FEDERAL COURT OF AUSTRALIA

MZZXF v Minister for Immigration & Border Protection [2015] FCA 158

THE COURT ORDERS THAT:

1.    Ground 1 of the Notice of Appeal be amended by inserting the words “law to the” immediately before the words “social group”.

2.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

Background

1    This is an appeal from orders of the Federal Circuit Court of Australia (FCCA) dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (Tribunal): MZZXF v Minister for Immigration & Anor [2014] FCCA 2138 (FCCA reasons).

2    The following background and procedural history, which is uncontroversial, is largely taken from the written submissions of the first respondent.

3    The appellant is a 32 year-old citizen of Nigeria, a Christian of Igbo ethnicity who arrived in Australia on 7 October 2011 as the holder of a visitor visa. She has a brother living in Australia and three sisters and a six year-old son living in Nigeria.

4    The appellant lodged an application for a Protection (Class XA) visa (visa) in December 2011 with the Department of Immigration and Citizenship which was received by the Department on 19 December 2011, and the appellant was interviewed by a delegate of the Minister on 11 May 2012.

5    The delegate decided to refuse to grant the appellant the visa on 17 September 2012, finding that the appellant was not a witness of truth and rejecting her claims as false.

6    An application for review was lodged with the Tribunal on 3 October 2012, and the appellant attended a hearing of the Tribunal on 10 July 2013, assisted by her migration agent, to give evidence and put arguments.

7    The Tribunal made its decision on 15 November 2013, affirming the delegate decision, and the decision was notified to the appellant's migration agent by letter dated 18 November 2013.

8    An application for judicial review was filed on 12 December 2013, containing two un-particularised grounds.

9    On 4 July 2014 an amended application for judicial review was filed in the FCCA detailing two grounds of review, and a hearing was conducted on 1 September 2014 at which the applicant was legally represented. The application was dismissed on 23 September 2014.

10    The notice of appeal was filed on 14 October 2014, appealing from the whole of the judgment and Orders of the primary judge.

Factual background

11    The appellant made the following claims in support of her visa application which were detailed in a Statutory Declaration made on 17 April 2012.

12    The appellant was the youngest of a large family. Her father died when she was 9 or 10, and her mother was treated badly by her father's family. The appellant lived in Lagos with her mother, who ran her own business, before commencing her University studies at Awka in Anambra State. Her mother died in 2005, and the appellant struggled to subsist, resorting at times in 2005 to prostitution to earn enough money to survive, and to complete her University studies.

13    The appellant was kidnapped in the rural area of Umudhioha in August 2007, held for two weeks, repeatedly raped, and only released after her brother paid a ransom demanded by her kidnappers. As a consequence of the rape she fell pregnant, and her son was born in April or May 2008 while she was living with her sister's family in Lagos. She remained very frightened of these men, who knew about her family members and might find her again.

14    In March 2009 she was travelling with other passengers in a minibus, which was hijacked by three men. All the passengers were taken to an isolated compound and tied up; the appellant lost consciousness, and when she regained her senses she found herself by the side of the road, bleeding from her vagina and suffering with a sore anus. She was treated at a local hospital, and reported the incident to the police, but was unaware of what investigations the police had undertaken thereafter, as she had left the area.

15    The appellant secured a job working as an office administrator for her brother-in-law, who had been elected as a Local Government Chairman in Otoko Obowo, Imo State. An opposition party subsequently won the election for State Governor, and dismissed all the Local Government Chairmen . The appellant was forced to return to Lagos after her brother-in-law was ousted and went into hiding; she began to receive threatening telephone calls in Lagos from people who were trying to trace her brother-in-law.

Claims made on the appellant's behalf

16    The appellant's legal representatives lodged a submission with the Department of Immigration and Citizenship dated 1 May 2012, which claimed that the appellant feared persecution because of:

(a)    her membership of a particular social group, either as

(i)    a woman in Nigeria;

(ii)    a young single woman in Nigeria;

(iii)    a young single woman in Nigeria without male protection; or

(iv)    a combination thereof.

(b)    her imputed political opinion as a consequence of having worked for her brother-in-law in the Obowo Local Government.

17    The foundation of her fear was said to be sound because of certain past incidents, and its consistency with country information. She also contended that State protection against the persecution she claimed to fear would be ineffective, and that relocation within Nigeria would not be reasonable.

