SZOJQ v Minister for Immigration and Citizenship [2010] FCA 1199 (5 November 2010)

Last Updated: 8 November 2010

FEDERAL COURT OF AUSTRALIA

SZOJQ v Minister for Immigration and Citizenship [2010] FCA 1199

Citation:		SZOJQ v Minister for Immigration and Citizenship [2010] FCA 1199
Appeal from:		SZOJQ v Minister for Immigration & Anor [2010] FMCA 493
Parties:		SZOJQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 962 of 2010
Judge:		GREENWOOD J
Date of judgment:		5 November 2010
Catchwords:		MIGRATION – consideration of an appeal raising grounds that the Federal Magistrates Court erred in dismissing the appellant’s application for review when it failed to receive into evidence advice received by the appellant from counsel under the Federal Magistrates Court’s legal advice scheme which the appellant sought to tender thus waiving legal professional privilege attaching to the advice – consideration of whether the Refugee Review Tribunal ought to have made inquiries into particular claims of the appellant – consideration of whether the Tribunal failed to discharge an obligation arising under s 424A(1) of the Migration Act 1958 (Cth)
Legislation:		Migration Act 1958 (Cth)
Cases cited:		SZNVA v Minister for Immigration and Citizenship [2009] FMCA 109 - cited Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 - cited Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 - cited Minister for Immigration and Citizenship v SZIAI and Anor (2009) 259 ALR 429 – cited and quoted Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41; (2010) 183 FCR 575 - cited SZYBR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 - cited VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 - cited NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 – cited
Date of hearing:	1 November 2010
Date of last submissions:	1 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	69
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr Mark Cleary
Solicitor for the First Respondent:	Clayton Utz Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 962 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOJQ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	5 NOVEMBER 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. Leave to rely upon ground 3 of the grounds of appeal to this Court is refused.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs of and incidental to the appeal.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 962 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOJQ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE:	5 NOVEMBER 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal from orders of the Federal Magistrates Court of Australia (Emmett FM) made on 12 July 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 April 2010 and delivered on 8 April 2010 affirming the decision of the first respondent’s delegate to refuse the grant of a Protection Visa (Class XA) to the appellant.
2. The background matters are these.
3. The appellant is a citizen of Nigeria who arrived in Australia in July 2008 and applied for a Protection Visa on 20 August 2008. In his original application the appellant claimed to hold a well-founded fear of persecution from persons associated with the People’s Democratic Party (“PDP”) in Nigeria. The appellant contended that he had worked with the Independent National Electoral Commission (“INEC”) in connection with an election in June 1998 registering voters and dispatching voter registration cards. He contended that he had been appointed as a “Presiding Officer” at the Presidential Election in April 2007. He contended that when the majority of the people had gone home he had been engaged in assembling ballot boxes in order to write up the result of the election when members of the PDP, some in uniform, came up to him and requested that he increase the vote of the PDP candidate. He contended that these individuals had pressured him to do so and this had resulted in what he described as “serious torture”. He said that they took the result sheet schedule for the election which was to be submitted to the Chairman of INEC at the local government level and that they had beaten him mercilessly.
4. The appellant contended, by his original application, that since those events, he had been running for his life because the PDP had sent unknown individuals to search for him to assassinate him. He said that he had slept in the bush for some days and had then stayed with his sister. He said these individuals had come to his sister’s residence and had kidnapped her. He said that he had run away. He contended that the people responsible for kidnapping his sister had told his mother that she should produce him within two days or his family would bear the consequences. He said that as a result of these events his family members had been displaced and he had lost contact with them. He also said that although he had gone to Onitsha to stay with his uncle to see if he could continue his studies for a diploma in accounting, the individuals pursuing him persisted and he could not stay there. He said that he had gone to many places to try to “secure his life” but all his efforts proved ineffective as no one was willing to help him “because of their fear of the PDP”. The appellant said in his original application that he had been President of the Catholic Youth Organisation of Nigeria in his village and that, fortunately for him, he had remembered that World Youth Day was to take place in Australia. He said that his Parish Council had promised him that they would secure a place for him through the help of the appellant’s parish priest.
