FEDERAL COURT OF AUSTRALIA

WZAVL v Minister for Immigration and Border Protection [2016] FCA 334

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time to appeal a judgment of the Federal Circuit Court of Australia delivered on 9 September 2015: see WZAVL v Minister for Immigration & Border Protection [2015] FCCA 2388 (“WZAVL”). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal) to affirm a decision of the Minister’s delegate to refuse the applicant a Protection (Class XA) visa.

2    Under r 36.03 of the Federal Court Rules 2011 (Cth), a notice of appeal must be lodged with this Court within 21 days after the Federal Circuit Court delivered its judgment, that is, by 30 September 2015. The application for an extension of time was lodged in this Court on 25 January 2016: it was therefore approximately four months out of time.

Procedural background

3    The applicant is a citizen of Nigeria who arrived in Australia on 10 September 2011 on a Prospective Marriage (TO-300) visa, having travelled from Malaysia where he had resided on a student visa since May 2008. He was later granted a Combined Partner (UK-820) visa which was cancelled on 27 February 2013. The applicant applied to the Migration Review Tribunal (as it was then) for a review of the decision to cancel his visa; the decision was affirmed on 16 December 2013. The applicant’s bridging visa, which he had been granted pending the outcome of the Migration Review Tribunal’s review, ceased on 24 January 2014. He was detained by immigration officials on 11 June 2014 and applied for a protection visa while in detention on 27 June 2014.

4    On 16 September 2014, a delegate of the Minister refused to grant a protection visa because she was not satisfied that the applicant was a person to whom Australia owes protection obligations under the Migration Act 1958 (Cth).

5    The applicant sought review of the delegate’s decision by the Tribunal on 24 September 2014 and the Tribunal affirmed the delegate’s decision on 5 December 2014. The Tribunal set out its reasons in a Statement of Decision and Reasons of that date (“Decision Record”).

6    On 24 December 2014, the applicant filed an application in the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

7    On 5 March 2015, the applicant was the victim of a bashing incident at Yongah Hill Immigration Detention Centre in Western Australia (“Yongah Hill”) which required his hospitalisation.

8    On 9 September 2015, the primary judge dismissed the application for judicial review.

9    On 2 October 2015, the applicant initiated a request for Ministerial intervention under s 417 of the Migration Act. That application was determined adversely to the applicant on 13 November 2015.

10    On 24 February 2016 the applicant was given notice of the Minister’s intention to remove him from Australia on 2 March 2016. The following day, the applicant filed an urgent interlocutory application to restrain the Minister from removing him from Australia pending the finalisation of his extension of time application and if granted, the outcome of his appeal. On 25 February 2016, as duty judge, I made directions in relation to filing of evidence and submissions for a hearing of the application for an injunction before Wigney J in the following week. On 1 March 2016, Wigney J dismissed the application after delivering ex tempore reasons.

Tribunal hearing and decision

11    As the Tribunal found that the applicant’s written claims were not coherently expressed and his spoken English was “vastly superior” to his written English expression, it relied on the applicant’s interview with the delegate as well as the evidence which he gave at the hearing to understand his claims: Decision Record at [7]. In summary, the Decision Record at [9]-[21] indicates that the Tribunal understood the applicant’s claims to be that:

(1)    In 1990, his father was tortured to death in the village in which he lived as a result of his father’s activities against witchcraft practised by some people in the village: Decision Record at [9];

(2)    In 2001, as a result of the applicant asking questions about his father’s death, the applicant was also attacked by people in the village. As to the nature of the attack, the applicant said that he was made to go crazy with charms and left running naked in the street. When the Tribunal indicated that it did not accept that “magic spells could make people go crazy” and asked whether he might have been poisoned, the applicant reaffirmed that in Africa “ritualists” were able to make charms that would cause people to go crazy. The Tribunal noted that the applicant’s written claims also indicated that he had been burned with acid and the applicant offered to show the Tribunal his scars: Decision Record at [10]-[11];

(3)    The applicant confirmed that he left his village after the attack in 2001 and moved to Aba city in Abia state, about 60 miles away, and he lived there until he moved to Malaysia in 2008: Decision Record at [12];

(4)    The applicant left Aba for Malaysia because Muslims were killing Christians and he had seen instances of Muslims hurting people in the street because they were Christian. Although the applicant could not identify any particular group of Muslims, he said that there were vigilante groups who opposed people smoking marijuana and would attack people with machetes: Decision Record at [13]; and

(5)    The applicant would be thought of as a “rich man” if he returned to Nigeria and he would be killed by “gangsters”. Kidnapping and shooting were well known. In response to a query as to whether the applicant feared being a victim of crime in Nigeria, the applicant said that he was scared of Muslims: Decision Record at [19]-[20].

