VMAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 44 (4 February 2005)

Last Updated: 4 February 2005

FEDERAL COURT OF AUSTRALIA

VMAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 44

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 36, 5(1), 430(1), 91R


Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967


VMAC v Minister for Immigration [2003] FMCA 509 affirmed




















APPLICANT VMAC OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 1075 of 2003






GRAY J
4 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1075 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT VMAC OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	4 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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











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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1075 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT VMAC OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	4 FEBRUARY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

1 In this appeal, counsel for the appellant has attempted to persuade the Court, by any means possible and impossible, and generally without regard to what has gone before, that a decision of the Refugee Review Tribunal (‘the Tribunal’) should be set aside. The appeal is from a judgment of the Federal Magistrates Court of Australia in VMAC v Minister for Immigration [2003] FMCA 509. The federal magistrate dismissed an application, brought by the appellant, for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) in respect of the Tribunal’s decision. The Tribunal’s decision was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in each case ‘the Minister’) to refuse to grant the appellant a protection visa.

2 By s 36 of the Migration Act 1958 (Cth) (‘the Migration Act’), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms ‘Refugees Convention’ and ‘Refugees Protocol’ are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the ‘Convention’. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.

3 The appellant is a citizen of Nigeria and a Christian. On 16 September 2000, he arrived in Australia. On 23 October 2000, he lodged an application for a protection visa. On 8 November 2000, a delegate of the Minister made a decision, refusing to grant a protection visa. The appellant applied to the Tribunal for review of that decision. The Tribunal’s decision, dated 28 November 2002, was to affirm the decision not to grant a protection visa. The appellant applied to this Court for relief pursuant to s 39B of the Judiciary Act. His application was transferred to the Federal Magistrates Court, where it was heard and determined, with the result being the judgment from which this appeal is brought.

The appellant’s claims

4 The appellant claims to have a well-founded fear of being persecuted, if he should return to Nigeria, by reason of his religion. There has been for some time a campaign by Muslim people in Nigeria to extend the operation of Sharia, or Muslim, law by permitting the Sharia courts to apply Sharia criminal law, as well as family law. In essence, the appellant claims that his resistance to this proposal, because of his Christian beliefs, will lead to his persecution.

5 The appellant claimed that his mother and father were killed in a car accident in 1994. He and his sisters went to live with a family friend in the city of Ibadan. He said that, in 1997, he went to live with a cousin in the city of Kaduna, in the state of the same name. In the middle of 1999, trouble began in Kaduna because of a proposal to introduce Sharia law in that state. This led to the destruction of many buildings, including churches, and including the appellant’s cousin’s shop, and to the deaths of many people. After this, the appellant said that he returned to Ibadan.

6 The appellant claimed that a church fellowship meeting in Ibadan, in which he was participating, was disrupted by Muslims who tried to prevent the use of microphones and loud speakers. He claimed that he was chased by Muslims.

7 The appellant also claimed that he had been beaten by Muslim people. He said that Christians are at risk of death all over Nigeria. He also stated that he feared people known as Bakisi boys, who beat and killed people for no reason.

The Tribunal’s reasons

8 The Tribunal accepted that the appellant is a Christian and a member of a Pentecostal church. It referred to information from various sources about religious conflict, and about the introduction of Sharia law, in Nigeria. The Tribunal could not locate any report of religious riots in Kaduna city in late 1999. It found one report of a protest by Christians in that city in October 1999, in response to the introduction of Sharia law in Zamfara, another state. This protest did not lead to an outbreak of violence. There were reports of religious troubles in Kaduna State, but they were in a city called Kafanchan, approximately 150 kilometres from Kaduna city. The Tribunal found that numerous sources indicated that riots in Kaduna city relating to the introduction of Sharia law first erupted in February 2000, after the appellant claimed to have left Kaduna.

9 As to where the appellant had lived, the Tribunal said:

‘Due to the applicant’s vague evidence, his inability to describe Kaduna and the fact that the events he relates are at odds with the country information available to the Tribunal, the Tribunal does not accept that the applicant lived in Kaduna for two years between 1997 and 1999, or had lived there at all. If the applicant had lived there for this length of time the Tribunal would have expected him to be able to describe some aspects of the city and to be aware of the names of some of the districts. Due to the vague nature of his evidence and the fact that it is at odds with country information, the Tribunal does not accept that the applicant was in Kaduna whilst there was inter-religious rioting or witnessed any of that rioting. The Tribunal does not accept that the applicant was forced to flee from Kaduna as a result of this rioting.’

