SZNQI v Minister for Immigration & Anor [2009] FMCA 918 (17 September 2009)

Last Updated: 17 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 918

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to consider an unarticulated claim of a particular social group – whether the Tribunal failed to appropriately consider whether applicant could reasonably and safely relocate within Nigeria – whether Tribunal hearings miscarried because of language and communication difficulties – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.425

NABE v Minister for Immigration Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 SZHWI v Minister for Immigration and Multicultural Affairs [2007] FCA 900 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 SGBB v Minister for Immigration Multicultural Indigenous Affairs [2003] FCA 709; [2003] FCA 709; (2003) 199 ALR 364 Ram v MIEA & Anor (1995) 57 FCR 365 Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4; (1997) 190 CLR 225 Minister for Immigration & Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) CLR 1 Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SZATV v Minister for Immigration & Citizenship [2007] HCA 40 SZJBD v Minister for Immigration & Citizenship [2008] FCA 922 SZJBD v Minister for Immigration & Citizenship [2007] FMCA 1829 Mahzar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; [2000] FCA 1759 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR

Applicant:

SZNQI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1269 of 2009

Judgment of:

Nicholls FM

Hearing date:

20 August 2009

Date of Last Submission:

20 August 2009

Delivered at:

Sydney

Delivered on:

17 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr T Ower

Solicitors for the Applicant:

-

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application made on 27 May 2009, and amended on 10 July 2009, is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1269 of 2009

SZNQI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 27 May 2009, and amended on 10 July 2009, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

2. The applicant is a citizen of Nigeria who arrived in Australia on 13 December 2008 and applied for a protection visa on 30 December 2008 (see Court Book – “CB” – CB 1 to CB 34, including a statement by the applicant in support of his application for a protection visa).

The delegate

3. The applicant was interviewed by the delegate on 14 January 2009 (CB 123.8). The delegate was unable to be satisfied that the applicant had “substantiated a claim of well founded fear of persecution” for a Refugees Convention reason, and therefore refused the application (see CB 123 to CB 126, and especially CB 126.3).

The Tribunal

4. The applicant applied for review by the Tribunal on 4 February 2009 (CB 128 to CB 131). He was represented before the Tribunal by a solicitor from the Legal Aid Commission (“LAC”) of New South Wales (CB 129), who was also a registered migration agent and had assisted the applicant before the Minister’s Department.
5. The applicant appeared before the Tribunal on two occasions. The first on 11 March 2009, and then on 14 April 2009, to give his evidence and present arguments. His migration representative attended at the second occasion (CB 200 and CB 276).
6. The applicant’s representative also made a number of written submissions on his behalf, and submitted a large volume of material in support of the applicant’s claims.

Application to the Court

7. The amended application before the Court puts forward the following grounds:

“1. The second respondent failed to address the applicant's claim of persecution based upon his Christian ‘pacifist’ stance in the face of political and ethnic violence in Nigeria. His continued refusal to participate in the violence placed him at risk of serious injury and death.

2. In failing to properly categorise the applicant’s ‘convention basis’ for his claim, the second respondent misapplied the ‘real chance’ test when examining the prospects of relocation within Nigeria.
3. The hearings before the second respondent miscarried due to the lack of an Ibo interpreter”.

Hearing before the Court

8. At the hearing before the Court Mr T Ower of counsel appeared for the applicant. Mr T Reilly of counsel appeared for the first respondent. Both parties filed written submissions.
9. Taken into evidence was the applicant’s affidavit of 9 July 2009, which went to the issue raised at ground three. No objection was taken to the affidavit being read into evidence, and the applicant was not required for cross-examination.