5. The appellant also claimed in his original application that his life would be in jeopardy if he returned to Nigeria. He said that he had lost his mother and his sister and he was now “like an orphan”. He said that he had been abandoned by the government of Nigeria and even his fellow Christians had abandoned him as they too are fearful of the PDP. He said that the PDP had recruited people to assassinate him and that these individuals were still searching for him and were committed to “accomplishing their aim”. He said that there were “no human rights in Nigeria for people like him”. He said that those in authority in Nigeria were members of or associated with the PDP and that politicians from the PDP and their supporters “had used illegal arms to intimidate him”.
6. In support of these claims the appellant produced much documentation to the Minister’s delegate and to the Tribunal. The documents are listed by the Tribunal at paras [25], [52], [73], [75] and [143] of the Tribunal’s reasons for decision. Apart from these documents, the appellant lodged a series of statutory declarations in support of his contentions.
7. On 6 November 2008, the first respondent’s delegate refused the grant of a Protection Visa to the appellant finding that the appellant did not hold a well-founded fear of persecution for a Convention reason.
8. On 18 November 2008, the appellant lodged an application for review of the delegate’s decision in the Tribunal. On 17 March 2009, the appellant attended an oral hearing before the Tribunal. On 30 June 2009, the Tribunal constituted by Mr Hugh Wyndham affirmed the delegate’s decision. The appellant sought judicial review of that decision before the Federal Magistrates Court and on 17 November 2009 that Court quashed the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law in the discharge of the review function under the Migration Act 1958 (Cth): SZNVA v Minister for Immigration and Citizenship [2009] FMCA 109. In SZNVA v MIAC, the Federal Magistrates Court found that the Tribunal had failed to comply with the requirements of s 425 of the Migration Act thereby giving rise to jurisdictional error on the part of the Tribunal.
9. On 15 February 2010, the appellant attended an oral hearing before the Tribunal constituted by Mr Giles Short.
10. On 7 April 2010, Mr Short affirmed the delegate’s decision not to grant a Protection Visa to the appellant.
11. In reaching his decision to affirm the decision of the delegate the Tribunal member reviewed extensively the oral and written claims made by the appellant and the evidence submitted to the Minister’s delegate and the Tribunal in the course of the first and second Tribunal proceedings. The first question dealt with by the Tribunal was whether the appellant was in a fit medical state to participate in the hearing before the Tribunal. Those matters are addressed at AB351 and AB352 in the Decision Record. Mr Short assessed the medical reports provided by the appellant concerning questions going to the appellant’s mental state and, in particular, the views of a psychiatrist that the appellant suffers from an “Adjustment Disorder with depressed and anxious mood”. The Tribunal noted that the psychiatrist had observed that the appellant’s mental state varied based upon the current status of his visa application. Mr Short noted that the appellant exhibited no difficulty in recalling events at the hearing conducted before him. The Tribunal concluded that the appellant was able to participate effectively in the hearing on 15 February 2010.
12. The Tribunal then addressed the merits of the claims made by the appellant.
13. The Tribunal observed that in making its assessment of the appellant’s credibility, the Tribunal took into account the fact that the appellant had given an account of his various claims on a number of occasions including: orally at the departmental interview; the hearing before the first Tribunal, the hearing before Mr Short; in writing in his original application; and in statutory declarations made on 9 December 2008, 12 January 2009, 20 March 2009, 29 January 2010, and 18 February 2010. In examining the basis for the Tribunal’s findings, I have considered the declarations and the series of letters and testimonials submitted to the Minister’s delegate and the Tribunal during the course of the review proceedings. Further mention will be made of the particular documents in these reasons.
14. The Tribunal observed at [150] (AB353) that:

