FEDERAL COURT OF AUSTRALIA

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:     Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    The appellant appeals from a judgment of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia). The Court below dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent Minister not to grant the appellant a protection visa.

2    The appeal raises for consideration the proper approach of the Tribunal in dealing with claims for a protection visa based on the complementary protection regime provided for in s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). That provision is discussed below at [14].

3    The appellant contends that the Tribunal failed to correctly apply the “real risk” test in s 36(2)(aa) of the Act. Further, he submits that the test as to whether he could reasonably relocate within his country of origin was incorrectly applied, as the Tribunal failed to distinguish the test applied in complementary protection matters from that applied in claims based on the Refugees Convention. The Minister denies those contentions and submits that the Tribunal committed no jurisdictional error in its consideration of the appellant’s claims for a protection visa.

Background

4    The appellant is a citizen of Nigeria. He entered Australia on 30 August 2009 as the holder of a tourist visa. On arrival, after a flight from China, authorities arrested the appellant and took him into custody. He later pleaded guilty to the importation of a marketable quantity of a border controlled drug, namely 206 grams of heroin. On 31 December 2011, the appellant was released from prison and taken into immigration detention where he is currently held.

5    Before the Tribunal, the appellant asserted an entitlement to a protection visa in two ways. First, under s 36(2)(a) of the Act, he claimed to be a person to whom Australia has protection obligations under the Refugees Convention. Second, in the alternative, he claimed to be a person in respect of whom, a necessary and foreseeable consequence of being removed from Australia was a real risk that he would suffer significant harm; see s 36(2)(aa) of the Act.

6    The appellant, in his refugee protection claim under s 36(2)(a) of the Act, claimed to have a well-founded fear of persecution by reason of his membership of a particular social group and by reason of his Christian religion. He claimed membership of two particular social groups:

    people who have family members active in a Christian army in Nigeria; and

    people who are liable to arrest, detention and/or conviction under Decree 33 in Nigeria.

7    Decree 33 is a Nigerian law which provides, amongst other things, that any Nigerian citizen found guilty in a foreign country of a criminal offence involving narcotic drugs and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence and liable to imprisonment for a term of five years.

8    The appellant also raised what are known as “complementary protection” claims under s 36(2)(aa) of the Act. The Tribunal observed at [166] of its reasons for decision that the appellant submitted that he faced a real risk of significant harm at the hands of the State in relation to a prosecution under Decree 33 if he returned to Nigeria. The significant harm which the appellant claimed was referred to by the Tribunal as:

    “Arbitrary deprivation of life;

    Torture; and

    Cruel or inhuman treatment or punishment.”

The Tribunal’s decision

9    The Tribunal found that the appellant had been convicted of a drug importation offence in Australia but did not accept that there was a real chance that the appellant would face persecution by reason of his membership of the social group of people liable to arrest under Decree 33. The Tribunal had regard to country information about the then operation and enforcement of Decree 33. It was not satisfied that prosecutions under Decree 33 continued to occur or that there was a real chance that such prosecutions would occur in the future. The country information showed that no prosecutions under Decree 33 had occurred since 2005. The Tribunal was not satisfied that there was a real chance that the appellant would be arrested, detained or jailed under Decree 33 should he return to Nigeria.

10    The Tribunal found that the appellant would face a real chance of serious harm by reason of being a practising Christian if he was returned to Nigeria and lived in his home region of Jos. However, the Tribunal found that it would be reasonable for the appellant to relocate elsewhere in Nigeria where he did not face a real chance of harm by Muslim extremists. In doing so, the Tribunal relied on country information to the effect that Muslim extremist groups were not active in the southern region of Nigeria and would not be active in the reasonably foreseeable future. The Tribunal considered that, if the appellant relocated to southern Nigeria, he would be able to practise his Christian faith with other Christians and would not be at risk of ongoing harm from Muslim extremists.

11    The Tribunal observed that the appellant had travelled from Nigeria to China in 2003 before coming to Australia. It also considered that it was reasonable for him to relocate to southern Nigeria, having regard to his survival in China for several years without family support as well as his education and employment history.

12    The appellant made complementary protection claims under s 36(2)(aa) of the Act. He claimed that he faced a real risk of significant harm on account of his potential prosecution under Decree 33. The Tribunal observed that these claims depended on it accepting that the appellant would be arrested and detained in Nigeria by reason of Decree 33. In rejecting the complementary protection claims, the Tribunal relied on its previous finding that there was no real chance that the appellant would be arrested, detained or jailed under Decree 33 if returned to Nigeria. The Tribunal was also not satisfied that there was a real risk that the appellant would suffer significant harm should he relocate to southern Nigeria.

