FEDERAL COURT OF AUSTRALIA Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO S 68 OF 2000 O'LOUGHLIN J ADELAIDE 11 APRIL 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 68 OF 2000 BETWEEN: STEPHEN OGHO AKPATA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 11 APRIL 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 68 OF 2000 BETWEEN: STEPHEN OGHO AKPATA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 11 APRIL 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants in these proceedings are Mr Stephen Ogho Akpata, his wife, Mrs Fortress Akpata and their son, Precious Akpata. All three are citizens of Nigeria. Mr and Mrs Akpata also have a daughter, Treasure Jemima Akpata who, was born in New Zealand on 17 September 1993; she is a citizen of New Zealand and is not a party to this application. 2 Mr and Mrs Akpata left Nigeria with their son, Precious, in February 1991. They first went to New Zealand, but left New Zealand for Australia, arriving with Treasure on 10 February 1994. Entry to Australia was achieved through Mr Akpata having obtained a student's visa. The family travelled back to New Zealand for about one month in mid 1995 and re-entered Australia on 31 July 1995. 3 On 22 December 1995, Mr Akpata lodged an application for a Protection Visa on his own behalf and on behalf of his family. That was the start of a long forensic journey that has led to this present application – the third occasion upon which the Akpata's have been before the Federal Court. 4 Initially, their application was refused by a delegate of the Minister for Immigration and Multicultural Affairs and that decision was affirmed by the Refugee Review Tribunal ("the Tribunal"). However, on 10 February 1998, the Federal Court overruled the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration. The Tribunal, differently constituted, reaffirmed the delegate's decision for a second time on 18 May 1999. Once again, the applicants sought review of the Tribunal's decision by the Federal Court. On the second occasion, the matter did not proceed to a formal hearing; the Minister recognised that there had been an error in the Tribunal's decision and, with the consent of all parties the Court, on 29 November 1999, set aside the Tribunal's decision and remitted the matter back to the Tribunal. On 19 May 2000, a differently constituted Tribunal affirmed the delegate's decision for the third time; it is in respect of this third decision that the applicants are presently before the Court; they have claimed that this Court should intervene because of errors that are said to exist in the Tribunal's decision. 5 The applicants claimed that they are in fear of persecution if they were to return to Nigeria on the grounds of their race, their religion and also because of Mr Akpata's political opinions. Mr Akpata claimed that he had been subjected to detention and torture whilst in Nigeria whilst Mrs Akpata separately claimed that she had been subjected to detention and maltreatment whilst in detention. Both of them claimed that they had been the subject of various attacks, including the burning of their house; they also alleged that other family members had been persecuted for the same reasons. 6 In a very lengthy set of reasons of sixty-seven pages, the Tribunal covered, extensively, the history and the personal circumstances of Mr and Mrs Akpata before concluding that their application and that of their son should be dismissed. Arising out of those reasons, the applicants have mounted two challenges. In the first place, they submitted that the Tribunal had misconstrued "the real chance" test and, in the second place, they alleged that the Tribunal had fallen into error when it failed to put before the applicants certain background material about Nigeria which the Tribunal relied on in coming to its decision. the real chance test 7 Mr Gibbons, counsel for the applicants, submitted that the Tribunal had accepted that the applicants were genuine convention refugees at the time when they arrived in Australia and at the time of the first Tribunal hearing; he submitted that it was incumbent at the third Tribunal hearing for the Tribunal to consider whether or not the applicants would face a real chance of persecution in the reasonably foreseeable future should they return to Nigeria. Mr Gibbons argued that the Tribunal had only based its approach to "the real chance test" by assessing whether or not there had been a substantial change in the circumstances that presently exist in Nigeria. According to Mr Gibbons, the Tribunal had fallen into error by failing to give due and proper regard to recent happenings in Nigeria -–the information upon which it relied was said to be out of date. 8 I am not convinced that the Tribunal found that the applicants left Nigeria because of persecution for a convention reason. Rather, it seems to me that the Tribunal was prepared to proceed