FEDERAL COURT OF AUSTRALIA Ezeribe v Minister for Immigration and Multicultural Affairs [2001] FCA 275 MIGRATION – application for protectionvisa - application for review of decision of Refugee Review Tribunal – whether RRT decision involved an error of law – whether RRT decision based on a fact that did not exist - whether decision affected by actual bias – where Tribunal member stated that some of the applicant's evidence was 'rubbish' C v Minister for Immigration & Multicultural Affairs [2000] FCA 1649, followed Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73, referred to Neil v Nott (1994) 121 ALR 148, referred to ANAYO CHRISTOPHER EZERIBE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1472 of 2000 MOORE J 21 MARCH 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1472 OF 2000 BETWEEN: ANAYO CHRISTOPHER EZERIBE APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 21 MARCH 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1472 OF 2000 BETWEEN: ANAYO CHRISTOPHER EZERIBE APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MOORE J DATE: 21 MARCH 2001 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This is an application by Anayo Christopher Ezeribe ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 19 December 2000. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention"). Background 2 The applicant is a citizen of Nigeria. He arrived in Australia on 25 September 2000. On 26 September 2000 the applicant lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 26 October 2000 a delegate of the Minister refused the grant of a protection visa and on 27 October 2000 the applicant applied to the Tribunal for review of that decision. 3 The substance of the applicant's case before the Tribunal was that he feared persecution, if forced to return to Nigeria, because he was a Christian, and specifically, because he feared harm at the hands of Muslims seeking to avenge the death of family members who had been killed by the applicant's father. He also feared persecution because of his membership of MASSOB (Movement for the Actualisation of the Sovereign State of Biafra), a group fighting for human rights for members of the Igbo tribe, to which the applicant belonged and which he claimed were being targeted by the government. The Tribunal's reasons 4 The reasons for the decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 and Chen v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553. In a section headed "Claims and Evidence", the Tribunal summarised the claims made by the applicant in the record of interview with an immigration inspector at the airport, in written submissions, in the record of interview with an officer of the Department and in the oral evidence to the Tribunal. 5 The applicant claimed to be a Christian and a member of the Igbo tribe, there being three ethnic groups in Nigeria, namely: Igbo, Hausa and Yoroba. The applicant's family came from the predominantly Igbo state of Anambra, where they resided until 1990. At that time, for reasons related to his father's business, the family relocated to Kaduna. The applicant stated that Kaduna had a population of approximately five million people, the majority of which were Hausas (practising Muslims), and the minority being Christians (approximately five thousand). There were no religious problems until the introduction of Sharia law in early 2000. 6 With the introduction of Sharia law Muslims began approaching Christians in the street, urging them to convert to Islam or leave the state. The applicant claimed that violence commenced in April 2000 (this was later corrected to February 2000). The applicant described an incident, during a period of civil unrest, when he had been in the shop owned by his father. He said that he had seen Christians being pursued and killed by Muslims for not obeying the Sharia law. The applicant fled from the shop, learning afterwards that it had been destroyed. It was also revealed later that the Church that he and his family attended had been burned. The applicant recounted that he had travelled approximately 10 kilometres to his house, and on arriving saw it and other Christian houses being destroyed by Muslims. He did not, at this stage, know where his family was. He then left the area by lorry in a convoy of lorries provided by Igbo people helping those whose homes and shops had been destroyed. He travelled by lorry to Zaria State and from there caught a bus to Lagos. The applicant stayed for some days with a friend of his father. It was then that he heard that his parents had been killed by Muslims in retaliation for his father killing three Muslim people at the time their house and shop had been destroyed. The applicant said he had been told that the immediate family of the three Muslims killed by his father were looking for him and his sister, to "avenge the death of their family". 