Ground One

10. The first ground of the application asserts that the Tribunal failed to address the applicant’s claim of persecution based upon his Christian “pacifist” stance in the face of political and ethnic violence in Nigeria. In written submissions Mr Ower explained that ground one is directed to the Tribunal’s failure to address the applicant’s claim based on membership of a particular social group, namely “Christian pacifists” or, in the alternative, “able-bodied Christian pacifists”.
11. In submissions before the Court Mr Ower conceded that this relevant claim was “not expressly articulated” before the Tribunal, but that nonetheless, with reference to relevant authorities (see NABE v Minister for Immigration Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 (“NABE (2)”) and SZHWI v Minister for Immigration and Multicultural Affairs [2007] FCA 900 (“SZHWI”)), the Tribunal was required to deal with an identifiable social group that was “thrown up” by the evidence before it.
12. Mr Ower referred the Court to the following extract from a submission to the Tribunal made by the applicant’s representative dated 17 April 2009:
    • “He fears persecution from the rebels or militants who have tried to recruit him to join them. He refused to join the militants who tried to recruit him to fight for the king in his area. He refused to fight for either side. It is against his religion. He gave evidence that the militants look around for young men to join the militancy to fight against the government, oil workers and the state and federal governments. He said that if you sit on the fence you are perceived as an enemy and face retribution, even death.
    • I submit that these claims are certainly Convention related. He faces persecution because he refuses to take part in politically motivated violence. He is opposed to this violence because of his religious beliefs” (CB 279).
13. Mr Ower submitted that, while not expressly articulated, the Tribunal should have addressed the issue of a particular social group of “pacifist men in Nigeria” that clearly arose from this submission.
14. Ultimately, I understood Mr Ower to emphasise that, however the group is described (“Christian pacifists” or “able-bodied Ibo Christian pacifists”), the critical element was that of “pacifism”.
15. Mr Ower explained that the “pacifist” element comes from the applicant’s claim of his not wanting to participate in violence in rejecting an invitation from militant groups in his home state to join them.
16. There is no dispute between the parties as to the relevant authorities to be applied (in particular, NABE (2)).
17. Clearly, a Tribunal must deal with a claim, and each integer of a claim, that is expressly made to it (see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244). While the Tribunal is not obliged to consider “criteria for an application never made” (NABE (2) at [62]), it is required to deal with a claim that clearly arises, or emerges, from the material before it (see NABE (2) at [68]). The Tribunal is also required to deal with the case raised by the material or evidence before it (NABE (2) at [58]; and Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at [180] per Merkel J).
18. I note also in NABE (2) at paragraph 60 the endorsement of what was said in SGBB v Minister for Immigration Multicultural Indigenous Affairs [2003] FCA 709 at [18]; [2003] FCA 709; (2003) 199 ALR 364 at 368 (2003) per Selway J: “The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it”. This, of course, does not mean that the Tribunal is “only required to deal with claims expressly articulated by the applicant” (NABE (2) at [60]).
19. Before the delegate, and during the course of the review before the Tribunal, the applicant made a number of claims to fear persecutory harm if he were to return to Nigeria.
20. The applicant claimed to fear harm in Nigeria from the Odua People’s Congress (“OPC”) in Lagos, from his family (because of his religious beliefs), and from militant groups in the Niger delta region, which was the region of his tribal home.
21. The Tribunal rejected the applicant’s claim to fear harm from the OPC (see [78] to [83]). It also rejected his claim to fear harm from his family (see [84] to [89]).
22. No direct complaint about these findings is made by the applicant now.
23. Ground one, though, squarely addresses the applicant’s claim to fear harm from militant groups in the Niger delta region. The Tribunal’s findings in relation to this claim are set out at paragraphs 90 to 97 in its decision record.
24. It is important to see how this claim was developed, and ultimately presented, before the Tribunal.
25. Before the delegate the applicant’s relevant claim was (at CB 33):
    • “6. There are big problems all the while in the Niger delta where there are many militant groups. They want people of my age to join them. If you say no they say you are a coward and deserve to die”.
26. Further (at CB 34):
    • “13. I fear that I will be killed if I go back. I fear the militant youths because I refused to join them to do their killings. I knew it was wrong and I refused to join them. It is against my Christian faith. They feel that they are fighting a just cause. Their view is, if you’re not with us you are against us and they come after you for your life. Even my king is on the run now” (at CB 34).
27. The Tribunal’s account of what occurred at the hearing on the first occasion on 11 March 2009 reveals that the applicant “described in detail the events which he says caused him to leave Lagos in 2000”. This was essentially for reason to do with the OPC (see [39] at CB 307).
28. The Tribunal: “... asked about the reasons for which the applicant fears returning to Nigeria now. He said that he fears harm from his family because he refuses to take over from his uncle as the person in charge of the family religion” (at [40]). The applicant is subsequently reported as having provided evidence in relation to his fears from his family which caused him to move (see at [41]). Then, at paragraph 42:
    • “The Tribunal asked the applicant if it was the case that he left the village for Port Harcourt because of problems with his family. He said that he also left the village because of problems with the militant groups in the village”.
29. Subsequently the following is reported:
    • “49. The Tribunal asked the applicant for what Convention reason he was targeted for harm by the militant gangs operating in his village, accepting that this was the case. He said that it is to do with local politics; he does not want to be involved with local politics. They use young men to fight; he does not want to kill people”.
30. At the hearing on the second occasion, at which the applicant’s representative was present, the Tribunal (amongst other things) squarely addressed the issue of the fear of harm in the Niger delta region (Rivers State is part of that region):
    • “66. The Tribunal noted that the applicant claimed that he was at risk of harm in Rivers State. There was country information indicating that there was a high level of generalised violence in Rivers State, but it was difficult to see what harm the applicant might face for a Convention reason. The applicant said that there is fighting all the time, not a week goes by without a shooting incident. He said that the militants are looking for young man who will fight for them; the JTF is also looking for young men, they just shoot at villages with rockets, they come to villagers and brutalise people, especially young men, Ibos and Ijaws”.
31. Further, the Tribunal reports:
    • “68. The Tribunal put to the applicant and his adviser that the country information certainly indicated that there was a high level of violence in Rivers State, and the applicant may well fear returning there; however, the Tribunal had doubts as to whether the applicant would be targeted there for persecution for any Convention reason; moreover, it appeared that it might be reasonable for the applicant to relocate to another area of Nigeria”.
32. The Tribunal allowed further time for the applicant and his representative to provide submissions as to any Convention link to the violence feared (see [69] at CB 312 of the Tribunal’s decision record). The extract (as set out at [12] of this judgment above) is taken from, and is part of, the representative’s subsequent submission to the Tribunal.
33. Relevantly, in relation to this issue the Tribunal reasoned as follows:
    • “94. Accepting that the applicant resided in Rivers State from 2000 to 2008, the Tribunal accepts that he may have witnessed and felt threatened by the generally violent situation there. However, the Tribunal is not satisfied, based on the information before it, that the applicant had a well-founded fear of persecution there, directed at him for a Convention reason.
    • 95. The applicant described one incident when he was approached by young men who he said were involved in one of the militant gangs. Even accepting that they asked him to join them, the Tribunal is not satisfied that in the generally chaotic situation described in the country of origin information, the applicant would have been further targeted by the gang, or that they would have sought him out in Port Harcourt, where he claims to have fled from them, for a Convention reason. Nor is it credible that, in the atmosphere of extreme violence that exists in Rivers State, a militant group which did actually intend serious harm to the applicant would have merely threatened and harassed him over a period of time without actually carrying out their threat. Moreover, as noted above, the Tribunal does not find credible the applicant’s evidence that he was harassed all the time, but did not know whether it was militants or his family members who were harassing him. The Tribunal therefore does not accept that the applicant was subjected to serious and sustained threats by militant groups in Rivers State that either constituted, or gave rise to, a well founded fear of persecution.
    • 96. The Tribunal accepts that the applicant may well be afraid to return to Rivers State, and that he may be at risk of harm there because of the high level of generalised violence which exists in that region. However, the Tribunal is not satisfied that he would be targeted for such harm for any Convention reason; rather, the risk would be of being caught up in random generalised violence, including from the Joint Task Force.
    • 97. The Tribunal does not accept the contention of the applicant’s adviser in her submission of 17 April 2009 that the persecution would be for reasons of the applicant's religion, on the basis that it is because of the applicant’s religious beliefs that he refuses to fight. While this may be applicant’s motivation, it is not the motivation of his potential persecutors”.
34. Mr Ower submitted that (at [94], [95] and [96] as set out above) the Tribunal accepted that the applicant may well be afraid to return to Rivers State because of the high levels of violence, but was unable to find a Convention reason as to why he would be targeted. His submission was that the Convention reason is to be found from the circumstance where the applicant had been asked to join the militant groups, he responded by refusing to do so because he said it was against his religion and that, in the context of Rivers State, he was being asked to join because he was an “able-bodied man”.
35. Mr Ower conceded that the fact that his religion stopped him from participating was probably something peculiar to the applicant, but that his “pacifist” stance was something that made the militants perceive him as not being supportive of them, but against them. This, therefore, was the element that gave rise to the risk of persecution. That is, that in the context of Rivers State, the Tribunal should have considered whether “able-bodied men”, who were perceived to be “pacifists” by the militant groups, constituted a particular social group, and that whether the applicant as a member of such a group was likely to have a well-founded fear of persecution for that Convention reason.
36. When pressed before the Court, Mr Ower submitted that the “pacifist” element came from the applicant’s perceived position of non-participation in violence (albeit as it arose from his religious beliefs), and that it should be understood in its usual language meaning.
37. The term “pacifist” is defined in the Macquarie Dictionary (Revised Third Edition) as: “1. One who opposes in principle all war or violence. 2. a conscientious objector”.
38. I also understood Mr Ower to rely on SZHWI for the proposition (albeit that that was a case involving extortion) that where “someone” refuses to cooperate, in that case to pay the extortionists, and in the current case to refuse to co-operate by joining the militants, that that sometimes can lead to a person becoming a member of a particular social group. SZHWI was offered as such an example.

