SZMVR v Minister for Immigration & Anor [2009] FMCA 50 (5 February 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 50

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Nigeria claiming fear of persecution for reason of political opinion and membership of a particular social group – procedural fairness – whether Tribunal fell into jurisdictional error by failing to comply with Migration Act 1958 (Cth) s.430(1)(d) – apprehended bias – whether Tribunal failed to comply with the requirements of Migration Act 1958 s.425.

Migration Act 1958 (Cth) ss.420, 422B, 424A, 425, 430, 474

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors [2004] FCAFC 264; (2004) 140 FCR 572 VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 SZMAE v Minister for Immigration & Citizenship [2008] FCA 1701 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30 Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469; [2000] FCA 845 Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 Re Refugee Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425

Applicant:

SZMVR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2668 of 2008

Judgment of:

Scarlett FM

Hearing date:

11 December 2008

Date of Last Submission:

11 December 2008

Delivered at:

Sydney

Delivered on:

5 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr Burwood

Solicitors for the Applicant:

No solicitors on the record

Counsel for the Respondent:

Mr Godwin

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2668 of 2008

SZMVR

First Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The applicant, a citizen of Nigeria, asks the Court to set aside a decision of the Refugee Review Tribunal signed on 17th September and handed down on 18th September 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
2. The applicant seeks the following orders:
   1. that the decision of the Refugee Review Tribunal be set aside;
   2. that the application be remitted to a Tribunal differently constituted;
   100. that the applicant be allowed to remain in Australia until the Tribunal rehears the matter;
   4. costs; and
   5. further orders as deemed appropriate.
3. The applicant relies on the following grounds:
   • (1) The Tribunal denied the applicant procedural fairness by not giving him the opportunity of ascertaining the relevant issues;
   • (2) The Tribunal denied the applicant procedural fairness by not informing him of the nature and content of material which the Tribunal relied on to assert that the applicant’s account of events on 19 February 2005 conflicted fundamentally with ‘the many published accounts’;
   • (3) The Tribunal’s assertion that the applicant’s account of events on 19 February 2005 conflicted fundamentally with ‘many published accounts’ which are not specified is in breach of s 430(1)(d) of the Migration Act 1958. The Act requires the Tribunal to ‘refer to the evidence or any material on which the findings of fact were based’;
   • (4) The specific report the Tribunal refers to by Elias Courson (Annexure C in the applicant’s affidavit of 15 October 2008) does not support the Tribunal’s finding and is inaccurately quoted by the Tribunal leading to an apprehension of bias on the part of the Member.
4. The Minister has filed a Response asserting that the applicant has not raised an arguable case for relief.

Background

5. The applicant arrived in Australia on 10th July 2008. He applied for a Protection (Class XA) visa on 25th July 2008. He accompanied his application with a Statutory Declaration in which he claimed a fear that he would be killed or experience other harm for reason of political opinion because of his membership of an organisation called MEND, the Movement for the Emancipation of the Niger Delta. He expressed a fear that he would be killed by the army or by his former comrades in MEND, who thought he was a government spy, if he were to return to Nigeria.[1] He claimed that in January 2007 members of MEND had discovered that his father was Yoruba and decided that he was therefore a government spy.
6. A delegate of the Minister refused the application for a visa on 18th August 2008. The delegate did not accept that the applicant was a member of MEND or any other militant group in the Niger Delta. The delegate found that the applicant had a general knowledge about militant groups in Nigeria but found that this knowledge appeared to have been obtained through newspapers and conversations within the community. The delegate did not accept that the applicant was ever wanted by the authorities in Nigeria or that he would be arrested on his return. The delegate was not satisfied that the applicant would be a target for harassment by MEND or that the applicant would face a real chance of being persecuted if he were to return to Nigeria in the foreseeable future.[2]

Application for Review by the Refugee Review Tribunal

7. The applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 19th August 2008. He did not submit any further evidence to the Tribunal with his application.
8. The Tribunal invited the applicant to attend a hearing on 3rd September 2008. Through his then solicitor, Mr John Vrachnas, the applicant submitted a document headed “Response to Delegate’s Decision and RRT Submission”.[3] He also submitted some emails from a friend, a copy of a woman’s death certificate, said to be his mother, some medical documents from the Lagos State University Teaching Hospital and a number of photographs.
9. The applicant attended the Tribunal hearing on 3rd September 2008 and gave evidence, apparently without the assistance of an interpreter.
   

