FEDERAL COURT OF AUSTRALIA

SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461

MIGRATION – judicial review – whether failure to consider relevant material – reference to independent country information evidence – application of s 424A Migration Act 1958 (Cth) – Held: appeal against Federal Magistrate’s decision dismissed

Migration Act 1958 (Cth)s 424A

A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 cited

Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30cited

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 cited

SZFJU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 725 OF 2007

BRANSON J

18 SEPTEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

Introduction

1                     The appellant is a citizen of Nigeria who arrived in Australia on 16 March 2004.  Almost immediately thereafter he applied for a protection visa.  A delegate of the Minister refused to grant him the visa and this decision was affirmed on review by the Refugee Review Tribunal (‘the Tribunal’).  On 15 December 2005 the Federal Magistrates Court set aside the decision of the Tribunal by consent.  The matter was remitted to the Tribunal and a freshly constituted Tribunal again affirmed the decision of the delegate.  The appellant again applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal.  On this occasion his application was dismissed.

2                     This appeal from the later judgment of the Federal Magistrates Court is brought on two grounds.  The appellant claims that the learned Federal Magistrate should have found, first, that the Tribunal failed to take into account relevant material, and, secondly, that the Tribunal failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth) (‘the Act’).

Rreasons for decision of the Tribunal

3                     The Tribunal accepted that the appellant is a citizen of Nigeria of Igbo ethnicity who had worked for the Australian High Commission in Lagos for the major part of his working life.  It summarised his claims as follows:

‘The applicant claims to fear persecution from state authorities for reasons of his membership and financial support of MASSOB [Movement for the Actualisation of the Sovereign State of Biafra] and because he is of Igbo ethnicity. He claimed that he was a member of MASSOB and as such found out about a plot to assassinate the Governor of Abia State.  He claimed that he disclosed the plot to the Governor’s secretary in December 2003. He further claimed that in March 2004 he was told that he was on a wanted list held by the Nigerian State Security for reason of his involvement with MASSOB, which is an Igbo organisation. He claims that after he received this information he left Nigeria and fears return because of his history of involvement in MASSOB and his Igbo ethnicity.’

4                     The appellant’s claim to have overheard a plot to assassinate the Governor was not believed by the Tribunal which found the claim to be ‘highly implausible’.  The Tribunal also disbelieved his claim to be a member and a financial supporter of MASSOB at least in part because the claim was not advanced in his original claim for a protection visa.  The Tribunal did not give the appellant particulars of any information touching on his original claims for a protection visa pursuant to s 424A of the Act.

5                     The Tribunal then gave consideration to the appellant’s situation as a person of Igbo ethnicity if he returns to Nigeria.  It noted that many Igbos were involved in a civil war seeking the establishment of a separate Biafran state but that since the end of that war Igbos have continued to participate in the culture and life of Nigeria without mistreatment or discrimination for reason of ethnicity or tribal grouping.  Importantly the Tribunal observed:

‘There is no country information to suggest that membership of the Igbo tribal group has given rise to targeted harm by state authorities in recent years. Nigeria has suffered many and various instances of intercommunal violence and conflict sometimes involving members of the Igbo tribal group however there is no information which suggests that the current government condones such violence or that it is unwilling or unable to provide a reasonable level of protection to its citizens on a non discriminatory basis (UK Home Office Country Assessment 2005) The applicant claims that he faces harm in returning to Nigeria as an Igbo however he has not provided any information which would support such a claim other than his own speculative assertion.

In these circumstances I do not accept that the applicant faces a real change of persecution if he returned to Nigeria now or in the foreseeable future for reasons of his membership or financial support of MASSOB or because of his Igbo ethnicity or membership of the Igbo tribal group.’ (emphases added)

6                     The Tribunal was not satisfied that the appellant has a well-founded fear of persecution for any Convention reason.

Reasons for judgment of the FMC

7                     The learned Federal Magistrate rejected the submission that the observation of the Tribunal set out in [5] above showed that the Tribunal had failed to take into account relevant material that was before the Tribunal.  At [33] of the reasons for judgment of the court his Honour said:

‘I believe it is well-established that the weight to be given to country information is a matter to be decided by the Tribunal as part of its fact-finding function.  The Tribunal did have regard to the independent information before it and then reached a conclusion open to it on that information.  In this case, there was evidence which went both ways and the Tribunal reached the conclusion that there was no real chance that the applicant would suffer persecution because of his Igbo ethnicity.  This is a finding of fact and a matter for the Tribunal that should not be disturbed by this Court.  I am not satisfied that the first ground can be sustained.’