... there are significant inconsistencies in the applicant’s account which I consider are not explained by the number of times the applicant has given an account of what he claims happened to him. I consider that these inconsistencies go to whether the applicant is telling the truth about the events which he claims have placed his life in danger in Nigeria.

15. At AB353 to AB362, the Tribunal examined in considerable detail eight matters of inconsistency going to the question of whether the Tribunal could be satisfied that the appellant was telling the truth about the relevant events said to give rise to a well-founded fear of persecution for a Convention reason. There is little point in these reasons analysing each of the eight topics of inconsistency. However, some mention should be made of them as they are the foundation upon which the Tribunal reached its conclusions on credibility and then proceeded to deal with particular documents submitted to the Tribunal by the appellant in support of his claims.
16. The first matter of inconsistency concerned whether the appellant went to the police to complain about the attack upon him in April 2007. The Tribunal noted that at the departmental interview the appellant initially said that he had not been to the police because “the people who had come to the polling place had been wearing police uniforms”. The Tribunal noted that the appellant had then said that he had been to “the police in his local area and they had told him that they would look into the case but that nothing had been done”. The Tribunal noted that at the hearing when this topic was raised (that is, before Mr Short), the appellant denied that he had said that he had been to the police. The appellant said that he had told the primary decision-maker (the delegate) that he had wanted to go to the police but had been scared to do so. Mr Short noted that at the hearing before him the applicant said that while he had not gone to the police, “the Reverend Father had done so but the police may not have given him an audience”. The appellant told Mr Short that if he had gone to the police station he would have been detained there because he was “the person in question”. The Tribunal put to the appellant that his versions seemed to contradict what he had said in the departmental interview and the version the appellant had given in his statutory declaration of 29 January 2010. In that declaration, the appellant said that the Reverend Father had advised him not to go to a hospital because the hospital would have been required to report the injuries to the police and since the PDP had contacts in the police it was best to go to a chemist [so as to avoid the police]. The Tribunal thought that if the Reverend Father had given the appellant that advice it did not seem to make sense that the Reverend Father would then have gone to the police to make a report about the incident which inevitably would provide a point of contact to the appellant.
17. The Tribunal then examined aspects of the appellant’s declaration of 18 February 2010 and further aspects of the declaration of 29 January 2010. The Tribunal identified the propositions it put to the appellant in order to clarify apparent inconsistencies and concluded that the changes in the appellant’s evidence on this topic “cast doubt on whether he is telling the truth about the events which he claims have placed his life in danger in Nigeria”.
18. The second topic concerned the difficulty the Tribunal had with the appellant’s evidence that he did not report the events which he claimed occurred at INEC. The appellant at the hearing before the first Tribunal said that he had not talked to anyone at INEC about those events because some of the top officials of INEC were affiliated with or influenced by the PDP. Mr Short noted that at the hearing before him, the appellant said that he had not reported the events at INEC because the Reverend Father had said that this would “make more problems for him because some of the INEC people were working under the authority of the PDP”. He also explained that he did not have any communication link to make any report to the INEC office about the taking of the results sheets for the election and that he had been suffering from the assault and had been running for his own safety. The Tribunal at paras [156] to [159] (AB354 and AB355) notes what it regards as apparent inconsistencies in the appellant’s sequence of statements about that matter.
19. The third inconsistency concerned evidence of the appellant that he had suffered a significant wound to his stomach and that he did not go to hospital to deal with that issue. The Tribunal noted that in his statutory declaration of 29 January 2010 the appellant had said that as a result of an assault upon him on 14 April 2007 he “had a big wound to my stomach – I was covered in blood”. The Tribunal found it difficult to reconcile that claim with his evidence that he did not need to go to a hospital.
20. The fourth matter concerned what was described by the Tribunal as “significant differences” in his account of what happened when his sister was said to have been kidnapped. The Tribunal examined the claims made in the appellant’s statutory declaration made on 12 January 2009, the version of events in the declaration of 29 January 2010, aspects of the declaration made on 18 February 2010 and the appellant’s oral evidence at the hearing. The Tribunal expressed concern about inconsistencies in the appellant’s evidence on this topic. The Tribunal noted that it gave no weight to the inconsistency in the appellant’s evidence concerning the date on which he claimed his sister was kidnapped and nor did the Tribunal expect the appellant to be able to give detailed accounts of what the PDP individuals looked like or what they were wearing or such matters. The Tribunal, however, thought that the appellant ought to be able to recall with consistency the core events concerning this matter and give a consistent account of what he did when he saw the car approaching (carrying the abductors), what he heard, saw and did. The Tribunal considered that the appellant’s final statutory declaration was “an unconvincing attempt to reconcile the differences in the accounts he has given”. The Tribunal concluded that it could not accept that the appellant was telling the truth about these events.
21. As to the other identified inconsistencies, it is sufficient to say that the fifth topic concerned inconsistencies in the evidence with regard to the appellant’s claims of the events that occurred when he went to Onitsha. The sixth inconsistency concerned the appellant’s claim that he had gone to different places to secure his safety whereas at the hearing before the first Tribunal on 17 March 2009 he claimed for the first time that he had spent a year in hiding inside his uncle’s house in Onitsha. The seventh topic of inconsistency concerned a claim made before the first Tribunal on 17 March 2009 on behalf of the appellant that his actions demonstrated that he was opposed to the corruption that seemed to mar the electoral process in Nigeria and it would be reasonable to infer that the appellant would continue to oppose corrupt activity of government officials if he were to return to Nigeria. This would place him at further risk of harm over and above any risk of harm arising out of the events of 2007. The Tribunal examined that topic against the background of the appellant’s statutory declaration made on 20 March 1999, his declaration of 29 January 2010 and submissions put to the Tribunal.
22. The eighth topic concerned the contention that workers employed for or engaged by INEC had been subjected to intimidation in particular ways. The Tribunal was not satisfied that the material put to it by the appellant’s representatives supported such a claim.
23. Having expressed concerns about these eight topics of inconsistency, the Tribunal then considered documents put to it by the appellant in support of his claims. The appellant produced, as evidence-in-support, a letter from HRH Igwe I O Ugwu, the Ezechikwadolu I of Amagu Akegbe Uwani, and a letter from the Parish Priest at St Patrick’s Catholic Parish, Amagu, Akagbe Uwani Awkunanaw, Enugu, Reverend Father Chidiebere Anih. The Tribunal discussed aspects of those letters which suggested to it that they were unreliable. The appellant also relied upon a second letter from HRH Igwe I O Ugwu. The Tribunal discussed aspects of that letter. The Tribunal, in the light of its analysis of the difficulties with the first two letters, concluded that the letters have “a common origin and that they are not genuine”.
24. At [192] (AB363), the Tribunal noted that the appellant’s representative produced to the Tribunal a copy of what purports to be a letter from INEC dated 25 March 2009 certifying that the appellant worked for the Commission at the 2007 election as a presiding officer at primary school Amagu I in Akegbe-Ugwu Ward 2. As to that letter, the Tribunal said this:

As I explained to the applicant in the course of the hearing before me, I am unable to check with INEC to ascertain if this document is genuine because he is claiming that he fears being persecuted by the Nigerian authorities and INEC as part of the Nigerian Government. As I put to the applicant, however, the information available to me indicates that any official document can be fraudulently obtained in Nigeria (UK Home Office, UK Border Agency, Country of Origin Information Report – Nigeria, 9 June 2009, paras 31.01 – 31.04). The applicant said that the Reverend Father had obtained all these documents for him but since for the reasons given above I do not accept that the letters which the applicant produced purporting to be from his Parish Priest are genuine I do not accept that his Parish Priest has been assisting him by providing him with other documents as he claims.

25. At [193], the Tribunal said this:

In making my finding with regard to the applicant’s overall credibility I do not consider that the letter from INEC outweighs the problems with the applicant’s evidence which I have identified above. For the reasons given above I do not accept that the applicant is telling the truth about the events which he claims have placed his life in danger in Nigeria. I do not accept that he was the Presiding Officer at a polling station at the elections in April 2007, nor, that he was assaulted by people from the PDP or policemen or policewomen because he refused to alter the results sheet to increase the PDP vote, nor that thereafter the PDP sent people to his home to kill him, nor that they kidnapped his sister, nor that they threatened his mother demanding that she should produce him within two days or his family would bear the consequences nor that the applicant remained in a dark room in his uncle’s house in Onitsha from May 2007 until July 2008 when he came to Australia for World Youth Day.

I do not consider that the applicant is a witness of truth. For the reasons given above I consider that the letters he has produced purporting to be from [authors identified] are not genuine.

In light of my finding that the applicant is not a witness of truth, my rejection of his claim that he was the Presiding Officer at a polling station at the elections in April 2007, and the information regarding the availability of fraudulent documents in Nigeria referred to in the previous paragraph, I give the letter which the applicant produced purporting to be from INEC no weight.

26. At [194], the Tribunal said:

Having regard to the view I have formed of the applicant’s credibility I do not accept that he is opposed to the PDP and corruption. I do not accept, in particular, that, as the applicant’s representative said in his submission dated 29 January 2010, the applicant will be at high risk because he will refuse to pay bribes if he returns to Nigeria.

27. At [194], the Tribunal further said:

I accept that the applicant is a Catholic and I accept that he was involved in the Adoration Ministry as he claimed at the hearing before me. For the reasons given above, I do not accept, however, that he ever had any problems as a result of his involvement in the Adoration Ministry nor that he considered that he had to conceal his involvement in the Adoration Ministry to avoid detection.

... I do not accept on the evidence before me that there is a real chance that if the applicant returns to Nigeria and continues his involvement in the Adoration Ministry, he will be persecuted for reasons of that involvement.

28. At [195], the Tribunal concluded its discussion of the risk of interrogation of the appellant by Nigerian security forces by saying:

In summary I do not accept that there is a real chance that the applicant will be persecuted for reasons of his real or imputed political opinion or his religion if he returns to Nigeria now or in the reasonably foreseeable future.

29. The appellant had contended before the Tribunal that he would face a well-founded fear of persecution by reason of his physical or mental disabilities if he returned to Nigeria and, in particular, that he would suffer discrimination in employment by reason of his disabilities. As to those matters, the Tribunal said this at [197]:

However the applicant produced evidence to the first Tribunal confirming that he had been employed as a teacher at a school in Enugu from 2002 until 2007. Since for the reasons given above I do not accept that the applicant is telling the truth about the events which he claims have placed his life in danger in Nigeria, I do not accept on the basis of the evidence before me that there is a real chance that the applicant will not be able to resume his career as a teacher in Nigeria. I do not accept on the basis of the evidence before me that there is a real chance that the applicant will face discrimination in relation to his employment in Nigeria as a result of his physical and mental disabilities that is so severe or so significant in its extent as to amount to persecution for the purposes of the Refugees Convention.