18    Finally, she claimed that, as she was at significant risk of cruel or inhuman or degrading treatment on return, she should be granted complementary protection under the regime in s 36(2)(aa) of the Migration Act 1958 (Cth) (Act). I will take it from the appellant’s submissions that it was claimed that she faces a “real” risk of suffering harm as this section provides.

Tribunal findings if returned to Nigeria

19    I have set out below the substance of the factual findings made by the Tribunal.

20    The Tribunal noted that the bank account statements provided in support of the appellant's visitor visa application showed a bank balance equivalent to three years of her claimed salary, including large regular deposits from companies like Kanaf gold and “Clems”. The Tribunal did not accept the appellant's explanation that when the Local Government agency she worked for issued tenders for works, money was put into her account for disbursement to the successful tenderers.

21    In the light of the appellant's bank balance, the Tribunal concluded that the appellant had received a good income, noting that the account was quite substantial at the time that she claimed to have been destitute. The Tribunal found that upon her return to Nigeria, as a tertiary qualified woman who had previously received a good income, there was no reason why the appellant could not obtain employment.

22    The Tribunal did not accept that the appellant had ever worked for her brother-in-law as she was unable to describe the structure of the local council or name any administrative wards or autonomous communities in the Obowo local government area. This finding, together with the appellant's unconvincing explanation that she elected not to change her telephone number because she did not want to lose her contacts list, led the Tribunal not to accept that the appellant suffered a series of threatening telephone calls arising from her claimed work for her brother-in-law.

23    The Tribunal accepted that the appellant had been the victim of a random opportunistic criminal attack when she was kidnapped and raped in August 2007; the kidnappers did not know who she was when they targeted her. The appellant insisted in her Statutory Declaration, and in her evidence to the Tribunal, that the kidnapping was a random attack.

24    The Tribunal further accepted that the appellant had, with about ten other innocent people, been the victim of a hijacking of a minibus in Lagos in March 2009, when she had been robbed and raped. This had been a random crime. It was reported to the police, but the appellant then left the area, and was not in a position to know whether a police investigation was conducted thereafter.

25    The appellant's fear of persecution on account of her membership of one or more particular social groups - women in Nigeria, young single women in Nigeria, young single women in Nigeria without male protection, and rape victims (a claim raised in those proceedings) – were issues before the Tribunal.

26    The Tribunal found that the appellant had not been attacked because she was a single vulnerable female; her attackers did not know that she was single or without family protection; the kidnappers had been keen to identify a family member who would pay their ransom. The appellant's status as a single woman, and a woman without the support of a male protector, had no bearing on her being kidnapped or hijacked.

27    The Tribunal accepted that the particular social groups identified by the appellant's legal representatives could be found to exist in a Nigerian context, but did not accept that the appellant would be without family support (and by extension male protection) should she return to Nigeria, as her married sisters had supported her in the past, and she had also received financial support from her brother.

28    The risks facing the appellant upon her return to Nigeria were found by the Tribunal to arise from men motivated by criminal intent mistreating the appellant on account of her individual attributes, rather than by reason of her being condemned in the eyes of her persecutors for reasons of her membership of any particular social group. The appellant’s counsel accepted that her “individual attributes” was a reference to her being a woman. This, in context, seems to be correct.

29    The kidnap had occurred in August 2007 in a part of Nigeria to which the appellant had never returned. The kidnappers had not contacted the appellant again, and the Tribunal found that there would only be a remote possibility of such contact being made should the appellant return to Nigeria in the reasonably foreseeable future.

30    There had been no Convention nexus for the two incidents suffered by the appellant, which were random attacks; the harm feared by the appellant was not Convention-related. The Tribunal noted that while the appellant had been the victim of two random attacks, this did not lead to the conclusion that there was a real chance of the appellant being attacked again in the future, and went on to find that there was neither a real chance nor a real risk of the appellant again being a victim of violence should she return to Nigeria.

31    The appellant would not be without family support should she return to Nigeria, she previously had a good source of income, she was tertiary qualified, and she had worked in Nigeria before leaving to go to Australia. The appellant had had her baby in hospital, which was relatively unusual in Nigeria and would have involved considerable cost, and had been treated in hospital for her assault injuries. The Tribunal did not accept that there was a real chance of the appellant, upon her return to Nigeria, suffering serious harm in the form of significant economic hardship, or denial of access to basic services, or denial of a capacity to earn a livelihood.

