FEDERAL COURT OF AUSTRALIA VRAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 344 VRAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 623 of 2003 RYAN J 29 MARCH 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 623 of 2003 BETWEEN: VRAQ Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE OF ORDER: 29 MARCH 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application, to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 623 of 2003 BETWEEN: VRAQ Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE: 29 MARCH 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There is before the Court an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 8 March 2003 affirming a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant arrived in Australia on 20 October 2000 on a temporary business visa. Within three weeks he lodged an application for a protection (class XA) visa which was refused by a delegate of the Minister on 8 March 2001. On 29 March 2001, the applicant applied to the Tribunal for a review of that refusal. 2 The applicant is a Nigerian national of Igbo ethnicity and a Christian by religion. He graduated as a Bachelor of Science with Honours from the University of Port Harcourt in 1994. He gave his occupation on his application for the protection visa as "business". The applicant's claims in support of his application have been summarised as follows by the Tribunal; 'The applicant claims that he was an active member of the Odua People's Congress (OPC). He believes in its principles especially its democratic ideals and its aim to ensure that every Nigerian has equal rights. When Sharia law was introduced in some Northern states OPC members in Lagos conducted a peaceful demonstration. The applicant participated in this demonstration however the government mobilised the police to disburse the demonstrators. Eventually the government banned the OPC. The OPC demonstrated in front of the Libyan embassy in Lagos to protest the mistreatment of Nigerians in that country. The applicant attended that rally. The government authorities believed that the demonstrators were about to storm the Libyan embassy so they attacked the demonstrators firing their guns at some of the participants. Some persons were killed and others arrested including the applicant. The applicant was able to escape from detention and hid in various places in Nigeria until a retired general assisted him to leave Nigeria. He was taken by the general to the airport and with his assistance was able to flee the country and come to Australia. Whilst in Australia the applicant learnt that the police had visited his wife and questioned her about his whereabouts. His wife denied any knowledge about the OPC and how the applicant escaped from detention. Later his wife was arrested and detained however after 9 days in detention she was given conditional release. The Applicant does not wish to return to Nigeria as he fears he will be arrested on account of his involvement with the OPC, his escape from detention and his flight from Nigeria.' 3 Those claims were amplified by the applicant in oral evidence given to the Tribunal on 27 November 2002. He then claimed that, after an association between the OPC and an organisation known as National Democratic Coalition ("NADECO") had contributed to the introduction of democracy in Nigeria in 1998, the OPC had been forced to become critical of the newly-formed government and had been suppressed and some of its members arrested. The applicant's claimed involvement in events after the alleged banning of the OPC has been described by the Tribunal in these terms; 'The applicant claimed that he attended a meeting of the OPC in Lagos on 20 July 2000 and the police raided the meeting acting on a "tip off". The applicant claims that he was the secretary of the planning and organising committee of the organisation. There were about 20 to 30 persons at the meeting and some of those were arrested however the applicant was not arrested on this occasion. The applicant claims that the police had a directive to shoot OPC members on sight. The applicant claims that he attended another meeting on 27 August 2000. This meeting was held in secret to avoid police harassment and arrest. The police found out about the meeting and surrounded the meeting place and 4 members were arrested by police and detained at Mushim police station. The applicant claims that he was interrogated for some 2 to 3 weeks. He was then moved to another police station. He claims that in the course of his interrogation he was tortured and subject to beatings by police. He claims that the police wanted to get more information on the OPC. At one stage one of the policemen came with a written statement and told him he should sign a statement. The applicant claims he refused to sign the statement. He remembers that the statement indicated that the applicant had committed public disorder and unlawful procession of firearms and had threatened to wage war on the public of Nigeria by distributing OPC pamphlets. The statement also stated that he had given the government of Nigeria an ultimatum of 24 hours to resign or the group would take further action. The applicant told the policeman that if he signed the document that he would be admitting to treason which was an offence punishable by capital punishment. The applicant claimed that he had been tortured on many occasions for example on one occasion that he had been hanged for 10 minutes upside down. After treatment of this kind he decided to sign the document to save his life. Once he signed the confession he felt he had signed his own death warrant. Whilst he was in detention he claims that other OPC members