10 The Tribunal found that the appellant was living in Ibadan, where the majority of the people are of his tribe, the Yoruba. After quoting information from a number of sources, including the United States Department of State and Human Rights Watch, the Tribunal said:

‘The Tribunal accepts that the introduction of penal Sharia Law, although not applicable to the non-Muslim population has impacted upon them, in that it has curtailed the sale and consumption of alcohol. The Tribunal finds that these restriction [sic] are not sufficiently serious harm as to amount to persecution within the meaning of s91R(1)(b) of the Act. The Tribunal notes that Oyo State of which Ibadan is the capital is one state which has not introduced Sharia penal Law. Sharia Law is applicable to Muslims in relation to family law and personal law matters, but the penal code has not been introduced. It is the introduction of this penal code that has led to widespread unrest. The applicant claimed that Ibadan, Oyo State was an area where the majority of the population was Muslim. This is clearly at odds with the country information, some of which indicates that there is no dominant religion in that area, and other which indicates that Muslims are in the minority. The protests by the Muslims in Ibadan noted above indicates [sic] that Muslims do not control Ibadan as claimed by the applicant. The Tribunal does not accept that the applicant has ever been persecuted as a result of being Christian. The Tribunal finds that he has exaggerated the risk from Muslims in Ibadan. The Tribunal does not accept that he was beaten by Muslims in Ibadan or has been tortured by them. The applicant has claimed that he will be unable to practise his religion freely if he returned to Nigeria. The Tribunal finds based on the country information and the reasons above, that the applicant will not be prohibited from, restricted or punished for practising his religion in Ibadan. The Tribunal finds that there is no real chance that the applicant will be persecuted in the reasonable [sic] foreseeable future for reasons of being a Christian living in an area which is not a majority Muslim state and his fear of persecution for this Convention ground is not well-founded.’

11 The Tribunal then referred to the appellant’s expressed fear of generalised violence in Nigeria. It accepted that random violence is prevalent in Nigeria and that the authorities seem to be unable to control outbreaks of random violence. It accepted that a friend of the appellant may have been killed in random violence. It found that there was nothing to indicate that the appellant faced a real chance of being a victim of random violence by reason of any Convention ground.

The federal magistrate’s reasons

12 The learned federal magistrate dealt with attacks by counsel for the appellant on two of the Tribunal’s findings. They were the findings, quoted in [10] above, that the impact of Sharia law on the non-Muslim population was to curtail the sale and consumption of alcohol, and that Oyo State, of which Ibadan is the capital, had not introduced Sharia penal law and was not controlled by Muslims. The first of these findings was said to be contradicted by a number of items of evidence, to be glaringly improbable and inconsistent with the facts, not to amount to a bona fide attempt to decide the issue, to lack fairness, and to ignore relevant country information. The second finding was said to be not supported by any country information and contradicted by available evidence, not to amount to a bona fide attempt to decide the issue, and to lack fairness.

13 The federal magistrate’s reasoning in relation to the attacks on these two findings was expressed as follows:

‘38. The first ground was that the findings were glaringly improbable and
inconsistent with the facts. To my mind, this is clearly a question of fact and, therefore, not subject to review. Even the question if [sic] improbability does not make the matter subject to review (W148/00A, supra).

39. Second, that the finding may not even amount to a bona fide attempt to
decide the issue and appears to lack fairness is not supported by any evidence that I can discern. It is clear from SBBS (supra) that an accusation of a lack of bona fides should not be made lightly, and to my mind it is inappropriate to raise the question in the speculative way that the Applicant has done. An allegation of bad faith must either be made directly or not made at all. There is no evidence that the Tribunal dealt with the Applicant in an unfair way, by depriving him of the right to present evidence or make submissions. The only allegation of possible bad faith or unfairness comes from the written reasons themselves. The Applicant’s complaint is that the Tribunal’s findings did not favour his case. An unfavourable decision does not of itself establish bad faith or unfairness.

40. The Applicant also complains that there are no references to current
evidence or alternative evidence. The Tribunal has, to my mind, met its obligation here by setting out the information upon which it relied in pages 74 to 79 of the Court Book. If the Applicant wished the Tribunal to consider alternative evidence, then it was up to him to produce that evidence.