The Court below

13    The appellant relied on four grounds of review before his Honour. Only two of them were agitated on appeal, but each in two respects. In the reasons which follow, the Court will only focus on those grounds which were relied on below and continue to be relied on. The first of these was that the Tribunal applied the incorrect standard of proof in deciding whether the complementary protection claims were made out. The second is that the Tribunal applied the wrong test in deciding whether it would be reasonable for the appellant to relocate to Nigeria when considering that aspect of the complementary protection issue. The reasons which follow deal with how these matters were developed below and their current significance, including the two ways in which each issue was developed in a total of four grounds of appeal.

The statutory context

14    A non-citizen who does not satisfy the criteria for a protection visa is nevertheless, under s 36(2)(aa) of the Act, entitled to a protection visa if the Minister “has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.

15    Section 36(2A) provides that a non-citizen will suffer “significant harm” if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

However, under s 36(2B)(a), there is taken not to be a real risk of suffering significant harm if “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.

Appeal Ground 1

16    The appellant submits that, in considering his complementary protection claims, the Tribunal failed to specify the standard of proof for types of significant harm apart from torture. The judge below rejected this submission. The appellant contends that he erred in doing so.

17    The appellant contends that the Tribunal failed to distinguish between the protection claims criteria based on Convention grounds in s 36(2)(a) and the complementary protection criteria in s 36(2)(aa) of the Act. He submits that the effect of the Tribunal’s reasoning is that the appellant’s claim to refugee protection failed, so his complementary protection claim must also be rejected.

18    The Minister submits that it is a distortion of the Tribunal’s reasoning to reduce it to the proposition that the claim for complementary protection was dismissed just because the claim for refugee protection was rejected. The Minister contends that the Tribunal’s reasoning was to the following effect:

    there is no real chance of the appellant being arrested, detained or jailed under Decree 33 and for the same reason there is no real risk that the appellant will suffer significant harm on account of any arrest, detention or imprisonment as a result of a prosecution under Decree 33; and

    there is no real chance that the appellant will be harmed by Muslim extremists or be prevented from practising his Christian religion if he relocates to the predominantly Christian southern part of Nigeria. For the same reason, there is no real risk that the appellant will suffer significant harm from Muslim extremists if he relocates to that area; and

    taking into account the appellant’s particular circumstances, it is reasonable for him to relocate to southern Nigeria. Such finding being made for the purposes of the claim for refugee protection and for the purposes of s 36(2B)(a) of the Act.

19    The Minister rejects the proposition that the way the Tribunal approached its task means that the complementary protection regime has no utility. Counsel for the Minister submits that the relationship between refugee protection claims and complementary protection claims in any given case will depend on all the particular facts and circumstances.

20    The Minister contends that there may be circumstances in which a claim for a protection visa will be rejected for failure to attract a Convention nexus but the same claimant may have complementary protection claims accepted. The Minister submits that the current case is an example of one where it was found that the claimant would not suffer any harm and that such a finding will usually lead to rejection of both types of claims.

Consideration – Ground 1

21    As formulated before the Court below, Ground 1 of that review application was:

The Tribunal erred by applying the wrong and/or failing to identify the standard of proof against which to assess whether there are ‘substantial grounds for believing’ that there is a ‘real risk’ of ‘significant harm’ to the Applicant, within the meaning of s 36(2)(aa) of [the Act].

22    The Court below rejected that ground. The first ground of appeal focuses on what is alleged to be an error by his Honour in failing to address the alternative way in which the above ground was formulated, “namely [the Tribunal] failed to specify the standard of proof for forms of ‘significant harm’ other than torture when considering the effect of Decree 33 on the Applicant”.

23    The appellant claimed before the Tribunal to be at real risk of arbitrary detention, deprivation of life, torture and cruel or inhuman punishment.

24    Ground 1 of the appeal arises from a submission made to the Tribunal by the appellant. That submission is recorded by the Tribunal at [170] where it said:

The applicant’s representative has submitted that in the absence of domestic jurisprudence to interpret key terms such as ‘substantial grounds’ and ‘real risk’, international jurisprudence should be considered, submitting that the standard of proof does not require that the risk of torture be highly probable or likely to occur, but that it must go beyond mere theory, suspicion, or possibility. It is submitted that in this case, there is a probability that the applicant will suffer a violation of human rights as a natural and foreseeable consequence of his return to Nigeria pursuant to being prosecuted under Decree 33.

