FEDERAL COURT OF AUSTRALIA Nwaforjeffu v Minister for Immigration & Multicultural Affairs [2001] FCA 1687 PETER OBIORA NWAFORJEFFU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N621 of 2001 LEE, MOORE & MADGWICK JJ 30 NOVEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N621 of 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER OBIORA NWAFORJEFFU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE, MOORE & MADGWICK JJ DATE OF ORDER: 30 NOVEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N621 of 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER OBIORA NWAFORJEFFU APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE, MOORE & MADGWICK JJ DATE: 30 NOVEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of Wilcox J, given on 16 May 2001, whereby his Honour dismissed with costs the appellant's application for judicial review of an adverse decision of the Refugee Review Tribunal ("the Tribunal"). Background 2 The appellant is a citizen of Nigeria. He arrived in Australia on 13 October 2000 and three days later lodged an application for a Protection (Class XA) Visa. Whether the appellant could be granted such a visa depended upon his satisfying the relevant decision-maker that he is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugee as amended by the 1967 Protocol relating to the Status of Refugees. 3 The appellant arrived in Australia on a false passport in which was indorsed a tourist visa. He was detained on arrival at Sydney Airport and questioned about the validity of that visa. He first told an officer of the respondent Minister's Department that he was the co‑ordinator for the Nigerian Olympic Team and was waiting for the arrival of the Paralympic Team. Later he withdrew the suggestion that he was an Olympic official and asserted that he was simply coming to Australia to watch the Paralympics. His visa was cancelled and he was placed in immigration detention pending arrangements for his repatriation to Nigeria. Two days later, he gave his real name and sought asylum and a protection visa as a refugee. 4 He is apparently a single man of Ibo (also throughout the evidentiary material spelt Igbo) ethnicity who professes Christianity. He claimed that he left Nigeria on 1 June 2000 and stayed for a period in the Republic of Benin which adjoins Nigeria's western border. He claimed to be a member of the "Movement for the Actualisation of the Sovereign State of Biafra" ("MASSOB"), and to fear persecution by reason of his political opinions. MASSOB, as the name implies, supports the re-establishment of an independent state of Biafra. 5 It was established that there was sectarian violence in February 2000 in a town called Kaduna in northern Nigeria where a good many Ibo people were slain and their bodies were then returned to their southern homelands via Aba, apparently the appellant's home town, which is in the south-east of Nigeria. In Kaduna, the mainly Muslim Hausa are numerous and had demanded the introduction of Sharia law which the Christian Ibos opposed. The Kaduna killings enraged the Ibo people in Aba who attacked the Hausa population in Aba in reprisal and apparently more than 50 Hausa people were killed. The violence in Aba was sparked by the return to that city of the bodies of Ibo victims from Kaduna. The national authorities of Nigeria took a dim view of the MASSOB efforts to advance the Biafran cause by, among other things, raising a Biafran flag in Aba in May 2000. 6 The appellant's ultimate claim was that, as the Tribunal Member put it, he held: "…an important activist role in a proscribed organisation (MASSOB) which holds political opinions inimical to the government's. He claims his activities are already known to the federal police and his name is consequently on a list of persons who must be stopped at all costs. He would not be able to relocate safely to any part of Nigeria. …He claimed that he had been "on the run" since early March 2000 and since 1 June 2000 he has been outside Nigeria seeking his way to a safe asylum. He claimed that he left Nigeria for Australia with the express purpose of seeking asylum." 7 The Tribunal Member considered that the applicant lacked credibility. The Member supported this conclusion by detailed reasons covering a great many matters, commencing with the improbability that the applicant would fail to make his claim for asylum at the first moment of arrival in Australia. The Tribunal Member's reasons for disbelieving the applicant are lengthy. The Tribunal Member: · rejected the claim that the applicant is or ever was a member of MASSOB; · found that, even if he were a member of that organisation, that would not automatically bring him to the adverse attention of the Nigerian authorities; and · accepted that, although the applicant had been in Aba at the time of the February 2000 reprisal unrest there, there was no ongoing search by the authorities for people who may have been simply so involved. · found that the applicant left Aba in March 2000 for an unknown reason of his own and chose to come to Australia for reasons of his own using false documentation. 8 The Tribunal Member expressed herself firmly about these matters and her analysis and conclusions appear to have been well open to her. Decision of the primary judge 9 Wilcox J described the course of the matter before him (at paras 4-5): "Counsel appeared today, seeking an adjournment of the hearing. He was apparently only [r]etained two days ago. I refused the application because counsel was unable to give any explanation of the delay in his being retained. Furthermore, counsel was unable to give me any idea as to what ground of review might be fairly arguable in this case. This is notwithstanding the fact that counsel has had a copy of the Tribunal's reasons for two days and has read them. I myself have read these Tribunal's reasons. I did so with some care, because I expected the applicant would not be legally represented today. Under those circumstances, I always consider for myself whether there might be evident in the Tribunal's reasons a ground of review falling within s 476 of the Migration Act 1958. I see no such ground. It seems to me this is a case where claims were made that depended substantially upon the applicant's credibility. For reasons which were given, the Tribunal was not satisfied about the applicant's credibility. The Tribunal specifically rejected certain claims, holding they were factually improbable. There is no point of law that was fatal to the applicant's application. The general principles of law laid down at the beginning of the reasons are quite unexceptional. I do not think this is a case that can be made to fit within [s] 476. Nothing has been said to raise any question in my mind about that view. Accordingly, the appropriate course is for the application to be dismissed." Grounds of Appeal 10 The Notice of Appeal from his Honour's judgment asserted the following grounds: "2. in failing to adopt the procedure, give adequate reason and no evidence, as required by s. 430 of the Migration Act, as amended by the Migration Legislation Amendment Act 1994 (Cth); 3. in failing to give the appellant's case 'proper, genuine and realistic consideration upon the merits': Hindi v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-13; 4. erred in Law by failing to apply the test reached by the High Court in Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Particularly s. 476(1)(e); 5. erred in law by failing to accord the Appellant a hearing, on the basis that his case is vexacious (sic) and/or frivolous." 