SZSLM v Minister for Immigration & Anor [2014] FCCA 1043 (23 May 2014)

Last Updated: 26 May 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLM v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1043

Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal (Tribunal) – whether the Tribunal erred in not taking to be correct an earlier decision of the Tribunal – whether Tribunal assessed risk of significant harm to applicant by reference to risk of significant harm to a class of persons of which the applicant was not a member – no jurisdictional error – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 416

Nejad v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 153 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 SZNOL v Minister for Immigration and Citizenship [2012] FCA 917

Applicant:

SZSLM

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2098 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

21 February 2014

Delivered at:

Sydney

Delivered on:

23 May 2014

REPRESENTATION

Solicitor for the Applicant:

Mr Jones

Solicitors for the Respondents:

Mr Markus Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 2098 of 2013

SZSLM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 December 2000, shortly after he first arrived in Australia, the applicant applied for a protection visa. He claimed he had a well-founded fear of persecution in his country of nationality, Nigeria, because he was homosexual or bisexual.^[1] On 7 June 2001 a delegate of the first respondent (Minister) refused the application, and, on 10 April 2003, the second respondent (Tribunal) affirmed the delegate’s decision.
2. The Tribunal again reviewed the delegate’s decision of 7 June 2001 after this Court set aside by consent the Tribunal’s decision of 10 April 2003. On 19 August 2004 the Tribunal (Second Tribunal), on the second review of the delegate’s decision, concluded the applicant satisfied “Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol”.^[2] The Second Tribunal remitted the matter for reconsideration, directing that the applicant “satisfies Article 1A(2) of the Refugees Convention”.^[3]
3. On 22 August 2004 the applicant departed Australia a few days before he was due to face trial of a charge that he had imported into Australia commercial quantities of cocaine. The applicant’s departure from Australia resulted in a delegate of the Minister, on 7 February 2005, deciding to refuse to grant the applicant a protection visa. That decision was made because a criterion for the granting of a protection visa under s.36(2)(a) of the Migration Act 1958 (Cth) (Act) is that the applicant be “a non-citizen in Australia”.
4. The applicant returned to Australia on 20 December 2005 as a result of an extradition order that was made against the applicant in England on the application of the government of Australia. After he returned to Australia, the applicant was convicted of importing a trafficable quantity of cocaine, and was sentenced to imprisonment for twelve years commencing on 10 August 2004, with a non-parole period of eight years.
5. On 12 December 2011 the applicant again applied for a protection visa, claiming fear of persecution for the reasons he claimed in his application of 18 December 2000. A delegate of the Minister refused the application on 25 May 2012. On 20 December 2012 the Tribunal affirmed the delegate’s decision (Third Tribunal) but, on 19 June 2013, this Court, again by consent, set aside the Tribunal’s decision, and remitted the application for review for redetermination by the Tribunal. After hearing an application for review for a fourth time, on 30 August 2013 the Tribunal (Fourth Tribunal) again affirmed the delegate’s decision not to grant a protection visa to the applicant.
6. In this application for judicial review, the applicant claims the Fourth Tribunal made two jurisdictional errors. First, the Fourth Tribunal misinterpreted s.416 of the Act. Second, the Fourth Tribunal misapplied the test of whether there was a real risk of significant harm to the applicant if returned to Nigeria based on the application to the applicant of a law of Nigeria - “Decree 33 of 1990” – that applies to Nigerian nationals who have been convicted of drug offences in overseas countries. The applicant first raised a claim based on the application to him of Decree 33 on his application for review before the Third Tribunal.

Ground 1 – misinterpretation of s.416

7. Section 416 of the Act is engaged when the Tribunal has determined an application made by a non-citizen for review of “an RRT-reviewable decision” and the non-citizen “makes a further application for review of an RRT-reviewable decision”. When engaged, s.416 provides that the Tribunal, in considering the further application for review, “is not required to consider any information considered in the earlier application or an earlier application”, and “may have regard to and take to be correct, any decision that the Tribunal . . . made about or because of that information”.