12    The Tribunal member expressed concern about the significant delay between the applicant arriving in Australia and making a claim for protection, including a period of six months when the applicant was an unlawful non-citizen. Pursuant to s 424AA of the Migration Act, the Tribunal member explained to the applicant that the lengthy delay in seeking protection might indicate that his fears may not be genuine and that his protection visa application was only lodged after all other avenues had been exhausted. The Tribunal member told the applicant that he was being given an opportunity to explain the delay. The applicant expressed upset at the proposition. He chose to respond immediately and engaged with the Tribunal member’s concern “in different ways”. The applicant proceeded to show the Tribunal his scars, which were not visible over the video link, but the Tribunal accepted that he had scars and that this was done to demonstrate the truth of his claims as to his experiences in Nigeria: Decision Record at [16]-[18]. The issue of delay was raised again later in the hearing; the applicant told the Tribunal he had been remanded in custody by the police between 4 December 2013 and 15 May 2014 and was therefore unable to attend a Tribunal hearing in relation to cancellation of his spousal visa or to apply for a protection visa: Decision Record at [21].

Claim based on witchcraft

13    In relation to the applicant’s claims to fear harm arising from his father’s death and the use of witchcraft, the Tribunal accepted that witchcraft takes place in Nigeria and has the potential to physically harm victims; it accepted that the applicant’s father was killed in 1990 and that the applicant had been subjected to harm by people from his village in 2001. The Tribunal found that were he to return to Nigeria he would not return to his village and would instead return to Aba, being the place where he had resided for 8 years prior to his departure to Malaysia. The applicant was unable to identify any incidences of violence attributable to witchcraft or the villagers in those 8 years and he did not claim that those who assailed him in 2001 had sought him out in Aba.

14    As a result of these findings, the Tribunal did not consider that there was a real chance that the applicant would face harm arising from the circumstances of his father’s death, the adherents of witchcraft in his village or as a result of witchcraft practices should he return to Nigeria in the reasonably foreseeable future. The Tribunal also considered that it did not have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Nigeria, there is a real risk that he will suffer harm: Decision Record at [22]-[27].

Claim based on religion

15    In relation to the applicant’s claim to fear harm from Islamists because he is a Christian, the Tribunal accepted that the applicant is Christian.

16    The Tribunal relied on country information which indicated that religious conflict is rare in southern Nigeria (where Christians predominate and where Abia state is located) and that local conflict tends to be based on ethnic differences and competition for access to resources. Documented religious violence between Islamists and Christians occurred in the northern and central belt of Nigeria and Christians from those regions sought refuge in southern Nigeria. The Tribunal also referred to an Issue Paper from the Department of Immigration and Citizenship dated 30 August 2013 which listed key incidents of violence in Nigeria’s southern states. The Issue Paper listed incidents of kidnapping and robbery in Abia state, but there was no reference to religious violence.

17    In light of this information, and despite his claimed experiences, the Tribunal was not satisfied that the applicant faced more than a remote chance of being subject to harm as a Christian or that his claim to fear harm on account of his religion was well-founded or that as a necessary and foreseeable consequence of the applicant returning to Nigeria that there was a real risk that he would suffer harm in relation to this aspect of his claims: Decision Record at [28]-[34].

Fear of gangsters claim

18    In relation to the applicant’s claim to fear violence from “gangsters”, the Tribunal recognised that the security situation in Abia state could not be described as good and that crime is prevalent across Nigeria, including in the south. The Tribunal noted the information as to kidnapping and robbery in Abia state previously referred to and that those incidents were concentrated in Ngwa-land, which includes Aba city. However, the Tribunal found that the applicant had not put forward a cogent basis on which he would be targeted for a Convention reason: Decision Record at [35]-[37].