7 While staying with his father's friend he received information that the government was trying to find him, because, as he stated: "…my father is unpopular because he was a sponsor and member of Massobb. He joined the group in March 1999. I am a member also. The Massobb are fighting for Igbo's human rights and they want an independent Biafra. Massobb organises meetings, they go to international Embassies and they try to explain the position of Igbos in Nigeria. They also organise peaceful demonstration." In August 2000 the applicant attended, with his father's friend (an executive member of MASSOB), a protest organised by MASSOB to coincide with the visit to Nigeria of the President of the United States. He claimed that during the protest three people were shot and he, among others, was arrested and taken to a police station. He claimed to have been incarcerated in a cell for about four days, and only released after Igbo representatives in the government ordered that MASSOB members be freed. It was after this incident that he found out, through his father's friend, that members of MASSOB were beginning to disappear and was told that the government was secretly killing them. He then left Nigeria with the help of his father's friend, who was also leaving the country. 8 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". The Tribunal was not satisfied that the applicant "has suffered harm, let alone harm amounting to persecution, in the past for reason of his Christianity or any other Convention reason". Neither was it satisfied that he would do so in the foreseeable future, or that he had a well founded fear of persecution. The reasons for its conclusion are summarised below. 9 The Tribunal did not find the applicant to be a credible witness, stating that he did not reveal a knowledge of events (that he had claimed to experience personally) that was consistent with external information. It cited independent evidence that Kaduna "is split almost equally between Muslims … and Christians", and a BBC World Report in October 2000 in which the State Governor had said that: "'The State shall not profess any particular religion' because of the multi faith nature of Kaduna. A compromise will see the introduction of Sharia courts for religious and family matters for those Muslims who choose to be tried under sharia, and the continuance of customary courts for non-Muslims." 10 The Tribunal also doubted the applicant's account of events from the time he fled his father's shop until he reached the sanctuary of his father's friend's house in Lagos, finding it unlikely that: "The applicant … saw his house in flames, saw people trying to quell the fire but recognised none of them, did not attempt to join the rescue effort of his house, but saw another group of militant Muslims and fled. At the same time, his father must have been present at the scene as the account of his father's death is that the father shot one or more of the Muslims who were attempting to destroy his house. (It was established that the applicant's house and his father's house is one and the same premises). This implies that the Muslims were there prior to the fire, but the applicant saw the house on fire first and then, after that, the Muslim mob came. If the scene at the time was so chaotic that the applicant could not recognise the fire fighters whom he presumed to be his neighbours, then it is implausible that members of the Muslim mob would recognise the applicant's father and be able to identify him as the one who shot at them, killing one or more of their number. Furthermore, if the applicant who was at the scene of the destruction of his house was able to see so little, it is implausible that other bystanders were able to report clearly what happened to the applicant's father … and relay this story so that it reached not the applicant but his father's friend hundreds of kilometres away in Lagos." 11 The Tribunal, when dealing with the applicant's evidence about revenge killings, found that the independent evidence offered by his advisor did not support his account, and that it was actually contrary to his account. The evidence provided was from an article from the Reuters Business Briefing of 23 October 2000, which stated that: "(A)fter the death of many Christians in Kaduna, 'hundreds of northern Muslims, mostly Hausa-Fulani traders, were slaughtered by the grieving relatives of the dead in the south-eastern city of Aba'. Earlier reports (March 2000) show that when the bodies of the dead Christians from Kaduna were returned to their Ibo homelands in the south-east of Nigeria for burial, enraged local Ibo youth attacked the Hausa population in reprisal." The Tribunal considered it implausible that "any northern Muslims would voluntarily journey to Ibo homelands while their compatriots were fleeing from there", and was not "satisfied that the applicant is the target of a revenge-seeking Muslim family", stating that "even if this were so, he can avail himself of the protection of his state which has exerted its authority over those taking the law into their own hands." The Tribunal indicated it was satisfied the applicant could return to Kaduna and continue to live there. While it did not say so expressly, the clear implication of its finding was that the applicant could live in Kaduna without fear of harm amounting to persecution. That was because the state had restored law and order and the applicant would be a member of a large Christian minority. 