Consideration

39. The parties are not in dispute that there was no expressly articulated claim to fear harm because of the applicant’s membership of a particular social group. The issue in dispute is whether, on the material before the Tribunal, such a claim clearly arose such that the Tribunal was obliged to consider it.
40. I agree with Mr Reilly that it cannot be said that such a claim arose from the circumstances of the applicant’s claims, and further, that there was nothing in the country information submitted by the applicant’s representative to suggest that such a claim arose.
41. The central thrust of Mr Ower’s submission is that the perception of the applicant as a “pacifist” sits at the centre of his complaint now. That is, that the applicant’s “pacifist” stance in not wanting to participate in the activities of the militants because of his religion is what places him in a particular social group, and gives rise to the question of Convention related persecution by the militant groups.
42. I do not agree with Mr Ower that the applicant’s circumstances, as presented before the Tribunal, give rise to an obligation to consider the existence of a particular social group of “able-bodied Christian pacifists”, or whatever other similar iteration the applicant now proposes.
43. I understood Mr Ower to infer that, in effect, the applicant should not now be disadvantaged because his representative before the Tribunal (who was also a solicitor) did not assist the applicant in expressly advancing his claim in the way now advanced.
44. Mr Reilly submitted that a distinction should be made between an applicant who is represented by “reputable lawyers” who have the capacity to put forward a specific basis on which the applicant claims to fear harm, as opposed to an unassisted applicant before the Tribunal, who lacks sufficient understanding of the test for refugee status, such as to be able to put his evidence, and press his circumstances, in such a way as to engage a Convention nexus. That the applicant in the current case was ably represented by competent lawyers. If a claim was there to be properly articulated, it could have been.
45. In my view, great care must be taken if one were to adopt such a course of action. That is, to see that distinction as important. The relevant authorities really make no such distinction. They speak of the evidence, material, and circumstances presented to the Tribunal such that an express claim, and each integer of a claim, must be dealt with, and that a claim not expressly articulated, but which clearly arises on the materials, must also be addressed by the Tribunal.
46. In light of this, it would be inappropriate, or unsafe, to generally apply such a distinction. It may serve to deflect consideration of a claim that may be said to be not expressly articulated, but clearly arising from the circumstances, on the basis that the applicant was not assisted before the Tribunal, whether by competent solicitors or otherwise. Without evidence, this is a fruitless exercise in speculation.
47. What can be said, nonetheless, in the current case, is that the opportunity was certainly there for the applicant’s representative to expressly state on the applicant’s behalf that which is now proposed by counsel before this Court. That it was not done so is not in dispute between the parties now.
48. For example, the word “pacifist” or “pacifism” was clearly not used by the applicant. It was also not used by his legal representative before the Tribunal. The mere failure to do so does not mean, however, that the “pacifist” element now being propounded could not otherwise be said to have clearly arisen from the material before the Tribunal. That is, the failure by the representative to specifically and expressly articulate that element now being put forward is not fatal to the applicant’s position now.
49. What is fatal however, in my view, is that the applicant was given every opportunity, with the assistance of his representative, to give his relevant evidence and make his relevant submissions. In my view, a plain reading of the relevant material now before the Court reveals that no such claim to be a “pacifist” was made by the applicant. Nor can it be clearly inferred, or rather clearly implied, to arise from what the applicant, or his representative, did say.
50. The applicant had claimed to fear harm from militant groups in Rivers State who wanted him to join them in their violent activities. From the beginning, the applicant claimed that he refused to do this because it was against his Christian faith. When it was put to the applicant at the “second” hearing that the claim as put did not appear to be connected to any Convention reason, the response from his legal representative was to reinforce his stated opposition to violence because of his religious beliefs.
51. In my view, a clear distinction can be drawn between that position, and that of a person said to be a “pacifist”, that is, one who opposes war, even if the “violence” in the applicant’s circumstances were to be equated as a situation relating to war. It is trite to say that history has shown that there are many Christians whose genuinely, and firmly, held religious beliefs have not stopped them from going to war and engaging in violent acts in many varied circumstances. This can be contrasted with those not necessarily of Christian belief, but even those of no religious faith at all, who oppose war, and the violence associated with it, for quite separate reasons. That is, “pacifists”.
52. There is nothing in the circumstances presented by the applicant, and his representative, to show that the applicant’s circumstances gave rise to this latter instance. In my view, the Tribunal dealt with exactly the circumstances which are said to clearly arise from his evidence and the submissions made on his behalf. That is, his refusal to join the militants was because it was against his religion. I cannot see that any particular social group of “able-bodied pacifists”, or even “Christian pacifists”, can be said to arise from these circumstances.
53. It is important that the Tribunal specifically raised the issue with the applicant that there was no Convention nexus to his claim to fear harm from the militants because of his refusal to join them for religious reasons. The Tribunal plainly took into account the applicant’s circumstances and found that the applicant’s claims in this regard, and in particular, in relation to the separate incident when he said he was approached by militants, was not credible.
54. What the Tribunal did accept was that there may be a fear to return to Rivers State because of the “high level of generalised violence”. But the Tribunal plainly found that the risk for the applicant was of being caught up in random generalised violence, and not that he would be targeted for any Convention reason. It dealt squarely with the only potential Convention reason that could be said to have arisen in the circumstances presented by the applicant’s evidence. That is, that he would be persecuted because of his religion. The Tribunal rejected this claim, finding that while this may be the applicant’s motivation, it was not the motivation of the claimed potential persecutors.
55. Persecution involves an element of motivation for the infliction of harm, as was said in Ram v MIEA & Anor (1995) 57 FCR 365 at 368 per Burchett J (“Ram”). It is not necessary to extensively set out the other occasions on which this proposition has been followed and applied, but I note in particular in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4; (1997) 190 CLR 225 at 284 per Gummow J where Ram was cited with approval. (See also Minister for Immigration & Multicultural Affairs v Haji Ibrahim [2000] HCA 55 at [102]; (2000) CLR 1 per McHugh J for the proposition that the Convention obliges the Tribunal to ascertain the motivation for the claimed persecutory conduct.)
56. Further, I note that what is relevant is the perception and motivation of the persecutor. That is, that the applicant may be said to be at risk of persecution because of a perception held by the persecutor, or persecutors, that he, or she, is a member of a particular race, religion, nationality, social group, or holds a political opinion (see Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Gaudron J at 416 and per McHugh J at 433; see also Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 570).
57. In this regard, there was nothing in the material before the Tribunal to give rise to the view that the claimed persecutors, who are said to be motivated to harm the applicant, would be motivated by the applicant’s membership of a particular social group, whether “pacifists”, “Christian pacifists”, “able-bodied Christian pacifists”, or “able-bodied Christian Ibo pacifists”.
58. What the Tribunal found was that the militant groups were not motivated to harm the applicant because of any Convention claim, whether it be religion, or anything else.
59. In my view, there was nothing in the applicant’s evidence, his submissions or, indeed, any of the other material submitted, or before, the Tribunal such that it could be said that an unarticulated, but nonetheless claim, clearly arose. That is, that the applicant feared harm because of his membership of a particular social group where “pacifism” was a central element, or, indeed, that any of the other attributes of the applicant were attributes, or elements, of such a particular social group. Further, the Tribunal’s finding that the applicant would not be targeted for any Convention reason, in my view, clearly took into account all of the applicant’s claims, whether expressly or impliedly made, before the Tribunal. Ground one, therefore, does not succeed.

Ground Two

60. The applicant’s second ground takes issue with an aspect of the Tribunal’s finding that the applicant could nonetheless reasonably, and safely, relocate to another area of Nigeria outside the Niger delta region. That is, the failure to address the applicant’s membership of a particular social group of “pacifists” meant that it failed to deal properly with the question of relocation.
61. Mr Ower referred the Court to SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [123] (“SZMCD”):
    • “The Tribunal considered relocation in a framework dictated by the evidence of claims advanced to it by the appellant. It was not obliged to consider all theoretical possibilities including the question of whether or not the appellant would continue to behave in a way which might attract persecution from different Islamic fundamentalists”.
62. Mr Ower submitted that the complaint in ground two is that the Tribunal did not consider relocation in the current case in the framework that was dictated by the evidence of the claims advanced to it by the applicant, because it failed to consider the issue of the existence, and subsequently membership, of a particular social group, being “pacifists” in Nigeria.