30. Having regard to these matters, the Tribunal concluded that it could not be satisfied that the applicant held a well-founded fear of persecution for a Convention reason should he return to Nigeria now or in the reasonably foreseeable future and thus the Tribunal was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention and the provisions of the Migration Act.
31. In the course of considering the foundation upon which the Tribunal reached its decision, I have considered the documents and in particular the letter under the letterhead of St Patrick’s Catholic Parish dated 26 June 2008; the letter under the letterhead of [HRH] Igwe I O Ugwu dated 27 June 2008; the letter under the letterhead of [HRH] Igwe I O Ugwu dated 8 December 2008; the letter under the letterhead of St Patrick’s Catholic Parish dated 10 December 2008; the submission from CraddockMurrayNewmann Lawyers on behalf of the appellant dated 23 March 2009 and the letter from those lawyers dated 1 April 2009; the letter under the letterhead of [INEC] dated 25 March 2009; the letters from Legal Aid New South Wales dated 29 January 2010, 8 February 2010 and 11 February 2010. I have also reviewed the submission dated 25 February 2010 from Legal Aid. I have also considered the statutory declarations and attachments to the various letters I have mentioned (where attachments are included).
32. I have examined these matters fully because in submissions before this Court on the hearing of the appeal the appellant places particular emphasis upon the failure of the Tribunal to consider the circumstances upon which the appellant claims to hold a well-founded fear of persecution and the decision by the Tribunal to place no weight upon the letters placed before it by the appellant. These matters, of course, go to the merits and although the appellant, through the interpreter assisting him, was advised by the Court that his obligation is to demonstrate error on the part of the primary judge rather than invite the Federal Court to embark upon a consideration of the merits of his claim (analysed by the Tribunal), the Court has taken the step of reviewing the basis upon which the Tribunal reached its decision so as to demonstrate to the appellant that the process of reasoning within the Tribunal has been fully examined by this Court. It is clear that the Tribunal examined each of the claims of the appellant said to give rise to a well-founded fear of persecution and tested the creditworthiness of the appellant’s versions of events. The conclusions the Tribunal reached as to credit were plainly open to it.
33. Before the Federal Magistrates Court, the appellant contended that the Tribunal had engaged in jurisdictional error in purporting to exercise the statutory review power under the Migration Act. The grounds upon which that error is said to have occurred were:
    1. That the Tribunal found that certain documents provided by the Applicant to the Department or Tribunal were not genuine. The Tribunal fell into jurisdictional error in making these findings.
       
    2. The Tribunal found that it was not satisfied that the Applicant faced a real chance of persecution in Nigeria. The Tribunal fell into jurisdictional error in making these findings.
       