The Refugee Review Tribunal Decision

10. The Tribunal signed its decision on 17th September 2008 and handed the decision down the following day. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.
11. In its Decision Record[4] the Tribunal referred to the applicant’s primary claims in his Statutory Declaration, the documents that the applicant submitted as part of his claim, the applicant’s oral evidence to the Tribunal and some material that the applicant submitted after the hearing, being a video recording of his mother’s funeral and a flier announcing her death and funeral arrangements. The applicant had claimed that members of MEND, an organisation that was overwhelmingly Ijaw, had discovered that his father was Yoruba. He claimed that new members entered MEND in late 2006 and looked at him with suspicion because of this. He claimed that he did not speak the Ijaw language.

The Tribunal’s Findings and Reasons

12. The Tribunal accepted that the applicant was a citizen of Nigeria but accepted none of his claims for protection. The Tribunal gave these reasons for its comprehensive rejection of the applicant’s claims:
    1. it did not accept his claims as to his ethnicity, as various details about his mother, as well as his own name, identified him as being Yoruba;
    2. it did not accept that members of MEND would not have known from the start that he was Ijaw;
    100. the applicant’s lack of knowledge of MEND and his claim that his only activity was to participate in demonstrations undermined the Tribunal’s belief in his claims;
    4. the Tribunal did not accept “that any person could belong for several years to an organisation overwhelmingly Ijaw without speaking the language, at least to some extent”[5]; and
    5. the applicant’s account of events of February 2005, an attack by the army on Odioma, conflicted “fundamentally” with the many published accounts of that attack.
13. In summary, the Tribunal found:
    • I do not accept that the applicant was ever a member of MEND or the organisation he claims preceded it and which changed its name to MEND (but of whose existence no evidence has to date been found and which is not referred to in any histories of MEND). I do not accept that he was obliged to flee, having been identified as or accused of being a spy. I do not accept that anyone at all is looking for him with a view to doing him harm.[6]
14. The Tribunal did not accept that any of those things would occur if the applicant were to return to Nigeria.
15. The Tribunal gave no weight to the email from the applicant’s friend in Nigeria, which it found to be self-serving. It did not accept the applicant’s claims that his mother or his wife were attacked as a result of his association with MEND or that his wife and children were either in hiding or missing.
16. The Tribunal found that the applicant did not have a well founded fear of persecution in Nigeria for a Convention reason and affirmed the decision not to grant the applicant a Protection (Class XA) visa.

Application for Judicial Review

17. The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 16th October 2008. He filed a written outline of submissions on 28th November 2008.

The applicant’s submissions

18. Counsel for the applicant, Mr Burwood, submitted in relation to Ground 1 that the Tribunal did not explore the applicant’s claims in relation to the burning down of his workshop and house on 19th February 2005 or put to the applicant that there was an issue in relation to the claimed circumstances in relation to that event. This, he submitted, was contrary to the requirements of s.425 of the Migration Act 1958 (Cth). The Tribunal failed to alert the applicant that his account of that attack was an issue (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[7]).
19. In relation to Ground 2, Mr Burwood submitted that the Tribunal had referred to an account of the attack on Odioma which was written by Elias Courson, appearing on the author’s website. He submitted that the Tribunal’s failure to ask the applicant to expand his account meant that there was no detailed account from the applicant and thus there was no basis for the Tribunal to find that the applicant’s account “conflicts fundamentally with the many published accounts of the army attack on Odioma”.[8]
20. Counsel for the applicant submitted that the Tribunal denied the applicant procedural fairness by not informing him, either during or after the hearing, of the nature and content of the material it relied on to find that his account conflicted fundamentally with country information so that the Tribunal did not accept any of the applicant’s claims regarding the events of 19th February 2005. This, he submitted, demonstrates a lack of procedural fairness which constitutes jurisdictional error (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[9]).
21. In relation to the applicant’s Ground 3, Mr Burwood submitted that the Tribunal’s findings that the applicant’s account of the events on 19th February 2005 “conflicts fundamentally with the many published accounts of the army attack on Odioma... In particular, published reports do not mention MEND at all”[10] breach s.430(1)(d) of the Migration Act. That subsection requires the Tribunal to prepare a written statement that refers to the evidence or any other material on which the findings of fact were based.
22. Mr Burwood submitted that the finding that the applicant’s account of the events of 19th February 2005 was fundamentally different to published accounts lacks reference to the evidence on which the finding was made, both the evidence given by the applicant and the evidence in the “many published accounts”.
23. Counsel for the applicant submitted that, in respect of the applicant’s fourth ground (apprehension of bias and breaches of ss.424A and 420(2)(b)) , the Tribunal did not seem to be interested in dealing with the applicant’s claims and evidence that he had suffered harm and was reluctant to return to Nigeria. He also submitted that the Tribunal, possibly due to the Tribunal Member’s own experience and knowledge of Nigeria, did not appear to be open to hearing and exploring precisely what were the applicant’s claims regarding his fear of persecution. Mr Burwood referred to a number of examples from the Tribunal’s Decision Record in support of that proposition.
24. It was submitted that the review was infected with bias and the Tribunal breached s.420(2)(b).

