FEDERAL COURT OF AUSTRALIA

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to amend his notice of appeal to take the following form:

  1.     The primary judge erred in failing to find that the claim that the applicant would be tortured and seriously harmed by the Nigerian authorities because they used specific incidents of crime and the high level of crime in general to arrest and detain people randomly and demand money for their release was squarely or sufficiently raised on the material.

   2.     The primary judge erred in finding that the Tribunal correctly applied section 36(2)(aa) of the Migration Act 1958.

2.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

Introduction

1    As found by the Refugee Review Tribunal (Tribunal) the applicant, to whom I will refer as the appellant, is a citizen of Nigeria. He arrived in Australia on 6 August 2012 and applied for a Protection (Class XA) visa on 23 August 2012 in circumstances I refer to in more detail shortly.

2    This appeal from the judgment of the Federal Circuit Court (as it now is) delivered on 15 March 2013 concerned a single ground:

  1.     That the learned Federal Magistrate failed to determine whether or not the Tribunal correctly construed section 36(2)(aa) of the Migration Act 1958.

Since the primary judge did determine that the Tribunal did not err in this respect and since the appellant wished to contend that the primary judge had erred in failing to find that a claim had been raised on the material, the appellant sought leave to amend his grounds of appeal so as to read as follows:

  1.     The primary judge erred in failing to find that the claim that the applicant would be tortured and seriously harmed by the Nigerian authorities because they used specific incidents of crime and the high level of crime in general to arrest and detain people randomly and demand money for their release was squarely or sufficiently raised on the material.

2.     The primary judge erred in finding that the Tribunal correctly applied section 36(2)(aa) of the Migration Act 1958.

These amendments would bring the grounds into line with the appellant’s written and oral submissions. They were not opposed by the Minister. I grant leave to the appellant to make those amendments to his notice of appeal and to rely on them.

3    The relevant provisions of the Migration Act 1958 (Cth) were as follows:

36  Protection visas

(1)    There is a class of visas to be known as protection visas.

Note:    See also Subdivision AL.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because 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; or

…

(2A)    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.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    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; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

Section 5(1) provided that:

significant harm means harm of a kind mentioned in s 36(2A).

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

    (c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

4    The procedural history of the matter is that the appellant had arrived in Australia on 6 August 2012 as the holder of a business visa which was cancelled on arrival by an officer of the Department because the officer was satisfied that the appellant did not have, at the time of the grant of the visa, or had ceased to have, an intention only to stay in, or visit, Australia temporarily for business purposes.

5    On 27 September 2012 a delegate of the Minister refused an application made on 23 August 2012 by the appellant, through his registered migration agent of the Refugee & Immigration Legal Centre Inc, for a Protection (Class XA) visa. An application for review was lodged with the Tribunal on 3 October 2012.

6    On 15 November 2012 the Tribunal affirmed the decision not to grant the appellant the visa. By an application filed on 22 November 2012 the appellant sought judicial review of that decision in what is now the Federal Circuit Court. An amended application was filed on 24 January 2013, the grounds being as follows:

1.    The Tribunal breached section 425 Migration Act 1958 (the Act) by failing to invite the applicant to make submissions in relation to s.36(2)(aa) of the Act;

  2.    The Tribunal failed to comply with s. 424A of the Act;

3.    The Tribunal failed to assess the applicant’s claims in relation to complementary protection and

4.    The Tribunal’s written statement did not comply with the requirements of s.430(1) of the Act.

7    Only the third ground was pressed. Following a hearing on 20 February 2013, the primary judge dismissed the application, as I have said, by order made on 15 March 2013.

The decision of the Tribunal

8    The findings by the Tribunal and its reasons were as follows.

9    At [168], the Tribunal said it had difficulty in accepting the appellant’s account of the reasons why he came to Australia. The appellant said that he was not able to afford to travel to Sydney and that he borrowed the equivalent of $8,000 from two people who wanted to arrange for students to study at Raffles College of Design and Commerce (Raffles) in order to fund his trip to Australia. The appellant gave two explanations for his pressing need to travel to Australia. At [174] the Tribunal said that it did not accept the appellant’s account of the reasons why he came to Australia.