34. The appellant expanded ground 1 before Emmett FM and contended that the Tribunal fell into jurisdictional error because it failed to investigate the authenticity of the letters by means not engaging the Nigerian government; and the Tribunal failed to provide the appellant with an opportunity to provide the Tribunal with further documents to be sourced from the appellant’s parish priest, [HRH] Igwe I O Ugwu and INEC. Emmett FM noted that the appellant’s post-hearing submission made to the Tribunal did not seek further time to put in additional documents from those sources (or others).
35. As to the contention of jurisdictional error by rejecting the letters as unreliable or not genuine, Emmett FM noted that the Tribunal had examined the content of the appellant’s claims and had put its concerns about inconsistencies in the appellant’s various versions of events to him. The Tribunal also had regard to the appellant’s oral evidence in the context of assessments of country information upon which the Tribunal elected to rely. The relevance of the information was explained to the appellant and he was given an opportunity (and time) to comment on the information. The appellant’s adviser sent a post-hearing submission to the Tribunal dated 25 February 2010 which the Tribunal considered.
36. The point, of course, is that the Tribunal reasoned that in light of the inconsistencies (and particularly the eight topics discussed extensively in the decision record), it could have no confidence that the appellant was telling the truth. The second step in the reasoning was to test the appellant’s contentions against country information available to the Tribunal. The appellant had contended that he (and others) had been targeted by PDP supporters when working for INEC in April 2007, and those opposed to the regime are routinely harmed by authorities of the regime. The Tribunal chose to rely on country information that suggested that persons working for INEC were not selected for harmful treatment as the appellant contended and that opponents of the regime are not “routinely harmed”. It was entitled to have regard to the country information and place weight upon it as it determined appropriate: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.
37. The third step was to examine each of the letters and determine whether aspects of those documents suggested that they may not be genuine especially by comparing a number of letters said to have been sent by the same author to assess apparent inconsistencies on the face of the documents such as differences in the spelling of names etc. A further step was to take account of document fraud in connection with documents either generated in Nigeria or used in support of claims on behalf of Nigerian citizens.
38. Having regard to each of these three factors and the conjunction of them, Emmett FM concluded that the Tribunal had undertaken a process of reasoning which led to conclusions to reject the documents and those conclusions were open to the Tribunal on the evidence and material before it for the reasons it gave.
39. As to the contention made by the appellant in expansion of ground 1 that the Tribunal fell into jurisdictional error because it failed to investigate the authenticity of the letters by independent means outside the Nigerian government, Emmett FM correctly observed that the obligation of the Tribunal is a statutory obligation to undertake a review rather than an obligation to investigate a sequence of claims made by an applicant for a Protection Visa. The appellant had placed evidence before the Tribunal in the form of documents, statutory declarations, oral versions of the events in interview and by giving evidence at a hearing. The Tribunal relied upon all of the material in reaching its findings and those findings were open on the evidence.
40. There was nothing in the material before the Tribunal or events occurring in the course of the review proceeding which cast an obligation on the Tribunal to enquire into the appellant’s claims such that a failure to do so might be thought to give rise to a failure to exercise the statutory review jurisdiction and thus elevate a failure to inquire into jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12. In Minister for Immigration and Citizenship v SZIAI and Anor (2009) 259 ALR 429, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said this at [25]:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[emphasis added]

41. There is nothing in the review process undertaken by the Tribunal that suggests a failure to make an obvious inquiry about a critical fact, the existence of which might be easily ascertained, with the result that the Tribunal engaged in a constructive failure to exercise the statutory review function. Further, the appellant had every opportunity to put material before the Tribunal. The Tribunal was not obliged to conduct an inquiry to discover whether the appellant’s case might be supported by evidence derived from such inquiries: Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41; (2010) 183 FCR 575.
42. Accordingly, Emmett FM correctly concluded that ground 1, as expanded before her Honour by the appellant, was not made out.
43. As to ground 2, Emmett FM correctly concluded that there were no particulars, evidence or submissions directed to ground 2 and a consideration of the decision record demonstrated that the Tribunal had undertaken an extensive consideration of the appellant’s claims so as to determine whether the appellant faced a real chance of persecution in Nigeria as claimed. The Tribunal determined that it could not be satisfied that the appellant held a well-founded fear of a real chance of persecution should he return to Nigeria. Since the Tribunal could not be satisfied of those matters, the Tribunal was required, by the Migration Act, to refuse the appellant a Protection Visa.
44. By the appellant’s notice of appeal to this Court, the appellant relies upon three grounds of appeal from the decision of Emmett FM. The three grounds are these:
    1. That Emmett FM did not afford me procedural fairness when she did not allow me to hand up the legal advice given to me by the court’s legal advice scheme lawyer;
       
    2. Procedural fairness dictates that RRT member, having raised the general issue [of] document fraud and his refusal to make inquiries to verify the document, inquiries could have been made with non-Nigerian government sources as to whether I worked for INEC in April 2007 elections;
       
    3. Procedural fairness dictates that the proceedings should have been adjourned with the Tribunal giving me written notice under section 424A so that I had the opportunity to put forward evidence in support of my assertion that I worked for INEC in April 2007 election, and/or that the document was genuine.
       
