SZATP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 52

FEDERAL COURT OF AUSTRALIA

SZATP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 52 SZATP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N1414 OF 2004 STONE J 7 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1414 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZATP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 7 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal 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 1414 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZATP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 7 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Driver FM who, on 10 September 2004, dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ('Tribunal') handed down on 20 May 2003. The Federal Magistrate found that there was no evidence of jurisdictional error in the Tribunal's reasons for decision and concluded that the Tribunal's decision was a privative clause decision. Accordingly his Honour dismissed the application. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice has determined that this appeal shall be heard and determined by a single judge. 2 In his amended notice of appeal the appellant sets out two grounds of appeal being that his Honour erred in failing to find that: (a) the Tribunal did not take into consideration the significant harassment ('threat to life or liberty') to which the appellant would be exposed if returned to his country; and (b) the Tribunal's failed to accord the appellant procedural fairness. 3 Both grounds of appeal relate to the Tribunal's alleged failure to take into account certain letters that the appellant had submitted in support of his claim and its failure to accept those letters as corroborating the appellant's claims. The appellant asserts that because the Tribunal indicated that it would take the letters into account he did not elaborate on the material raised in those letters. Moreover he contends that the Tribunal did not indicate that it regarded one of the letters as not accurate and consequently he was not given an opportunity to address this concern. 4 In its reasons for decision the Tribunal expressly referred to these letters and summarised their contents. In relation to the earlier of the two letters addressed to the appellant which was from a friend in Lagos and dated 9 October 2001, the Tribunal said: 'The letter discusses the situation in [the city of] Jos, persons killed in the violent riots in Jos and informing the applicant that the writer has relocated to Lagos for his own safety. The writer claims that the applicant's name and photos have been included in publications of the Muslim organisations in Jos and that members of the Muslim groups in Jos have threatened to kill him. The Tribunal does not accept that members of the Muslim groups in Jos have threatened to kill the applicant as set out in the letter submitted to the Tribunal. The Tribunal does not accept that the information set out in the letter is accurate. The Tribunal is satisfied that the letter was written with the intention of providing support for the applicant's claims. Jos is located in the Plateau State in central Nigeria. At hearing the applicant did not claim to have any connection with persons from Jos nor did he claim that he had ever lived or visited Jos. The applicant's evidence was that he was an active Pentecostal Christian and a church leader of a Pentecostal church in Zamfara State. He left Zamfara State in 2000 and left Lagos in February 2001. He has not given any evidence which would satisfy the Tribunal that he was involved in the intercommunal tensions between ethnic groups in Jos in September 2001. It is not plausible that members of the Muslim community in Jos would have published his name and photo and threatened to kill him in their publications. The country information on the violence in Jos in September 2001 suggests that the serious rioting and resultant deaths arose out of complex ethnic, religious, settlement and land issues affecting those people living in Plateau State. Most of the persons fleeing Jos were Muslims and there is no evidence to indicate that the inter communal violence related to "out of State" issues.' 5 It is clear from this extract from the Tribunal's reasons that the letter was taken into account. The Tribunal has given coherent and plausible reasons for not accepting the views expressed in the letter. It was open to the Tribunal to reach this conclusion. 6 The second of the two letters to which the appellant referred in his amended notice of appeal is dated 25 November 2001 and purports to come from the Assistant Commissioner of the Nigerian Police. In discussing this letter the Tribunal referred to the appellant's claim to have been attacked and threatened by unknown persons in 2000 when he went to the south of Nigeria. The Tribunal said: 'This letter states that the applicant reported that he had been threatened in Zamfara and threatened and trailed by Islamic extremists. The letter bears the date of 25 November 2001 some 9 months after the applicant left Nigeria and at least 18 months or more since he left Zamfara. The letter only states what the applicant has reported and the Tribunal is not satisfied that it provides any corroboration of the applicant's claims. The Tribunal is not satisfied that the applicant was attacked and threatened in 2000 by members of a Muslim group from Zamfara state or from any other state in Nigeria for reasons of his Christian religion. The applicant could not give dates for the claimed attacks and threats and could not identify the attackers. The only thing he knew about them was that they appeared to be Hausas. The applicant could not explain why unknown people would attack him in his home in Lagos or how his attackers knew where he lived.' 7 On the basis of the country information available, the Tribunal concluded that in a large cosmopolitan city such as Lagos it was more likely that the motive for any attack was robbery. Again, this conclusion was open to the Tribunal. 8 The appellant's submission that the Tribunal did not take the above letters into account cannot be substantiated. The Tribunal was entitled to consider the letters in the context of the claims made by the appellant and the other evidence (including independent country information) before it. It was for the Tribunal to decide on the merits of the claims in the light of all of the evidence. 9 The amended notice of appeal refers to the obligations imposed by s 424A of the Migration Act 1958 (Cth) and states as a ground of appeal, that the Tribunal 'did not provide the applicant with particulars of information which formed the part of the reason of the tribunal's decision' and alleges that the decision was not supported by the country information and other evidence. This submission must be rejected on the basis of s 424A(3)(a); see also the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [138]-[139]. 10 In the absence of jurisdictional error on the part of the Tribunal neither this Court nor the Federal Magistrates Court is entitled to interfere in this process. In my view the decision of the Federal Magistrate was correct and the appeal must be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.