19    Although the applicant did not elaborate on his claim to fear harm as a “rich man”, the Tribunal considered whether the applicant had a well-founded fear of harm as a member of the particular social group of “rich men”. The Tribunal was not satisfied that the applicant would be identified as a rich man and considered the applicant’s remarks in this regard to be “without foundation” and that “rich men” would not be targeted by criminal elements as a social group, as opposed to on the basis of random criminal conduct. Further, the Tribunal did not accept that there was more than a remote chance of the applicant being a victim of criminal conduct or that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that he would be targeted for harm at the hands of criminals or “gangsters”: Decision Record at [38]-[40].

Result

20    In the result, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: Decision Record at [41]-[42].

21    Based on evidence which indicated that citizens of Nigeria are entitled to enter and reside in member states of the Economic Community of West African States, the delegate had applied s 36(3) of the Migration Act to form the view that the applicant was not entitled to protection obligations. The Tribunal found it unnecessary to consider that issue: Decision Record at [43].

Application for an extension of time

22    At the hearing of the application for an extension of time on 24 March 2016, the applicant appeared by video-link from the Villawood Immigration Detention Centre (“Villawood”). He was accompanied by an interpreter but the applicant declined to accept the interpreter’s assistance and he made submissions in fluent English.

23    It is well established that in determining an application for an extension of time, the Court has regard to the length of the applicant's delay in lodging the application and the reasons for the delay; the merits of the proposed appeal and any prejudice to the respondent if the extension were granted albeit that the mere absence of prejudice is not sufficient: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 per Wilcox J at [18]-[23]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.

24    The applicant filed an affidavit made on 19 January 2016 in support of his application. He filed submissions on 16 March 2016.

25    The applicant also filed a further affidavit made on 23 March 2016 in which he (among other things) complains that he has been mistreated by staff at Villawood. He claims that the mistreatment included efforts to persuade him not to pursue his application; he asks the Court to investigate his claims. I explained at the hearing that any claims concerning mistreatment by detention centre staff could not be considered in the context of this application. I note that the applicant did not claim that the alleged mistreatment prevented him from offering argument at the hearing.

26    The Minister opposed the grant of an extension of time on the bases that there is no adequate reason for the delay and the proposed appeal is without merit as the application is “devoid of any meaningful grounds asserting error in the reasons for judgment of the primary judge”.

Delay

27    Paragraph [9] and [12] of the applicant’s 19 January 2016 affidavit relate to the applicant’s reason for delay. He deposed (as written):

9.    However, on or about 5 March 2015, in the Yongah Hill IDC I was admitted to hospital in a critical condition, having been “nearly killed” by a group of detainee. I was severely bashed and beating and I suffered head injuries which I believe has caused me brain injury, dizziness, headache, memory lost, tiredness, night sweat, stress and anxiety disorder, panic attacks, sleepless night, physical and psychological signs of fear, nightmare, chest pain etc among others.

…

12.    I did not lodged an appeal to this honourable court on time because I am still going through counselling due to the injuries I sustained from the bashing that occurred at detention centre. My memory of things are blur and I suffered lose of memory among other things.

28    In oral submissions, the applicant explained that he had been depressed and off his medication in the period after the judgment in WZAVL was delivered and he did not know what he was doing.

29    There does not appear to be any dispute that the applicant was assaulted in immigration detention on 5 March 2015 at Yongah Hill and Counsel for the Minister did not dispute that the applicant may have continued to suffer effects to his physical and mental health as a result of the incident.

30    Counsel for the Minister nonetheless submitted that the reason for the delay was inadequate and that the following countervailing factors should be taken into account:

(1)    While the period of four months is not a remarkably long period of delay and the Minister did not claim to be prejudiced by it, the Court properly expects litigants to comply with the Federal Court Rules.

(2)    The applicant’s affidavit did not mention that, on 2 October 2015, within a month of the Federal Circuit Court’s decision, the applicant initiated a request for Ministerial intervention under s 417 of the Migration Act which would suggest that he had the capacity to lodge an appeal from the primary judge’s judgment had he elected to do so.