by investigating the applicants' circumstances upon this premise: that is, assuming, without deciding, that the applicants were persecuted for one or more convention reasons, is there a real chance that they might be persecuted in the reasonably foreseeable future if they were to return to Nigeria. The relevant passages in the Tribunal's reasons appear at pp 60 and 63 of the Tribunal's reasons. At p 60 the Tribunal said, speaking of Mr Akpata (who is a Christian): "The Tribunal accepts that the Applicant believes that politics and religion are indissoluble and that he was opposed to the Nigerian government from late 1983 when his candidate lost the presidential elections. He opposed the subsequent military governments largely because the military was dominated by Muslims and each successive president was a Muslin. He believed that Nigeria was becoming more Islamic. The Tribunal accepts that the Applicant spoke in public in what may be described as sermons with a political content inasmuch as there were anti-government sentiments entwined with his religious messages. The Tribunal is satisfied that the Applicant received adverse treatment from the authorities on several occasions over the course of eight years: that this mistreatment included beating and brief detention. This harm may have amounted to persecution although it is not easy for the Tribunal to ascertain this fact given the changing and often confused nature of the evidence. However, the Tribunal will examine the question: even if the Applicant suffered harm that could be called persecution in the past, is there a real chance that he would face such harm in the reasonably foreseeable future?" At p 63 of its reasons, the Tribunal said: "The Tribunal has accepted that the applicants have suffered harm in the past. The Tribunal has accepted that the agents of this harm were soldiers and/or police associated with various military governments in power in Nigeria from December 1983 until the applicants' departure in early 1991." 9 The Tribunal thereafter proceeded to refer to certain published works that dealt with the current state of affairs in Nigeria. Those that were referred to by counsel for the applicants during the course of his submissions were: 1. the economist of 15 january 2000 "General Abacha, who seized power in 1993, died of a heart attack in June 1998. An interim government led by General Abdulsalami Abubakar promised to restore democracy in stages, with elections first for local government, then for state governments, then for a national assembly and for the presidency itself. To many people's surprise, he kept his word. The elections were marred by bribery – of which all parties were guilty – but the result is widely agreed to reflect the will of the Nigerian people. On 29 May 1999, Olesegun Obasanjo … was sworn in an Nigeria's first democratically elected president since the toppling of Shehu Shagari in 1983 … [A]lthough he was once Nigeria's military ruler, Obasanjo was not personally corrupt and had landed the top job more by chance than design. In 1976 after the assassination of the then ruler, Murtala Mohammed, Mr Obasanjo as his deputy took over. He stayed in office long enough to organise elections and in 1979 handed over power to an elected civilian. It was not his fault that this civilian regime was corrupt and was soon swept away in a coup. This time he has a mandate to keep Nigeria democratic. To this end, he has subdued the military. More than 100 officers with links to the old regime have been retired and non-political soldiers have been put in charge of the army. Some of those close to Abacha, including his son, are being prosecuted for an array of alleged crimes, including murder. Efforts to recover some of the money that the late dictator and his cronies stole have produced a haul of over $700 million. There may be more to come … Nigeria today is a far less fearful place than it was a couple of years ago. General Abubakar began the good work by releasing political prisoners and stopping the security forces from harassing dissidents. Mr Obasanjo has continued in that vein (although his use of the army to crack down on terrorism in the Niger delta has recently caused concern). Journalists at Nigeria's dozens of lively, opinionated newspapers … now work unmolested. On the economy too, Mr Obasanjo has made a reasonable start … Now that the country is no longer a pariah, America and Europe have pledged more aid. There is talk of debt relief in the future and perhaps even a bit of foreign investment. For the Nigerian in the street, the most visible change is the easy availability of petrol." k boyle & j sheen 9eds0 1997. freedom of religion and belief: a work report, routledge, london, pp 51 and 54 "Christianity and Islam are officially recognised religions despite the professed secularity of the Nigerian state … [they] not only play prominent roles in the nation's