, and is an abuse of the process of the Court.  She contends that the issues which the applicant now raises as alleged jurisdictional errors either have no prospects of success, or have already been resolved adversely to the applicant so that he should not be permitted to revive them under another guise in the current proceedings.  On 30 September 2005 I ordered, on the motion, that the application of the applicant be summarily dismissed.  These are my reasons for that order.

5                     The applicant has a further application, presently under consideration, for a visa under the Act.  Apart from the application for a protection visa and the procedures relating to it, he was a secondary applicant to an application for a Sub-class 103 (Parent) visa with his wife, made on 11 August 1999, and refused on character grounds in relation to the applicant on 11 June 2002.  That decision has also been the subject of extensive review processes.  For present purposes it is necessary to refer only to those processes concerning review of the decision of the Tribunal of 19 May 2000.

6                     On 3 July 2000 the applicant sought judicial review of the Tribunal’s decision.  The application was dismissed:  Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 402 (the review at first instance).  An appeal from the review at first instance was unsuccessful:  Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1868.  On 4 February 2002 the applicant applied to the High Court for special leave to appeal from the decision of the Full Court dismissing the appeal from the application for review at first instance.  On 11 April 2003 the High Court refused the application for special leave to appeal (the leave to appeal application).  The matter then apparently rested for some 12 months.  On 10 March 2004 the applicant applied to the High Court for prerogative writs in respect of the decision of the delegate of the respondent, subsequently reviewed by the Tribunal and affirmed on 19 May 2000, for alleged jurisdictional error.  That application was refused on 9 August 2004.

7                     The relevant step is the current application, again after about a year of apparent inactivity.

8                     It is necessary to address separately each of the two grounds of alleged jurisdictional error to determine whether the motion should succeed.

9                     The first point raises the question whether the Tribunal was entitled to have regard to the information, even though it was information obtained by the Tribunal after the date of the application.  The point has been decided adversely to the applicant’s contention by the Full Court of this Court:  Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288.  It determined that the Tribunal was to decide a review application on the facts applicable at the date of determination by the Tribunal of the application, rather than at the date of the application itself.  In doing so, the Tribunal is entitled to have regard to information up to that date.  Its function is to review the decision of a delegate of the respondent as if it were in the shoes of the initial decision-maker:  see ss 414 and 415 of the Act.  The criteria for the grant of a protection visa under the Act specified in Sch 2 of the Migration Regulations include criterion 866.22 as criteria to be satisfied at the time of the decision.  Criterion 866.221 is that the respondent (and on review the Tribunal) be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.  Necessarily that directed the Tribunal’s attention to the state of affairs at the time of its decision.  It had to decide whether, at the time of its decision, there was a real chance that the applicant might be persecuted if he were to return to Nigeria.  It was appropriate in the circumstances for the Tribunal to have regard to information relevant to that question, including the state of affairs in Nigeria at the time of its determination, to do so.  In my view that contention is without merit and has no prospects of success.

10                  The second contention, namely that the applicant was not informed by the Tribunal of the information before its decision and so was deprived of natural justice must also fail.  It must fail for two reasons.

11                  Firstly, the point was raised in the review proceedings seeking to challenge or overturn the Tribunal’s decision.  It was unsuccessful.  The application is simply endeavouring to re-litigate an issue which has been determined against him.  It is an abuse of process for him to do so:  see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36]-[39]; Applicant S503/03 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 133 at [5].

12                  In the review at first instance, the learned trial judge noted at [6] that one matter raised by the applicant was that the Tribunal had fallen into error by failing to put before him certain background material about Nigeria which it relied on in coming to its decision.  That is the information:  see the review at first instance [9] and [13].  The learned judge in the review at first instance determined that the information did not fall within the category of information which s 424A(3) expressly prescribed as information which it was necessary to have been provided to the applicant prior to the decision.  In the appeal from the decision at first instance there was no complaint about that part of the decision.  However, in the leave to appeal application to the High Court, that point appears to have been taken further or revived.  An attempt was made to bring the circumstances within those found to exist by the High Court in Muin v Refugee Review Tribunal Lie v Refugee Review Tribunal 190 ALR 601 [2002] HCA 30.  In that case, the Court had decided that the obligation to accord procedural fairness co-existed with the procedural regime imposed by Div 4 of Pt 7 of the Act upon the Tribunal.  However, when refusing special leave to appeal on the leave to appeal application, McHugh J:

‘The applicants contend that the Refugee Review Tribunal failed to comply with the procedures required by the Migration Act 1958 and denied the applicants natural justice because the Tribunal did not give the applicants an opportunity to comment upon an article published in the Economist magazine, a passage from a book and a BBC news report concerning the state of affairs in their country of origin.