The applicant’s submissions before the Fourth Tribunal

8. Before the Fourth Tribunal the applicant submitted, and the Fourth Tribunal accepted, that s.416 of the Act was engaged: the applicant had made an application for review of “an RRT-reviewable decision”, being the second review of the delegate’s decision of 7 June 2001; that review was determined by the Second Tribunal on 19 August 2004; and the applicant made a further application for review of “an RRT-reviewable decision”, the decision being the delegate’s decision of 25 May 2012. The applicant further submitted that:
   1. s.416 of the Act created “a presumption that the previous Tribunal’s finding will be accepted by a later Tribunal unless it could be said that the previous findings were affected by an error of law or fact or some flaw in reasoning”;^[4]
   2. a decision not to exercise the discretion should only be made where the evidence establishes to a “high degree of satisfaction” that the Tribunal’s previous findings were affected by an error of law or fact or some flaw in reasoning;^[5] and
   100. there was no new evidence before the Tribunal that could give rise to the required high degree of satisfaction that the previous findings were wrong.^[6]

The Fourth Tribunal’s approach

9. The Fourth Tribunal did not accept the applicant’s submission that a decision not to exercise the discretion should only be made where the evidence establishes to a high degree of satisfaction that the Tribunal’s previous findings were affected by an error of law or fact or some flaw in reasoning. It did, however:^[7]

accept that, as suggested by Emmett J in SZNOL . . . at [26],^[[8]] ‘the discretion conferred by s 416 not to consider any information considered in the earlier application should be exercised, except in cases where it can be said that the previous decision of the Tribunal was affected by an error of law or fact or that the previous Tribunal’s reasoning process was flawed in some other way’.

10. The Fourth Tribunal found that the reasoning process of the Second Tribunal was flawed and, for that reason, decided not to exercise the discretion under s.416 of the Act to “take to be correct the decision made by the second Tribunal”. The Fourth Tribunal said:^[9]

As will be apparent from the remainder of these reasons, I consider that the reasoning process of the second Tribunal was flawed in that, while it said that it had serious credibility concerns with [the applicant’s] evidence, it failed in my view to give sufficient weight to those concerns in making its findings . . . that it was ‘not positively satisfied the applicant is not telling the truth’.

The applicant’s submissions before the Court

11. The applicant submits that the passage set out in the preceding paragraph indicates that the Fourth Tribunal “confuses findings of fact with reasoning processes”.^[10] That constitutes a jurisdictional error because, the applicant submits:
    1. s.416 is premised on a distinction between findings that the earlier Tribunal makes, and reasoning on the basis of which the earlier Tribunal made such findings;
    2. s.416 permits the Tribunal not to accept a previous finding only where the finding is based on “flawed” reasoning;
    100. the Fourth Tribunal did not accept the Second Tribunal’s findings because it disagreed with the weight the Second Tribunal gave to certain evidence; and
    4. the process of assigning weight to evidence is different from a flawed reasoning process.

Is the applicant’s submission correct?

12. I do not accept the applicant’s submissions. First, the applicant construes s.416 of the Act as requiring the Tribunal to accept the conclusions of a previous Tribunal unless the Tribunal is satisfied that the previous Tribunal’s conclusion is based on flawed reasoning or on an error of law. There is nothing in the language of s.416, however, that supports such a construction. The section is entirely permissive. It provides that the Tribunal “may have regard to and take to be correct, any decision that the Tribunal . . . made about or because of that information”.
13. The section’s permissive character was noted by Emmett J in SZNOL v Minister for Immigration and Citizenship:^[11]

[I]n considering a further application, the tribunal is not required to consider certain information, although it is not precluded from doing so, and the tribunal may have regard to and take to be correct any decision made about or because of that information, but is not obliged to do so.

14. The permissive nature of s.416 has been noted in other cases. In Nejad v Minister for Immigration and Multicultural Affairs, Beaumont J said:^[12]

As I read s 416(c) and (d), whether taken literally or purposively or both, the provision places no obligation upon the Tribunal to accept, or not to accept, the conclusion or the process of reasoning, in whole or in part, of the previous decision. By the same token, in a proper case, the Tribunal is to be at liberty to adopt or accept the conclusion, or the process of reasoning, in whole or in part. When the reasons of the second Tribunal decision are read as a whole, it does not appear that the Tribunal failed to understand that s 416 operated in this way. In my view, no legal error in this regard has been demonstrated.

15. An observation to the same effect was made by Wilcox J in Sun v Minister for Immigration and Ethnic Affairs:^[13]

Section 416 conferred a discretion; it did not impose any obligation.