32    The appellant had not been rejected by her family after she was raped and fell pregnant. She had still been able to earn a livelihood. The Tribunal found that there was neither a real chance that the appellant would suffer serious harm nor a real risk that she will suffer significant harm on account of being a rape victim and single mother.

33    The Tribunal considered the appellant's mental health condition, and accepted that she would be likely to receive substandard care in Nigeria on account of "a lack of resources, rather than an intention by the Nigerian Government to inflict cruel or inhuman treatment or punishment." As complementary protection obligations only arose where significant harm was intentionally inflicted, rather than arising from mere negligence or lack of resources, such obligations were not owed to the appellant.

34    The Tribunal found that the appellant had suffered with mental illness before she left Nigeria, but she had been able to secure employment, had enjoyed a good source of income, and had made no claim about having been stigmatised. There was not a real chance of the appellant being persecuted on account of her mental illness.

Federal Circuit Court judgment

35    The primary judge noted that one of the applicant's claims before the Tribunal was that she had a well-founded fear of persecution on the basis of her membership of the particular social groups:

•    women in Nigeria,

•    young single women in Nigeria,

•    young single women in Nigeria without male protection, and

•    rape victims.

36    His Honour found that the Tribunal had considered the appellant's membership of all the claimed particular social groups, and noted that the Tribunal had found that the risk of harm claimed by the appellant in Nigeria was not by reason of her membership of a particular social group, but rather because of her individual attributes. The Court found that this finding of fact was open to the Tribunal.

37    The Court concluded that the Tribunal had considered the particular social group claims; it had set them out and had gone on to consider those claims. His Honour rejected the appellant's contention that the Tribunal had failed to address integers of the appellant's claims.

38    The Court went on to find that the errors made by the Tribunal, referring on one occasion to the appellant as "he" and mistakenly referring to the appellant being removed to "Nepal" rather than Nigeria, when seen in the overall context of the decision did not establish jurisdictional error. The two errors neither amounted to a failure to comply with s 430 of the Act nor amounted to a failure to accord the appellant procedural fairness.

Application for leave to amend

39    The appellant seeks leave to amend her first ground of appeal. The first respondent does not oppose the application for leave to amend the first ground so as to add the words “law to the” immediately before the term “social group”, but submits that the judgment below cannot be impugned for failing to uphold a ground that was not actually before the Court.

40    I will allow the amendment. It does no more than reflect what in substance was argued before the primary judge.

Ground 1

41    Ground 1 of this appeal, as amended, contains a complaint that the primary judge erred in failing to find jurisdictional error in the Tribunal’s application of the law to the “social group” claim to refugee status which the appellant made.

42    In support of this ground the appellant relies upon the submissions she put to the Court below. The relevant paragraphs were as follows (with court book references omitted):

Ground 1 – Misapplication of “social group” test

[13]    A Convention nexus is established, relevantly to this case, by membership of a “particular social group”.

[14]    In Australia, authority is to the effect that a “particular social group” must:

(i)    be identifiable by a common characteristic or attribute which

(ii)    cannot be the shared fear of persecution, and

(iii)    must distinguish the group from society at large.

Applicant S v [Minister for Immigration and Multicultural Affairs] (2004) 217 CLR 387 (Applicant S) at [36].

[15]    Membership of a social group so identified is necessary to evince a Convention nexus, but not sufficient. The applicant must also be “unable to, or owing to such fear, [be] unwilling to avail himself of the protection of that [nationality] country or return there because there is a fear of persecution”: see Dranichinikov v [Minister for Immigration and Multicultural Affairs] (2003) 197 ALR 389 (Dranichinikov) at [26] and Applicant A v [Minister for Immigration and Ethnic Affairs] (1997) 190 CLR 225 (Applicant A) at 240.

[16]    The Tribunal reasons on the particular social group point as follows.

[17]    First, it refers to the social groups of which the applicant claimed to be a member (women in Nigeria, young single women in Nigeria, young single women in Nigeria without male protection, and rape victims); see [87]-[93].