as well as his brother were looking for him. His brother was friendly with a police inspector and found out through his friend that the applicant had been detained by police. His brother persuaded his police inspector friend to arrange for the applicant's release. A deal was done between his brother and the police inspector without the applicant's knowledge. The police officer told his brother that he would release him on condition that the applicant would never implicate the police inspector in his release and would immediately leave Nigeria. The applicant claimed that the police inspector was concerned that if the applicant was rearrested his name would come up as assisting him in his release. The police inspector was paid a bribe by the applicant's brother on condition that the applicant left the country as soon as possible. The applicant claimed that his brother also had a friend who was a retired army general. The retired general was able to secure a visa for the Applicant to come to Australia whilst the Applicant was in detention. He received his visa on 12 October 2000. After the visa issued the applicant's brother came to look for the police inspector but couldn't see him on that date. On Sunday 15 October a large riot took place between members of the OPC and the Hausa ethnic group in Lagos. The police inspector came back to Lagos because of the riots and the applicant's brother met him and assured him that he had met the condition and obtained a visa for the applicant. As a result of the riots other people from the OPC were arrested and placed in the police station. On 17 October the police came to the Applicant's cell and told him that they were transferring 3 to 4 prisoners to another station. The applicant thought he was going to be shot when he entered a police vehicle van with some other prisoners. A mask was placed over his face. Suddenly the van stopped and the police threw him out of the van. He didn't know what was happening at this stage and then he saw his brother who told him to keep his mouth shut. His brother told him that his police inspector friend had stated that if the applicant was rearrested he would be shot in order not to implicate the police inspector. After his release on the 17 October the applicant went to his friend's home and he saw his brother who told him that he would have to leave the country. His brother gave him tickets and the applicant left Nigeria within 6 hours. The applicant claims that the other persons in the police van with him that night had disappeared and that no one knows their whereabouts. The Applicant claims that the police inspector is keeping careful watch to make sure that he does not come back to the country and he believes that he will make it a part of his duty to kill him if he returns. The applicant claimed that he feared the police inspector as well as the government authorities of Nigeria.' 4 In the course of the hearing, the Tribunal put to the applicant various pieces of country information in its possession to the effect that the OPC was a Yoruba organisation lobbying for the creation of a separate Yoruba state in south-western Nigeria and had been banned by the Nigerian government for involvement in serious criminal activities. The applicant disputed those suggestions, claiming when he had joined it, the OPC had been a pro-democracy body representative of all parts of southern Nigeria. He contended that the Nigerian government had falsely imputed criminal activity to the OPC in order to suppress it as a voice of political opposition. Finally in this context, the Tribunal's reasons recited; 'The applicant's advisor made submissions on the role of the military in the Nigerian government and discussed the widespread corruption in Nigeria. He submitted that the OPC had played a role in the removal of the military government and that the OPC had a largely political agenda. He submitted that the present government is supporting of the Northern states and does not support the rights of Nigerians from the Southern states. The Tribunal put it to the applicant's advisor that the current president was from the South of Nigeria and was a Yoruba. The applicant's advisor indicated that the president had to please the North to keep in power and that the military was controlled by the Northern states. The applicant and his advisor questioned the reliability of the country information.' 5 The Tribunal then reviewed a body of "independent country information" noting that the emergence of a democratic Nigeria in May 1999 had ended 16 consecutive years of military rule. It continued; '….. The emergence of a democratic Nigeria in May 1999 ended 16 years of consecutive military rule. Olusegun Obasanjo became the steward of a country suffering economic stagnation and the deterioration of most of its democratic institutions. Obasanjo, a former general, was admired for his stand against the Abacha dictatorship, his record of returning the federal government to civilian rule in 1979, and his claim to represent all Nigerians regardless of religion. Problems of communal violence have confronted the Obasanjo government since its inception. On October 1, 2001, President Obasanjo announced the formation of a National Security Commission to address the issue of communal violence. Currently, Nigeria has three major political parties. National elections and state gubernatorial elections were held in April 2003. …' 6 After recounting that the Federal Nigeria Police Force has responsibility for law enforcement and that maintaining internal security is the duty of the State Security Service ("SSS"), the Tribunal observed that civilian control over both forces had expanded since 1999 but; '….. Despite these new controls members of the security forces are still accused of serious human rights abuses. The Constitution prohibits arbitrary arrest and detention however police and security forces continued to use arbitrary arrest and detention. The law requires an arresting officer to inform the accused of charges at the time of arrest and to take the accused person to a station for processing within a reasonable amount of time. …..' 