8                     The Federal Magistrate also rejected the submission that the Tribunal had failed to comply with s 424A of the Act.  His Honour was satisfied that the decision of the Tribunal was not based on an inconsistency between what was said in the protection visa application and what was said to the Tribunal.

Failure to consider relevant material

9                     The first issue to be determined under this ground of appeal is the proper meaning of the passage from the reasons for decision of the Tribunal which is set out in [5] above.  The first respondent submitted that the Federal Magistrate had correctly understood the import of the passage when his Honour characterised it as recording a conclusion reached after the Tribunal had evaluated evidence that went both ways (see [7] above).

10                  I accept that Tribunals, and particularly lay Tribunals, sometimes assert that there is ‘no evidence’ on an issue when they mean that, although there is some evidence on the issue, they do not regard the evidence as sufficient to support a particular finding (see, for example A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [23]-[27] and Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18]).  In every case the meaning intended to be conveyed by the Tribunal is to be determined by reference to the language used by the Tribunal understood in the context provided by the Tribunal’s reasons for decision as a whole.  In this case, having twice asserted that there was ‘no evidence’ of a particular character, the Tribunal went on to state that the appellant had not provided ‘any information which would support [his] claim other than his own speculative assertion’.  I conclude that the Tribunal’s language, understood in the context provided by its written reasons as a whole, suggests that the Tribunal intended to convey that there was no evidence at all on the two matters identified by it.

11                  It is not in dispute that there was considerable country information before the Tribunal that suggested that membership of MASSOB had given rise to targeted harm by state authorities in recent years.  The Tribunal, however, did not accept that the appellant was either a member or a financial sponsor of MASSOB although it found that he was sympathetic to the aims of the organisation.  The Tribunal noted that the appellant admitted that he was not an active member of MASSOB and that the only MASSOB rally that he had attended was held in 2002.

12                  Most of the country information upon which the appellant placed reliance concerned brutal or harsh treatment by the authorities of members of MASSOB or people caught up in MASSOB activities.  Some information, however, related to MASSOB sympathisers.  For example, the UK Home Office ‘Country of Origin Information Report October 2005 Nigeria’ at 6.106 referred to a report that stated:

‘…Professor Utomi [Lagos Business School, Pan-African University Lagos] explained that there had been [a] significant level of resentment in Igbo society about the treatment of Igbo people since the civil war.  There was a philosophy of an Igbo-renaissance amongst young Igbo men and women born since the civil war and they have found allies in the Igbo diaspora. This has been exploited by MASSOB. However, MASSOB is very much a fringe group but because of government over-reaction to it, has gained support. The government is strongly opposed to MASSOB and several members and supporters have been arrested and detained for months even though MASSOB insists that it is a non-violent movement. Professor Utomi explained that the ghost of MASSOB has created concern within the SSS and now and then its forces have over-reacted.

…

Nwankwo [Attorney-at-law, Lagos], emphasized that MASSOB is an unarmed and non-violent movement. In spite of this a large number of suspected MASSOB members or sympathisers are detained in Abuja and the government has refused to release them on bail. …’

13                  Afol News website contained reference to an article dated 5 December (presumably 2005) that stated:

‘On Monday in the sprawling trading town of Onitsha – a separatist stronghold – troops and police used tear gas and fired in the air to dispense crowds of MASSOB supporters who poured onto the streets in support of the movement.’

14                  I have read carefully all of the country information on which the appellant placed reliance.  I am not satisfied that any of it, including the reports referred to in the UK Home Office Report and the Afol News, is correctly characterised as information that suggests that membership of the Igbo tribal group (as opposed to membership of MASSOB) has given rise to targeted harm by State authorities.  Nor am I satisfied that the country information indicates that those who are merely sympathetic to the aims of MASSOB (as opposed to active supporters of the movement or its activities) have experienced targeted harm by State authorities.