Consideration

63. This ground also fails for a similar reason to that in relation to ground one. That is, that I do not agree that the applicant’s circumstances as presented to the Tribunal were such as to create an obligation on the Tribunal to consider the issue of membership of such a particular social group.
64. But in addition, and separately, this ground fails, in my view, because as Mr Reilly submitted, the relevant question in relation to relocation did not depend on the applicant needing to exhibit whether he would be targeted for a Convention reason if he were to relocate to another part of Nigeria. Rather, the relevant test was whether it was reasonable for him to do so, and whether he could safely do so.
65. Relevantly, the issue of relocation appears to have been first raised by the Tribunal at the “second” hearing (see [65] at CB 311: “The Tribunal asked why the applicant could not relocate to any of these”).
66. The applicant claimed to fear harm from militant gangs operating in Rivers State. There was nothing before the Tribunal to suggest that that fear of harm extended to parts of Nigeria outside of the Niger delta region, of which Rivers State was a part.
67. The applicant also claimed to fear harm from his family. Following what appeared to be an extensive discussion of this issue at the “second” hearing (see [53] at CB 309 to [64] at CB 311), when asked by the Tribunal why he feared returning to Lagos, the applicant responded that this was because of problems with his family, and because of the OPC.
68. The Tribunal dealt separately with the issue involving the OPC. This is not now the target of complaint by the applicant before this Court.
69. In relation to the family, however, the Tribunal’s report appears at paragraph 58 and following (see CB 310). It was the applicant’s evidence before the Tribunal that he could not return to any part of Nigeria and remain safe from his family. The Tribunal put to the applicant that this appeared implausible in the circumstances (at [64]), and in that context (at [65]), asked him why he could not relocate to any one of the other four states of Nigeria where Ibos were predominant. The Tribunal also squarely put to the applicant, and his representative (at [68]), that while there appeared to be a high level of violence in Rivers State, it did not appear that the applicant would be targeted for a Convention reason. But that, in any event, it appeared that it would be reasonable for the applicant to relocate to another area of Nigeria.
70. This was also the subject of subsequent submissions by the applicant’s representative by letter dated 17 April 2009 (see at CB 279):
    • “Relocation.
    • The possibility of relocation within Nigeria was raised. (The applicant) instructs me that there is nowhere within Nigeria where he could safely and reasonably relocate. He is from the Niger delta comprised of the southeastern states of Nigeria where the Ibo mainly live. The problems which beset Rivers State also exist in the other Niger delta states and (the applicant) is afraid to go to any of them. Substantial evidence has been submitted regarding political violence, targeted killings and insecurity in these areas”.
71. The representative’s letter also made a number of other objections to relocation on the applicant’s behalf (see CB 280).
72. Other than for the claimed issue of the particular social group, there is no complaint from the applicant that the Tribunal failed to deal with any other of the applicant’s objections to relocation.
73. Mr Reilly submitted that the Tribunal was entitled to proceed to examine the issue of relocation with reference to the objections made by the applicant’s representative on his behalf, and the objections made by the applicant himself in evidence given to the Tribunal. He relies on Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 443C-D per Black CJ; and SZMCD at [123] – [124] per Foster and Tracey JJ.
74. Relevantly, the Court said:
    • “123. The Tribunal considered relocation in framework dictated by the evidence of claims advanced by the appellant. It was not obliged to consider all theoretical possibilities including the question of whether or not the appellant would continue to behave in a way which might attract persecution from different Islamic fundamentalists.
    • 124. The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation (Randhawa [1994] FCA 1253; 52 FCR 437 at 442–443, especially at 443C–D)”.
75. In the current case, the Tribunal dealt with each of the objections put forward by the applicant, and as presented by his representative in the submission of 17 April 2009. This is relevantly reproduced at CB 279.9 to CB 280.7. Submissions on the claimed lack of state protection are reproduced at CB 280.8 to CB 289.
76. The applicant claimed to fear harm from the OPC should he return to Lagos. The Tribunal considered the applicant’s claim to be reliant on events eight years earlier, and said to have taken place in a market in Lagos at that time. It rejected this claim on the basis of being “remote and speculative” (at [80] at CB 315). The Tribunal also found that, in relation to the OPC, should the applicant return to Lagos, any harm that he may face in the context of general of violence would not be for a Convention reason (at [82] to [83] at CB 315).
77. The applicant also claimed to fear harm from his family. The Tribunal rejected this claim (see at [84] at CB 315 to [89] at CB 317).
78. The applicant also claimed to fear harm from militant groups in the Niger delta region, which included his home state of Rivers State. The Tribunal found that any harm would be because of high levels of generalised violence which existed in that region, but was not satisfied that the applicant would be targeted for harm for any Convention reason (at [96] at CB 318).
79. The Tribunal’s consideration of the issue of relocation, therefore, was an alternative consideration to the issue of whether “in any event” the applicant could relocate outside the Niger delta region in the context of avoiding the generalised violence that existed in that region. This was based on a finding that any harm that would accrue to the applicant should he return to that region would not be for a Convention reason anyhow.
80. In this regard, the Tribunal dealt with each of the objections put before it as to whether relocation was practicable in the applicant’s circumstances. The Tribunal found, having regard to these matters, that the applicant “could reasonably and safely relocate from the Niger delta area to Lagos, or to any other area of Nigeria where the Ibo tribe predominates” (at [102] at CB 319).
81. The Tribunal’s analysis and consideration fell within the ambit of what is required by the relevant authorities (in particular, see SZATV v Minister for Immigration & Citizenship [2007] HCA 40; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; and SZMCD [2009] FCAFC 46).
82. In SZMCD the Full Court also considered what was said in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (“SZCBT”):
    • “125. We do not think that the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 dictates any different result. In our view the result in that case turned on its own facts. Of particular importance in that case was the acceptance by the Tribunal that the applicant had been harassed in the past as he had alleged.
    • 126. In the present case, the Tribunal rejected all of the applicant's claims of past harm and there was no basis for the Tribunal to speculate that the appellant may be harmed if he relocated”.
83. In SZCBT the Court found that, in considering the issue of relocation (of a Pakistani national), it was not sufficient for the Tribunal in that case to find that those who were responsible for the treatment that had been meted out to the applicant (which the Tribunal in that case accepted had occurred) would not also seek him out in other parts of Pakistan. It was also necessary for the Tribunal to ask if the applicant in that case was likely to continue with the conduct that marked him out as a “troublemaker” in the past (conduct that had, in part, been the cause of his problem), and whether that conduct would in the future evoke a similar response from others.
84. Plainly, in the circumstances of the current case, while the Tribunal found that the applicant may be caught up in generalised violence in Rivers State, and the Niger delta region (a threat of harm that was not Convention related in any event), but that plainly in circumstances where the local conditions in the Niger region were not repeated or replicated in other parts of Nigeria (particularly those where the Ibo people predominate), then in those circumstances (and with reference also to the other elements put forward by the applicant) the applicant could reasonably and safely relocate away from the Niger delta region.
85. In all, therefore, to the extent that the applicant’s second ground depends upon the submission that the Tribunal failed to properly address the question of whether there was a relevant particular social group that could be said to arise from the circumstances put forward by the applicant, this complaint does not succeed, as the circumstances put before the Tribunal did not call for, or raise, that question.
86. Further, the Tribunal did examine the issue of relocation with reference to the objections made by the applicant himself and his representative. In considering that question, the Tribunal was consistent with the relevant authorities as to whether the applicant could reasonably and safely relocate away from the Niger delta region.
87. In all, ground two does not succeed.