7 The country information assembled by the Tribunal in relation to the OPC indicated that it had originally been formed to advocate autonomy for the Yoruba people but later extended its activities to fighting alleged criminals. The Tribunal then quoted from a report of the Immigration and Refugee Board of Canada published in 2000 which reiterated the view that the OPC reflected Yoruba separatists ambitions and went on to note; 'A central platform of the OPC calls for a "sovereign national conference" (P.M. News 9 Aug. 1999; Tempo 1 Dec. 1999; Guardian 25 Sept. 1999). The desire for such a conference is shared by other Nigerian groups, including the Campaign for Democracy, the Eastern Mandate Union (EMU), Niger-Delta Project, Nzuko Abia N'Imo, and the Igbo and Youths Movement (IYO). Post Express stated that such a conference would "address the question of equity, fairness and balance in the power, economic and political distribution of the nation's resources" (18 Jan. 2000). In an article on the 1999 constitution, a Lagos-based lawyer described it as a forum "where the difference between our ethnic nationalities; their wishes and aspirations would be identified, recognised and embodied after necessary compromises and agreements in our grundnorm, the Constitution of Nigeria". In a similar vein, Post Express reported that "Fasehun said that the OPC believes the only solution to the nation's crisis is to [allow] component nationalities to determine the basis for the Nigerian federation" and that "each component nationality [should run] its own police, judiciary, finance, education and public services, leaving currency and external affairs in the control of the centre".' 8 The Tribunal also noted a statement by Karl Maier that "the OPC's more extreme faction is actively pressing for secession from the rest of Nigeria and the establishment of an 'Odudua Republic' " and went on, at p 12 of its reasons; 'The OPC has split into 2 factions one led by Dr Frederick Fasheun and the other led by Ganiyu Adams. The OPC's power base is in the south west of Nigeria where Yorubas are in the majority and is very active in the Lagos area. The OPC have also been involved in ethnic clashes, vigilantism and other acts of violence in and around Lagos. The OPC appear to target a range of groups and institutions, including the police, suspected robbers and criminals, rival OPC factions, the Jigaw people of Ondo state, cultists and non Yoruba ethnic groups particularly the Hausa Fulanis and Igbos during episodes of ethnic conflict. ….. The Nigerian government has taken action to suppress this violence including a ban on the OPC. Ordinary members of the OPC have not been targeted because of membership alone and the government's actions have been in response to the criminal violence on the part of some members of the group. The ban on the group is motivated because of accusations that members of the group have been involved in serious crimes. According to the UK Home Office, the OPC appeared to be generally able to pursue its political objective without interference from the authorities. However, if any of its members are involved in violence, the authorities have acted to curb this violence, and bring those suspected of responsibility to trial. (UK Home Office Country Assessment Nigeria Oct 2002) The Immigration & Nationality Directorate reported in October 2000 on relations between the OPC and the Nigerian police: The OPC have continued to be involved in vigilante violence. In August 2000, after a number of violent clashes, including attacks on the police, the Nigerian police announced a crackdown on OPC members involved in these crimes. The attitude of the public, in the Lagos area, to the OPC is ambivalent, as they are seen as attempting to impose order in areas where the police have been unsuccessful, and some Yorubas sympathises with their aims, if not their methods. The Nigerian police have targeted their action against members of the OPC involved in violence, and ordinary members generally appear to be able to express their views without harassment (Sec. 8.8). There are many reports of OPC members being arraigned at court, being granted bail and being denied bail.(REFINFO) The Canadian IRB reported on the relationship of the OPC and other ethnic groups in February 2000. It noted that the founder of the Oodua People's Congress (OPC), Dr. Fredrick Faseun, is reported to have said that the "OPC was formed to promote and defend the interests of the Yorubas. Anywhere the interest of the Yoruba is at stake you find us there. We are ready to defend the interest of the Yorubas in whatever form" (Post Express Wired 1 Aug. 1999). Media reports indicates that the OPC is intolerant of other ethnic groups particularly in Lagos (Post Express Wired 27 Mar. 1999, ibid. 1 Aug. 1999; West Africa 17-23 Jan. 2000, 17-22). In December 1999 OPC terror gangs brazenly threw their weight about creating virtual no-go areas in the suburbs of Greater Lagos, beyond the reach of the under-manned police. The targets of their bullying were frequently non-Yoruba ... In December, an armed gang, later identified as members of the OPC by the police, engaged the security convoy protecting the Lagos governor, ... in a fierce gun battle in the