10    At [185], the Tribunal said that he did not accept that, as the appellant now claimed, he borrowed around $3,500 from Mrs [A] and around $4,500 from Mr [B] to fund his trip to Australia. The Tribunal preferred the appellant’s evidence at the airport interview that the local government council paid for his ticket and that they also gave him the $650 which he had with him when he arrived in Australia. The Tribunal did not accept that the appellant received threatening telephone calls from Mrs [A] and Mr [B] before he left Nigeria, or that since his arrival in Australia he had received threatening email messages from those people or their associates. The Tribunal considered that the appellant invented those claims to provide a basis for his application to remain in Australia and the Tribunal did not accept that the threatening email messages which the appellant had produced were genuine.

11    At [186], the Tribunal said it did not accept that there was a real chance that if the appellant returned to Nigeria now or in the reasonably foreseeable future, he would be harmed or killed or otherwise persecuted by Mrs [A], Mr [B], their associates or anyone else because he owed the money or because he had not been able to arrange for students to enrol to study at Raffles. The Tribunal did not accept that those people had reported the appellant to the authorities in Nigeria or that the appellant was suspected of involvement in criminal activity. The Tribunal did accept that the appellant was beaten by criminals as a result of an incident in 2004 in which he sold what turned out to be illegitimate forms for students to take to university entrance examinations. However the appellant had said that he was able to sell some things to refund this money. The Tribunal did not accept that there was a real chance that the appellant would be persecuted by those people if he returned to Nigeria now.

12    At [187]-[189], the Tribunal considered a claim that the fact that the appellant’s Australian visa had expired might be an issue which could put him in danger of being interrogated if he returned to Nigeria. The Tribunal said that the information which the appellant’s representatives referred to confirmed that it was failed asylum-seekers who returned to Nigeria on emergency travel documents who were questioned by immigration staff on arrival back in Nigeria, but that was merely to confirm their identity and to establish the reasons behind their being deported. The information confirmed that failed asylum-seekers were not arrested or detained or persecuted for having applied for asylum abroad. The Tribunal did not accept that there was a real chance that the appellant would be identified as a failed asylum-seeker if he returned to Nigeria now or in the reasonably foreseeable future. There was nothing in the independent evidence to support the claim made by the appellant and his representative at the hearing that the fact that his Australian visa had expired would attract attention if he returned to Nigeria. The Tribunal did not accept on the basis of the independent evidence that there was a real chance that the appellant would be detained, interrogated, punished or otherwise persecuted because he had breached Australia’s immigration laws if he returned to Nigeria now or in the reasonably foreseeable future.

13    At [190], the Tribunal said:

While I accept that, as referred to in the applicant’s representatives’ submission dated 24 October 2012, there is evidence that the police use specific incidents of crime, and the high levels of crime in general, as a pretext to arrest and detain people at random and to demand money for their release, the independent evidence does not suggest that the police single out people who have been abroad in this context on the basis that the police think that such people have money. I do not accept on the basis of the independent evidence that there was a real chance that the applicant will be arrested, detained and threatened in order to extort money from him because the police will think that he has money as a result of his having been abroad.

14    At [191], the Tribunal said that having regard to the independent evidence and to the Tribunal’s findings of fact, the Tribunal did not accept that, if the appellant returned to Nigeria now or in the reasonably foreseeable future there was a real chance that he would be interrogated, detained or otherwise persecuted for reasons of his membership of any of the particular social groups suggested by him or his representatives, namely failed asylum-seekers, returnees suspected of criminal misconduct, failed asylum-seekers or forced returnees suspected of criminal offending, Nigerian citizens forcibly returned from overseas who are perceived to have engaged in criminal conduct, returnees perceived to have defrauded Nigerians by attempting to flee the country or people who had been abroad who the police may think had money.