12 The Tribunal then turned to the issue of the applicant's claim based on his membership of MASSOB, dismissing the claim on the basis that it did not find any independent evidence indicating that MASSOB is a proscribed organisation, or any evidence that people were in fact killed and arrested during a demonstration when President Clinton visited Nigeria. It stated: "(P)resident Clinton spent only two days in Nigeria on 26-27 August 2000, staying the whole time in the federal capital of Abuja in order not to inflame any north/south rivalries within Nigeria. On the day that the applicant claims he was demonstrating – 28 August 2000 – President Clinton was not in Lagos but in Tanzania. (See BBC News World Service, 26-28 August 2000 ….). It seems implausible that MASSOB would schedule a demonstration at the US Embassy to protest the Nigerian Government's treatment of MASSOB at a time when there was no important American visitor to witness this protest." The Tribunal concluded that it was not satisfied, on all the evidence, that the applicant was "a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, and thereby not satisfying "the criterion set out in s.36(2) of the Act for a protection visa." Issues in the application and their consideration 13 The application for judicial review was filed by the applicant personally and did not reveal in any detailed way the grounds of review. Since the application was filed counsel has been retained by the applicant who prepared and filed written submissions. Regrettably the written submissions did not, with absolute clarity, identify the grounds of review. However the grounds relied on emerged during the hearing and the following is my consideration of them. 14 (i) error of law: It was submitted by counsel for the applicant that the Tribunal had erred in law in its approach to the prospect that the applicant might be attacked on his return to Nigeria. Reference was made to an observation of the Tribunal in its reasons with regard to the course the hearing before it had taken. The Tribunal said: "The Tribunal also put to the applicant that a revenge killing did not necessarily come within the scope of the Convention." It was submitted that this revealed a misunderstanding of what was comprehended by persecution. However this passage was nothing more than what it purported to be, namely an account of what the Tribunal said. What the Tribunal meant is another matter. The statement was made (according to the Tribunal's reasons) at a point when the Tribunal was discussing with the applicant the widespread civil unrest in February 2000 concerning the possible introduction of Sharia law into Kaduna State. 15 It may be that the Tribunal was saying that people may have been killed in what could be described as revenge killings in that period for reasons which did not relate to membership of a particular social group, political opinion or religion and, if so, would not amount to persecution attracting the operation of the Convention. The Tribunal may have had in mind the Full Court judgment in Minister for Immigration & Multicultural Affairs v Abdi (1999) 162 ALR 105 at 117 (par 44). However, whatever the Tribunal meant by this observation, it was not a proposition that emerged in its consideration of the applicant's claims in the part of its reasons headed "FINDINGS AND REASONS". In that section, the only reference to revenge killings was made in the context of the consideration of a specific claim that the applicant had made, namely that he was at risk of a revenge killing at the hands of the relatives of Muslims his father had killed. The Tribunal had rejected as implausible the claim of the applicant that Muslims journeyed from the north to the applicant's Ibo homelands to seek him out and kill him in revenge. The resolution of this issue turned on the Tribunal's findings of fact that the applicant was not being sought out for a revenge killing and there is nothing to suggest, in my opinion, that its conclusion was infected by legal error. 16 (ii) error of law: Counsel for the applicant submitted that the Tribunal erred in its understanding of what constituted persecution. That is, the Tribunal failed to appreciate that the harm the applicant had suffered could, as a matter of law, constitute persecution. Reference was made to Chan v Minister for Immigration & Multicultural Affairs (1989) 169 CLR 379. However this submission overlooks that the Tribunal rejected much of the applicant's account of what had happened to him in Nigeria in the recent past. The Tribunal said it did not find the applicant a credible witness. It appears to have rejected the applicant's account of the destruction of his home and also appears to have rejected, as just noted, that Muslims had sought him out to kill him. This submission has not been made good. I should add that it was no part of the applicant's case as it was finally put, that the Tribunal failed to make findings about material questions of fact and thereby failed to satisfy the obligation created by s 430: see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. 17 (iii) error of law: Counsel for the applicant submitted that the Tribunal had erred by failing to recognise that the harm to which the applicant had been exposed must be viewed cumulatively. That is, the Tribunal failed to take into account the combined effect of the introduction of Sharia law and the denial to the applicant of the opportunity to give expression to his Christian beliefs, the risk to Christians at the hands of Muslims in periods of civil unrest and the risks flowing from being of Ibo ethnicity. Again, however, this submission is founded on the applicant's account to the Tribunal and not the findings made by the Tribunal. There is nothing to suggest, in my opinion, that the Tribunal erred in law in this way in its consideration of the risk of harm the applicant would be exposed to were he to return to Nigeria having regard to what appear to be the findings it made about the applicant's recent experiences in Nigeria. Central to its conclusion was the Tribunal's finding that the applicant could continue to live in Kaduna and, as noted earlier, it was implicit in this finding that the applicant could do so without fear of persecution. 