[18]    Second, it says that:

There is no reason in principle why such a group or groups cannot constitute a particular group in the Nigerian context, satisfying the requirements of Applicant S.

[19]    The Tribunal then, however, fails to consider, as it should have done, each of the social group claims in turn. This is despite the Tribunal having continued, at [95]:

Firstly, the group members’ gender constitutes a common attribute or characteristic, and secondly, it is distinct from the shared fear of persecution. The country information indicates that in Nigeria, there is no gender equality, and the authorities do no effectively protect women from violence including sexual violence. The country information indicates in the Tribunal’s view that women in Nigeria generally continue to be second class citizens, and there are discriminatory laws. Consequently, the third component of the Applicant S test is satisfied, in that the attributes in question set the members apart from Nigerian society at large.

[20]    At [104], the Tribunal rejected the applicant’s claim of a well-founded fear of persecution on the basis of her status as a victim of rape.

[21]    Even on a benevolent reading of the Tribunal’s reasons, however, it makes no specific finding about whether the applicant is a member of any of the three other groups she identified: women in Nigeria, young single women in Nigeria, and young single women in Nigeria without male protection.

[22]    Rather, the Tribunal:

•    Expresses itself, at [96], to be applying an erroneous test (risk of serious harm, rather than fear of persecution);

•    Makes certain findings of fact about the applicant’s family situation: at [97]; then

•    Reasons, at [98], that the particular persecution or harm pointed to would:

in the view of the Tribunal, be motivated by criminal intent or exploitative opportunism directed at the applicant in her individual capacity rather than for reason of her membership of any particular group.

[23]    There are at least two problems with this mode of reasoning. The first is that it is logically fallacious. Accepting it requires acceptance of two conflicting propositions: that the social groups pointed to are generically at greater risk of the persecution or harm contended for (see [96]-[97]), but that, nonetheless, were any of that mistreatment to be visited upon the applicant, it would be not because of membership of any of the particular social groups pointed to, but because of personal factors (at [98]) – those personal factors being the same as those conferring on her membership of the social groups identified.

[24]    It may be – as suggested by the Tribunal’s citation of the passage of Applicant A set out at [96] – that a more orthodox record of the Tribunal’s sequence of reasoning would reveal that it did not in fact fall into error in its application of the social group test to the applicant’s claims. Given the elliptical nature of the reasoning actually expressed, however, the relevant finding is at best to be found in the wrap-up “cumulative consideration” paragraph [123], which in the applicant’s submission does not cure the defect identified.

[25]    Accordingly, in the applicant’s submission, the Tribunal’s reasoning on the social group point reveals the Tribunal having committed an error of law by failing properly to appreciate or to apply the correct test to determine the applicant’s status as a refugee by reference to a Convention nexus said to arise by her membership of a particular social group or groups.

43    The appellant complains that the Tribunal made no effort to perform the exercise it should have, namely, an analysis of whether the appellant had a well-founded fear of persecution on the basis of membership of each of the social groups to which she had referred. The appellant submits that the well-founded fear with which the Tribunal needed to but did not deal with was whether the appellant’s membership of each of the social groups she identified in itself disclosed a Convention nexus. I do not accept this submission.

44    The gravamen of the appellant’s complaint is that the Tribunal had not applied Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36] to each of the claimed social groups severally.

45    The appellant’s claim that she had a well-founded fear for reason of her membership of the particular social groups “women in Nigeria, young single women in Nigeria, young single women in Nigeria without male protection and rape victims” was acknowledged in terms by the Tribunal applying the criteria for the existence of particular social groups outlined by the High Court in Applicant S at [36].

46    It is the case that the Tribunal, having accepted that all four of the claimed social groups existed in the Nigerian context, dealt with the first three in a rolled-up fashion. That is understandable enough, given that they each concern women and proceed from the very general “women in Nigeria” to “young single women in Nigeria” and then “young single women in Nigeria without male protection”.

47    The Tribunal found as a fact that the appellant was not a member of this last group. In so doing, the Tribunal rejected important factual assertions made by the appellant. It did not accept that she would be without family support upon return to Nigeria. It found that her brother-in-law was not in hiding. It found that her married sisters had assisted her and she had lived with them before she left Nigeria, and that her brother in Australia had provided her with financial assistance.