15    The Tribunal then turned to consider the question of complementary protection. I set out these paragraphs in full.

Complementary protection

[192]    Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm from Mrs [A], Mr [B], their associates or anyone else because he owes them money or because he has not been able to arrange for students to enrol to study at Raffles. I likewise do not accept that there is a real risk that the applicant will suffer significant harm from the people who accused him of having cheated them or the criminals who beat him up in 2004.

[193]    Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm from the Nigerian authorities because he will be suspected of, or perceived as, having committed criminal offences in Nigeria or overseas, because he has applied for asylum abroad or specifically because he will be perceived as having defrauded Nigerians by attempting to flee the country, because he will be seen as having brought disrepute on Nigeria abroad by having applied for asylum or because he will be perceived as having breached Australia's immigration laws because his Australian visa has expired. I likewise do not accept that there is a real risk that the applicant will suffer significant harm at the hands of the police because he has been abroad and the police think that people who have been abroad have money.

[194]    Having regard to my findings of fact above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

The decision of the Federal Circuit Court

16    The primary judge dismissed the application, finding that jurisdictional error on the part of the Tribunal had not been demonstrated.

17    The primary judge said the appellant characterised the three elements of his claim to complementary protection as:

(a)    that he would be persecuted by the people who lent him money;

(b)    that the people who lent him money would report him to the police who would mistreat him, and

(c)    that he would be tortured and seriously harmed by the Nigerian authorities because they used specific incidents of crime to arrest and detain people randomly and demand money for their release.

18    The primary judge said that the arguments made by the appellant concerned the third of the three elements of his claim to be entitled to complementary protection. The first two elements of that claim failed because the Tribunal found the appellant’s allegations that he had borrowed money from the relatives of potential students to have been inventions.

19    The primary judge said the appellant characterised the third element of his complementary protection claim in two ways:

The first characterisation was that he would come to the attention of the Nigerian authorities because the lenders would allege that he had defrauded them and because he had sought asylum in Australia. The first of those two allegations was impliedly rejected by the Tribunal’s finding just referred to and also by its additional refusal to accept that the applicant had been reported to the Nigerian authorities or that he was suspected of involvement in criminal activity. The second of those allegations was also impliedly rejected by the Tribunal’s statement at para. 189 of its reasons, that it did not accept that there was a real chance that the applicant would be identified upon return to Nigeria as a failed asylum seeker.

20    The primary judge said that, consequently, the appellant’s case turned on the claim to fear significant harm at the hands of the Nigerian authorities because, on return to Nigeria, he might be detained by the Nigerian authorities who were prone to inflict significant harm on such detainees and that this claim had not been considered by the Tribunal.

21    The primary judge held that claim could not be discerned in the next to last paragraph of the appellants’ submissions to the delegate of 21 September 2012. He said the reference to torture and serious harm in the final sentence of that paragraph concerned what might happen to the appellant if he were to come to the attention of the Nigerian authorities “as a result of his having sought asylum and also as a person against whom fraud is likely to be alleged”. So much was clear not only from the terms of the paragraph itself but also from the remainder of the submission of 21 September 2012, and also from the appellant’s advisers’ written submission to the Tribunal of 24 October 2012. The primary judge said at [36]:

The claim to fear harm at the hands of the Nigerian authorities was made in that context and in that context only and was unsuccessful because the Tribunal found that the applicant was not likely to come to the attention of the Nigerian authorities for either of those reasons. In paras. 189, 191 and 193 of its decision the Tribunal rejected all of the applicant’s other claims to face a real risk of being detained by the Nigerian authorities. Apart from those claims the applicant made no claim to face a real risk of detention, whether expressly or in such a way that NABE [v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1] might be of some assistance to him, although in circumstances where the applicant was professionally represented at all relevant times, it is difficult to see much, if any, room for the operation of the principle on which he relied.

22    The primary judge held that the allegation that the Tribunal failed to consider a claim made by the appellant was not made out. He said at [38]-[39] of the judgment:

Further, the Tribunal’s lack of satisfaction that the applicant met the criteria for complementary protection was not influenced by a misunderstanding of the relevant test. The Tribunal’s conclusion was not based on the absence of a Convention nexus but on the applicant’s failure to make out his factual allegations and by the absence of any other claim to complementary protection.

