VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 835

FEDERAL COURT OF AUSTRALIA

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 835 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44 and 45 VWFW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NO VID 570 OF 2004 HEEREY J 14 JUNE 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 570 OF 2005

BETWEEN: VWFW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY

DATE OF ORDER: 14 JUNE 2005

WHERE MADE: MELBOURNE

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

VICTORIA DISTRICT REGISTRY VID 570 OF 2005

BETWEEN: VWFW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 14 JUNE 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal which affirmed a decision of the delegate of the Minister to refuse a protection visa. The applicant is a citizen of Nigeria. He claimed a well-founded fear of persecution on the ground of his political opinion as a member of the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB). 2 Before the Tribunal the applicant said that in the first week of February 2001 he attended a meeting of MASSOB in Okigwe. During the meeting a lorry load of uniformed police or soldiers invaded the premises and started shooting. They threw hand grenades into the building. The applicant ran to his sister's place nearby and hid. Between 10.00 and 11.00 pm that night his sister woke him and saw that the police vehicle was parked outside. He hid in his sister's wardrobe. He heard one of the police attempting to rape his sister. He burst out of the cupboard and took the officer's gun. It accidentally went off and shot the officer. The applicant and his sister fled to their uncle's house in a neighbouring town. They hid in Lagos until their visas were approved. They then flew to Australia. Relatives have since informed them that the police have attended their house every day looking for them. 3 A number of grounds were relied on in the application for review but the only one pursued in argument was the contention that the Tribunal committed jurisdictional error because it ignored country information about MASSOB which was the most recent and accurate information. Reliance was placed on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44 and 45. 4 Before going to this argument in detail two things need to be said. The Tribunal carefully examined the applicant's evidence in relation to his participation in the MASSOB meeting and rejected it. That was a finding of fact and not challenged before the Tribunal. On one version of the applicant's case he had gone to the meeting to join MASSOB. On another, and perhaps inconsistent version, he had done some work for MASSOB in Lagos from about the middle of the previous year. The Tribunal found that on either view his association with MASSOB was "short-lived and marginal". Secondly, as counsel for the Minister pointed out, all the country information that was referred to was sought for and found by the Tribunal and set out in its reasons. In that setting a conclusion that it ignored this material simply because it did not refer to it item by item in its concluding paragraphs is not easy to sustain. 5 Turning then to the country information recited in the reasons, the Tribunal commences by referring to United Kingdom Immigration and Nationality Directorate which sets out some background information about ethnic groups, languages and religions in Nigeria. The Tribunal then refers to an Australian Department of Foreign Affairs and Trade advice in November 2002 that: "Unless they have been proscribed as a result of criminal activity, organisations such as MASSOB have free rein in Nigeria, which, under the Obasanjo administration since 1999, has seen the introduction of genuinely free speech and freedom of activity by a wide range of opposition organisations." 6 Then there is reference to a DFAT advice of 27 November 2003 that the previous advice "generally still applied" although the post was aware: "of claims and reports (NGO and media) that MASSOB has been subject to arbitrary arrests, ill-treatment, extrajudicial executions and restrictions on freedom of speech, freedom of association and freedom of assembly." The DFAT advice also said that the Australian post in Nigeria advised that as far as it was aware MASSOB had not been officially proscribed by the Nigerian government. 7 The Tribunal then refers again to the UK assessment of April 2003 referred to above and indicated that MASSOB appeared to be generally able to pursue some of its political objectives without interference from the authorities. However, the authorities have acted against members of MASSOB involved in politically motivated criminal activity. 8 After referring to the Nigerian civil war of the 1960s and early 1970s when Biafra sought independence, the UK report is quoted as saying that: "MASSOB activists continue to be targeted by police and in March 2003 at least seven were killed at a political rally in Imo State." In October 2003, after the preparation of relevant independent information which was provided to the applicant by the Tribunal, an updated assessment was issued. Its content in relation to MASSOB was the same as that which was published in April 2003. 9 There is reference to reports concerning the leader of MASSOB, Ralph Uwazuruike, and his arrest on a number of occasions. Then there is reference to an Amnesty International report of 2002 covering January to December 2001 which states that, "Leading members and supporters" of MASSOB were arrested on a regular basis, often to be released without trial. 10 The Tribunal then says it was "aware that certain MASSOB members were sought in 2001." Their names are given. They are alleged to have been "terrorising lawful citizens of the state and recruiting new members." They were arrested in August last year when they were caught distributing leaflets and insignia of the movement and were freed when MASSOB members attacked the police station. 11 The Tribunal then says that Amnesty's 2003 report did not mention MASSOB in particular, although it drew attention to a range of continuing human rights concerns in Nigeria. Human Rights Watch reported in its 2002 World Report, covering the period November 2000 to October 2001, the arrests of Mr Uwazuruike and the summary execution by police of several MASSOB members during a police attack in Okigwe in February 2001 where at least 10 MASSOB members were reportedly killed. This is obviously a reference to the meeting at which the applicant claimed to be present. Then the Tribunal says: "A Human Rights Watch report was published in December 2003. It reports on 'persistent harassment' of MASSOB members by the police, arrests and detentions and on the clash in March 2003 (Nigeria: renewed crackdown on freedom of expression Human Rights Watch vol 15 No 19(A) December 2003 p 32-34). The Department of Foreign Affairs and Trade advice of November 2002 reported that 'according to Nigerian police, 17 members of MASSOB have appeared in a Federal Court in Umuahia on treason charges following a clampdown on their activities in August 2002' (MASSOB membership: Country information report No 338/02, cited above). A report of the clash between MASSOB people and the police in Owerri in March 2003, in which a number of people were shot was referred to by Human Rights Watch and in the UK Assessment, remarked that MASSOB had been 'officially banned' ('Political violence in Nigeria' BBC News 31 March 2003 CX75617). 