41. The Tribunal was critical of the vagueness of parts of the Applicant’s
evidence, especially about where he lived in the town of Kaduna (page 76 of the Court Book). The Tribunal found that the Applicant had exaggerated parts of his evidence (page 79 of the Court Book), which is a reflection on the Applicant’s credibility. Again, the Tribunal just did not accept the Applicant’s evidence on some issues.

42. Where the credibility of the Applicant is in issue, this is a finding of
fact. I am satisfied that it was open to the Tribunal, having seen and heard the Applicant at the hearing, to be satisfied that his evidence was not credible in certain areas. There does not appear any reviewable error committed by the Tribunal (NACV, supra).

43. It appears to me that all of the issues raised by the Applicant are
issues of fact, except for the suggestion of bad faith, for which there is no evidence at all. It is not open to the Court to review factual issues, so any errors that there may have been, if any, are not subject to review because of the operation of s.474.’

The appellant’s case

14 It is extraordinarily difficult to pin down the case that the appellant, and those representing him, intended to put in relation to the Tribunal’s decision.

15 The grounds specified in the original application, filed at first instance, were as follows:

‘(a) the RRT failed to conduct the review according to the requirements of
procedural fairness in that it determined that the Applicant had not
lived in Kaduna where the Applicant his fears [sic] of persecution
emanated;

(b) the RRT erred in considering whether the threats and violation of the
Applicant’s religious rights by the predominantly Muslim dominated
area of Kaduna amounts [sic] to persecution within the convention;

(c) the RRT failed to conduct the review in accordance with the
requirements of the rules of natural justice or procedural fairness or
the Migration Act in that the RRT [sic] was under pressure and might have either forgotten or did not have opportunity of knowing some
geographical locations in Kaduna.’

16 For some reason, unexplained, the amended application considered by the federal magistrate is not among the papers placed before the Court on appeal. It is a fair assumption, however, that the federal magistrate dealt with the arguments actually put at first instance. An examination of his Honour’s summary of those arguments, which I have quoted at [13], makes it clear that they were very different from the original grounds.

17 The grounds specified in the notice of appeal are expressed in a way that makes it difficult to discern their meaning in the context of an appeal from a judgment of a court, dealing with a decision of an administrative tribunal. The first error of the federal magistrate identified in the notice of appeal is:

‘failing to conclude that the findings in the RRT decision as a whole were not open on the material before the RRT after consideration of matters that were logically probative of the issue of fact’.

18 The next ground refers to pars [14] – [17] of the federal magistrate’s judgment and suggests that the federal magistrate was in error in failing to conclude that ‘the finding’ of the Tribunal referred to therein was not open on the material before the Tribunal after consideration of matters that were logically probative of the issue of fact. The problem is that there are several findings of the Tribunal referred to in those paragraphs. One is the finding that the introduction of penal Sharia law, although not applicable to the non-Muslim population, has impacted upon them in that it has curtailed the sale and consumption of alcohol. The findings identified in par [16] of the federal magistrate’s judgment are:

•	Oyo State of which Ibadan is the capital is one state which has not introduced Sharia penal law;

•	Sharia law is applicable to Muslims in relation to family law and personal matters, but the penal code has not been introduced;

•	it is the introduction of this penal code that has led to widespread unrest;

•	the protests by the Muslims in Ibadan indicate that Muslims do not control Ibadan as claimed by the appellant; and

•	there is no real chance that the appellant will be persecuted in the reasonably foreseeable future for reasons of being a Christian.

19 The notice of appeal does not make it clear which of these findings is the subject of the error attributed to the federal magistrate.

20 The next ground refers to par [18] of the federal magistrate’s judgment. It suggests error on the part of the federal magistrate in ‘failing to determine the effect of the finding...on the overall finding as to country information’. Paragraph [18] of the federal magistrate’s judgment contains a summary of one aspect of the appellant’s contentions of fact and law in that court. It refers to a submission that the decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal, differently constituted. I am unable to discern any finding of the Tribunal to which par [18] relates.

21 The next ground refers to pars [8] – [9] of the federal magistrate’s reasons for judgment. It contends that the federal magistrate erred in failing to conclude that ‘the finding’ of the Tribunal referred to in those paragraphs ‘was not open on the material’ before the Tribunal ‘after consideration of matters that were logically probative of the issue of credibility’. Paragraphs [8] and [9] of the federal magistrate’s reasons for judgment contain a summary of the Tribunal’s reasons for decision. In those paragraphs, the federal magistrate referred to a number of findings of the Tribunal, some favourable to the appellant and some against him. Precisely which finding is the subject of this ground is unclear.