31    I accept the Minister’s submissions that the applicant’s explanation for the delay is insufficient in light of these countervailing factors.

32    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits for conduct of litigation are not to be ignored. Action taken by the applicant other than by way of making an application for review is relevant to consideration of the question whether an acceptable explanation for the delay has been furnished, albeit that the Court may exercise some leniency where the liberty of the individual is at stake: see Parker v R [2002] FCAFC 133 at [6]-[7] per Spender, O'Loughlin and Dowsett JJ.

33    An applicant’s choice to pursue Ministerial intervention rather than to exercise rights available to him to continue to challenge a Tribunal’s decision is a deliberate forensic choice and may be taken as an implicit acceptance that the Tribunal’s decision was not to be the subject of challenge with the result that there is no satisfactory explanation for the delay in exercising appeal rights: M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520; [2004] FCAFC 293 per Black CJ, Sackville and Sundberg JJ at [16]-[24] and the cases there cited. The applicant appears to have been unrepresented in relation to his migration matters, although he does appear to have representation in relation to his compensation claims, and he plainly does not accept the Tribunal’s decision. However, he has not claimed that he was unaware of his appeal rights and those factors do not detract from the force of the Full Court’s reasoning.

34    As pointed out by Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561 at [42], there is no reason in law why an application for judicial review could not have been made at the same time as the application to the Minister. The terms of s 417, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such an application where other avenues of possible relief are available as of right.

35    In accordance with this authority, the length of the delay and the circumstances in which the delay occurred are a sufficient basis to dismiss the application for an extension of time.

36    The applicant submitted that the Court should follow the decisions in AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193; MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 and AAV15 v Minister for Immigration & Border Protection (2015) 230 FCR 465; [2015] FCA 700. In AZAEY, the length of the delay was one day; the Court granted an extension of time but dismissed the appeal. In AAV15, the challenge was to a decision of a Federal Circuit Court judge to summarily dismiss an application for an extension of time to seek a review of the Tribunal’s decision dated 2 January 2015. The applicant claimed to have been unaware of the Tribunal’s decision until 19 February 2015 and to have taken action as soon as he did become aware of it, filing his application on 25 February 2015. Neither of these cases bear any factual similarity to this case.

37    MZZGC is a case which has some factual similarity to the current application. MZZGC had sought Ministerial intervention before appealing the decision of the Federal Circuit Court to dismiss a judicial review application in relation to a decision of an Independent Protection Assessor. The period of delay was approximately fifteen months. While Mortimer J found it “difficult to find an acceptable explanation for the delay”, she also found that the proposed grounds of appeal disclosed sufficient merit so that it was in the interests of the administration of justice to grant the extension of time: see MZZGC at [15]-[17].

38    I turn to consider the merit of the applicant’s proposed grounds of appeal.

Merit of proposed appeal

39    The application for an extension of time was not accompanied by a draft notice of appeal, as required by r 31.02(2)(b). The Minister accepts that paragraphs [13]-[22] of the applicant’s 19 January 2016 affidavit constitute the proposed grounds of the appeal. The applicant deposed (as written)

13.    The Refugee Review Tribunal constructively committed jurisdictional error when it made it decision on 5 December 2014.

14.    The tribunal misinterpreted and misapplied section(s) of the Migration Act by not given proper weigh to some evidence.

15.    The Tribunal misconstrued the Complementary legislation when it failed to recognise what amounts to severe and inhuman treatment and punishment and by that failure the tribunal failed to consider Australia’s international obligations under the various international Conventions.

16.    The Tribunal was in error because the decision made was in denial of procedural fairness and denial of natural justice to me.

17.    The Tribunal made erroneous findings, reached mistaken conclusions on material questions of fact in breach of Section of the Migration Act 1958.

18.    The learned Judge of FCCA erred by misapplying section of the Migration Act 1958

19.    The Tribunal failed to make relevant enquiries into critical facts the existence of which can easily be ascertained from a good source such as the Nigerian community.

20.    That the delegate failed to engage and invoke Australia’s International Obligation under the International Covenant for Civil and Political Rights (ICCPR) and its second Optional Protocol aiming at the abolition of the Death Penalty and the Covenant against Torture.

