NAVQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 3 (6 February 2004)

MIGRATION – where the Refugee Review Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant to the applicant a protection visa – whether the cumulative factual errors made by the Refugee Review Tribunal were of such a serious nature as to amount to a jurisdictional error – whether the Refugee Review Tribunal approached the assessment of the applicant’s credit incorrectly

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323 referred to
Sivalingam v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 157 referred to
Sivarasamoorthy v Minister for Immigration and Multicultural Affairs (2000) FCA 556 referred to
Selliah v Minister for Immigration and Multicultural Affairs (1999) FCA 615 referred to
SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367; (2002) 191 ALR 663 referred to

NAVQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1426 OF 2003

HILL J
6 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1426 OF 2003

BETWEEN:	NAVQ APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	6 FEBRUARY 2004
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1426 OF 2003

BETWEEN:	NAVQ APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	6 FEBRUARY 2004
PLACE:	SYDNEY

1 The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant to him a protection visa.

2 The applicant is a citizen of Nigeria who arrived in Australia on 5 May 2003. He lodged an application for a protection (Class XA) visa on 13 May 2003. That application was rejected by the delegate on 27 June 2003. The applicant then applied to the Tribunal to review that decision.

3 It is a criterion for the grant of a protection visa that the Minister (or on review, the Tribunal) is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as affected by the 1967 Protocol relating to the Status of Refugees (herein "the Convention"). Generally speaking it can be said that a person will be entitled to protection if that person is a refugee as defined in Article 1A(2) of the Convention. That Article defines "refugee" as being any person who:

4 Before outlining the case which the applicant advanced before the Tribunal it is necessary to say something of what happened on the applicant’s arrival in Australia. The applicant, apparently, was travelling with a group of persons. He indicated to officers at the airport that his main reason for coming to Australia was for a computer exhibition and that he intended to stay a week. He was then interviewed and said he was employed as an immigration officer in Nigeria. He was said to be evasive in answering questions about the duties he performed there. He claimed, however, to be involved with the supply of computers. He was asked to turn a computer on and was unable to do so.

5 That interview terminated and there was a break of some twenty minutes at which time the officers of the respondent Minister conferred with each other. The initial interview was then followed by what the Tribunal referred to as a "secondary interview". In the secondary interview the applicant said he was unemployed and "on the run" from people in his village who wanted to kill him. He said that his father had been murdered in 1974 and his mother in 1975 but he did not know why the people in his village wanted to kill him or why his parents were murdered. He admitted that he was not in Australia to attend a conference as he had claimed. According to the Tribunal’s account of the secondary interview, the applicant gave no information about the events leading up to his departure from Nigeria and his obtaining a visa and a ticket to travel to Australia. He made several requests to have the tape recorder turned off and when this was done, he stated people would kill him and asked for help. The visa which had been issued to him before his arrival was cancelled.

6 It seems on the same day a further interview (the Tribunal referred to it as "the second interview") was held at which the applicant was warned he was expected to be truthful and that at a later time if he said things which contradicted what he said at that interview it would raise doubts about his honesty. At this interview he repeated that his parents had been killed when he was five months old and that he had been raised in an orphanage. He claimed that he had been treated as an outcast and threatened with harm by people who insisted that he was not Nigerian. He claimed to fear persecution.

7 A further interview (in one sense it may be treated as only the second interview, although the Tribunal referred to it as the "third interview") was conducted on 6 May 2003. At that interview the applicant retracted the story that he had lived in an orphanage but said that a woman had taken care of him since his parents had died and that he had lived next door to that woman until he left Nigeria on 2 May 2003. He claimed to have done some part time work in Nigeria as a cleaner and said that he could not return to Nigeria because "the people will kill me". He said that the local people wanted to kill him because they said he was not a citizen of Nigeria, that his father was a politician and that is why they killed him and why they wanted to kill the applicant. He acknowledged that he had not been hurt in the time he had lived in Nigeria but claims to have been threatened verbally since the death of the lady who took care of him in 1986. He said that the people who wished to kill him were politicians but when asked the name of the politicians he said that the group name was "the opposition paper" (sic). He said his father had been a member of the NCNC and had been a campaign manager.