small hours of the morning. A number of people, including a policeman, were shot dead ... the following day ... freely harassing pedestrians in the heart of Lagos and other cities, and openly holding up commuter vehicles to rob passengers of their belongings, OPC gangs especially target the Igbo and Hausa-Fulani (West Africa 17-23 Jan. 2000, 20). West Africa further reported that a faction, the Odua Liberation Movement (OLM) "issued an ultimatum" to an independent radio station, Ray Power 100 based in Lagos, to stop relaying BBC language programmes in Hausa. The station, heard "widely in Nigeria and neighbouring countries," is operated by an Edo man married to a Yoruba woman (ibid.). According to West Africa, "the OPC phenomenon has become one of the most urgent ethnicity questions to challenge the integrity of Obasanjo's young presidency" (ibid.). (REFINFO)' 9 The Tribunal in its reasons also recorded the existence of MASSOB; '… a mostly Igbo group who advocate greater autonomy for the south-east area of Nigeria where most Igbos live. MASSOB appears to be able to pursue its political activities without interference from the authorities except where members have been involved in politically motivated criminal activity.' 10 Under the heading "FINDINGS AND REASONS", the Tribunal found that the OPC had been formed in 1995 as a Yoruba group concerned to establish a Yoruba state or greater Yoruba autonomy and had not developed out of any pre-existing group with broad pro-democracy goals. It also found that the OPC is generally hostile to non-Yoruba groups, particularly the Hausa and Igbo people, and had often targeted the latter in Lagos during periods of ethnic violence. On the basis of those findings, the Tribunal declined to accept that the applicant had been a member or an official of the OPC or any pre-existing group. Its reasoning in that respect was expressed in this paragraph; '… The Tribunal does not accept the applicant's claim that the OPC represents the interests of all peoples in southern Nigeria or that it has a broader political agenda. The Tribunal does not accept that the applicant as a person of Igbo ethnicity would be accepted as an official or even a member of the OPC and that he would be involved in planning meetings for the OPC organisation. The Tribunal prefers the independent country information cited above that indicates that generally the OPC is hostile to members of the Igbo ethnic group to the evidence of the applicant that persons belonging to other ethnic groups are involved with and members of the OPC.' 11 The Tribunal attached little, if any, weight in support of the applicant's claims to a copy membership card purporting to attest to the applicant's membership of the OPC or to photocopies of handwritten letters dated 4 February and 27 December 2001 to the applicant from his wife in Nigeria. The following paragraphs concluded the Tribunal's reasons; 'As the Tribunal does not accept that the applicant was a member or official of the OPC it does not accept that the applicant was arrested, tortured and forced to sign a confession for reasons of his membership of the OPC. The Tribunal also does not accept that the applicant had to flee Nigeria in fear of his life for reasons of his membership of the OPC and the claimed consequent detention. In any event the country information indicates that whilst there is considerable conflict between the police and members of the OPC that ordinary members of the organisation have not been targeted for reasons of membership of the group and the government's actions in banning the OPC and detaining some members has been in response to the violent and criminal activities of some members of the group and there is no evidence that the ban was politically motivated. As the Tribunal does not accept that the applicant was ever a member of the OPC it is not satisfied that if the applicant returned to Nigeria now or in the foreseeable future he would face a real chance of persecution from government authorities for reasons of his membership of the OPC. Taking all the foregoing into account the Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention related reason. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.' 12 The grounds relied on in the applicant's amended application for review were; '1. The Tribunal exceeded its jurisdiction in that, inter alia:- (a) it failed to give reasons as to why the applicant could not be believed as to his membership of the Odua People's Congress (OPC) (b) it failed to consider that, whether or not the OPC "represents the interests of all peoples in southern Nigeria or that it has a broader political agenda", its members may still be subjected to persecution for their political beliefs. 2. The Tribunal relied on inconsistent prior statements of the applicant to make negative findings on credit without giving the applicant an opportunity to comment on the inconsistencies.' 13 Those grounds were reflected in these contentions forming part of the applicant's contentions of fact and law filed on 6 November 2003 pursuant to a direction of the Court; '2. The Respondent [scil. the Tribunal] failed to exercise its jurisdiction or, in the alternative, exceeded its jurisdiction in that, inter alia:- (a) it failed to give reasons as to why the applicant could not be believed as to his membership of the Odua People's Congress (OPC); (b) it failed to consider that, whether or not the OPC "represents the interests of all peoples in southern Nigeria or that it has a broader political agenda", its members may still be subjected to persecution for their political beliefs. 