25    At [171], the Tribunal responded to that submission as follows:

The Tribunal accepts that the standard of proof does not require that the risk of torture be highly probable, but that the risk must go beyond mere theory, suspicion, or possibility, considering that to be consistent with the Explanatory Memorandum. However the Tribunal does not accept that in this case there is a real risk of significant harm to the applicant as a necessary and foreseeable consequence of his removal to Nigeria due to his potential prosecution under Decree 33.

26    The only reason the Tribunal focuses on torture in the context of specifying the standard of proof for significant harm is because it was responding to a submission put to it in that context. There is no valid reason to believe that the Tribunal was inferring some different test applied to “cruel or inhuman treatment or punishment” or “arbitrary deprivation of life”.

27    Appeal Ground 1 is devoid of merit.

Appeal Ground 2

28    Ground 2 of the appeal states:

In respect of ground 1, the Federal Magistrate erred by reasoning that because the Second Respondent correctly understood the ‘real chance’ test, it correctly applied the ‘real risk’ test.

The appellant submits that the standard of proof in complementary protection claims is whether there is a real chance of the relevant harm being suffered and that the Tribunal’s reasons do not disclose that it equated the “real chance” risk with the “real risk” test. That submission is made in the context of Full Court authority to the effect that the standard of proof to make out a complementary protection claim is identical to that which applies to a refugee protection claim, that is, whether there is a real chance that the relevant harm will be suffered; see Minister for Immigration and Citizenship v MZYYL and Anor (2012) 207 FCR 211 at [31] and Minister for Immigration and Citizenship v SZQRB (2013) 296 ALR 525 at [246].

29    The Minister submits that the Tribunal applied the “real chance” test in considering whether there was a real risk that the appellant would suffer significant harm if returned to Nigeria. At [133] in the reasons for decision of the Tribunal, it said:

…the Tribunal does not accept that there is a real chance that the applicant will be detained, arrested or jailed on his return to Nigeria…[and] does not accept that there is a real chance that the applicant faces serious harm on the basis of his membership of any of the particular social groups proposed by his representative…(emphasis added).

30    Counsel for the Minister points to the Tribunal’s finding that there was a real chance the appellant would face persecution involving serious harm on the basis of his religion. Although, the Tribunal later found that there would be no real risk of significant harm if the appellant relocated to southern Nigeria.

Consideration – Ground 2

31    A fair reading of the Tribunal’s reasons for decision showed that it did not misapply or misunderstand the test for complementary protection claims. It applied the “real chance” test in determining whether there was a real risk that the appellant would suffer significant harm if returned to Nigeria. The finding of the Tribunal on its assessment of “real risk” is expressly linked to its findings on “real chance”. The Tribunal was entitled to rely on its finding that there was no real chance of the relevant harm alleged for Convention purposes in assessing whether there was a real chance of significant harm for complementary protection purposes, when the same essential claims and facts were being relied on in each aspect of the appellant’s case before the Tribunal. Ground 2 also lacks merit.

Appeal Ground 3

32    Ground 3 of the appeal relates to Ground 4 of the judicial review application before his Honour. Ground 4, as formulated below, stated:

The Tribunal’s decision is affected by jurisdictional error in that it failed to apply the correct test under s 36(2B)(a) of the Act, namely whether there was less than a ‘real risk’ of ‘significant harm’ for the Applicant in Nigeria.

33    In essence, this ground alleges that the judge below failed to observe that the Tribunal had not distinguished between the statutory test in s 36(2B)(a) and the case law concerning relocation in the refugee context. This ground of appeal deals with the proper application of s 36(2B)(a) of the Act concerning internal relocation of a person who would otherwise be at real risk of significant harm if returned to his or her country of origin. The appellant contends that s 36(2B)(a) requires a finding that relocation must be such as to reduce the risk of significant harm to something less than a real one and that the Tribunal failed to make such a finding. The Minister counters by pointing to the finding of the Tribunal at [175] that “it would be reasonable for the applicant to relocate to an area of Nigeria…where there would not be a real risk that the applicant will suffer significant harm…”

34    The Minister also referred to the earlier finding that there was no real chance that the appellant would be harmed by Muslim extremists if he relocated to the south of Nigeria.

35    On appeal, the appellant, through his counsel, emphasised that he would face significant harm as an “ex-prisoner” in Nigeria. He contends that the Tribunal did not consider that aspect of his claim in assessing the reasonableness of his internal relocation.

Consideration – Ground 3

36    I accept, at the outset, the submission of counsel for the Minister that it was not put to the Tribunal that the appellant would face significant harm in Nigeria on account of being an “ex-prisoner” apart from the possible consequences arising from Decree 33. To the extent that this ground of appeal raises a consideration going to the difference between someone liable to prosecution under Decree 33 and somebody who is merely an “ex-prisoner” it is a ground without merit.