Ground Three

88. Ground three asserts that the hearings before the Tribunal miscarried due to the lack of a relevant Ibo interpreter (on both occasions).

The “CDs”

89. At the hearing before the Court Mr Ower sought to tender a number of compact discs (“CDs”), which he said were recordings of the hearings before the Tribunal. Mr Ower submitted that this was “an unusual step”, given that he was not seeking to tender a transcript of the hearing.
90. The reasons for seeking to tender the CDs were that the transcript would not show or be able to “catch everything” that the applicant had said. Second, that there were “extremely long pauses” between the answers that the applicant gave the Tribunal, and the next comment by the Tribunal member, which also would not be picked up by any transcript. The submission was that, for the most part, the applicant’s evidence was unintelligible from listening to the CDs and that he had a “bad accent” and tended to “gab along when he is nervous”.
91. In evidence before the Court, the applicant stated by way of affidavit that he had great difficulty in expressing himself adequately in the English language before the Tribunal, and that the Tribunal member “appeared” to him to be having difficulty in understanding him. This was despite the fact that she told him that she did understand. The applicant’s evidence was that the difficulties in communication were “the same” at both hearings.
92. The applicant points to his representative’s letter of 4 March 2009 (CB 141). The applicant had been invited to attend a hearing before the Tribunal scheduled for 11 March 2009 (CB 134). His
    “solicitor” returned on the applicant’s behalf a “Response to Hearing Invitation” form completed by the applicant, which indicated that he wished to participate in the hearing as scheduled. But that his representative, that is, his solicitor, would not be attending.
93. The solicitor sent a further letter on 4 March 2009, relevantly containing the following:
    • “When I saw him today he expressed his concern that the Tribunal might not be able to understand everything he says. He speaks fluent English but his accent and the rapidity of his speech, especially if he tense, have made it difficult for me at times to understand everything he says on first hearing. I have advised him to speak as clearly and slowly as he can”.
94. Following that hearing the applicant was invited to attend a hearing on a second occasion before the Tribunal. Again, a “Response to Hearing Invitation” form was provided, to be completed by the applicant (CB 272). This form was completed and returned to the Tribunal under cover of the solicitor’s letter of 3 April 2009 (see CB 273 to CB 275). The applicant attended that hearing with his representative (CB 276).
95. Mr Ower’s submission was that, while it is true that there had been some forty pages of documents and submissions which had been provided to the Tribunal on behalf of the applicant after the hearing on the “first” occasion, and that there may have been some issues in that material that needed to be raised at a subsequent hearing, what was significant is that in the Tribunal’s decision record itself where the Tribunal makes reference to a “second” hearing there is no clear explanation as to the reason for the “second” hearing, and whether there were any “extra issues” which were raised by this material.
96. I understand this to go to the question as to whether the Tribunal invited the applicant to a hearing on a “second” occasion because it had difficulty in understanding him on the “first”, or whether the Tribunal was properly seeking to discharge its procedural fairness obligations pursuant to s.425 of the Act by inviting the applicant to a “second” hearing to discuss issues determinative of the review, which were not discussed at the first hearing, or arising from the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR (“SZBEL”).
97. In its decision record the Tribunal relevantly said:
    • “86. At the second hearing, the applicant’s evidence was clearer, and he said that he had been confused at the first hearing because of language difficulties. However, the Tribunal considers implausible the applicant’s explanation for the failure of his family to take any action against him over the period between his announcement to his father that he would not do as requested, and his departure from Nigeria over 12 months later. He claimed that they did nothing to harm him because, after one visit to his house and February or March 2008, they could not find him. The Tribunal does not accept this explanation, given his other evidence that Port Harcourt was half an hour away from his village; and that he was always in the park, preaching, and that he was not hiding; and also that he continued to work during this period. This explanation is also inconsistent with his claims that the family was waiting until December 2008 to give him a chance to change his mind. The Tribunal considers that this last explanation is simply implausible. The Tribunal considers that the applicant’s confused and inconsistent evidence about this period is the result of him attempting to explain away the obvious issue as to the delay between the perceived threat arising, his obtaining of his passport and the making of his departure arrangements, and the actual departure”.
98. In essence, Mr Ower’s submission was that the applicant had language difficulties, and also that there were communication difficulties in the sense of the Tribunal understanding the applicant’s accent and way of speaking English. For that reason the applicant was denied a fair, or meaningful, opportunity to give his evidence and present his claims as required by s.425 of the Act.
99. In relation to the CDs, I did not take them into evidence for the following reasons. The applicant’s complaint now before the Court in relation to the hearings lacked any real particularity. As Mr Reilly submitted, neither by way of his own evidence in his affidavit, nor by way of submission, has the applicant particularised any item of misunderstanding that was said to arise at either of the two hearings. There is nothing from the applicant that points to anything reported by the Tribunal of the hearing, or in its findings, to say that the Tribunal was wrong in that it had misunderstood the applicant, or incorrectly reported some factual item at the hearing, and relied on some factual error in making its findings.
100. The allegation before the Court now, therefore, can, at best, be described as vague. In that light, the best that could be put to the Court in relation to this issue was that, in listening to the CDs, the Court may find the applicant’s presentation to be difficult to understand, and that there were long pauses between the applicant’s answers and the next comment by the Tribunal member.
101. As to whether the Court may find the applicant’s accent, or rapidity of speech, difficult to understand is, in my view, irrelevant. It is, of course, what the Tribunal member made of the applicant’s accent, and rapidity of speech, that can be the only relevant issue to this complaint. Conversely, even if I were to listen to the CDs and understand the applicant, this would not necessarily mean that the Tribunal could do so.