In addresses the applicant made much of his assertion that detention by the Nigerian authorities would amount to serious harm. In circumstances where the applicant’s only claims to face a real risk of detention were not made out, the Tribunal had no need to consider whether any such detention would amount to serious harm.

Submissions

23    The appellant’s submission centred on the statement in [190] of the Tribunal’s reasons for decision, which I have set out above, where the Tribunal accepted that “there is evidence that the police used specific incidents of crime, and the high levels of crime in general, as a pretext to arrest and detain people at random and to demand money for their release…”.

24    The appellant submitted that this was sufficient in and of itself to raise a claim under complementary protection. “This finding arose out of evidence before the Tribunal and squarely raised by the appellant’s advisors by reference to the United Kingdom Country of Origin Report to Nigeria January 2012.”

25    It was submitted that the Tribunal, having made the finding, then turned to the issues of complementary protection in a self-contained manner in [192]-[194] of the decision but failed to deal with the appellant’s general claim under the complementary protection provision that as a necessary and foreseeable consequence of being returned to Nigeria there was a real chance he may suffer significant harm at the hands of the Nigerian police in a manner enlivened by the finding.

26    The appellant submitted that to deal with his claims to complementary protection in a self-contained manner, embedded as it was in Refugee Convention-related thinking, was particularly problematic. The reliance by the Tribunal on unspecified “findings of fact above” was criticised as having the practical effect of importing the requirement of persecutory acts under s 91R to the test under complementary protection. “In so transposing the finding, the Tribunal has misconstrued the claim advanced by the [appellant] and arising on the evidence before the Tribunal - tantamount to a failure to consider a claim under the complementary protection provision and on that basis the appellant submits the Tribunal’s reasoning constitutes jurisdictional error.” Given the breadth of the finding regarding the documented practices of the Nigerian police by the Tribunal it could not be said, the appellant submitted, that these findings were subsumed in findings of greater generality elsewhere in the decision.

27    Noting the definition of “significant harm” in s 36(2A), the appellant submitted that the Tribunal’s finding would have been dispositive in the appellant’s favour had the correct test been applied.

28    The appellant submitted that the primary judge erred in assuming that the principles in NABE v Minister of the Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 would only be enlivened in circumstances where the claim was clearly articulated. The appellant referred to NABE at [63] and submitted that a jurisdictional error may be occasioned where a claim “is raised by the evidence, albeit not expressly by the applicant”.

29    The appellant also submitted that the primary judge conflated the language contained in the statutory provisions relating to the Refugee Convention and the definition of “serious harm” in s 91R with the notion of “significant harm” as defined in s 36(2A).

30    It was also submitted that the primary judge had “assumed a higher burden of proof to the test under the complementary protection provision to that posed by [the] Refugee Convention”, inconsistently with Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [248].

31    The appellant also noted that the Tribunal, in its exposition of the test under complementary protection in [13] of the Tribunal’s decision made no reference to the “real chance” test as the appropriate test.

32    The appellant relied on the judgment of the Federal Circuit Court in SZSFK v Minister for Immigration [2013] FCCA 7 where at [90] and following the judge said the problem with the reasoning that the complementary protection claims failed because they were based on the same evidence as the claimant’s refugee protection claims was that the Reviewer made no attempt to distinguish the different tests posed by s 36(2)(a) and s 36(2)(aa) and in circumstances where the Reviewer had accepted claims of detention and assault, but rejected a number of the claims on the basis of the absence of a Convention nexus or for some other reason peculiar to the Convention. The judge said, at [97], that the Reviewer emphasised what he saw as the “non-systematic or targeted” threat to the applicant and this could have been a reference to s 91R(1)(c) which the parties agreed was not relevant to the complementary protection criteria. The use of the word “systematic” was problematic. Decision-makers needed to clearly distinguish between statutory provisions which bore on the complementary protection criterion and those which did not. The use of language drawn from an irrelevant provision of the Migration Act at least created confusion and may point to reviewable legal error. Further, the reliance by the Reviewer on unspecified “finding set out above” was particularly problematic. On its face, it appeared to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant.