The First Respondent’s Submissions

25. Mr Godwin of counsel appeared for the Minister. He submitted that the applicant’s first ground does not demonstrate a denial of procedural fairness by not giving the applicant the opportunity to ascertain the relevant issues.
26. The Minister’s delegate had not accepted that the applicant was a member of MEND and considered that this finding was dispositive of the applicant’s application for a visa. This clearly raised as issues all the applicant’s claims that depended on his membership of MEND. Thus, there was no obligation upon the Tribunal to identify the truth of claims arising from MEND activity as being separate issues in the review.
27. As to Ground 2, the claim of a breach of procedural fairness because the Tribunal did not inform the applicant of the nature and content of the material on which it relied to assert that his account of the events of 19th February 2005 differed fundamentally from the many published accounts, Mr Godwin submitted that s.422B of the Act has the consequence that the applicant’s entitlement to procedural fairness is codified in the Act. The potentially applicable provisions are ss.425 and 424A. There was no failure to comply with s.425.
28. Again, there was no failure to comply with s.424A because it is well established that independent country information such as the reports of the army attack on Odioma fall within the exception in s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors[11] at [124]-[138]; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs[12] at [31]-[33]; QAAC of 2004 v Refugee Review Tribunal[13]; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs[14] at [14]-[16]; SZMAE v Minister for Immigration & Citizenship[15] at [26]).
29. As to the applicant’s Ground 3, the allegation of a breach of s.430(1)(d) by failing to identify in its reasons the many published accounts that the Tribunal found fundamentally conflicted with the applicant’s account of the 19th February 2005 incident, Mr Godwin submitted that:
    1. the Refugee Tribunal is not obliged to refer to every piece of evidence when setting out its reasons for decision (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[16] at [46]; and
    2. in any event, a breach of s.430 is not jurisdictional (Minister for Immigration & Multicultural Affairs v Yusuf[17]; Minister for Immigration & Multicultural Affairs v SBAA[18] at [38]).
30. Mr Godwin submitted that the Tribunal did specify in general terms the evidence upon which its finding was based, and it also referred to the specific reference it considered to be the most comprehensive.
31. As to the applicant’s fourth ground, an allegation of apprehended bias, Mr Godwin submitted that, whilst the Tribunal wrongly stated that the Courson report did not mention MEND at all, this was no more than a factual error and not indicative of bias. He further submitted that none of the other matters said to indicate bias on the part of the Tribunal did in fact do so. The Tribunal actively explored the applicant’s claims and, as the Transcript shows, had an open mind at the end of the hearing about the applicant’s case.