8 In his detailed application for a protection visa, the applicant said that he was of Ibo (Igbo) ethnicity. He said that he had worked as a security guard before coming to Australia. He had left Nigeria legally on a passport which had been issued to him in 2001. He claimed that he had had difficulty obtaining a passport but that a friend had obtained a visa for him because he was in hiding at the time. He claimed that he had travelled outside Nigeria on two occasions before coming to Australia; the first to Ghana in September 2002 and the second to an unnamed country in February 2003. He said that both of these journeys were for the purpose of work for the "Adoration Ministry". The applicant claimed to have resided at one address in Lagos from the early 1980’s to May 2003. Until January 2001 he had done casual work there. Thereafter he had worked for the Adoration Minister in Enugu, first as a cleaner and then from December 2001 to May 2001 as a security guard. Enugu is, so the Tribunal noted, 450 kilometres from Lagos as the crow flies and over 500 kilometres by road. He later amended the date May 2001 to February 2003. The applicant wrote that the Adoration Ministry was an interdenominational Christian organisation led by Rev Father Mbaka, a Christian of Ibo origin who had a reputation for criticising the government in the areas of corruption, violence and social problems. There had been an incident in March 2002, while the applicant was working as a security guard, where there had been explosions in an area where thousands of people had congregated. The applicant’s security ID card had been taken from him at that time. He subsequently received a replacement card. He claimed to fear that his name would be known as a result of the security ID card which had been taken from him and that hew would be identified with the Adoration Ministry.

9 Other incidents had later occurred. Some two or three months after the incident at the Adoration Ministry grounds and in around July 2002, when he had returned to his home in Lagos, he was told that four men had come looking for him. He suspected these men to be connected with the people who had taken his identity card. In December 2002 he said he had been stopped by a car of men dressed as civilians who asked him whether he was (the applicant). He denied that he was and they drove away.

10 In February 2002, after returning from a trip to the Ivory Coast, where he said he had gone to distribute Christian literature, he was told that some men had come to his house asking for him. A friend who had spoken to them told him that the men had said that he would "not escape it." The applicant was scared and claimed that he had moved to another address two house numbers away in the same street, that is to say, next door.

11 After this incident, the applicant said that he believed that it was not safe for him to stay in Nigeria. He said that he obtained assistance from a friend to obtain a visa, and had chosen Australia because it was a Christian country.

12 In his application, the applicant wrote that he had no documents with him, that his passport had been taken by DIMIA at the airport. He says he would endeavour to obtain ID documents and forward them to DIMIA. He said he would be providing later his Adoration Ministry security guard ID card and his Adoration Ministry membership card.

13 In summary, the applicant’s claim in the application was stated as follows:

14 Subsequently, a migration agent acting for the applicant forwarded a photocopy of the applicant’s Adoration Ministry ID card, the original of which she said was held by the Department, a security guard vest and a video cassette dealing with the Adoration Ministry.

15 The Tribunal noted the different versions which the applicant had given at what it had referred to as two interviews at the airport and the third interview at the detention centre. In none of those interviews had there been any mention of the Adoration Ministry. That had only been first mentioned by the applicant in his application for a protection visa. The Tribunal said that it was difficult to accept that if he truly had worked for the Adoration Ministry and his fears arose because of this, he would not have mentioned it at least in summary form in one of the early interviews. It asked him to comment. He said that he was concerned at the time that the persons interviewing him may have worked for the Nigerian government, and he was therefore reluctant to mention the Adoration Ministry."

17 The Tribunal in its reasons concentrated on a number of matters in respect of which the Tribunal thought there had been contradictions. These matters can be summarised as follows:

1) The applicant had indicated he had changed his address in February 2003, yet had said that he lived at the initial address until May 2003.

2) When questioned, the applicant did not know the correct name of the Catholic cathedral in Enugu and could not name the bishop there.

3) The applicant said that he had always lived in Lagos, yet worked for some years in Enugu which was some 500 km away from Lagos.

4) The applicant had a visa to travel to Papua New Guinea yet said that he had been unable to obtain a ticket to use the visa which was valid until 14 September. In fact, the applicant had left Nigeria on 11 September.

5) The applicant had had a number of opportunities to claim refugee status in other countries which he had visited, for example, the Ivory Coast but had not done so.

6) The applicant had been unable to describe accurately the security vest which he claimed he had worn when working for the Adoration Ministry and which had been forwarded to the Tribunal by the applicant’s migration agent.

7) The Tribunal did not regard the identification card as confirmation of the applicant’s claims and took account of the notorious ease with which forged documentation was obtainable and used in Nigeria. There was country information to this effect.

18 The Tribunal concluded that the applicant was not an employee of the Adoration Ministry and as such was not at risk of persecution. For that reason it denied the application. It can be said that the Tribunal’s conclusion was based entirely on the Tribunal member’s assessment of the applicant’s credit.