102. Second, as to what were said to be extremely long pauses, even accepting that to be the case, on its own this does not necessarily reveal any difficulties on the part of the Tribunal as to its understanding of what the applicant was saying.
103. There was no suggestion either by the applicant in his evidence to this Court, or submissions by Mr Ower, that listening to the CDs would reveal some comment by the Tribunal as to any lack of understanding, any request by the Tribunal to the applicant to repeat what he had said, or indeed to “slow down”. Nor, in relation to the “second” hearing, was it said that there was anything on the CDs to reveal that the applicant’s representative indicated any difficulty arising from what was said to be the extremely long pauses on the part of the Tribunal, or any difficulty otherwise.
104. Even accepting that there were extremely long pauses, this could equally have been due to the Tribunal seeking to take care in light of the great volume of material that the applicant and his representative had placed before the Tribunal, and also in light of the multifaceted claims put by the applicant before the Tribunal. Ultimately, what was said to be the long pauses may merely have been indicative of a careful and considered approach by the Tribunal.
105. But even further, even if it could be said that the extremely long pauses were indicative of some degree of difficulty on the part of the Tribunal in understanding the applicant’s accent, the long pauses could simply be because the Tribunal was taking time to properly consider and comprehend what was being said, and did so.
106. Without any particularity whatsoever, I could not see that listening to the CDs would assist in consideration of the applicant’s ground.
107. In coming to this view, I am also mindful of the type of circumstances where the Court should listen to the relevant CDs or “tapes” of a Tribunal hearing.
108. Furthermore, I note what was found in a matter on appeal from this Court in the Federal Court. In SZJBD v Minister for Immigration & Citizenship [2008] FCA 922 (“SZJBD”) (per Siopis J), the Court was relevantly presented with circumstances where (in proceedings before this Court) the Federal Magistrate had not admitted the “tapes” of the Tribunal hearing into evidence, and therefore did not listen to the “tapes” of the Tribunal hearing.
109. A circumstance identical to the current case.
110. In my view, however, that is where the similarity ends. In SZJBD the applicant was unrepresented before this Court (SZJBD v Minister for Immigration & Citizenship [2007] FMCA 1829), and the Federal Court (SZJBD at [5]), and asserted bias on the part of the Tribunal (see SZJBD [4] and [9]). The Court on appeal construed the complaint before the Federal Magistrate as one of apprehended bias (SZJBD at [5]).
111. The applicant in SZJBD claimed that at the hearing with the Tribunal she had been asked “misleading questions” and “had been bullied” by the interpreter (SZJBD at [4] and [10]), and had been “badly treated by the interpreter who, she said, was rude to her and treated her as if she was a prisoner” (SZJBD at [13]).
112. The Court found that the Federal Magistrate erred in not admitted the “tapes” of the hearing into evidence. At [19]:
     • “The effect of what the appellant said to me by way of oral submission was that the Tribunal had asked questions which indicated that it had a closed mind on whether she was a Falun Gong practitioner and that the Tribunal and interpreter had acted oppressively during the hearing. The appellant also said that the Federal Magistrate should have listened to the tape of the hearing before the Tribunal. As I have previously mentioned, I have treated the appellant’s complaint to be that the Federal Magistrate erred in failing to accept the tender of evidence advanced to support the appellant’s complaint of apprehended bias”.
113. The circumstances of the present case can clearly be distinguished.
114. First, in the current case the applicant is not before the Court in person, and with language difficulties. He is represented by counsel to speak on his behalf. This is not a case where, as in SZJBD, the applicant was hampered by (understandable) English language deficiencies and her lack of legal knowledge, such that it was necessary for the Court to properly understand and construe her complaint as a coherent and articulated ground of review (see SZJBD at [19], [21] to [23] and [25]).
115. In the current case, counsel has articulated the relevant ground for review. It is that, in the absence of an interpreter in the Ibo language, the applicant was denied a fair hearing because it may be that the Tribunal could not understand the applicant’s evidence.
116. I also note that this is clearly not an allegation of bias, nor is the complaint one of apprehended bias. The complaint is not that the Tribunal brought, or could be reasonably apprehended to have brought, a closed mind to the hearing.
117. Further, the complaint is not about some “positive” action on the part of the Tribunal. That is, the nature of its questions, the tone employed, let alone that the questions were misleading, or even that the Tribunal “bullied” the applicant, or otherwise treated him “badly”. All matters that may generally be discerned in listening to the audio of a Tribunal hearing.
118. Nor, in contrast to SZJBD, can it be said that there is anything to be derived from the Tribunal’s decision record to support the complaint, such as to require listening to the CDs of the hearing (see SZJBD at [7], when read in the context of the applicant’s complaints in that case to the Court).
119. The reference in the Tribunal’s decision record at what appears at the first sentence of paragraph 86 of the Tribunal’s record does not assist the applicant: “At the second hearing, the applicant’s evidence was clearer, and he said that he had been confused at the first hearing because of language difficulties.” (See above [97] – [106]).
120. Ultimately, as I understand the relevant test, the CDs should be admitted into evidence if they are of any probative value in the relation to the ground advanced by the applicant.
121. I cannot see this to be the case in the current circumstances. Even if I accept Mr Ower’s submission that there were long pauses between the applicant’s evidence and the next statement by the Tribunal, and even if the applicant had a strong accent which was difficult to understand, this, without anything else whatsoever, does not assist in the resolution of the applicant’s ground, which is in essence a complaint that the Tribunal did not understand him.
122. A complaint that, on the applicant’s own evidence, the Tribunal rejected in relation to the “first” hearing, and in circumstances where a “second” hearing was conducted with his representative present, and who made no complaint of this nature to the Tribunal, or subsequent to the “second” hearing. Nor, with reference to the CDs, was there any submission that the “some of the evidence” to which the submissions referred, could be found at any particular part of the CDs, or otherwise identified.