political, social, cultural and economic life, but also receive recognition and assistance from the state. [In] the new federal capital, Abuja, … Christians and Muslims were allocated land and funds to build a National Mosque and National Cathedral … The government has adopted an even-handed policy towards the two main religions in the matter of public holidays and facilitating pilgrimages. Public holidays are observed during both Christian and Muslim festivals. While Sunday is a work-free day, government offices and institutions are allowed either to observe the Jumat service or to work half-day on Friday." bbc news world Service of 4 april 2000, as downloaded from bbc news on line "Governors from northern Nigerian states say that are to suspend controversial plans to introduce the penal code prescribed by Islamic Sharia law … The 19 Governors from the predominantly Muslim north also decided to set up a Muslim-Christian committee to look at implementing aspects of Islamic law not covered in the penal code. In February, more than 1,000 people died in bloody clashes between Christians and Muslims following protests against implementing Sharia in Kaduna state … A leading human rights lawyer has launched a case to test the legality of implementing Sharia, arguing that it violates the secular nature of the constitution. But president Obasanjo, a devout Christian, ruled out similar moves by the government, saying that to do so would be divisive." 10 The applicants relied heavily upon the report of the death of over 1000 people as recently as February 2000 – only three months before the date upon which the Tribunal handed down its decision, arguing that the conciliatory information that was otherwise to be found in the three texts that are quoted above become irrelevant in light of such horrendous bloodshed. There are, I think, two answers to this proposition: the first is that it was a matter for the Tribunal to take into consideration as part of balancing exercise when coming to its decision; it was not as if the Tribunal had overlooked the dreadful incident. Rather, it weighed it up and it came to this conclusion: "There has been no repeat of the earlier violence between the two religious groups in northern Nigeria; and such clashes were not reported from the south of the country." The Tribunal's reference to the south of the country is the second reason for rejecting this submission from the applicants; they are Christians from the predominantly Christian south of the country. 11 The Tribunal came to this conclusion: "Given the substantial change that has occurred in Nigeria, the chance of the applicants being harmed in the reasonably foreseeable future as a result of any actions that they may have taken against governments up until their departure, or indeed up until mid-1998, is remote." 12 After the painstaking and exhaustive analysis that had been carried out by the Tribunal, it was a finding that was reasonably open to it. In my opinion, the applicant's first ground of complaint cannot succeed. background material 13 This ground can be disposed of summarily. The applicants complained that the three works to which reference has been made in these reasons and upon which the Tribunal relied in coming to its decision should have been, but were not, put before the applicants so that they might have the opportunity of commenting upon them. Section 424A of the Migration Act 1958 (Cth) provides, inter alia, that the Tribunal must give to an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming a decision that is under review. However subs 424A(3) goes on to state that the section does not apply to information: "(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 14 Mr Gibbons recognised that this proviso represented a hurdle that the applicants had to overcome. He submitted that the section should not be read literally to apply to all "country" information. Where, as here, the information was directly relevant to the claimed circumstances of an applicant, it was only fair that the applicant be given an opportunity to respond to it. However, as Mr Gibbons himself noted, that approach had been put before and rejected by Carr J in Tharaisara v Minister for Immigration and Multicultural Affairs [2000] FCA 520. I am of the same opinion as Carr J; the language of par 424A(3)(a) of the Act is abundantly clear – there is no obligation of the Tribunal to give to an applicant any information that is not specifically about "the applicant or another person". The applicants' remaining ground of complaint must also be rejected. 15 In my opinion, this application must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 11 April 2001 Counsel for the Applicant: Mr J A Gibbons Solicitor for the Applicant: Duncan Hannon Basheer Counsel for the Respondent: Ms Sashi Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 5 March 2001 Date of Judgment: 11 April 2001