Consideration

33    In my opinion, it is important to trace the development of the claim to complementary protection through the various stages of decision-making, noting that the appellant has been represented throughout.

34    In the appellant’s statutory declaration dated 15 August 2012 the appellant’s fears of suffering significant harm arose out of his claims of payback from the father of one of the students who had lent him money and from the mother of the other student who had lent him money if he failed to go to Sydney to enter an agreement for those students to be enrolled.

35    In the appellant’s statement dated 21 September 2012, the appellant gave more details of his contention that he feared he would be harmed if he returned to Nigeria as he would not be able to repay money he owed to those who had lent him money on behalf of students who wanted to study in Sydney. He said it was common in Nigeria for people to take the law into their own hands or to engage others for this purpose. The appellant said he was especially fearful of Mr [C] who made introductions for him. The appellant said that if he was forced to return to Nigeria he also feared the Nigerian police if a complaint was made against him. He said the police were known to engage in corrupt practices and he feared that he would not get a fair hearing. They would not protect him against the harm that he feared.

36    In the submission dated 21 September 2012 to the Department, on behalf of the appellant, from the Refugee & Immigration Legal Centre Inc it was put that if the appellant was returned to Nigeria he feared he would be seriously harmed as a result of not being able to repay the funds to those who had lent him money in Nigeria. The appellant also feared harm from the person who assisted him with introductions because the lenders also held that person responsible for the apparent loss of their funds. Specific reference was made to the complementary protection provisions. It was submitted that the appellant was owed protection under those provisions as a result of a real risk of significant harm from those to whom he owed money and from the Nigerian authorities. Under the heading “Arbitrary Deprivation of Life”, it was submitted that there was a real risk that the appellant would be killed by or on behalf of those he owed money to in Nigeria and further that the state authorities would not exercise “due diligence in preventing this”. Under the heading “Torture” it was submitted that the appellant was at risk of torture at the hands of those to whom he owed money as well as the Nigerian police/authorities. The words in the definition of “torture” in s 5(1) of the Migration Act: “for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed” were emphasised. Under the heading “Treatment if Detained” it was submitted that there was a real risk that the appellant would be interrogated and detained as a result of complaints by people the appellant owed money to and that despite his innocence he would suffer cruel and degrading treatment at the hands of police and in detention and not receive a fair trial. Under the heading “Degrading Treatment or Punishment” it was submitted that there was a real risk of the appellant being subjected to degrading treatment at the hands of the Nigerian authorities (having been arrested).

37    It was submitted that if the appellant was seen as a person running from debts or suspected of some misconduct he had a right to protest his innocence and clear his name but in trying to do so there was a real chance he would suffer serious harm upon return, either by non-state actors or the Nigerian police. If forced to return to Nigeria the appellant would not be able to repay funds soon enough to avoid serious harm. The Nigerian authorities would not protect the appellant against serious harm from non-state actors. Upon return the appellant was likely to come into contact with the Nigerian authorities as a result of his having sought asylum and also as a person against whom fraud was likely to be alleged. Given the overwhelming country information detailed, there was a real chance the appellant would be tortured and seriously harmed by the Nigerian authorities also.

38    By facsimile dated 22 October 2012, the Refugee & Immigration Legal Centre Inc forwarded a further statement in support of the appellant’s Tribunal application and a response to the hearing invitation.

39    The statement by the appellant was dated 22 October 2012. The appellant confirmed that he feared he would be seriously harmed if he was returned to Nigeria as a result of money he owed. He said he also feared harm from the Nigerian authorities. He stated he was worried about the Nigerian authorities causing harm to him upon return if they thought he had defrauded people in Nigeria of money. He said that he had heard that if people are returned from overseas to Nigeria they are interrogated upon return and if you do not have money to pay to be released you are in trouble because the police are so corrupt. The police think that people who have been abroad have money and want to get that money. He referred to country information acknowledged by the delegate indicating problems with Nigerian police including “pervasive corruption and harassment and intimidation of victims”. The appellant said this supported his claims of fearing serious harm upon return if he were detained and could not pay a bribe to secure his release. It also confirmed that he would not be protected from harm he feared from those he owed funds to. He also stated that he especially feared Mr [C] who introduced him to Mrs [A].