18 (iv) no evidence: Counsel for the applicant submitted that the Tribunal based its decision on the existence of a fact that did not exist: see s 476 (1) (g) and 476 (4) (b). The fact upon which the Tribunal was said to have based its decision was that there had been no violence in Kaduna State. The difficulty with this submission is that the Tribunal made no such finding of fact let alone based its decision on the existence of that fact. The Tribunal plainly accepted there had been violence. This ground is not made out. 19 (v) actual bias: Counsel for the applicants submitted that the Tribunal was actually biased. This submission was founded on a comment made by the Tribunal member at a point, according to the written submissions of the applicant's counsel, after the Tribunal heard from the applicant. An extract of the transcript records: "Ms Zelinka [Tribunal Member]: Now, most of what you have told me about Kaduna is rubbish. Interpreter: No, no rubbish." Counsel for the applicant relied on the statement of the Tribunal that what he had been told was "rubbish" as revealing a closed mind. While the use of such language is, in my opinion, inappropriate, it does not evidence, in my opinion, conduct founding a conclusion that the Tribunal was biased in a legal sense. The relevant principles were comparatively recently stated by a Full Court in C v Minister for Immigration & Multicultural Affairs [2000] FCA 1649 at par 2: "The principles to be applied in determining whether a decision-maker is biased are not in dispute, nor were they before the trial judge. To show that a decision-maker is actually biased (which is what is required by s 476(1)(f)) it must be 'firmly established' that the decision-maker has brought a 'closed mind' to the inquiry: Vakauta v Kelly (1989) 167 CLR 568 at 576. Bias need not be wilful: R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167. It can be inferred from conduct, but in that case the whole of the decision-maker's conduct must be taken into account: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71." In that matter the Tribunal member had used fairly robust language and had conducted himself in a way that had been described as bullying and offensive. It had been submitted that the transcript revealed that the Tribunal member in that matter had a "closed" mind. Of this, the Full Court said at par 15: "If it is to be assumed, contrary to the findings of the trial judge, that the Tribunal had a 'closed mind' before the third day of the hearing, does this amount to relevant bias? We do not think that the answer can be in the affirmative and for the following reasons. At some stage in a case, a decision-maker must form an opinion and make findings on the issue committed for his determination. The decision-maker will then have a 'closed mind' for otherwise he or she could not arrive at a decision in the case. The object of having an 'open mind' is so the decision-maker will pay regard to, impartially consider, and fairly assess the evidence and submissions made by the parties. In this case the appellant had put forward all of the material upon which he wished to rely before the third hearing. He had also filed his written submissions. Thus, except for one issue, for all practical purposes the task of obtaining and giving consideration to the evidence upon which a decision must be based had come to an end. The only issue that had not been addressed by the appellant was that he had made his application for a protection visa after he had been denied a bridging visa. The third day of hearing was designed to elicit an explanation for this because the Tribunal was plainly of the view that this additional factor tended to confirm that the appellant himself did not believe that he was likely to be persecuted. As it turned out, the questions put to the appellant did not produce an explanation which was different from that previously given. In the result, no new material was put to the Tribunal which, if the Tribunal had kept an 'open mind', may have influenced it to form a different opinion. Put another way, if it be accepted that the Tribunal had a 'closed mind' by the time of the third interview, the fact is that there was no evidence or other material put forward which an 'open mind' would have considered. Hence, in our opinion, the Tribunal's 'closed mind' had no operative effect." In my opinion, these observations are apt to apply in this matter. 20 The remarks of the Tribunal member in this matter were made at a point where the applicant had given his account of what had occurred in Kaduna and, it can be inferred (indeed is referred to by the Tribunal a little later in the extract from the transcript handed up by counsel for the applicant) that the Tribunal member had read independent country information about what had occurred in Kaduna at the time in question. What the Tribunal member was doing was indicating, perhaps in unduly blunt terms, that she could not reconcile the applicant's account with what she had read and was rejecting, on that basis, his account. However I do not think it can be said that even at this point the Tribunal member had reached a firm and irrevocably concluded view about the applicant's account because it allowed the applicant to make further submissions in writing. The representatives of the applicant did so and put further material in support of the applicant's account of events in Kaduna State. In my view, the Tribunal was not simply going through the motions of allowing the further material to be put in. It did so to enable the applicant to dissuade the Tribunal from the position it had earlier expressed. The Tribunal was not, in my opinion, actually biased. 