'Thirty-two members of MASSOB were (in June this year) arraigned before an Asaba Chief Magistrates Court on a three-count charge of alleged unlawful assembly and wearing of army camouflage uniform but were granted bail … another batch of eight including their leader, Chief Ralph Uwazurike, … was transferred to Owerri' ('32 MASSOB Members arraigned in Asaba' Vanguard 4 July 2003 CX80800). A vigilante group, the Bakassi Boys, has reportedly been used by the government in Abia state to target MASSOB and there have been some violent clashes between the two groups (Nigeria: Update to NGA35938.E of 12 December 2000 on the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) NGA39090.E, cited above). In July 2001, the governor if Abia state banned the group from that state ('Nigerian police arrest pro-Biafran leader' Reuters 23 July 2001). 12 The three pieces of country information alleged to have been ignored were the DFAT report of 27 November 2003, and the last two pieces mentioned, that is to say the Human Rights Watch report of December 2003 and the BBC News report of 31 March 2003. 13 Under the heading Findings and Reasons the Tribunal notes: "Central to the applicant's claim is his association with MASSOB. His evidence about whether he had joined or not in the Tribunal's view was not consistent. This has given rise to concerns about whether he provided accurate evidence." 14 The Tribunal then goes on to consider the inconsistency already mentioned about whether he was joining in February 2001 or had joined six months previously. As noted, the Tribunal found that his evidence at most was of a very marginal and short-lived association with the organisation. The Tribunal says that independent information indicated that not all members or supporters of MASSOB faced a real chance of persecution for that reason. It appeared from the information that it is the leading members of the group who have been sought and arrested. The Tribunal did not accept that the applicant was a person with a profile in MASSOB of a kind which would lead the authorities to pursue him as he had claimed occurred. 15 Then there is a lengthy analysis of the evidence relating to meeting in February 2001 and in particular four different newspaper reports which say that the raid occurred about 4.00 to 4.30 am in the morning, which was quite inconsistent with the applicant's account of it occurring in about the middle of the day. The Tribunal proceeds to reject firmly the applicant's accounts of what subsequently happened in his sister's house. Clearly enough that was treated by the Tribunal as a fabrication. Then after discussing a matter which is no longer in issue, the Tribunal said: "Independent information indicates that MASSOB is able to promote its aims and act in an organised way. While it also indicates that there has been continuing harassment by the authorities, including a number of arrests and detentions, and some serious conflicts between the organisation and the authorities, it is not all members or supporters of MASSOB who face a real chance of persecution for that reason. Neither Amnesty International nor Human Rights Watch reports covering 2002 mentioned MASSOB as a particular target although the human rights situation in Nigeria remains of concern to both organisations. As I have already noted, it appears to me from the information I have read that it is the leading members of the group who have been arrested although it is possible that some of those arrested or killed or injured in violent encounters have not been leaders. It also appears that the harassment and violence which has occurred can be attributed in part to provocative or criminal activity on the part of some MASSOB elements. I have not accepted that the applicant has suffered any adverse consequences on account of his association with MASSOB in the past. I have found that the nature of his association was short-lived and marginal. There is no evidence that he has been involved in provocative or criminal activity in connection with his association with MASSOB. Against the background, I do not consider that there is anything more than a very remote chance that the applicant would come to the adverse attention of the authorities if he were to return to Nigeria in the reasonably foreseeable future and resume his support for MASSOB." 16 I do not accept that that paragraph is to be read, as counsel for the applicant suggests, as hinging everything on what happened in 2002. The whole paragraph is a conclusion in general terms of what the evidence showed as to the activities of MASSOB, the vulnerability of those connected with it and, of particular importance, the applicant's connection with MASSOB, or lack thereof. 17 Counsel for the Minister presented a careful analysis of the text of this passage. There is reasonable ground for concluding that there is actual reference there to the reports said to have been ignored. 18 For example, the Human Rights Watch report of December 2003 reported on "persistent harassment" of MASSOB members by the police etc. The Tribunal in the passage under consideration refers to independent information which indicates there has been "continuing harassment" which seems to be essentially the same thing. It refers to "some serious conflicts" between the organisation and the authorities. There is reference in the reports to the February 2001 events at Okigwe and the March 2003 killings which took place in the year that the applicant now alleges has been overlooked. 19 One of the matters which it was claimed was overlooked or ignored was the fact that MASSOB had been banned. Yet the most recent of all the reports, that is, the DFAT report of 27 November 2003, said that as far as it was aware MASSOB had not been officially proscribed by the Nigerian government. 20 Necessarily assessments of this nature cannot be made with mathematical precision. The Tribunal acknowledges that in saying that it is possible that some of those arrested and killed have not been leaders. Yet the conclusion remains, which seems to be well supported in the evidence, that having regard to the critical element of the applicant's own connection with MASSOB there was nothing more than a very remote chance that he would come to the adverse attention of the authorities if he were to return to Nigeria. 21 I find that the ground of review is not made out and the application will be dismissed with costs.