15                  The Tribunal’s statement to the effect that there is no information which suggests that the current government of Nigeria condones instances of conflict and inter‑communal violence sometimes involving members of the Igbo tribal group, or that it is unwilling or unable to provide a reasonable level of protection to its citizens on a non-discriminatory basis, is more problematic.  It is necessary first to determine the meaning of the statement and, in particular, its second part.  The preferable view of that part, it seems to me, is that the citizens to which it refers are Nigeria’s citizens who are members of the Igbo tribal group. 

16                  The appellant pointed out that the UK Home Office Report referred to above noted that, despite the improvement in the human rights situation since democratic rule was restored in 1999, the USSD 2004 Report stated that in 2004:

‘The Government’s human rights record remains poor, and the Government continued to commit serious abuses. … Security forces committed extrajudicial killings and used excessive force. … Impunity was a problem. … Security forces continued to arrest and detain persons arbitrarily, including for political reasons.’

The Home Office Report also noted a report published in January 2005 which asserted that the persistent failure of the Nigerian government to prosecute the perpetrators of serious human rights violations had contributed to a devastating cycle of inter‑communal conflict. 

17                  Importantly, however, neither of the reports noted by the Home Office Report referred explicitly to conflict or inter‑communal violence involving members of the Igbo tribal group.  The USSD 2004 Report is expressed in general terms and the January 2005 report drew attention particularly to religious conflict between Christian and Muslim communities.

18                  Each of the matters concerning which the Tribunal asserted that there was ‘no evidence’ was defined narrowly.  None of the country information on which the appellant relied fell unambiguously within those narrow definitions.  For this reason, the Tribunal’s statement identified in [5] above is not, in my view, necessarily inconsistent with its having considered the country information that was before it.  As it is not open to the Court to review the merits of the Tribunal decision, it would be inappropriate for the Court to express a view on whether it would have reached the same conclusion as the Tribunal on the material before the Tribunal.

19                  For this reason, while I accept that the Federal Magistrate misconstrued the relevant passage in the Tribunal’s reasons for decision, I conclude that the first ground of appeal fails.

SECTION 424A

20                  Section 424A of the Act relevantly provides:

‘(1)      Subject to subsection (3), the Tribunal must:

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)        ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.

…

(3)        This section does not apply to information:

(a)        that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)        that the applicant gave for the purpose of the application; or

(c)        that is no-disclosable information.’

21                  The following passage from the reasons for decision of the Tribunal provides the foundation for the appellant’s claim that the Tribunal failed to comply with the obligations placed on it by s 424A of the Act:

‘I do not accept that the applicant was a member or a financial sponsor of MASSOB. The applicant made this claim after his application for a protection visa was refused for the reason that his fears were not Convention related. After the refusal he then claimed that he was a member of MASSOB, a political group which had suffered some mistreatment by government authorities in Nigeria from time to time. I consider that he added this claim to establish that his fears arose for one of the reasons set out in the Convention, that is, political opinion.’

22                  The appellant submitted that the above passage demonstrates that the decision of the Tribunal was, in part, based upon the inconsistency between what was included in the appellant’s protection visa application and what he later said to the Tribunal.  He claimed that in the circumstances the Tribunal should have put the inconsistency to the appellant in writing, explained its relevance and provided him with an opportunity to comment on it.

23                  I accept the submission of the first respondent that the above submission is inconsistent with the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.  While the full import of that decision awaits clarification, the majority judgment makes clear that s 424A has a more limited operation than was previously assumed.  It had been argued before the High Court that passages from the appellant’s statutory declaration that the Tribunal regarded as inconsistent with his evidence at his hearing should have been the subject of a notice under s 424A of the Act because those inconsistencies were the reason, or part of the reason, for the Tribunal’s decision to affirm the decision under review.

24                  The majority judgment in SZBYR at 615-617 at [17]-[21] makes clear that, in the circumstances of that case, the relevant parts of the statutory declaration of the appellant in support of his claims to be entitled to a protection visa were not ‘information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review’.  The circumstances of SZBYR are not in this respect distinguishable from the circumstances of this case.  I therefore reject the submission of the appellant that the Tribunal was obliged to comply with s 424A of the Act with respect to the information available to it concerning the content of his protection visa application.  It is therefore unnecessary for this Court to determine whether the Federal Magistrate erred in finding that the decision of the Tribunal was not based on an inconsistency between what the appellant said in his visa application and what he said to the Tribunal.

25                  The second ground of appeal also fails.

CONCLUSION

26                  The appeal will be dismissed with costs.

Associate:

Dated:         18 September 2007