37    For the reasons which follow, the substantive ground of appeal is also unpersuasive. The issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context. Read fairly, the reasons of the Tribunal show that it understood this. The Tribunal did not fail to apply the correct test in considering s 36B(2B)(a). It was required to consider whether the appellant would suffer significant harm or not, in an area to which he could be relocated. In so doing, the Tribunal considered whether there was a real risk of such harm being suffered in the area of relocation. So much can be gleaned from a fair reading of [173] to [175] of the Tribunal’s reasons for decision where it said:

[173] The Tribunal has also considered whether the applicant faces a real risk of significant harm if he returns to Nigeria on the basis of his Christianity. For the reasons set out above, the Tribunal has found that the applicant faces chance of serious harm for reasons of his religion if he returns to Jos now or in the reasonably foreseeable future on the basis of his Christianity and the Tribunal further accepts that there are substantial grounds for believing that as a necessary and foreseeable consequence of his or her removal from Australia to that part of Nigeria where he previously resided, he faces a real risk of significant harm for the same reason, such significant harm including torture or cruel or inhuman treatment or punishment pursuant to s 36(2A)(c) and (d).

[174] However s.36(2B)(a) of the Act provides that there is taken not to be a real risk that the applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend on the particular circumstances of the applicant and the impact upon that person of relocation within his or her country…

[175] In this case, for the reasons already stated above, the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of Nigeria, namely the southern parts of that country, where there would not be a real risk that the applicant will suffer significant harm on the basis of his Christianity, his membership of his family or his opposition to Islam.

38    The Tribunal found that the appellant would not be at a real risk of suffering significant harm if the appellant relocated to southern Nigeria. The prospect of suffering significant harm was based on the appellant’s Christian faith, membership of his family and opposition to Islam. The issue of the relevance or otherwise of the appellant being subject to Decree 33 or being an ex-prisoner did not arise in the relocation context because the Tribunal found that, throughout Nigeria, there was no real risk of significant harm arising as a consequence of Decree 33.

39    It is accepted that s 36(2)(aa) and s 36(2B)(a) must be considered together and as a whole; see MZYYL. That is what the Tribunal did in this case. The Tribunal considered whether relocation was reasonable and practicable in the particular circumstances of the applicant and the impact upon him of relocation within his country in reliance in SZATV v Minister for Immigration and Citizenship and Anor (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship and Anor (2007) 233 CLR 51. Although those cases do not deal with the complementary protection regime, they deal with the question of the reasonableness of internal relocation, being a matter directly addressed by s 36(2B)(a) of the Act. It was appropriate for the Tribunal to draw guidance from these decisions.

40    The Tribunal did what s 36(2B)(a) required of it. The relevant findings made by the Tribunal in the context of s 36(2B)(a) do not disclose any jurisdictional error. His Honour was correct to reject the corresponding ground of review before him.

Appeal Ground 4

41    Appeal ground 4 deals with a point arising from the manner in which the Court below dealt with the application before it. The appeal ground asserts that his Honour denied the appellant procedural fairness by failing to provide him with a proper opportunity to address a particular issue. That issue was described as whether “many people in the community with drug convictions do find employment and manage to support themselves” or to “address the situation in that regard in relation to Nigeria”.

42    The appellant had submitted below that the Tribunal had failed to address the possible impact on him of his drug conviction in the context of deciding whether it was reasonable or practicable for him to relocate. His Honour rejected the submission. In so doing, his Honour said at [47]:

It does not appear to have been put to the Tribunal that the drug conviction would have any significant effect on his capacity to find employment or live in other parts of Nigeria….It is axiomatic that many people in the community with drug convictions do find employment and manage to support themselves.

Consideration – Ground 4

43    An allegation of a denial of procedural fairness is a serious one. The observation made by his Honour was just that, an observation. It did not form any essential part of his reasoning in deciding that there was no relevant jurisdictional error made by the Tribunal. The Court below was not engaged in a fact-finding exercise. His Honour, at that point, was merely seeking to make the point that material which may have assisted the appellant on the reasonableness of internal relocation was not before the Tribunal.

44    There would have been no point in his Honour putting to the appellant’s counsel that his client could find employment in Nigeria despite a drug conviction in Australia. Such matters of fact were for the Tribunal to assess. The role of the Court below was confined to examining the Tribunal’s reasons with a view to considering whether they contained any judicially reviewable error. This final ground of appeal is also without merit.

Conclusion

45    Each ground of appeal is rejected. The appeal is dismissed with costs.

Associate:

Dated:    21 June 2013