20 It was accepted by counsel for the applicant that a mere erroneous finding of fact would not amount to jurisdictional error. However, it was submitted that the cumulative effect of the matters raised was such as to amount to jurisdictional error. In particular, it was submitted that the Tribunal had erred in the way it went about assessing the applicant’s credit.

iv. The Tribunal’s decision was made in bad faith and without regard to the merits of the case.

v. The Tribunal’s decision was so unreasonable that no reasonable decision maker would make it.

vi. The Tribunal’s decision involved an abuse of power in making its credit findings.

22 I gave leave to the applicant to amend his application to enable him to rely on these grounds and accepted that the application should be treated as having been amended accordingly. Although the submissions of the applicant depend upon the cumulative consequences of the errors said to have been made by the Tribunal, it is necessary to examine briefly each of the alleged errors separately.

23 The Tribunal in its reasons noted that the applicant’s statement had referred to the applicant moving "immediately" after being told by his neighbour of a visit by people making threats. He said that he had been told of the visit by the neighbour on the day her returned from the Ivory Coast which according to the applicant’s passport was on 12 January 2003. However, the Tribunal noted that when interviewed on 6 May 2003 the applicant had clearly contrasted the address where he lived and the address where his friend lived.

24 Counsel took me to the record of the interview to which the Tribunal referred. When asked how long he had lived in the orphanage the applicant replied, "I did not live in an orphanage. A woman took care of me and I lived at (address stated). I lived here from five months of age to I left Nigeria on 2.5.03." It was said on behalf of the applicant that given that the applicant was really only living next door, this should not be treated as being untrue. It can certainly be accepted that the discrepancy is a trivial one on its own.

25 In the later statement made with his application, the applicant said that he had returned home from the Ivory Coast in February 2003 and was told that he had been visited by some men who were looking for him. The statement says that the applicant then left his address and moved to an address which happened to be next door. However, it seems that the applicant in fact returned from the Ivory Coast on 12 January 2003 so that, if in fact he had moved only in February, some considerable time had gone by between being told of the visit and then moving.

26 It is clear that there were discrepancies in the various statements which the applicant has made both covering where he lived and if he moved when that was. On their own, none of the discrepancies might be regarded as significant. Cumulatively, however, they may give a different complexion, particularly when taken into account with other matters.

27 In that part of its reasons dealing with the security card, the Tribunal noted that the applicant had had no qualms about bringing the security card with him, yet he had not brought the security vest with him for fear of discovery. It was submitted that there was no material before the Tribunal that suggested that the applicant had brought the security card with him. I have read the material and agree with counsel for the respondent Minister that the inference from the material is that the security card was brought by the applicant with him and not obtained later.

28 Again it can be said that the matter was trivial. Since the Tribunal gave what it said to be no weight to possession of the vest and regarded the identification card as being "of less weight than the considerations outlined above", it may be thought that there is little significance based on this point. However, it can certainly be said that there was evidence before the Tribunal from which it could infer that the identity card was in the possession of the applicant and it might be thought to be a matter of comment, although not of much significance that the applicant had taken the card with him when leaving Nigeria but not the vest.

The way the Tribunal dealt with the discrepancies in the applicant’s claims

29 It was submitted for the applicant that caution should be exercised before placing significance on unsatisfactory aspects of an initial interview at the airport. Reference was made to Sivalingam v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 157 (affirmed on appeal), Sivarasamoorthy v Minister for Immigration and Multicultural Affairs (2000) FCA 556 and Selliah v Minister for Immigration and Multicultural Affairs (1999) FCA 615; SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367; (2002) 191 ALR 663. It can be accepted that a person at risk of persecution, if returned, and who is interviewed after a long plane journey to Australia and probably under considerable stress may be not merely fearful but confused and perhaps give wrong answers. That is a matter which tribunals must take into account. It may indeed enable the different versions given by the applicant on the day of his arrival to be disregarded. It is, however, more difficult to disregard the interview given the next day and particularly when that interview made no reference at all to what ultimately became the applicant’s claim, mainly fear of persecution by virtue of his association with the Adoration Ministry. There is the obvious possibility that in the intervening period the applicant fabricated a claim which he believed had a greater chance of being accepted.

30 There is nothing in the Tribunal’s reasons which indicate that it failed to take into account the fear and confusion which the applicant may have felt on arrival in Australia. A perusal of the Tribunal’s reasons suggests that it did. What weight should be given to the possibility of confusion at the airport is a matter for the Tribunal and not for this Court.