21.    The Tribunal misapplied real risk and real chance of significant harm.

22.    The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power.

23.    Leave to file amended application with particulars and any supplementary affidavit and any relevant documents.

Applicant’s submissions

40    Without criticism of the applicant as a self-represented litigant, these grounds are unparticularised. In oral submissions the applicant accepted that these grounds can be summarised as:

(1)    In relation to [18]: the primary judge “did not look properly” at the applicant’s case.

(2)    The Tribunal accepted that he had been harmed and that Abia state was a dangerous place where people may be kidnapped or killed, but the Tribunal member did not give proper weight to these factors or the applicant’s evidence of conditions in Nigeria and did not believe that the applicant feared harm from Muslims.

(3)    The Tribunal did not know about Nigeria or that a reference to vigilantes was a reference to “Bakassi Boys”; the applicant also appears to claim that he referred to the “Bakassi Boys” by name in his visa application and that he asserted that they killed his brother in 2009.

(4)    Instead of preferring the country information on which it relied, the Tribunal should have made inquiries of the “Nigerian community” who would have supported the applicant’s evidence.

41    The applicant’s written submissions filed on 16 March 2016 traversed much of the same ground. In summary, the applicant submitted that:

(1)    The Tribunal misconstrued the complementary protection criteria under ss 36(2)(aa) and 36(2A) and its decision breaches Australia’s non-refoulment obligations under the ICCPR and CAT. Its decision amounts to a constructive failure to exercise jurisdiction. In particular:

(a)    The Tribunal refused to accept that the applicant will be viewed as a “rich man” if he returns to Nigeria because of his residency in a western country and as a result he will be targeted by criminals who may rob, kidnap and kill him if he does not pay whatever they demand in the belief that he has brought money and property from Australia; and

(b)    The possibility that he might be robbed, kidnapped or killed amounts to inhumane treatment and exposure to harm in breach of international conventions. There is an abundance of independent evidence regarding the abuse of human rights in Nigeria and the failure of the government and security authorities to bring those abuses under control.

(2)    The Tribunal committed jurisdictional error by relying solely on wrong information relating to the applicant’s fear of harm in Nigeria. Its decision ignores “clear evidence” of the documented volatility in Nigeria and that the applicant would be persecuted in Nigeria. The Tribunal’s decision was based on a “flawed and superficial understanding of the key factors relevant” to the applicant’s protection claims. In particular:

(a)    The Tribunal agreed that the applicant had faced harm from witchcraft in the past and it resulted in the death of his father, but it refused to accept that the applicant’s harm is still present or would put his life at risk if he returned to Aba or Abia state; and

(b)    The scars on his body demonstrate that the risk is not remote; he could be easily found by those who would not stop until they lay hands on him.

(3)    The decisions in Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297, NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 were wrongly decided.

(4)    The Minister failed to exercise his duty of care to the applicant by reason of the Yongah Hill incident in which the applicant sustained head injuries and injuries to other organs; the applicant has applied for compensation and it is in his best interest to be present in Australia to give evidence concerning his compensation claim; to remove him from Australia now would be a denial of natural justice against the public interest and expose him to harm in Nigeria because of inadequate medical care for the injuries sustained in the incident.

(5)    The Court should issue an injunction restraining the Minister from removing the applicant from Australia until the finalisation of his protection and compensation claims.

Minister’s submissions

42    The Minister submitted that the proposed appeal lacks merit because:

(1)    The only ground which addresses the primary judge’s decision is the one set out at paragraph [18] of the applicant’s 19 January 2016 affidavit. It is unparticularised. There is no error apparent in the reasons of the primary judge who gave careful consideration to the single ground of review and to the documents submitted by the applicant.

(2)    The other proposed grounds set out at paragraphs [13]-[21] of the applicant’s 19 January 2016 affidavit were not raised or considered by the primary judge; they “are vague, generic and lack any meaning in the absence of particulars.” Accordingly, the applicant would require leave to agitate these grounds for the first time on appeal.

(3)    In general, the proposed grounds invite this Court to reconsider the applicant’s claims and to determine the weight that should be accorded to evidence before the Tribunal; that would constitute impermissible merits review.