16. Second, there is nothing in the reasons for judgment of Emmett J in SZNOL v Minister for Immigration and Citizenship,^[14] a decision on which the applicant relies, that supports the construction contended for by the applicant. Unlike the facts of the case before me, SZNOL v Minister for Immigration and Citizenship concerned a challenge to a second Tribunal’s exercise of the discretion under s.416 to take to be correct a decision of a first Tribunal. That challenge was not based on a claimed construction of s.416 to the effect that the second Tribunal was required to take to be correct the first Tribunal’s findings unless the second Tribunal was satisfied that the first Tribunal’s conclusion was based on flawed reasoning or on an error of law. The issue in SZNOL v Minister for Immigration and Citizenship was whether, as the applicant in that case claimed, the second Tribunal failed to consider what was claimed to be fresh information when considering whether to exercise the discretion conferred by s.416 of the Act.
17. Third, the applicant’s submission assumes that the Fourth Tribunal’s disagreement with the weight the Second Tribunal assigned to the concerns the Second Tribunal had with the applicant’s credibility cannot reasonably be characterised as a finding that the Second Tribunal’s conclusions were based on flawed reasoning. That assumption is incorrect. Making findings on the basis of evidence involves reasoning; it involves the drawing of inferences from facts which the decision-maker accepts as true to the existence or non-existence of facts that are in issue. Whether or not any particular inference should in fact be drawn depends on the weight the decision-maker assigns to a particular evidentiary fact. And the assigning of weight to a particular evidentiary fact itself is a conclusion that is, or should be, based on reasoning.
18. In my opinion, therefore, the applicant’s first ground fails.

Ground 2 – misapplication of the real risk of significant harm standard

19. Before the Fourth Tribunal, the applicant submitted there was a real risk the applicant would suffer significant risk if he were to return to Nigeria because of the operation of a Nigerian law, Decree 33. That law provides as follows:^[15]

12(2) Any Nigerian citizen found guilty in any foreign country of an offence involving narcotic drugs and psychotropic substances and who thereby brings the name Nigeria into disrepute shall be guilty of an offence under this subsection.

12(3) Any person convicted of an offence under subsection [...] 2 of this section shall be liable to imprisonment for a term of five years without an option of [a] fine and his assets and properties shall be liable to forfeiture as provided by this decree.

20. In a written submission to the Third Tribunal made on 10 October 2012, the applicant, through his legal representative, submitted that the most recent country information showed that Decree 33 had been applied as recently as 2005, and there was no evidence that it had not been applied since that year.^[16] The applicant further submitted there is a real risk the applicant would be detained on return to Nigeria and would be subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment;^[17] and that it would be relatively easy for authorities in Nigeria to become aware that the applicant had been convicted of a crime in Australia.^[18]
21. Sometime before 23 August 2013, the Fourth Tribunal provided the applicant’s legal representative with a copy of the decision of the Administrative Appeals Tribunal (AAT) in Anochie and Minister for Immigration and Citizenship.^[19] In a letter dated 23 August 2013 the applicant’s legal representative submitted that “the findings of the AAT in its original and recent consideration of the case of Mr Anochie are compelling and should be followed by the Tribunal in this case”.^[20]
22. It may be inferred that the AAT’s findings the applicant’s legal representative had in mind as being compelling are as follows:
    1. The following extract from a report compiled by the Tribunal, “Country Advice – Nigeria (NGA37358)” dated 7 October 2010 which shows:^[21]

Corruption is endemic at all levels of government. Police and security forces are also notoriously corrupt, and the progress of criminal proceedings has frequently been reported to depend on paying significant bribes to arresting officers, prison guards and other officials. Improper influence of the judiciary, life-threatening pre-trial detention facilities, and lack of access to legal representation and a fair, timely trial are endemic in the Nigerian criminal justice system.

2. The following report from Human Rights Watch:^[22]

As in previous years, the undisciplined Nigeria Police Force was implicated in frequent human rights violations, including extrajudicial killings, torture, arbitrary arrests, and extortion related abuses. The police routinely solicit bribes from victims to investigate crimes and from suspects to drop investigations. Embezzlement of police funds is rife among senior police officials who also often demand monetary “returns” from money extorted from the public.

100. The following extract from the “US State Department Country Report on Human Rights Practices 2010” noted by the Border Agency of the UK Home Office:^[23]

Prison and detention conditions remained harsh and life-threatening. Most of the country's 222 seven prisons were 70 to 80 years old and lacked basic facilities...Amnesty International reported in February 2008 that death-row inmates and prisoners awaiting trial [face] conditions that are even worse.