48    It did accept that she was “a young single woman” and considered whether there would be a real chance that “a young single woman” with the appellant's family background, state of health and past experiences would be persecuted for a Convention reason. This would by extension embrace her membership of the social group “women in Nigeria”.

49    Her membership of the social group “rape victims” was considered separately by the Tribunal.

50    The primary judge appears to have misunderstood part of the appellant’s case. Contrary to what is recorded at [20] of the reasons of the primary judge, the appellant’s submission below was that the Tribunal did accept that the alleged social groups could exist and the first respondent conceded before me that there was a finding to that effect made by the Tribunal. The correctness or otherwise is not in issue in this appeal. Rather the complaint below was that the Tribunal failed to consider whether the appellant’s membership of each those social groups disclosed a Convention nexus.

51    The appellant accepted that it would be possible for an applicant to be a member of a particular social group or groups but to be at risk “because of the risk of a random criminal event”, rather than because of membership of the group or groups. However, she submits that this is not how the Tribunal reasoned to its conclusion. I reject this submission. This is the very course followed by the Tribunal.

52    There is no tension in what is found in the Tribunal’s decision, that membership of the social groups to which the appellant referred made her more “vulnerable” to persecution, but that any such mistreatment she might suffer would be motivated by criminal intent or exploitative opportunism directed at her in her individual capacity rather than by reason of her membership of any of those social groups.

53    The Tribunal correctly stated the legal question: that the threat of harm had to be directed against the appellant “for reason[s]” of her membership of the particular social group in question. Justice Gummow in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 284 stated:

Accordingly, I agree with the following formulation by Burchett J in giving the judgment of the Full Federal Court in Ram v Minister for Immigration [and Ethnic Affairs (1995) 57 FCR 565 at 568]:

“Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution.”

In par (2) of s A [of Article 1 of the Convention Relating to the Status of Refugees] the notion of “fear of being persecuted” is confined by the use of the phrase “for reasons of”. This serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, the holding of political opinion, or membership of a particular social group.

54    Justice Gummow at 285 also adopted what Burchett J had said in Ram at 569 that:

When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is “for reasons of” his membership of that group.

55    This was the case, the Tribunal found, even where an individual attribute namely, being a woman is the attribute that the appellant has in common with other members of the particular social group.

56    Importantly, as the first respondent submits, persecution involves an element of motivation for the infliction of the harm feared, and the expression “persecuted for reasons of” (contained in Article 1A(2) of the Refugees Convention, and qualified by s 91R(1)(a) of the Act) serves to identify the motivation for the infliction of the persecution, in this case for reason of the appellant's membership of one or a number of particular social groups.

57    As I have mentioned, the finding of the Tribunal was that the appellant's past mistreatment had not been because she was a member of a social group, namely, “young single women”. Indeed, the appellant herself gave evidence that the kidnapping had been a random event. It found that upon her return to Nigeria the appellant’s fears of further assault or abuse would arise from the prospect of predatory men assaulting, abusing or exploiting rather than for reason of her membership of a particular social group. Such actions, the Tribunal found, would be motivated by criminal intent in exploitative opportunism directed at her in her individual capacity. These were findings of fact that were open to it to make.

58    The Tribunal summarised its findings; having considered the appellant's claims cumulatively, it found that there was no real chance that she would be persecuted for a Convention reason should she return to Nigeria in the foreseeable future and that her fear of persecution is not well-founded and there are not substantial grounds for believing that there is a real risk that she will suffer significant harm for a Convention based reason.

59    The Tribunal considered the position of the appellant as a member of the social group of “rape victims” and did so in detail again finding the appellant’s fears as not well-founded and that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk that she will suffer significant harm on account of being a rape victim and single mother (as a result of being raped).

60    Accordingly, I reject the contention that the Tribunal did not consider whether the appellant’s membership of each of those social groups disclosed, as the appellant put it, a Convention nexus.

61    The Tribunal did consider that questions directly albeit in part cumulatively and made clear findings of fact that, in conclusion, rejected the proposition that the harm suffered by the appellant was due to her membership of those social groups or that she would suffer any such harm in the future for that reason.

62    There was no jurisdictional error by the primary judge in failing to conclude that the Tribunal had not considered the appellant’s claims separately.