3. As a result, the Tribunal asked itself the wrong question and implicitly took account of irrelevant considerations or in deed failed to take account of relevant considerations, such as the applicant's testimony which the Tribunal did not test at all. 4. Furthermore, in breach of s.424A of the Act, the Tribunal relied on prior inconsistent statements of the applicant to make negative findings on credit without giving the applicant an opportunity to comment on the inconsistencies.' 14 At the outset of the hearing in this Court, Mr Belbruno abandoned ground 2 of those contentions and what was said to be the corresponding ground 1 in the amended application. As a result, the submissions on behalf of the applicant were concentrated on the contentions that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth) ("the Act") by not inviting the applicant or his adviser to comment on certain discrepancies which the Tribunal had noted between earlier written statements made by the applicant and his oral evidence at the hearing before the Tribunal. It was also submitted, in a subsidiary way, that the Tribunal's failure to comply with s 424A had "infected" its decision because it had not disavowed, in its reasons, the operation on its assessment of the applicant's credibility of the matters on which it had not invited him to comment. 15 Section 424A of the Act provides; '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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 (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This 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.' 16 Mr Belbruno referred to first to this passage from the Tribunal's reasons; 'The Tribunal has considered the applicant's claims in his protection visa application and review application, his oral evidence, his advisor's comprehensive submissions setting out the applicant's claims, case law and country information and the documents lodged by the applicant in support of his claims. The Tribunal has given full consideration to that evidence and material and has provided the applicant with an opportunity to establish his claims for refugee status. The Tribunal notes that the applicant's claims at hearing differ somewhat from his earlier written claims. The Tribunal considers that the applicant's claims as discussed at hearing represent his case for refugee status.' 17 As I understood his argument, Mr Belbruno contended that, in conformity with s 424A(1), the Tribunal should have invited the applicant or his adviser to comment on the information constituting the difference between his "claims at hearing" and his "earlier written claims." However, that submission presupposes that the Tribunal considered that the differences between the two sets of claims "would be the reason or a part of the reason" for affirming the decision of the delegate under review. I do not interpret the passage from the Tribunal's reasons quoted at [16] above as indicating that the discrepancy between the two claims by the applicant would exert any influence over the conclusion to be reached by the Tribunal. Rather, the Tribunal, in that passage, indicated only that it would examine the applicant's case on the footing that what had been advanced at the oral hearing was to be regarded as his actual claim. Anything in the earlier statements, it was implied, which was inconsistent with that claim would be disregarded. 18 It is now well-established that the reasons of an administrative decision-maker like the Tribunal are not to be read over-zealously with an eye unduly strained to perceive error; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272-273. Taking a similar approach, I decline to construe the passage on which Mr Belbruno relied as indicating that any discrepancies between the earlier written claims and those at the oral hearing would weigh with the Tribunal as diminishing the applicant's credit. On the contrary, a fair reading of the Tribunal's reasons as a whole indicates that it rejected the applicant's account solely because it regarded his claim to have been active, as an Igbo, as the secretary of a planning and organising committee of the OPC, as inconsistent with Nigerian country information about the composition and political objects of the OPC. On that interpretation, the information which the Tribunal must have considered would be the reason for affirming the delegate's decision was not specifically about the applicant but was just about a class of persons (the Igbo ethnic group) of which the applicant was a member or of which other persons were members (members of the OPC and the Yoruba ethnic group). Accordingly, the information was within the exception erected by s 424A(3); see VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 609 per Kenny J at 624 [52] and contrast Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380 where Gray J held that information contained in a particular piece of country information bore specifically upon the question of whether the applicant had campaigned in a by-election on a specific date and was therefore not "just about" a class of persons of which the applicant was a member. 19 In any event, I consider that the Tribunal did invite the applicant and his adviser to comment on what it perceived to be an inconsistency between his Igbo ethnicity and his claim to membership and office-holding in the OPC, a Yoruba separatist organisation. That is borne out by this passage from the Tribunal's reasons to which I was referred by Mr Belbruno; 'The Tribunal then discussed certain relevant country information with the applicant. The Tribunal put it to the Applicant that the OPC was a Yoruba organisation and that it was created to advocate for the interests of the Yoruba people and to lobby for the creation of a separate Yoruba state in the South West of Nigeria. In response the applicant told the Tribunal that you could not discuss the OPC in isolation from other political issues in Nigeria. He claimed that the organisation came into existence out of another organisation called NADECO. The applicant claimed that when he joined the OPC it was representative of all parts of Southern Nigeria and was created to support democratic ideals. He claimed that there was no MASSOB when the OPC was formed.' (MASSOB, it will be recalled, was the largely Igbo group seeking increased autonomy for south-eastern Nigeria). 