4. The following information from the Australian High Commission in Nigeria that was given in response to a request for clarification as to whether the post was aware of any reports of persons being detained under Decree 33:^[24]

I have put your question to the lead officer at the British High Commission. This is not to abdicate post’s responsibility, but to reflect the fact that they may have a dedicated team working on immigration issues where we do not. The answer to your question is: the National Drug Law Enforcement Agency (NDLEA) have confirmed to British Officials verbally that yes, they would detain people under decree 33, not for the purposes of prosecution, but for the purposes of debriefing – including in the course of seeking information that might relate to other ongoing trials. We are advised that the use of the conditional tense (the ‘would’ rather than ‘do’ detain) is reflective of the way the NDLEA phrase it. There are no other sources that have reported detention on these grounds of which we, or our UK colleagues, are aware.

A formal, written request for clarification on the government’s intent regarding decree 33 was lodged one year ago by the British High Commission, but has not received a response.

For your background, the UK currently deport [sic] Nigerian drug offenders to Nigeria, but as a result of decree 33, they refuse to inform the Nigerian authorities about the exact nature of the offence. They refer to drug offenders as ‘immigration offenders’. This may become a more complicated issue for the UK in the near future as they negotiate a Prisoner Transfer Agreement.

5. The following conclusions of the AAT:^[25]

At paragraphs [83] to [86] of the earlier decision, I set out why, in my view, there is a real risk that Mr Anochie will face significant harm if returned to Nigeria by virtue of the application of Decree 33 and why his removal would put Australia in breach of its non-refoulement obligations under the ICCPR. Nothing about the additional information changes that view; if anything, it tends to strengthen that view.

The Fourth Tribunal’s findings and decision

23. The Fourth Tribunal:^[26]
    1. found that the Nigerian authorities will be aware the applicant has been convicted of a drug offence in Australia, and that Decree 33 is still in force;
    2. found that no repatriated Nigerian nationals have been prosecuted under Decree 33 since 1 April 2003.
    100. accepted as accurate the following advice given by the Australian High Commission in Nigeria that the Tribunal had “put” to the applicant during the hearing:^[27]

I put to [the applicant] that the Australian High Commission in Nigeria had provided further advice on 10 April 2013 to the effect that National Drug Law Enforcement Agency had confirmed to British officials that they would detain people under Decree 33, not for the purposes of prosecution but for the purposes of debriefing, including in the course of seeking information that might relate to other ongoing trials. I put to [the applicant] that the Australian High Commission in Nigeria had stressed that the NDLEA had said ‘would’, not ‘do’, and that there were no other sources of which they or their UK colleagues were aware that had reported detention on these grounds: see Anochie and Minister for Immigration and Citizenship . . . .

4. gave “weight to the advice of the Australian High Commission that there were no other sources of which they or their UK colleagues were aware that had reported detention on these grounds”.^[28]

24. On the basis of these matters, the Fourth Tribunal concluded:^[29]

I do not accept on the evidence before me that there is a real chance that [the applicant] will be detained, prosecuted, further punished or otherwise persecuted because he has been convicted of a drug offence in Australia if he returns to Nigeria now or in the reasonably foreseeable future.

The applicant’s submissions to this Court

25. The applicant submits the Fourth Tribunal approached the applicant’s claims in relation to the operation of Decree 33 “from a general or statistical point of view without considering the specific nature of the Applicant’s circumstances and whether he would therefore be at particular risk”.^[30] That is to say, the applicant submits that:
    1. the Fourth Tribunal assessed the risk of harm to the applicant on the basis of the risk of harm to that class of Nigerians referred to in the last paragraph of the passage set out in paragraph 22(d) of these reasons, namely, Nigerian drug offenders deported by the United Kingdom to Nigeria whose status as drug offenders is not disclosed by the United Kingdom authorities to Nigeria;
    2. the applicant, however, could not have been considered a member of such a class because, as the Tribunal found, Nigerian authorities will be aware the applicant has been convicted of a drug offence in Australia.

Did the Tribunal misunderstand the real risk of significant harm standard?