Consideration

123. The applicant’s third ground should be understood as being a complaint that the applicant was denied a proper hearing pursuant to s.425 of the Act. Even in this regard, the applicant’s submissions remained silent as to any particularity. The applicant’s written submissions assert that there was a requirement for “some of the evidence at least to be translated”. Nothing was ever put before the Court to show what “some of the evidence” was.
124. It is by now trite to say that in inviting the applicant to a hearing to give evidence, make submissions and present his arguments, such an opportunity must be meaningful and not a “hollow exercise” (for example, Mahzar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; [2000] FCA 1759 at [31]).
125. The applicant’s complaint must also be considered in light of the other evidence before the Court as contained in the Court Book.
126. First, it must be said that reports of interviews conducted at an airport upon an applicant’s arrival must be treated with some caution. The content of what an applicant says upon arrival in Australia, usually after a long aeroplane flight, needs to be approached with some understanding of the difficulties that creates.
127. Nonetheless, what can, to some extent, be relied upon, and in particular when seen in the context of what relevantly followed, is that when the applicant was interviewed on arrival in Australia at Sydney Airport on 13 December 2008, the interview was conducted in the English language, and was described as being “preferred” by the applicant. The applicant is also reported as having said that his father spoke English (see CB 103 to CB 111). The applicant has put nothing before the Court to challenge this.
128. Of far greater importance is that the applicant was represented throughout the time of the making of the application for a protection visa, the processing of that application, and subsequently, the application to the Tribunal, and throughout the period of the review, by the LAC of NSW. The same solicitor appears to have had carriage of the applicant’s matter throughout that time. That solicitor appears to have been a registered migration agent. There is no indication that she was exempt from registration (see CB 29).
129. The application for the protection visa was provided to the Minister’s Department under cover of a letter from the LAC (CB 1). That letter advised that a particular solicitor, apparently employed by the LAC, acted for the applicant. At the relevant part (CB 13 - item 11), in answer to the question as to which language the applicant was able to speak, read or write the answer was: “Ibo” (speak and read), “English” (speak, read and write) and “Pidgen” (speak, read and write).
130. The applicant provided his own statement in support of his application for a protection visa (CB 32 to CB 34). There is nothing on the face of that document to suggest that an interpreter was used in assisting in the drafting of that document.
131. I note that the complaint is not made that the applicant cannot speak or read English, but that on occasion his accent is difficult to understand. Nonetheless, what is noted above (at [129] to [130]) is of some value in relation to the applicant’s capacity to communicate in English.
132. The applicant was advised by the Minister’s Department through his representative that he would be invited to attend an interview before the delegate. The letter advised that “an interpreter will be provided if necessary” (CB 37). The applicant was invited to an interview and his advisor was notified (CB 30 to CB 43). The original of the invitation was sent to the applicant’s solicitor/migration agent (CB 43). The applicant was interviewed by the delegate on 14 January 2009 (CB 123). It does not appear that any interpreter was requested for the purpose of interpreting at that interview, and nor was any interpreter used. Importantly, there is nothing in the delegate’s decision record (CB 115 to CB 126) to show that there was any difficulty in conducting the interview in English and without the assistance of an interpreter. Nor, relevantly, in understanding the applicant.
133. Also importantly, following the hearing with the Tribunal, the applicant’s representative sent material to the Tribunal under cover of a letter dated 30 January 2009 (see CB 44). No complaint was made about any difficulty encountered by the applicant at the interview with the delegate. Nor that he believed that the delegate could not understand him.
134. The application for review was made on 4 February 2009 (CB 128). The applicant, through his representative, was invited to attend a hearing before the Tribunal (CB 133 to CB 135). Enclosed with the invitation was a “Response to Hearing Invitation” form. A completed form was returned to the Tribunal under cover of a letter from the applicant’s representative on 13 February 2009 (CB 138 to CB 140). No request was made for any interpreter. The document was signed by the applicant (CB 139 and CB 140).
135. Prior to the hearing on 5 March 2009, on 4 March 2009 (received by the Tribunal on 5 March 2009) the representative wrote to the Tribunal providing further “country information”, and making the following statement:
     • "When I saw him today he expressed his concern that the Tribunal might not be able to understand everything he says. He speaks fluent English but his accent and the rapidity of his speech, especially if he tense, have made it difficult for me at times to understand everything he says on first hearing. I have advised him to speak as clearly and slowly as he can”.
136. Two things emerge. One, that the applicant, at least on his representative’s submission, speaks fluent English. Two, that the representative had, at times, some difficulty in understanding his accent in light of his tendency to speak rapidly when tense. Significantly, no interpreter is requested, and the representative at least seems to think that the problem can be overcome by the applicant speaking clearly and slowly.
137. It appears that the representative received a recording of the hearing conducted on 11 March 2009 (which was said to be of three hours duration (CB 200)). The representative told the Tribunal that she would listen to “it” as soon as possible. Significantly, her letter advises: “If there is anything arising from the hearing which needs clarification or further submissions I will provide them as soon as possible” (CB 202, letter dated 17 March 2009).
138. The applicant’s representative sent further material to the Tribunal by facsimile transmission on 30 March 2009. Importantly, no complaint was made about what occurred at the “first” hearing (CB 250). Certainly nothing relevant to the ground under review.
139. By letter dated 1 April 2009, a Tribunal officer wrote to the applicant and his representative, and invited him to attend another hearing before the Tribunal, scheduled for 14 April 2009. Included in this letter was the following:
     • “Following the last hearing held on 11 March 2009, the Presiding Member has some additional issues that she wishes to discuss with you. Accordingly, a further hearing has been scheduled” (CB 269).
140. Another “Response to Hearing Invitation” form was enclosed, with the direction for the applicant to complete and return the form to the Tribunal. This was completed and signed by the applicant, and returned to the Tribunal under cover of a letter from the applicant’s representative (CB 273 to CB 275). Importantly, in answer to the question: “Does anyone need an interpreter”, the answer provided was “No”. The applicant’s representative indicated that she would also attend the hearing (CB 274). The hearing proceeded as arranged. Both the applicant and his representative were present. It was of one and a half hours duration (CB 276 to CB 277).
141. By letter dated 17 April 2009, after the hearing, the applicant’s representative made comprehensive submissions to the Tribunal (CB 279 to CB 289). Again, importantly, no reference whatsoever is made to any language or communication difficulties at the hearing, remembering that on the second occasion the applicant’s representative attended in person. There was nothing to say that it was felt that the Tribunal did not understand the applicant’s accent.
142. The absence of any subsequent complaint by the applicant’s representative, who was present at the hearing on the second occasion, takes on an even greater importance when viewed in light of what the Tribunal reported in its account of the hearing, relevantly at paragraphs 60 and 61 (CB 310):
     • “60. The Tribunal noted that the applicant appeared to be changing his account, as he had stated at the last hearing that his family members had harassed and bombarded him throughout early 2008 until they had suddenly cut off all contact with him. He had also stated that it was because they set a deadline of December 2008 for him to agree to what they wanted that they did not take action against him during this earlier period.
     • 61. The applicant became quite agitated and indicated that he thought it was because of language problems that he appeared to have changed his story. The hearing was adjourned for five minutes. On resumption the Tribunal asked the applicant to explain why it was that his family did no harm to him during the period September 2007 to December 2008, if it was the case that they really had an ongoing intention to harm him”.
143. In my view, it is significant that, even though the applicant became agitated, and said that the apparent change in his account was due to his language problems, five minutes later the applicant and his representative resumed at the hearing, and there is nothing either in the Tribunal’s account of what occurred at the hearing, in the representative’s subsequent submissions, nor indeed in the applicant’s evidence before the Court, to show that the representative made any complaint to the Tribunal about the integrity of the hearing being compromised because of language, communication or comprehension difficulties.
144. The Tribunal’s account reveals that the representative played an active role at the hearing. She made submissions on the applicant’s behalf (see [69] at CB 311) and plainly understood the matters of significance arising out of the hearing, which subsequently became the subject of the further written submissions. That is, the Convention nexus between the harm feared by the applicant from his family and militant groups in Rivers State because of his religion, and on the issue of whether the applicant could reasonably and safely relocate away from the Niger delta region.
145. In submissions before the Court the applicant’s counsel stated that he meant no disrespect to the “Legal Aid solicitor who was representing” the applicant, but that, after he listened to the “tapes” there was a “doubt” raised in his mind as to whether the absence of any complaint by the applicant’s representative was a persuasive reason for concluding that there was no language difficulties during the “second” hearing.