22 The final ground in the notice of appeal refers to par [20] of the federal magistrate’s reasons for judgment. It suggests that the federal magistrate erred in failing to determine the effect of ‘the finding’ of the Tribunal referred to in that paragraph ‘on the overall finding as to country information.’ Paragraph [20] contains a summary of the oral submissions of counsel for the appellant, made to the federal magistrate, in relation to the meaning of jurisdictional error. It refers to no finding at all.

23 The appellant filed in this Court a written outline of submissions. He contended that the conclusion of the federal magistrate that all issues raised by the appellant at first instance, with the exception of the question of bona fides, were issues of fact, not law, and therefore non-reviewable, was incorrect. The contentions referred to the Tribunal’s finding to the effect that the only impact of the introduction of penal Sharia law on Christians was in curtailing the sale and consumption of alcohol. It was suggested that, on the material before the Tribunal, this finding was so unreasonable that no reasonable person could have reached it. The contentions referred to material that was before the Tribunal about the possible introduction of Sharia law in Oyo State. They suggested that the Tribunal ignored or overlooked information that Kaduna and Oyo had similar Muslim minorities, and failed to compare the two. In doing so, it was said that the Tribunal either asked the wrong question or ignored relevant material, and therefore fell into jurisdictional error.

24 In the written contentions, the appellant also challenged the Tribunal’s conclusion that the appellant did not face a real chance of being a victim of random violence for any Convention reason. The contentions suggested that:

•	failure to make a finding of fact that the victims of random violence were never, or not generally, selected on the basis of their religion amounted to jurisdictional error;

•	the conclusion involved a breach of the specific requirement in s 430(1) of the Migration Act that the Tribunal provide a statement of reasons for its decision; and

•	the Tribunal mischaracterised or misunderstood the appellant’s claim and failed to deal with it.

25 In oral argument on the hearing of the appeal, counsel for the appellant developed the arguments in his written summary of contentions. He also advanced further arguments. At one point, he suggested that curtailing the sale and consumption of alcohol (and the closure of bars, nightclubs and cinemas, to which some of the material noted by the Tribunal referred) itself amounted to persecution. He argued that Christians in Nigeria have a right to expect the same enjoyment of life as people in a western society. Counsel for the appellant also argued that the appellant had been unfairly disadvantaged in the course of the Tribunal hearing, because his solicitor and migration agent was not available to attend the hearing, and the appellant was only accompanied by a receptionist from the solicitor’s office.

26 Counsel for the appellant expressly recognised that it was not open to him to proceed with the argument about the Tribunal’s finding that the appellant had not lived in Kaduna. He recognised that this was a finding as to the appellant’s credit, and could not be challenged at this stage.

Challenging findings of fact

27 The one consistent theme that can be identified throughout the various different ways in which the appellant’s case has been expressed at different stages is that the appellant believes that the Tribunal ought to have made findings of fact more favourable to him. In the appellant’s view, the Tribunal ought to have found on the material before it that the impact of the introduction of Sharia penal law on Christians was more serious than merely curtailing the sale and consumption of alcohol. Also, the Tribunal ought to have found that the threat of the introduction of Sharia penal law in Ibadan was more serious than it found and that, living in Ibadan as a Christian, the appellant was in danger of suffering persecution as a consequence of the carrying out of that threat. In this way, the appellant says that the Tribunal made errors. The problem for counsel for the appellant has been to attempt to fit these alleged errors into the framework of the concept of jurisdictional error, in an attempt to persuade first the federal magistrate, and then this Court, to set aside the Tribunal’s decision.

28 It is perhaps not surprising that counsel for the appellant has experienced difficulty in attempting this task. It is clear, as the federal magistrate recognised, that the findings by which the appellant is aggrieved are findings on issues of fact, which were matters for the Tribunal. If any of them were erroneous (and I do not suggest that they were), the errors were made within the jurisdiction of the Tribunal. Its task was to find the facts. Plainly, it was conscious of that task and endeavoured to carry it out. Lack of generosity on the part of the Tribunal, if that is what occurred, cannot of itself give rise to jurisdictional error.