40    By facsimile dated 24 October 2012, the Refugee & Immigration Legal Centre Inc forwarded an eight-page submission signed by a solicitor and migration agent. The submission restated that the appellant was at real risk of significant harm under the complementary protection provisions. Under the heading “Refugee Convention grounds – Membership of a particular social group – ‘forced returnees to Nigeria suspected of criminal offending’ and ‘failed Nigerian asylum seekers’” the submission said:

Information was provided [to the delegate]… to indicate the existence of the particular social group posed, and also to indicate the view the Nigerian authorities take in relation to Nigerian citizens forcibly returned from overseas who are perceived to have engaged in criminal conduct.

There was later set out a paragraph from the United Kingdom Country of Origin Report for Nigeria January 2012:

8.15 The Human Rights Watch report of August 2010, Everyone's in on the Game – Corruption and Human Rights Abuse by the Nigeria Police Force, stated: "Numerous police officers, legal professionals, and civil society leaders characterized the problem of unlawful detention of citizens by Nigerian police officers with the apparent motivation to extort money as a widespread and growing problem throughout Nigeria. They described how the police use specific incidents of crime, and the high levels of crime in general, as a pretext to randomly arrest and detain individuals and groups of citizens.

“Once a person is arrested by the police and refuses, or is unable, to pay the money demanded, they are often detained until they negotiate an amount for their release. In many cases, this unlawful detention may last for days or even weeks. Those who do not pay face threats, beatings, sexual assault, torture, or even death. Extended periods of detention leave victims and their friends and family vulnerable to repeated threats and demands for bribes. Using police terminology, a civil society leader in Lagos explained that the police “tend to cast the net very wide so they can arrest as many suspects as possible. This affords the more chances for extortion and corruption.”

8.19 … Despite international and domestic law prohibiting the use of torture, the Nigerian police routinely used torture and other cruel, inhuman, and degrading treatment, and are rarely held accountable for it. Human Rights Watch found that corruption in the police force has both directly and indirectly contributed to the use of police torture in Nigeria.”

This was put as adding to the significant country information already provided about the Nigerian police in support of the appellant being denied state protection.

41    Under the heading “Complementary Protection” reference was made to submissions previously made in relation to the appellant being owed complementary protection in relation to fearing significant harm from those he owed money to or their agents and from the Nigerian authorities and it was submitted it was necessary to assess the application for complementary protection in the context of life in Nigeria where people were unfortunately regularly duped by fraudulent conduct and where people were forced to take law enforcement matters into their own hands or to engage criminal or vigilante groups for that purpose because of the endemic corruption within the Nigerian police. It was said that despite the appellant having not engaged in any fraudulent conduct it was assumed in Nigeria that he had. The appellant was at risk of significant harm including torture, cruel inhuman and degrading treatment or punishment if the police were involved. He was also at risk of significant harm including deprivation of life, torture and cruel and inhuman treatment or punishment from non-state actors.

42    By facsimile dated 9 November 2012, the Refugee & Immigration Legal Centre Inc forwarded a further statement of the appellant in support of his review application. This statement was dated 9 November 2012. The appellant said that he believed that the Nigerian authorities would know that he had stayed in Australia longer than his visa allowed and would cause problems for him upon return. He said he was certain that they would “try to bribe him by asking for money”, based on the fact that he had brought shame to the country by breaching immigration laws overseas and that they would punish him severely if he did not pay. He said he was also worried that people he now owed money to and feared harm from in Nigeria had reported him to the authorities which would also result in him suffering serious harm upon return because of the way the Nigerian police behave.