26. I do not agree that the Fourth Tribunal assessed the risk of harm to the applicant by reference to the risk of harm to a class of persons of which the applicant was not a member, namely, Nigerian drug offenders deported by the United Kingdom to Nigeria whose status as drug offenders is not disclosed by the United Kingdom authorities to Nigeria.
27. The country information the Fourth Tribunal accepted and on which it relied in arriving at the conclusion I have set out in paragraph 24 of these reasons, is the information I have set out in paragraphs 23(c) and (d) of these reasons. That country information refers to a class of persons of which, on the findings of the Fourth Tribunal, the applicant is a member. That class is Nigerians who have been convicted of drug offences in foreign countries and who, on their return to Nigeria, are or would be detained under Decree 33 for the purpose of seeking information that might relate to other ongoing trials. That class would not, however, include Nigerians who are deported from the United Kingdom but whose convictions for drug offences is not revealed by the United Kingdom authorities to Nigerian authorities. That is so because the Nigerian authorities would not be aware that the returning Nigerians are convicted drug offenders, and, therefore, they would not detain them under Decree 33.
28. If, contrary to what I say in the preceding paragraph, the class of persons referred to by the country information on which the Fourth Tribunal relied included both Nigerians whose convictions for drug offences in overseas countries has become known to the Nigerian authorities, and Nigerians whose convictions for drug offences has not become known to Nigerian authorities, the applicant would still be a member of the class of persons who would be detained under Decree 33 for the purpose of seeking information that might relate to other ongoing trials. And the Fourth Tribunal would have assessed the risk of harm to the applicant by reference to the risk of harm to a class of which the applicant was a member.
29. Accordingly, the Fourth Tribunal did not make the error the applicant claims it made. The Fourth Tribunal assessed the risk to the applicant by reference to the risk of harm facing a class of people of which the applicant was a member.
30. If, contrary to what I have found, the Fourth Tribunal did incorrectly assess the risk to the applicant by reference to a class of which the applicant is not a member, would that manifest a misunderstanding by the Fourth Tribunal of the correct test of what constitutes a real risk of significant harm, as submitted by the applicant? In my opinion, it would. That would be so because s.36(2)(aa) of the Act requires the Tribunal to assess whether a particular individual, namely the “non-citizen” who has applied for a protection visa will suffer significant harm. That question cannot be answered by assessing risk of significant harm to a class of persons of which the particular individual is not a member.
31. In any event, given I have found that the Fourth Tribunal did not assess the risk to the applicant by reference to a class of which the applicant is not a member, the applicant’s second ground also fails.

Disposition

32. For these reasons, I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 23 May 2014

---

^[1] CB14-15
^[2] CB217
^[3] CB217
^[4] CB584, [11], citing SZNOL v Minister for Immigration and Citizenship [2012] FCA 917 (emphasis in original)
^[5] CB584, [11], citing Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 515; (1993) 45 FCR 570
^[6] CB584-585, [11]
^[7] CB585, [12]
^[8] [2012] FCA 917
^[9] CB585, [12]
^[10] Applicant’s written submissions, [25]
^[11] [2012] FCA 917 at [23]
^[12] (1997) 79 FCR 153 at 158
^[13] (1997) 81 FCR 71 at page 83 (Burchett J agreeing)
^[14] [2012] FCA 917
^[15] I have obtained the text of the law from the reasons for decision of the Administrative Appeals Tribunal in Anochie and Minister for Immigration and Citizenship [2012] AATA 234 at [63].
^[16] CB462
^[17] CB463
^[18] CB463
^[19] [2013] AATA 391
^[20] CB573, Mr Jones referred to both AAT decisions ([2012] AATA 234; [2013] AATA 391)
^[21] [2012] AATA 234, [83]
^[22] [2012] AATA 234, [84]

^[23] [2012] AATA 234, [85]. This passage is not an entirely accurate quote of what the Border Agency of the UK Home Office said. What the Agency said is as follows: “Prison and detention conditions remained harsh and life-threatening. Most of the country’s 227 prisons were 70 to 80 years old and lacked basic facilities” [at page 62, paragraph 14.01] “The Amnesty International (AI) report Nigeria - Prisoners’ rights systematically flouted, published in February 2008, stated that: “Death row inmates and prisoners awaiting trial face conditions that are even worse...”” [at page 64, paragraph 14.06]Home Office UK Border Agency, Nigeria Country of Origin Information (COI) Report 6 January 2012: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257631/report-06-112.pdf [accessed: 22/05/2014]

^[24] [2013] AATA 391, [51]
^[25] [2013] AATA 391, [52]
^[26] CB605, [94]
^[27] CB604, [90]
^[28] CB605, [94]
^[29] CB605, [94]
^[30] Applicant’s written submissions, [31]