Ground 2

63    Ground 2 of this appeal replicates the second aspect of the first ground of appeal in the FCCA: the Tribunal failed to deal with an integer or integers of the appellant’s claim to protection and that the learned primary judge erred in failing so to conclude. There is a significant overlap between this ground and Ground 1.

64    Fundamentally, the complaint the appellant maintains is not that the Tribunal did not consider the identified social groups at all, but that it failed properly to consider whether membership of those groups grounded a well-founded fear of (future) persecution. In the appellant’s submission, the Tribunal did no more, in respect of any of the groups identified, than to make a narrow finding of fact as to past events, and then to state an unelaborated and unsupported conclusion. That, in the appellant’s submission, was inadequate to deal with the substantive claims she sought to put to it.

65    That the Tribunal considered and made findings about prior events experienced by the appellant in Nigeria, and from these, reasoned as to whether the appellant had a well-founded fear of persecution, should she return to Nigeria, is an unexceptional approach: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. This is particularly so when the feared harm is of the same or similar kind to that already suffered.

66    The Tribunal gave detailed consideration to incidents of past harm which enabled it to arrive at its conclusions on this question. These include, as the first respondent identified, that:

(a)    the appellant had been able to earn a relatively lucrative income in Nigeria and there was no reason why, given that she was tertiary educated, she could not obtain employment on her return;

(b)    the August 2007 kidnapping and rape suffered by the appellant was a random opportunistic criminal attack;

(c)    the appellant, together with about ten other people, had been the victim of a random crime in March 2009, when a minibus they were travelling on had been hijacked, and she had been robbed and raped;

(d)    the appellant was not employed by her brother-in-law as an administrative officer, as she had been unable to describe the structure of the local council or name any of its administrative wards, and consequently had not received threatening telephone calls arising from such employment, and would not be imputed with a political opinion arising from such employment; and

(e)    there was no evidence that the appellant's brother-in-law was in hiding.

67    The Tribunal had regard to these findings when considering whether the appellant had a well-founded fear of persecution should she return to Nigeria. The appellant herself had, as I mentioned, agreed that the attacks on her had been random, but claimed that the attacks were based on her membership of the identified social groups.

68    The findings made about the future were open to the Tribunal and were supportable by its conclusions about past events.

69    I reject this ground of appeal.

Ground 3

70    Ground 3 of this appeal, which was the second ground raised in the FCCA, centres on [122] of the Tribunal’s decision record which reads as follows:

[122]    Accordingly, the tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there is a real risk that he will suffer significant harm.

The bolded parts of the extract highlight the two errors by the Tribunal – specification of Nepal (not Nigeria) as the appellant’s nationality country, and reference to her as “he”.

71    The appellant submits that the primary judge erred in failing to find jurisdictional error in the Tribunal as the errors identified were suggestive either of the Tribunal:

•    having “failed to accord the [appellant] procedural fairness (in that it failed to engage in an ‘active intellectual process’ in relation to the subject-matter of its decision)”, or

•    “that it failed, as required by s 430 of the Act, properly to record the reasons for its decision”.

72    There is no doubt that this was simply an error on the part of the Tribunal. It is readily apparent from the consideration of the Tribunal’s reasons as a whole that it was dealing with a woman from Nigeria.

73    It is apparent that the Tribunal employed some “template” paragraphs in its reasons. The sentence at [122], for example, reproduces the complementary protection test provided for in s 36(2)(aa) of the Act, in a form used in almost every Refugee Review Tribunal decision that is delivered. There is nothing sinister in this. The sentence is preceded by a lengthy and detailed analysis of an issue concerning the appellant's capacity to secure medical treatment in Nigeria.

74    This is not a case of wholesale unattributed copying. A consideration of the Tribunal’s reasons as a whole does not demonstrate that the appellant was not afforded procedural fairness. What was involved was no more than a typographical error and a slip in a summarising sentence.

75    I do not accept the submission that the identified errors open the inference that the Tribunal was not properly or adequately performing its task.

76    Their existence, contrary to the appellant’s submission, does not suggest a method of disposition of the application in the Tribunal that is not consistent either with the active intellectual process required to be brought to bear on the Tribunal’s task, or with s 430 of the Act.

77    These errors did not amount to jurisdictional error on the part of the Tribunal.

Conclusion

78    The appeal should be dismissed, with costs.

Associate:    

Dated:    4 March 2015