43    I do not accept the appellant’s submission that the finding by the Tribunal at [190] was sufficient to raise a claim under complementary protection as now articulated. The claim as articulated was always linked to the actual or perceived fraud arising from the alleged debts owed by the appellant, or to other cause: it was not free-standing. Further what is set out at [190] is not free-standing in any event as it is referable to the practices of the Nigerian police in circumstances where a crime is suspected of being committed.

44    In my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material.

45    These expressions are derived from Htun v Minister for Immigration (2001) 194 ALR 244 at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [22]-[24], [27] and NABE v Minister of the Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[61] and M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [90].

46    In Htun Allsop J, with whom Spender J agreed, said that there had been a failure to deal with one part of the claim for asylum on the basis of the applicant’s imputed political opinion. It was true, Allsop J said, that when called on at the hearing to articulate his fears the applicant did not expressly identify his friendships as a Karen with people in organisations such as the KNLA, as distinct from his activities in Australia. However, Allsop J said, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, this basis of the claim had not been abandoned. Conceptually, and in a commonsense way, Allsop J said, that claim was quite distinct from his claim based on his participation in the Karen community and the political groups.

47    Dranichnikov v Minister for Immigration (2003) 197 ALR 389 does not, in my opinion, assist because in that case, as the majority held, the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts, being that the Tribunal did not deal with his claim to be a member of the social group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

48    In M61/2010E at [90] the Court said, with reference to Dranichnikov at [24] and [95] that failing to address one of the claimed bases for the plaintiff’s fear of persecution was a denial of procedural fairness.

49    NABE discussed, at [58], the proposition that the Tribunal was not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raised a case not articulated. The Court said that a claim not expressly advanced would attract the review obligation of the Tribunal when it was apparent on the face of the material before the Tribunal. Such claim will not depend for its exposure on constructive or creative activity by the Tribunal. At [59] the Court discounted as a general rule that the Tribunal could disregard a claim which arose clearly from the materials before it. The Court approved, at [60], the following statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [18]:

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

The Court said that this did not mean that the Tribunal was only required to deal with claims expressly articulated by the applicant. It was not obliged to deal with claims which were not articulated and which did not clearly arise from the materials before it.

50    At [62], the Court cited with approval the statement by Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]:

Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

The Court said at [63] that every case must be considered according to its own circumstances.

51    Applying these principles, the Court in NABE said that although the claim might have been seeing as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal failed to consider a claim which is not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.

52    As I have said, in my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material. The claim as now put is taken out of its original context both in the submission of the appellant’s representative and the relevant paragraph, [190], of the Tribunal’s decision.

53    Counsel for the appellant accepted that this ground of appeal was the gateway to the second ground and that if he failed on this point the subsequent ground did not arise. Nevertheless, for completeness, I shall consider the second ground.

54    The factual basis of the claim under the complementary protection provisions was rejected by the Tribunal. Thus the claim as articulated under the complementary protection provisions failed. The claim could not succeed in light of the Tribunal’s rejection of the various causes in relation to which the appellant claimed he would be harmed, with or without detention.

55    I reject the appellant’s submission that the Tribunal’s “dealings” with the complementary protection claim was “bound up” in Refugee Convention-related thinking. In the paragraphs I have set out, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact.

56    There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.

57    As to SZFSK v Minister for Immigration [2013] FCCA 7, each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. As I have said, in the present case, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact which led to the conclusion that the Tribunal did not accept the appellant’s claim.

58    The suggestion that the Tribunal did not apply a “real risk” but a balance of probabilities test when considering complementary protection is unsustainable in light of the frequent references by the Tribunal to that test in [192]-[194] where it considered this claim. I reject the submission that the Tribunal or the primary judge “assumed a higher burden of proof to the test under the complementary protection to that posed by the Refugee Convention”. I also reject the submission that the Tribunal did not apply a “significant harm” test in light of the references to that test in [192]-[194] where the Tribunal considered this claim.

Conclusion

59    For these reasons, I am not persuaded there was any error in the conclusion of the primary judge and I am not satisfied that either of the grounds of the amended notice of appeal are made out. The appeal is dismissed, with costs.

Associate:

Dated:    6 August 2013