20 Shortly after the passage which I have just quoted, the Tribunal indicated in its reasons that it had given the applicant and his adviser 14 days "to submit any further information relevant to the claims" and "a response was lodged on 13 December 2003" (sic) (scil 2002). That response contained these paragraphs; 'I Write to address some of the issues that arose in the decision of the department and or during the Tribunal hearing: 1) Non Yoruba membership of OPC. There is no rule available either within the Igbo's or the Yoruba's that their respective citizenry should not join any movement formed by the other ethnic group for the advancement of that ethnic interest. The department also could not find any thing in the OPC rules that precludes people from other ethnic groups from joining OPC. If the department had such information it would have been stated in their findings. The conclusion is that such does not exist. 2) The same argument is also applicable to the department's opinion that OPC would not allow an Igbo "to play a major part in their organisation" It appears the department have information on a war between Igbos and Yorubas. Unfortunately this war does not exist. In the contrary, both ethnic groups could join together to fight injustice in the country. An example of this is the annulment of the election of Chief MKO Abiola as the President of the federal Republic of Nigeria. Both Igbo leaders like Dr Alexa Ekwueme and Yoruba leaders fought against it and were able to bring about the mini democracy we do have now in Nigeria; even though Abiola was a Yoruba man believed to be belittling the Igbos.' 21 The Tribunal's account of the invitation which was extended to the applicant and his adviser and the adviser's written response indicates that the applicant was substantially apprised of the considerations which ultimately constituted the Tribunal's reason for affirming the refusal of a protection visa. It is true that the invitation was not given by one of the methods specified in s 441A of the Act as required by s 424A(2)(a). However, as Merkel J, as a member of a Full Court of this Court pointed out in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, at 41; 'Even if a ground of review is made out the grant of relief under s 481(1) is discretionary. It is a proper exercise of the discretion conferred by s 481(1) to decline to grant relief if the RRT's findings of fact lead to the conclusion that the applicant would have failed in any event: see Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213 and Minister for Immigration and Multicultural Affairs v X [2001] FCA 858 at [28]-[29]. Further, the procedural breach of failing to comply with s 424A is analogous to a breach of the rules of natural justice. In such cases the applicant for relief may be required to establish that the breach denied him or her the possibility of a successful outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164–166; Abriel v Australian Guarantee Corporation [2001] FCA 165 at [18] and Carlos at [59].' 22 Consistently with that approach, if anything turned on the Tribunal's failure to extend the invitation by one of the methods specified in s 441A, I would regard the Tribunal's substantial compliance with the spirit or intendment of s 424A as warranting an exercise of the Court's discretion to withhold relief by way of review notwithstanding the technical failure to apply the section according to its terms. 23 I am reinforced in that conclusion by the total failure of the applicant to indicate the type of evidence which he would have adduced had the Tribunal made clear to him (assuming that it did not) how it proposed to rely on the country information about the composition and objects of the OPC. The giving of such an indication is not essential in every case where a decision of an administrative tribunal has been vitiated by a denial of natural justice or some analogous procedural irregularity; see NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494, at 503-504. However, my inability to discern how the present applicant has suffered "practical injustice" means that the following observations of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489 at 501 can be paraphrased to apply with equal force to the present case; 'Thirdly, the applicant has not placed before this Court a clear indication of the type of evidence or material that he would have placed before the Tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the Tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.' Conclusion 24 For the reasons which I have endeavoured to explain, on no formulation of the grounds advanced on behalf of the applicant can a jurisdictional error or an excess of jurisdiction be imputed to the Tribunal. The application must therefore be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 29 March 2004 Counsel for the Applicant: Mr J Belbruno Solicitor for the Applicant: Joseph Belbruno Counsel for the Respondent: Mr E Heerey Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 19 March 2004 Date of Judgment: 29 March 2004