(4)    As the ground set out at paragraph [20] of the 19 January 2016 affidavit relates to the delegate’s decision, it cannot properly be the subject of a review application.

(5)    The applicant’s written submissions regarding the prohibition on refoulment and failure by the Tribunal to consider his complementary protection claims appropriately are misplaced. The Tribunal found that the applicant did not have a well-founded fear of persecution and that there was not a real risk that the applicant would suffer harm if returned to Nigeria; the Tribunal assessed the applicant’s claims under both ss 36(2)(a) and 36(2)(aa): see the Decision Record at [27], [34], [40] and [42].

(6)    The Tribunal considered the applicant’s claims to fear harm because of the use of witchcraft by villagers, as a Christian because of Islamic activists, and from “gangsters” because he would be perceived as a “rich man” upon return to Nigeria; the Tribunal also considered this last claim on the basis of whether the applicant was a member of a social group comprising “rich men” who were at risk of harm from “gangsters”. The Tribunal did not generally disbelieve the applicant, but it was not satisfied that he was entitled to a protection visa. It found that he was not subject to the risk of harm from villagers as he would return to Aba city. Otherwise his claims were rejected on the basis of country information.

(7)    To the extent that the applicant asserts that the Tribunal relied upon “wrong information” or should have made other inquiries, it was a matter for the Tribunal whether it preferred the country information available to it. The Tribunal was not obliged to seek out information from the “Nigerian community” as asserted by the applicant.

(8)    Any claim to compensation which the applicant may have arising out of the Yongah Hill incident or alleged mistreatment by Serco guards has no bearing on whether or not the Tribunal made a jurisdictional error. They both post-date the Tribunal’s decision and in any event they are not relevant to the applicant’s protection claims.

(9)    Insofar as the applicant’s written submissions seek injunctive relief, there is no current application before the Court and Wigney J dismissed the applicant’s application for an interlocutory injunction made on 25 February 2016.

Consideration

43    The review application filed in the Federal Circuit Court on 24 September 2014 raised a single ground of review:

The Refugee Review Tribunal made an error of law and/or jurisdictional error in finding that the applicant was not a person to whom Australia owes protection obligations for the purposes of s. 36(2) of the Migration Act 1958 (Cth).

44    In WZAVL at [24]-[28], the primary judge summarised propositions based on well-established authorities:

(1)    a Tribunal decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ;

(2)    an error by the Tribunal will constitute a jurisdictional error if the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] per McHugh, Gummow and Hayne JJ;

(3)    the Court has no jurisdiction to engage in merits review; fact finding within the jurisdiction of the Tribunal is not reviewable by the Court if the findings of fact are open to the Tribunal and are otherwise in accordance with law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ;

(4)    the weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ;

(5)    the Tribunal is not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J (as he then was); and

(6)    a delay in making a protection visa application is a rational matter for the Tribunal to take into consideration in determining whether there was not a genuine fear of serious or significant harm in the applicant’s country of origin, or (at the very least) that the delay is inconsistent with the existence of such a fear: DZADW v Minister for Immigration & Border Protection [2014] FCA 1338 at [19] per Mansfield J.

45    These authorities comprise a conventional statement of the law applicable to the consideration of the applicant’s judicial review application. The applicant’s bald submission that Tran, NADR and NAHI were wrongly decided has no merit. The same can be said for the applicant’s submission that Mukto and DZADW should not be followed. The applicant has not suggested a basis for these submissions and these decisions are not plainly wrong.

46    The primary judge went on to find at [29]-[30] that:

It is apparent from the outline of the Tribunal Decision set out above: see [10]-[18] above, that the Tribunal identified the relevant issues, asked the right questions, relied on appropriate factual material, did not ignore any relevant factual material, and exercised its power properly and within jurisdiction: Yusuf. The Tribunal clearly considered each of the applicant’s claims as they were made, and ultimately found that there was no real risk that the applicant would suffer harm if he were to return to Nigeria. Such findings were open to it on the evidence available and the merits of the Tribunal’s findings in this regard are not open to review by the Court. As such the ground amounts to nothing more than a plea for impermissible merits review based on the applicant’s dissatisfaction with the Tribunal Decision: Wu Shan Liang.