29 The judgment of the federal magistrate is plainly correct. To the extent to which the notice of appeal attempted to identify errors in the reasons for judgment, it is largely incomprehensible, for reasons that I have given in [17] – [22] above. The form of the notice of appeal itself lends support to the conclusion that the appellant’s real complaint is that the Tribunal’s findings were not sufficiently favourable to him. In attempting to set aside a decision of an administrative decision-maker, it is not sufficient to point to material before the decision-maker, which might have led to different findings or to a different decision, and to say that the decision, or any specific finding, is so unreasonable that no reasonable decision-maker would have arrived at it. Assuming the doctrine known as Wednesbury unreasonableness to be a ground of challenge to an individual finding of fact by an administrative decision-maker, as to which I express no conclusion, in the present case the finding about the impact of Sharia law in relation to alcohol was certainly not in the category of manifest unreasonableness. It was open to the Tribunal on the evidence before it and the Tribunal chose to make that finding.

30 Similarly, the Tribunal was not obliged to make the finding that the appellant suggests it should have made, that the future of Oyo State would be similar to the recent history of Kaduna State. By making the findings it did about the safety of the appellant in Ibadan, the Tribunal did not ask itself a wrong question or ignore relevant material. As to the Tribunal’s conclusion about random violence, it was certainly open to the Tribunal to conclude that, if the appellant suffered by reason of random violence, he would not suffer for any Convention reason. The Tribunal had no duty to make a case that the appellant did not make before it, namely to conjure up a conclusion that the appellant would be in danger, or in increased danger, of acts of violence because of his Christianity. It was not obliged to make a finding that the victims of attacks were never, or not generally, selected on the basis of their religion. It demonstrated no unfairness to the appellant in reaching the conclusion it did, even if it could be said that a failure to perform the duty imposed by s 430(1) of the Migration Act gave rise to jurisdictional error. The Tribunal neither mischaracterised nor misunderstood the appellant’s claim and did not fail to deal with the claim that he put. It simply did not accept that claim.

31 The submission that the appellant had a right to live as some people do in western countries, by attending bars, nightclubs and cinemas at will, was obviously unsustainable, especially in the light of the provisions of s 91R of the Migration Act as to the seriousness of the conduct required to constitute persecution. In addition, it must be said, that the appellant did not put to the Tribunal a case that he was someone who gained enjoyment from life by attending bars, nightclubs and cinemas. In the light of the fact that he was a Pentecostal Christian, it might at least be doubted whether he would have been prepared to put such a case.

32 For these reasons, the conclusion of the federal magistrate that the appellant was seeking to reopen issues of fact determined by the Tribunal, and that it was not open to him to do so, is plainly correct.

The representation of the appellant

33 At a very late stage in his submissions, counsel for the appellant raised his argument based on the suggestion that the appellant had been represented at the Tribunal hearing by a receptionist from the solicitor’s office, and not by his solicitor and migration agent. The argument was based on a single sentence in the appellant’s affidavit, filed at first instance, which read:

‘I was not represented by my Migration Agent rather he sent his receptionist to accompany me.’

34 Apart from being raised in this form, the issue does not appear to have been raised at all before the federal magistrate. It was certainly not part of the appeal case until counsel for the appellant made the submission orally at a late stage. There was no material to suggest that the appellant had been denied procedural fairness, or had been disadvantaged otherwise by the absence of his migration agent. The transcript of the Tribunal’s hearing certainly does not suggest that the Tribunal took advantage of any inadequacy in the representation of the appellant, so as to overbear him.

35 This submission not having been put below, leave is necessary for it to be put on appeal. In the circumstances, as the submission is bound to fail in any event, leave should not be granted.

Conclusion

36 For these reasons, the appellant has failed to make out any ground of error on the part of the federal magistrate, or on the part of the Tribunal, even to the extent that he has sought to treat the appeal as if it were nothing more than a further opportunity to try and identify some form of jurisdictional error on the part of the Tribunal. The appeal must be dismissed. No argument was advanced, and no reason appears, for departure from the normal rule that

costs follow the event. The appellant should therefore be ordered to pay the Minister’s costs of the appeal.

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

Associate:

Dated: 4 February 2005

Counsel for the appellant:	R Hamilton
Solicitor for the appellant:	Di Mauro Solicitors
Counsel for the respondent:	Dr S Donaghue
Solicitor for the respondent:	Blake Dawson Waldron
Date of Hearing:	23 August 2004
Date of Judgment:	4 February 2005