146. Whatever “doubts” counsel may have, the fact remains that the applicant was represented throughout the period of the review, and indeed the period of the processing of the application for a protection visa, by a solicitor, who was also a registered migration agent. In my mind, this raises a clear presumption that the solicitor was experienced in migration matters and, with her legal status, could also be presumed to understand the standard of language, communication and comprehension that would be required, such that the applicant could be said to have had an adequate and meaningful opportunity to give his evidence.
147. I am not prepared, without clear evidence to the contrary, to make any presumption that the solicitor acted negligently or incompetently in this regard. In fact, I take the view that, unless otherwise shown, there is a presumption as to competence on the part of solicitors, including those who act as migration agents and assist applicants before the Tribunal.
148. Further, it would be far too cynical, and in my view, improper, to suggest that the solicitor remained silent in this regard, both before the Tribunal and after the hearing, for the purpose simply of creating the very opportunity which the applicant now seeks to exploit before this Court. This is particularly so in circumstances where the applicant himself is reported as having become agitated and raised the issue of his thinking that the Tribunal had misunderstood him because of language problems.
149. Further, the applicant gives no evidence now, nor did he say to the Tribunal (with regard to what the Tribunal itself recorded at [61]: “The applicant became quite agitated and indicated that he thought it was because of language problems that he appeared to have changed his story”), that he had any difficulty in understanding the Tribunal. The difficulty was, in the applicant’s view, that the Tribunal had difficulty in understanding him.
150. The evidence before the Court as to what the Tribunal understood, or did not understand, must include the Tribunal’s own decision record and its account of what occurred at the “two” hearings.
151. Following the “first” hearing, the applicant’s representative sent a bundle of documents, being relevant country information, to the Tribunal in support of the application (CB 202 to CB 266). I note also that that was the same letter where the representative said that she would listen to the recording of the “first” hearing, and if there was anything that needed clarification or further submissions, it would be provided as soon as possible. Nothing whatsoever was provided, and nor is there any evidence that either the applicant himself, or evident by way of the Tribunal’s account, that the representative raised any relevant issue or complaint when she attended at the “second” hearing.
152. In any event, and instead, the representative sent more country information to the Tribunal under cover of letter dated 30 March 2009 (CB 250 to CB 266).
153. The Tribunal officer advised the applicant that the Tribunal wished to conduct a “second” hearing because there were “additional issues”. Mr Ower submitted that, apart from a reference to the Joint Task Force (JTF), which appears to have been a Nigerian government body operating to counter militant groups in the Niger delta region, and in particular Rivers State, it was not clear what the “additional issues” were.
154. In SZBEL the High Court clearly set out the Tribunal’s obligation in relation to procedural fairness and s.425 of the Act, which plainly applies in the current case. The Tribunal is obliged to invite an applicant to a hearing to give evidence in relation to the issues in the review. A failure by a Tribunal in this regard is jurisdictional error. That is, where an issue dispositive of the review, which did not arise as a result of the delegate’s decision, was not dealt with in such a way at a hearing before the Tribunal such that the applicant would understand the importance of such an issue as being dispositive or determinative of the review (“sufficiently indicates”). The opportunity was, therefore, not available to the applicant to address that issue.
155. That obligation is not simply discharged by providing the applicant with a hearing. It is discharged when the issue is raised in such a way that the applicant can be said to have had a meaningful opportunity to address it. If that opportunity has not been fully provided at a “first” hearing, or an issue arises subsequent to the hearing, or even if it arose at the “first” hearing but was not adequately dealt with, then, in my view, the Tribunal is obliged to provide a second opportunity to the applicant for that purpose.
156. Any plain reading of the materials submitted by the applicant through his representative subsequent to the “first” hearing reveals its clear relevance to the claims made by the applicant, and what ultimately became the issues that were dispositive of the review.
157. In addition to the matter involving the JTF, and its relevance to the claim to fear harm from militant groups, it is clear that in relation to the OPC (one of the groups from whom the applicant claimed to fear harm if he were to return, and from whom he said that he had suffered harm some eight years earlier), the Tribunal specifically noted at the “second” hearing relevant country information available to it which indicated that the OPC was not as active in Lagos now, as it had been in the period when the applicant claimed to be there (see [55] at CB 310).
158. Further, the Tribunal’s account of what occurred at the hearing shows that, to a large part, the Tribunal sought to direct the applicant to country information, and its view of it, which was information that was in addition to the country information submitted by the applicant, and also what appears to be the Tribunal’s response to the country information provided by the applicant, from which the Tribunal appeared to draw a different view from that hoped for by the applicant.
159. In particular, this was country information that went to the issue of relocation (at [65] at CB 311), information that went to the issues of violence in Rivers State and the connection between the applicant’s claim to fear harm and a Convention nexus (see [66]), the matter relating to the JTF and the Tribunal’s concern to clarify, given that the applicant’s information had raised the existence of the JTF, whether he personally feared harm from it (at [67] at CB 311). The Tribunal then put to the applicant and his representative relevant country information concerning the levels of violence in Rivers State, which again went to the issue of a Convention nexus and relocation (see [68] at CB 311).
160. These were the very issues about which the applicant’s representative sought to make yet further written submissions following the “second” hearing, an opportunity which was provided to her.
161. The applicant’s evidence before the Court is that the Tribunal conducted a “second” hearing because it appeared to him that the Tribunal member had difficulty in understanding him. I note that it was the applicant’s own evidence that the Tribunal member in fact told him that she did understand him.
162. In my view, a plain reading of the material before the Court contained in the Court Book provides a far more reasonable explanation for the “second” hearing. That is, that there were additional matters or issues that needed to be exposed to the applicant, largely arising from the country information which his representative had provided after the “first” hearing, and which were directly relevant to issues which were determinative of the review. That is, the Convention nexus between the harm feared in the Niger delta region, and the issue of relocation.
163. Further, when this is seen in light, once again, of the total absence of any complaint by the applicant’s solicitor as to any perceived difficulties, this strengthens the view that this explanation is to be preferred over the applicant’s proffered explanation.
164. Yet further, any plain reading of the Tribunal’s analysis and reasoning in its decision record, in my view, reveals that the Tribunal well understood that it was the applicant himself who was raising the issue at the “second” hearing that he had been confused at the “first” hearing because of language difficulties (see [86] at CB 316).
165. On at least a fair reading of what follows in that paragraph, the Tribunal rejected the applicant’s explanation that he had been confused because of language difficulties. A plain reading of the Tribunal’s reasoning as a whole shows that the Tribunal did not express any difficulties on its part in understanding the applicant’s evidence.
166. The applicant’s evidence now before this Court that he had great difficulty in expressing himself adequately in the English language at the “first” hearing was, in my view, rejected by the Tribunal, which instead found his evidence to be implausible. This finding was made after the applicant specifically drew the Tribunal’s attention to his view, and explanation, that he had been confused because of language difficulties. The Tribunal rejected this claim by the applicant. A claim it must be said, of which his representative remained remarkably silent both at the hearing, and subsequently, in spite of an opportunity to assert to the contrary, or at least in support of the applicant.
167. But even if it is the case that the applicant’s evidence was not clear at the “first” hearing (and, on the evidence before the Court, I am not satisfied that that is the case), then the opportunity afforded by the hearing on the “second” occasion, an opportunity where the applicant’s representative was present, and indeed played an active part, in my view, would address any concerns of a lack of clarity at the “first” hearing.
168. In this regard, I agree with Mr Reilly that it cannot be the case that if there is some misunderstanding at a hearing on the “first” occasion, and the Tribunal conducts a hearing on a “second” occasion, then that is simply enough to establish a breach of s.425 of the Act. Such a misunderstanding leading to a denial of a meaningful opportunity would need to be seen to extend over both hearings. I do not accept the applicant’s evidence now as to the claimed difficulties of communication between himself and the Tribunal at the “second” hearing in light of what has been set out above.
169. Ultimately, the applicant before the Court now, with the benefit of counsel, has provided no particularity whatsoever as to the specifics of this alleged lack of communication, or perceived lack of understanding or comprehension on the part of the Tribunal, let alone any identification as to which of the determinative issues in the review were affected by this claimed difficulty.
170. Ground three is not made out.

Conclusion

171. With the benefit of counsel, the applicant has put three grounds before the Court by way of amended application. None of the grounds succeeds in revealing jurisdictional error on the part of the Tribunal. For the applicant to succeed before the Court, jurisdictional error, at least, would need to be discerned in one of those grounds. As I cannot discern any such error, this application is dismissed.

I certify that the preceding one-hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Deputy Associate: C Jackson

Date: 17 September 2009