45. The references in these grounds of appeal to “the document” seems to be a reference to the letters mentioned in paras [188] to [193] of the Tribunal’s decision record already discussed earlier in these reasons. The first ground of appeal is a challenge to the procedural events which occurred in the course of the hearing before Emmett FM. The second ground of appeal agitates before this Court ground 1 argued before Emmett FM. The third ground of appeal raises a new matter not previously raised before Emmett FM.
46. As to the first ground of appeal, counsel for the first respondent who also appeared on behalf of the Minister before Emmett FM concedes on behalf of the Minister that during the hearing of the appellant’s application before Emmett FM on 12 July 2010, the appellant attempted to tender in the application and thus place before Emmett FM a copy of legal advice given to the appellant by the Federal Magistrates Court’s legal advice scheme lawyer. Her Honour refused to admit the document into evidence on the footing that it was a document subject to legal professional privilege obtained by the appellant from the scheme lawyer and was confidential to the appellant.
47. The appellant was entitled to disclose the document and abandon or waive the privilege attaching to the advice if he chose to do so. It may well be that because the appellant was self-represented before Emmett FM and assisted only by an interpreter, that Emmett FM was reluctant to receive the document without the appellant having the opportunity of obtaining legal advice concerning the consequences of waiving privilege attaching to the document.
48. If the appellant thought, however, that the document contained submissions which might assist him in demonstrating the merits of the grounds of his application before Emmett FM or that the document contained a statement of position upon which he wanted to rely, the appellant was entitled to put that material before the Court.
49. In order to deal with the matter before this Court, the appellant was asked whether he had the advice with him which he had sought to put before the Federal Magistrates Court. He said he had the advice with him. The advice is a five page opinion of Mr Gregory J Sarginson of counsel. The advice is dated 25 June 2010. It seems to me that Emmett FM ought to have explained to the appellant that the document attracted legal professional privilege and that it consisted of advice which was, as the document recites, private and confidential to the appellant. Her Honour might properly have explained to the appellant that although the document was so protected, the appellant might choose to abandon the privilege or protection attaching to it and rely upon it by tendering the advice.
50. Further, Emmett FM ought to have explained to the appellant the implications of doing so and especially the possibility that the document might either provide assistance in supporting the grounds of review before the Federal Magistrates Court; provide little or no assistance in that regard; or, reflect the expression of opinions which might be prejudicial to the appellant.
51. If a procedural error occurred in the conduct of the judicial review proceedings before Emmett FM arising out of a failure to explain the nature of legal professional privilege and the options available to the appellant in dealing with the document before the Court which might have led to an informed decision to tender the document in support of the grounds agitated before Emmett FM, the proper course now is to receive the document and determine whether a consideration of the advice would have affected the outcome of the grounds advanced before Emmett FM.
52. Accordingly, the Court explained extensively the options available to the appellant, the privilege and confidentiality attaching to the advice and the implications of tendering the advice and relying upon it before this Court. In the course of the hearing of the appeal before this Court, the Court explained to the appellant that should he seek to rely upon the document, tender it, and thus disclose it, the privilege would be lost. The Court also explained that a copy of the advice would be provided to the Minister, and the Minister’s advisers would be given an opportunity to make submissions in relation to it, whether in writing or otherwise.
53. Having canvassed all of those matters, the appellant urged the Court to accept the advice on the footing that ground 1 of the appeal to this Court is made out and the Court ought to consider the advice in determining whether the advice, had it been received before Emmett FM, would have made out either ground advanced before Emmett FM with the result that the orders of Emmett FM be set aside and the matter remitted to her Honour for further consideration of the advice.
54. This Court, in exercising its appellate jurisdiction, is in a position to consider the advice and determine whether the advice advances the grounds agitated before Emmett FM.
55. Accordingly, the advice of Mr Sarginson was received by this Court and has been considered. Counsel for the first respondent made oral submissions in the course of the hearing of the appeal.
56. The central matter is this. The advice says that it is clear that the letter from INEC dated 25 March 2009 enclosed with the letter from CraddockMurrayNewmann Lawyers dated 1 April 2009 was central to the appellant’s claim before the Tribunal of a well-founded fear of persecution for a Convention reason. The opinion observes that if this letter had been accepted as genuine, the Tribunal would have then had to consider whether the appellant held a well-founded fear of persecution by reason of being involved in the April 2007 election and witnessing corruption even if the Tribunal rejected other aspects of the appellant’s claim. The advice says that an argument might be raised by the appellant that two grounds of procedural fairness might be agitated. First, that the appellant was denied procedural fairness because inquiries could have been made with non-Nigerian government sources to determine whether the appellant worked for INEC in the April 2007 elections, especially in circumstances where the Tribunal member had raised the general issue of document fraud and had refused to make inquiries to verify the genuineness or otherwise of the INEC letter. The second argument that might have been raised was that the appellant was denied procedural fairness because the review proceeding ought to have been adjourned with the Tribunal giving the appellant written notice under s 424A of the Migration Act so as to provide the appellant with an opportunity to put forward further evidence in support of his claims that he worked for INEC in the April 2007 election or other evidence which establishes that the INEC letter was genuine.