31 Another matter which the Tribunal regarded as bearing upon the applicant’s credibility was the applicant’s inability to name correctly the Catholic bishop at Enugu or to remember the name of the Catholic cathedral there. It was said that no weight should have been given to this inability since the applicant was merely a security officer. With respect, the weight to be given to the matter is not a matter for the Court but a matter for the Tribunal. In my opinion, the Tribunal was entitled to take into account the inability of the applicant to answer these questions, particularly when the applicant was said to not merely be a security officer with the Adoration Ministry but to travel for it to other countries.

32 The Tribunal pointed out what it thought to be a discrepancy in the applicant stating that he had lived in Lagos for some twenty years of his life, yet that he had worked in Enugu for a protracted period. Again this was a matter which the Tribunal noted and which it was entitled to take into account for what it was worth. It may be that the matter is trivial on its own as it is possible that the applicant’s account, namely that he spent one week out of every four in Enugu, notwithstanding that he was a security guard, might be accepted. This would explain the apparent discrepancy.

33 Each of the various matters raised by counsel for the applicant may rightly be said to involve, as counsel said, "minor inconsistencies". Ultimately, the Tribunal had to decide whether it accepted the case which the applicant put before it. This involved the Tribunal in assessing the applicant’s credit. While the Tribunal should not be quick to reject an applicant’s credit, particularly where there are minor discrepancies, ultimately it is the Tribunal which must assess whether an applicant is telling the truth. Findings of credit involve not merely assessing minor inconsistencies. They involve also assessing credit of an applicant from matters such as body language, manner of answering questions, and the like. As the High Court itself pointed out in the context of an appeal from a single judge, an assessment of credit may involve the fact finders impressions of the witness, even thought the fact finder may make no reference to them: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179 per McHugh J with whose judgment Mason CJ, Deane, Dawson and Gaudron JJ agreed. The procedure before the Tribunal differs from that before a court because it is inquisitorial in nature. But the Tribunal in questioning has, like a court, to form a view on the credibility of an applicant in reaching a satisfaction concerning the applicant’s claim to be a refugee.

34 The Tribunal has, like a single judge, the advantage of observing the applicant under questioning. A court in an application for judicial review will be cautious indeed in finding that the Tribunal’s assessment of an applicant’s credit involved an abuse of process by the Tribunal, particularly where that assessment involves the weight which a Tribunal gives to inconsistencies in an applicant’s version of the facts. This is so notwithstanding that it would be unsafe for a Tribunal to found a finding of credit or demeanour alone especially where evidence is given through an interpreter.

35 The various matters raised in written submissions (and there were others in the interests of economy of space I have omitted), amounted to no more than an attempt to challenge the Tribunal’s assessment of the applicant’s credit. Yet, as I have explained, it is for the Tribunal and not for this Court to determine that question. Further, even if it can be said that many if not most of the discrepancies were minor, it cannot be said that the applicant has made out a case of jurisdictional error in the Tribunal’s reasons. It is not clear in what circumstances a wrong factual finding may constitute jurisdictional error. Perhaps a case can be imagined where the factual findings are so egregious that it can be said that the Tribunal has not exercised its jurisdiction. That is certainly not the case here. For present purposes, I am prepared to accept, although without deciding it, that a Tribunal which approached the assessment of credit of an applicant improperly and abused the advantage it had in so doing will have made a jurisdictional error. However, an assessment of the Tribunal’s reasons as a whole and, particularly the way the Tribunal went about raising matters of discrepancy with the applicant in the course of the Tribunal’s hearing bring the present case within the category of case discussed in SAAK. The way in which the Tribunal dealt with the discrepancy arising out of the airport interviews and the serious and careful consideration it gave to what the applicant himself said of these matters, demonstrates that the Tribunal exercised the requisite caution and did not attach too much weight to discrepancies arising from the initial airport interviews. Like SAAK the present is not a case where it should be inferred that the Tribunal failed to treat the assessment of credibility with the necessary caution.

36 In these circumstances, I am of the view that the application should be dismissed and the applicant pay the respondent Minister’s costs of it.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Counsel for the Applicant:	D Brezniak

Solicitor for the Applicant:	Ebsworth & Ebsworth

Counsel for the Respondent:	T Reilly

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	19 December 2003

Date of Judgment:	6 February 2004

Federal Court of Australia

NAVQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 3 (6 February 2004)