In our opinion, the actual decision of the Full Court of the Federal Court dismissing the applicants’ appeal from the dismissal of their application for review of the Tribunal’s decision is not attended by doubt.  Special leave to appeal is refused with costs.’

13                  It is apparent that both in the review decision at first instance and in the leave to appeal application in the High Court, the point which the applicant now seeks to raise was ventilated and rejected.  It would be an abuse of the process of the Court to permit him now to raise it.  Clearly, as the High Court determined, there is no prospect of success on the point.  He has been refused special leave to appeal to the High Court because the decision of the Full Court was not attended with doubt.

14                  The second reason the point must fail is that, on the material before the Court, there is no arguable basis for showing that the applicant was in fact denied natural justice by the Tribunal.  His affidavit asserts that the information was not disclosed to him as material it might rely upon to affirm the delegate’s decision.  However, the facts to which the information relates were matters upon which the applicant was given the opportunity to comment and to adduce material.  The Tribunal’s reasons indicate that the fact that circumstances might have changed in Nigeria since the applicant and his family left there, at least by 1994 (it is unclear from the Tribunal’s reasons whether the applicant returned to Nigeria after he first went to New Zealand on a student visa in 1990 or thereabouts), so that any foundation for his fears of persecution may have dissipated by the time of the Tribunal’s decision, was a live issue before the Tribunal.  The applicant through his migration agent adduced evidence as to the state of affairs in Nigeria in the period leading up to the first decision of the Tribunal on 3 April 1998, and by his then migration agent in submissions to the Tribunal before the second decision of the Tribunal on 18 May 1999.  The applicant did not have a migration agent assisting him before the Tribunal in its review leading to the decision now attacked.  He recognised the need to address the present circumstances in Nigeria, both in his submission and in material he submitted dealing with those circumstances.  In the course of the hearing before the Tribunal on 25 February 2000, the applicant was invited to comment upon the changes in Nigeria:  ‘there had been a return to civilian democracy, there was a marked diminution of human rights abuses, and many political prisoners (and others) had been released from jail’.  The applicant had the opportunity to respond, and did not respond, on those matters.

15                  Moreover, there is no suggestion by the applicant that the information is different from the US Department of State Country Reports about the state of affairs in Nigeria at the relevant time.  The applicant had expressly referred to the US Department of State Country Report for 1997.  He was apparently familiar with those documents, produced annually.  Not surprisingly, he makes no complaint about their use.  The Tribunal noted that there is no variance among the independent evidence about the predominantly Muslim community in the north of Nigeria, and the predominantly Christian community in the south of Nigeria.  It noted the applicant and his family live in the south of Nigeria.  The Economist of 15 January 2000 was only referred to by the Tribunal as one of those sources.  The book by Boyle and Sheen is identified only as one source of the view (which it rejected) that Nigeria is ‘officially an Islamic country’ and said all other sources of independent evidence were to the same effect.  The Tribunal used the BBC News World Service of 4 April 2000 in part to recognise instances of sectarian violence in northern Nigeria, but then noted that the applicant had never lived in that area, and that even if he were caught up in sectarian violence there he could relocate to the south of Nigeria.  Consequently, the applicant’s complaint is in essence about the Tribunal’s use of particular pieces of evidence which only confirmed or supported the other independent evidence the use of which the applicant makes no complaint about, and in one respect was favourable to the applicant.  His complaint is not that he was not on notice that the independent country information generally showed a significant change in the state of affairs in Nigeria relevant to his claim to a protection visa, nor that he did not have an opportunity to address by submissions and evidence that change in the state of affairs.

16                  Accordingly, I considered that the grounds upon which the applicant now asserts jurisdictional error either have no prospect of success or have been decided adversely to him.

17                  On the first respondent’s motion, the application to the Court was dismissed and the applicant ordered to pay the costs of the first respondent.

Associate:

Dated:              14 October 2005