FEDERAL COURT OF AUSTRALIA Okwoli v Minister for Immigration & Multicultural Affairs [2001] FCA 846 MIGRATION – application for a protection visa – review of decision of Refugee Review Tribunal – applicant a citizen of Nigeria – no reviewable error in decision of Refugee Review Tribunal Sowrimuthu v Minister for Immigration & Multicultural Affairs [2001] FCA 300 referred to Randawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 referred to Migration Act 1958 (Cth) s 36(2) BONIFACE N OKWOLI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 264 OF 2001 HELY J 21 JUNE 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 264 OF 2001 BETWEEN: BONIFACE N OKWOLI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 21 JUNE 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. 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 NEW SOUTH WALES DISTRICT REGISTRY N 264 OF 2001 BETWEEN: BONIFACE N OKWOLI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 21 JUNE 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision of the Refugee Review Tribunal ("RRT") given on 14 March 2001 in which RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. The grounds of the application as identified in the application form are as follows: "I am not satisfied with the decision of the Refugee Review Tribunal. Their decision does not reflect the true picture of my meeting with them on 7 March, I want the honourable Court to look into my statement objectively and give me a fair hearing." 2 Mr Okwoli appeared before me this morning. He does not speak English. He has no legal training. He addressed me through an interpreter. He told me that he has nowhere else to stay if he goes back to Nigeria. The people that he had problems with will locate him anywhere in Nigeria. "The law in Nigeria will not protect me. If I go back to Nigeria and die the Refugee Review Tribunal will not know what happened to me. That's why I'm here to see if there's something you can do for me and if you can't, find me another place to go to." 3 As I endeavoured to explain to Mr Okwoli, this Court is bound by the law and it is only entitled to interfere with a decision of RRT if that decision is infected by a reviewable error. Whilst I very much sympathise with anybody who is in the position of Mr Okwoli, sympathy is not a sufficient foundation for interference by this Court. Neither the application for an order of review, nor anything which Mr Okwoli said to me this morning, establishes any reviewable error on the part of RRT which would entitle me to intervene. 4 As I expected that Mr Okwoli would be unrepresented, I read the decision of RRT before I came to Court to see whether it contained any reviewable error even though no such error was identified in the Application for Review. I also read the submissions which were prepared by counsel for the respondent which carefully analysed RRT's decision. 5 Mr Okwoli is a citizen of Nigeria. He is a member of the Ibo ethnic group or tribe and he worked as a trader in Lagos. He claimed that the majority of the people in Lagos are from the Yoruba tribe who hate the Ibo people. One of his friends, Emeka, had a very successful business. Emeka's landlord, who was from the Yoruba tribe, became jealous and tried to evict Emeka. In September 2000 a group from the Yoruba Peoples Congress ("OPC") came to Emeka's house. They killed him and set fire to his property. 6 The applicant was told that the OPC were sent by the landlord. At the same time he was told by other Ibo friends that Umeka was in trouble. Mr Okwoli rushed to Umeka's house and fought with OPC members. The Yoruba landlord and many Yoruba were killed. Afterwards the Ibo who had been involved in the fighting, were chased by the OPC. Mr Okwoli was too scared to return to his house. He went to hide with friends at a nearby village and then decided to leave Nigeria to save his life. His case before RRT was that the authorities would not protect him because there is lawlessness in Nigeria and nothing the authorities can do. 7 RRT accepted Mr Okwoli's account of the reasons for his departure from Nigeria and the reasons why he does not wish to return. RRT identified the issues for its determination as being (a) whether the harm, which the applicant feared, would be directed at him for a Convention reason, and (b) whether the applicant could obtain protection from that harm in Nigeria either (1) from the authorities, or (2) by relocating to another region. 8 RRT accepted that the Ibo clan or tribe, of which Mr Okwoli is a member, constitutes either a race or a particular social group for the purposes of the Convention. RRT said that determining, in a case such as the present, whether the harm feared by the applicant would be directed at him for a Convention reason arising from his membership of the Ibo tribe or whether it was by way of revenge over his suspected involvement in the death of Yoruba people, was a difficult question. RRT said that it was unnecessary to determine that question because it was not satisfied, even if the applicant did face Convention persecution at the hands of the OPC, that he would be unable to obtain effective protection from the Nigerian authorities. Whilst Mr Okwoli might be unwilling to avail himself of the protection of the authorities, RRT was not satisfied that his unwillingness was due to a well-founded fear that the authorities would not or could not protect him, but rather was due to a concern that he might thereby find himself accused of involvement in a violent melee in which lives were lost. 9 RRT correctly noted that where harm is feared at the hands of private individuals or groups, in order for it to be regarded as Convention persecution, the State must encourage or be powerless to prevent that private harm. The issue was whether the authorities provide effective, meaningful protection. RRT was satisfied that the measures taken by the Nigerian government to curb the activities of OPC were sufficient to establish that the government does not condone or tolerate OPC's activities, that its activities are able to be controlled by the government, and that effective protection is available in Nigeria to potential victims of the OPC. 10 In my view, RRT applied the correct test, namely, whether the authorities provide effective and meaningful protection: see Sowrimuthu v Minister for Immigration & Multicultural Affairs [2001] FCA 300 at pars 46-52. It was not necessary for RRT to be satisfied that the authorities could guarantee Mr Okwoli's safety. There was material before RRT on which it could properly conclude, as it did, that the authorities were able and willing to provide a reasonable level of protection against violence at the hands of the OPC. Hence the Tribunal did not commit any legal error in coming to the conclusion which it did. 11 RRT then addressed the issue whether the authorities would harm Mr Okwoli if he sought assistance or protection from them. RRT accepted that there was a chance of the applicant being mistreated by the police if he sought their assistance because he was suspected of being involved in a violent incident, but not because he was a member of the Ibo tribe or clan or for any other Convention reason. 12 Then RRT addressed the issue of relocation. It came to the conclusion, as it was entitled to, that the applicant would be safe from attacks by OPC if he were to relocate elsewhere in Nigeria, for example, to the Anambra State where his family lives and from which he originally came. The issue then is whether it was reasonable to expect that Mr Okwoli would relocate to Anambra State: see Randawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. RRT came to the conclusion that it would be reasonable for him so to relocate. It gave its reasons for coming to that conclusion, and the reasons which it gave were capable of sustaining the view to which RRT came. 13 Finally, RRT addressed the question as to whether the applicant had a well-founded fear of persecution by reason of generalised inter-ethnic conflict, although the applicant had not himself specifically put his case on that basis. RRT was not satisfied that occasional sporadic communal fighting which had occurred reached a sufficient level of intensity to provide a well-founded fear of persecution. In any event, RRT was satisfied that effective protection against the harm was available. 14 For those reasons, RRT was not satisfied that Mr Okwoli is a person to whom Australia has protection obligations under the Refugees Conventionas amended by the Refugees Protocol. Thus he did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ("The Act") for the grant of a protection visa. 15 I cannot find any reviewable error in RRT's decision. If I may say so it is a carefully reasoned decision given after a detailed consideration of the applicant's circumstances and the conditions in Nigeria. In those circumstances I have no choice but to dismiss the application, and I would make an order accordingly that the application should be dismissed. 16 The Minister seeks an order for costs. Mr Okwoli makes the obvious point that he has no money and he is not in a position to pay any costs. I accept what he says, but that is not of itself a sufficient reason for my not making an order. Accordingly, I order that the application be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 4 July 2001 The applicant appeared in person Counsel for the Respondent: G R Kennett Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 21 June 2001 Date of Judgment: 21 June 2001