11 Leave was sought before us to reformulate the grounds of appeal as follows: "1. That the Tribunal decision involved an error of law being an error involving an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the person who made the decision, so as to be in breach of s 476(1)(e). Particulars (a) The Tribunal misapplied the law in relation to the need for the Appellant to have a well-founded fear of 'persecution'. (b) The Tribunal misapplied the law in relation to the need for any persecution faced by the Appellant to be for a Convention reason. No Convention reason was identified by the Tribunal as is apparent on the facts. 2. That there was no evidence or material to justify the Tribunal's decision. Particulars In breach of s 476(1)(g) and (4)(b) of the Act: (a) At [p 87], the Tribunal based its decision on the existence of a particular fact, that the applicant's claims to be an office bearer within Zone B1 of MASSOB (Movement for the Actualisation of the Sovereign State of Biafra), who was responsible for Mobilisation and Supply. That the Tribunal doubts the 'appellant's credibility' because the claims were not made immediately at the airport, which did not exist; whereas the appellant stated at [p 87] his involvement since about 1998. See the [applicant's] testimony on oath at [Transcript p 9]. (b) The Tribunal based its decision on the existence of a particular fact, that 'his first encounter with the authorities was in Aba in February 2000, where MASSOB had a strong disagreement with the authorities over the disposal of the bodies of Igbos who had been slain in the sectarian violence in Kaduna. The applicant claimed that the activities of MASSOB at this point, and the belief by the authorities that he – the applicant – was the leader of such activities – placed him on a 'wanted' list and led the authorities to raid his house (although without finding him). Alternatively, the Tribunal found it had grave concerns about the applicant's credibility. It is not satisfied that he is a witness of truth', which did not exist [p 98]." 12 None of these grounds was raised before the primary judge. Indeed, the application to amend the grounds of review occurred in the course of written submissions which state: "As his Honour Wilcox J did not hear the appellant at first instance, the Appellant does not take further issue with his Honour's decision, as the same is not pressed any further. The current grounds relied upon is formulated as follows:" Then follow the proposed amended grounds just set out. 13 The respondent, very reasonably, objects that the appellant may not simply treat this appeal as if it were a rehearing de novo of an application at first instance. We agree with counsel for the respondent that, in order to justify the grant of leave to amend the notice of appeal to include grounds that were not argued before the primary judge, it must be shown to be in the interests of justice that the issue should be argued and decided: O'Brien v Komesaroff (1992) 150 CLR 310 per Mason J. Be it supposed that, despite lack of explanation for the appellant's delay in obtaining counsel for the hearing before Wilcox J and counsel's inability to suggest any reviewable error in the Tribunal's reasons to his Honour (although having had the papers for two days before the hearing), a case might nevertheless exist to warrant the grant of leave to amend if it were possible to discern some matter of legal substance. 14 It is, however, simply not possible to discern any such matter from the ten pages of written submissions made by counsel for the appellant or from our own reading and understanding of the matters before the Court. The submission and proposed amended grounds are, in every case, misconceived as to the requirements of the particular legal grounds of review asserted and/or fail to distinguish between questions of fact and law and/or betray a miscomprehension of what the Tribunal Member did in fact deal with and decide. Consideration 15 The asserted errors of law appear to be as follows. Firstly, it was said that the Tribunal did not assess the future risk faced by the appellant but rather concentrated on past events. In the circumstances, it was perfectly legitimate for the Tribunal Member to assess the future risk by reference to past events and that is no more and no less than what she did. Secondly, the submissions seem to raise a discrete question of whether, as a member of a social group, "being an Igbo youth", the appellant might, alternatively to matters of political opinion, face persecution on that ground. However, as we have indicated, the Tribunal Member rejected the prospect that the authorities would have any adverse interest in people merely because of their having been involved in the civil unrest in Aba. The significance of this is that it was principally "Ibo youths" who engaged in the reprisals of February 2000 and "thousands of youths … dressed in white T-shirts with Biafran inscriptions" who were involved in the flag-raising incident in May 2000. The material before the Tribunal Member did not distinctly raise for her consideration a case that the appellant faced persecution as a member of the social group "Igbo youth" and in any event her findings would, by the plainest implication, clearly negative such a claim. 16 As to the no evidence ground, founded on ss 476(1)(g) and 476(4)(b), as was pointed out in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181, the first requirement is that there should be no evidence or other material to justify the making of the decision, insofar as it depends on the establishment of some particular matter or the existence of some particular fact. Neither the appellant's submissions nor our own examination of the matter suggest that this ground could be satisfied. Disposition 17 Accordingly, the appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 30 November 2001 Counsel for the Applicant: I Asuzu Counsel for the Respondent: J Smith Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 7 November 2001 Date of Judgment: 30 November 2001