21 (vi) failure to consider a late submission: at several points in the submissions made by counsel for the applicant reference was made to the fact that a submission had been made on the applicant's behalf to the Tribunal which, on the material before the Court, was received by the Tribunal on 21 December 2000. The submission was dated 20 December 2000. The reasons for decision of the Tribunal are, at their commencement, dated 19 December 2000 and one version of the reasons in the relevant documents is signed on the final page by the Tribunal member and dated 19 December 2000. Another version of the reasons in the relevant documents contains on the final page a Tribunal stamp which is, in handwriting within the stamp, dated 22 December 2000. The reasons were sent to the applicant, who was in detention, on 22 December 2000. 22 It can be inferred from the sequence of events and other material in the relevant documents, that the Tribunal member did not consider the submissions forwarded on behalf of the applicant on 21 December 2000. In Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73 Merkel J considered the legal consequences of the Tribunal not considering a late submission arising in a similar factual situation but in relation to provisions in the Act which had no application to a person who was in detention. That is, in relation to provisions that had no application to the applicant at the time the Tribunal gave its decision. That is not say, however, that the analysis of Merkel J would have no relevance in the present matter were there was an issue raised directly about the failure of the Tribunal to consider the late submission. However, and notwithstanding repeated questions I asked, counsel for the applicant indicated he did not submit that the Tribunal was under a duty to consider the late submission. The existence of that duty was central to the conclusion of Merkel J that the Tribunal had, in that matter, erred in not considering the late submission. The only reliance placed on the failure of the Tribunal to consider the late submission was in the context of the bias argument. 23 The judgment of Merkel J in Inderjit Singh v Minister for Immigration & Multicultural Affairs was quite properly raised by counsel for the Minister before the hearing on 12 March 2001 when the matter had been listed for hearing on an earlier date (the date was vacated because the applicant had, at that time, recently retained counsel who was not then in a position to argue the applicant's case). The judgment was also addressed by counsel for the Minister in his outline of submissions in anticipation of the possibility that counsel for the applicant would put an argument that the Tribunal in this matter erred in failing to consider the late submission. Were the applicant unrepresented then it probably would have been incumbent on the Court to consider this issue. As the High Court said in Neil v Nott (1994) 121 ALR 148 at 150: "A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy." 24 However, in this matter the applicant is represented by counsel. Why the point was not argued is not clear to me. It is an available point with some prospects of success. It is possible that the point was not pursued because counsel did not appreciate its significance. If so then that would raise a question about the competence of the counsel. There may, however, be other explanations though they are not apparent to me. However it is a point of some legal complexity with, potentially, practical ramifications for the way in which the Tribunal deals with submissions received at about the time it is proposed that a decision is to be given. In these circumstances it is inappropriate for me to embark upon the consideration of an issue which has not been raised. 25 I should add, however, that the disquiet engendered by the failure of counsel to take the point is lessened considerably because ultimately the late submission probably would not have had a material bearing on the consideration of the applicant's application by the Tribunal. The late submission simply enclosed two reports. One dealt with a matter that had already been canvassed in detail in other material already before the Tribunal (being the May 2000 civil unrest in which large numbers of Muslims and Christians were killed in religious clashes in the city of Kaduna) and one other matter that was not directly linked to the position of the applicant (the treatment of members of MASSOB at the hands of what appear to be state troops in a state in Nigeria which was not Kaduna or Lagos, which were the two areas in which the applicant had lived immediately before leaving for Australia). 26 I dismiss the application and order the applicant pay the respondent's costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 21 March 2001` Counsel for the Applicant: Ignatius Asuzu Counsel for the Respondent: Geoffrey Kennett Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 12 March 2001 Date of Judgment: 21 March 2001