57. The advice concedes that the difficulty with either of the above arguments is the multiple credibility findings made against the appellant and the detailed reasons given by the Tribunal member. The advice also concedes that the Minister might be likely to contend that s 424A is not engaged as the provision is “related to the existence of evidentiary material or documents, not the existence of doubts, inconsistencies or the absence of evidence” and the advice cites SZYBR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 as the source of the quoted observation. Those words derive from the reference in the judgment of the Court at [18] to the observations of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477.
58. It is true that the Tribunal might have elected to make inquiries with non-Nigerian government sources to determine whether the appellant worked for INEC in or in connection with the April 2007 elections. However, the Tribunal reached a conclusion that the appellant was not telling the truth in relation to his claims. It did so on the basis of the steps in the process of reasoning discussed earlier and by recognising that document fraud is an issue in relation to documents generated within Nigeria. The conjunction of those steps and the matters referred to by the Tribunal provided a foundation upon which the Tribunal could quite properly deal with the question of credit and reliability or unreliability. Although the letter from INEC dated 25 March 2009 was an important letter, circumstances were such that it cannot be said that the Tribunal engaged in a failure to make an obvious inquiry about a critical fact, the existence of which might have been easily ascertained with the result that a failure to make that inquiry gave rise to a constructive failure to exercise jurisdiction. Quite apart from the INEC letter of 25 March 2009, there were facts, circumstances and evidence before the Tribunal upon which it was entitled to rely in reaching a conclusion that it could not be satisfied that the appellant had demonstrated that he truthfully held a well-founded fear of a real chance of persecution should he return to Nigeria, on the footing of the claims made before the Tribunal.
59. Accordingly, I am not satisfied that the reception of the advice before Emmett FM would have advanced ground 1 of the grounds agitated before her Honour.
60. As to ground 2 of the appeal to this Court, the appellant contends that the Tribunal was obliged to make its own inquiries with non-Nigerian government sources as to whether the appellant worked for INEC in the April 2007 elections. This ground re-agitates ground 1 argued before Emmett FM. For all the reasons already indicated, I am not satisfied that there is any error demonstrated in the process of reasoning of Emmett FM in the disposition of that ground before her Honour. Her Honour referred to correct statements of principle supported by authority and no error is demonstrated in the analysis of the application of those principles to the steps undertaken by the Tribunal and accordingly ground 2 of the appeal to this Court is not made out.
61. Ground 3 of the appeal takes up the notion of a failure on the part of the Tribunal to comply with the requirements of s 424A of the Migration Act. That matter was not agitated before Emmett FM. In order to rely upon this ground, leave of this Court is necessary: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51.
62. The appellant’s contention is that he was denied procedural fairness because the review proceeding ought to have been adjourned with the Tribunal giving notice to the appellant under s 424A of relevant matters so as to provide the appellant with an opportunity to put forward evidence in support of his contention that he worked for INEC in April 2007 in connection with the election and that the letter of 25 March 2009 is a genuine letter.
63. The terms of s 424A are well understood. The section provides that the Tribunal must give to the applicant, in the way the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of its being relied upon in affirming the decision under review; and invite the applicant to comment or respond to it. Section 424A(3) provides that the section does not apply to information that the applicant gave for the purpose of the application for review before the Tribunal or information that the applicant gave during the process that led to the decision that is under review other than information that was provided orally by the applicant to the Department.
64. In this case, the appellant made a claim grounded upon information put to the delegate and the Tribunal in documents and in oral evidence that he was working for INEC during the period of the April 2007 elections. He sought to corroborate that claim made in his application form and in statutory declarations by lodging corroborative letters with the delegate and the Tribunal including the letter under the letterhead of INEC dated 25 March 2009 which was lodged with the Tribunal by the appellant’s legal advisers.
65. The information that the appellant contends the Tribunal ought to have put to him in the form of clear particulars that would be the reason or a part of the reason for affirming the decision under review was information squarely falling within s 424A(3)(b).
66. In any event, during the course of the Tribunal hearing, the Tribunal put to the appellant its precise and focused concerns about the appellant’s claims to have worked for INEC during the period of the April 2007 elections and the genuineness of the corroborative documents having regard to the inconsistencies surrounding the appellant’s oral evidence. The appellant could not have been in any doubt about the concerns the Tribunal held about the question of whether he worked for INEC in April 2007 and whether the corroborative letters including the letter of 25 March 2009 was genuine.
67. However, s 424A was not engaged in the circumstances of this review proceeding in relation to the information that the appellant contends ought to have been the subject of s 424A(1). Since ground 3, reliant on s 424A, has no merit, leave is refused.
68. It follows that grounds 2 and 3 before this Court have not been made out. I am satisfied that ground 1 of the appeal to this Court is made out. However, I am satisfied that the election by Emmett FM to refuse the reception of Mr Sarginson’s advice did not affect the proper determination of ground 1 of the grounds of review agitated before Emmett FM.
69. Accordingly, the appeal to this Court will be dismissed with costs.

I certify that the preceding sixty-nine (69) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated: 5 November 2010