Conclusions

32. The applicant relies on four grounds of review.
33. Ground 1 complains that the Tribunal denied the applicant procedural fairness by not giving him the opportunity of ascertaining the relevant issues. The High Court has made it clear in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[19] that the Tribunal is not confined to whatever may have been the issues that the delegate considered:
    • But, if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’.[20]
34. The applicant complains that the Tribunal did not explore his claims that the soldiers had burned his house and workshop and did not put it to him that there was an issue in relation to the claimed circumstances. In the transcript of the Tribunal hearing at pages 26 and 36 the Tribunal discussed the incident with the applicant. The applicant said that the soldiers knew he was a member of MEND, which is why they burned his house and workshop, even though he had repairing the army vehicles.
35. However, the Tribunal did not accept that the applicant was ever a member of MEND.[21] The delegate did not accept that the applicant was a member of MEND.[22] This was the issue that was dispositive of the applicant’s case. I am satisfied that there was no lack of procedural fairness by way of a breach of the requirements of s.425 as described in SZBEL and the applicant’s first ground has not been made out.
36. The applicant’s Ground 2 complains that the Tribunal denied him procedural fairness by not informing him of the nature and content of material that it relied on to assert that his account of the events of 19th February 2005 conflicted fundamentally with the many published accounts.
37. As counsel for the Minister submitted, procedural fairness is codified by s.422B of the Migration Act, which provides that Division 4 of Part 7 is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals. Division 4 contains ss.422B, 423, 424, 424AA, 424A, 424B, 424C, 425, 425A, 426, 426A, 427, 428, 429 and 429A.
38. The reports of the attack on Odioma on 19th February 2005 are covered by the exception in s.424A(3)(a) of the Migration Act. The Tribunal compared these reports with the applicant’s evidence. The Tribunal clearly referred to the account by Elias Courson[23], although it did not refer to any other specific reports. I do not consider that there was a need for the Tribunal to do so.
39. There is no breach of s.424A of the Act. There are no other relevant sections in Division 4 of Part 7. The applicant’s Ground 2 has not been made out.
40. The applicant’s third ground states:
    • The Tribunal’s assertion that the applicant’s account of events on 19 February 2005 conflicted fundamentally with ‘many published accounts’ which are not specified is in breach of s.430(1)(d) Migration Act 1958. The Act requires the Tribunal to ‘refer to the evidence or any material on which the findings of fact were based’.
41. Section 430(1) the Migration Act provides:
    • Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
    • (a) sets out the decision of the Tribunal on the review; and
    • (b) sets out the reasons for the decision; and
    • (c) sets out the findings on any material questions of fact; and
      • (d) refers to the evidence or any other material on which the findings of fact were based.
42. As counsel for the Minister has pointed out, it has been held that a breach of s.430 is not jurisdictional. In Minister for Immigration & Multicultural Affairs v SBAA[24] the Full Court of the Federal Court (Wilcox, Branson and Marshall JJ) held at [38]:
    • A failure by the Tribunal to comply with s.430 does not, in itself, constitute a ground of review under the old s.476.
43. However, in referring to Minister for Immigration & Multicultural Affairs v Yusuf[25], the decision of the High Court overruled Minister for Immigration & Multicultural Affairs v Singh[26], their Honours cautioned that a failure by the Tribunal to comply with s.430 may have other consequences, citing Gleeson CJ who said:
    • The Tribunal is required, in setting out its reasons for decision, to set out ‘the findings on any material questions of fact’. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.[27]
44. That does not appear to be the situation in this case. The Tribunal is not required to refer to every piece of evidence when setting out its reasons for decision, but is does, in my view, set out its reasons for making the findings it did, at pages 124 and 125 of the Court Book.
45. In my view, the applicant’s Ground 3 has not been made out.
46. The applicant’s fourth and final ground claims an apprehension of bias on the part of the Tribunal, in that “the specific report the Tribunal refers to by Elias Courson ...does not support the Tribunal’s finding and is inaccurately quoted by the Tribunal”.
47. Mr Godwin for the Minister conceded that there is an inaccuracy by the Tribunal. Whilst the Tribunal incorrectly asserted that the Courson Report did not refer to MEND at all, there is a reference to it at page 4 of the report. However, this is a mere factual error and not of itself an indication of apprehended bias.
48. The test for apprehended bias has been set out by the High Court in Re Refugee Review Tribunal; ex parte H[28] at [27]-[28]:
    • [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question to be decided.[29] That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer’ when, as is the case with the tribunal, proceedings are held in private.
    • [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to the apprehension of bias.
49. In this case, I am satisfied that the inaccuracies complained of and the assertion that the Courson report does not support the Tribunal finding does not lead to the finding that the Tribunal Member did not bring an impartial mind to the resolution of the question to be decided.
50. I note that the Tribunal member is recorded in the Transcript as saying at the conclusion of the hearing:
    • OK. I will have to give this a lot of thought and I will do that. I will not make a decision quickly because I need to do some work on this before I can make up my mind about it so you will eventually hear that a decision has been made but if you want me to have a look at the video I suggest you get it to me as soon as possible.[30]
51. This statement strongly supports a finding that the Tribunal still had an open mind at the conclusion of the hearing. I am not satisfied that an apprehension of bias has been shown and Ground 4 has not, therefore, been made out.
52. As I am not of the view that any jurisdictional error has been shown, the Tribunal’s decision is a privative clause decision and orders in the nature of certiorari or mandamus are not available.
53. The application will be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 4 February 2009

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[1] See Court Book at 46
[2] Court Book 82
[3] Court Book 93-95
[4] Court Book 119-125
[5] Court Book 124
[6] Court Book 125
[7] (2006) 228 CLR 152; [2006] HCA 63
[8] Court Book 124
[9] (2005) 215 ALR 162; [2005] HCA 24
[10] Court Book 124-125
[11] (2004) 140 FCR 572
[12] [2004] FCAFC 134
[13] [2005] FCAFC 92
[14] [2005] FCAFC 178
[15] [2008] FCA 1701
[16] (2003) 75 ALD 630
[17] (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30
[18] [2002] FCAFC 195
[19] (2006) 228 CLR 152; [2006] HCA 63
[20] at [35]
[21] Court Book 125
[22] Court Book 81
[23] Court Book 125
[24] [2002] FCAFC 195
[25] (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30
[26] (2000) 98 FCR 469; [2000] FCA 845
[27] Yusuf at [5]
[28] (2001) 179 ALR 425
[29] Footnotes omitted
[30] Transcript 38