No jurisdictional error arises in respect of the ground of review.

47    These findings appear to have been open to the primary judge for the reasons that he gave.

48    The primary judge received a bundle of documents that the applicant had sent to the Minister’s solicitors which had been passed on to the Court. The bundle was marked as “Exhibit 1” and treated by the primary judge as the applicant’s submissions: WZAVL at [22]-[23]. Those documents were not relied on in this application but some issues related to them are relevant.

49    The primary judge noted that Exhibit 1 contained handwritten submissions which referred to: (1) torture of the applicant by the “Bakassi Boys” in Abia state in 2001 and the injuries he suffered, (2) the Yongah Hill incident, (3) the “immigration and tribunal saying I will not be targeted [presumably in Nigeria] but in detention where they keep [S]erco to guard us in detent[tion] did not protect me and others”; and (4) the applicant’s transfer to the Darwin detention centre in handcuffs, which caused him concern: see WZAVL at [33].

50    The primary judge found that, while regrettable, the Yongah Hill incident and the claim in relation to the applicant’s discomfort during his transfer to Darwin had no relevance to judicial review of the Tribunal’s decision because those incidents occurred after that decision had been made: WZAVL at [34]. This finding gives rise to no appellable error.

51    The activities of the “Bakassi Boys” in southern Nigeria between 1996 and 2001 were the subject of an article obtained from the Human Rights Watch website which was submitted to the primary judge as part of Exhibit 1. Having reviewed the court book, the primary judge found that there was no reference to the “Bakassi Boys” in the applicant’s visa application, the delegate’s decision or the Decision Record: WZAVL at [36]. As I understood the applicant’s submission to this Court, he suggested that his visa application included references to the “Bakassi Boys” but because his handwriting is very bad it must have been overlooked. When he referred to vigilantes, he meant the “Bakassi Boys”. I have reviewed the copy of the Court Book filed in the Federal Circuit Court and my reading accords with what the primary judge found.

52    The primary judge concluded that the information concerning the “Bakassi Boys” in the applicant’s hand written submissions filed in connection with the review application and the Human Rights Watch article was not material before the delegate or the Tribunal when they made their decisions. The primary judge therefore found that to have regard to that material now would be to engage in impermissible merits review, relying on Wu Shan Liang at 272 and 281-282 and Zentai v Honourable Brendan O’Connor (No 3) (2010) 187 FCR 495; [2010] FCA 691 at [367] per McKerracher J. The primary judge found that, in any event, the Tribunal had regard to more recent and authoritative country information concerning Nigeria which dealt specifically with “Ethnicity and Religion”, relocation to southern Nigeria and security in southern Nigeria and that “the choice and assessment of the weight of country information are matters for the Tribunal” for which the Court could not substitute its own view, provided that the most recent information available to the Tribunal had been considered: NAHI at [10] and [13] per Gray, Tamberlin and Lander JJ: see WZAVL at [36]-[37].

53    The primary judge found that nothing contained in the handwritten submissions or in the Human Rights Watch article which formed the basis of the submissions in relation to the “Bakassi Boys” would establish jurisdictional error by the Tribunal: WZAVL at [38]. Despite the applicant’s submissions concerning the manner in which the Tribunal dealt with country information and that NAHI should be found to be wrongly decided (which I do not accept), I perceive no appellable error in the primary judge’s findings.

54    Having reviewed the Decision Record and the primary judge’s reasons, I accept the Minister’s submissions that the applicant’s grounds of appeal lack merit and have no reasonable prospect of success. Insofar as the ground at paragraph [18] of the applicant’s 19 January 2016 affidavit impugns the judgment of the primary judge, I perceive no appellable error. Insofar as the other proposed grounds may require leave to be raised on appeal because they were not raised before the primary judge, in my view the Decision Record reveals no jurisdictional error of the kinds claimed and therefore there is no reasonable prospect that such leave would be granted, or if leave was granted, that the appeal would succeed.

Conclusion

55    Having found first that there is no sufficient explanation for the delay of nearly four months in initiating an appeal in this Court and second, that the proposed grounds of appeal lack merit, I will dismiss the application. I will order that the applicant pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    5 April 2016