SBWD v. Minister for Immigration and Anor.

"10. The applicant’s agent wrote to the Tribunal on 17 March 2006 to say that he was arranging for the applicant to see a psychiatrist and raised for the first time the possibility that the applicant was suffering from post-traumatic stress disorder. The applicant made further written submissions on 31 March 2006 and included a psychiatric assessment from a Dr Jureidini. That assessment is dated 24 March 2006. Dr Jureidini had interviewed the applicant by video-link on 24 March 2006. The report said that the applicant met the criteria for diagnosis of post-traumatic stress disorder and raised issues about whether the applicant’s English-language skills were sufficient to enable him to engage the discussions necessary to promote his claim.

12. The Tribunal refused the application for a further hearing (whether that be taken as a refusal to convene a second hearing or to extend the first hearing). In refusing that application the Tribunal noted that the applicant had no difficulty in speaking in English and responding to questions in English at the hearing on 6 March 2006, nor had the matter been raised in the applicant’s previous dealings with representatives of the Minister. The Tribunal formed the view that the relevant issues had been dealt with at the oral hearing and in the s.424A letter.

14. The first ground of review alleges that the mental condition of the applicant as described by Dr Jureidini, coupled with his problems with English, meant that the Tribunal did not provide a real and meaningful invitation to the applicant in accordance with s.425 of the Act.

23. In this case the evidence is much more ambiguous. Nothing was put to the Tribunal at the oral hearing to indicate the applicant was labouring under any difficulty and there is nothing conclusive about Dr Jureidini’s opinions based as they are upon the applicant’s own account of his state at the hearing and his reading of the transcript and of Sister Higgins’ affidavit. Sister Higgins’ affidavit does not take the matter materially any further. I agree with Mr Tredrea that it is difficult to construe all we know of the circumstances of the oral hearing in a way which suggests that the applicant was not extended a meaningful invitation in terms of s.425 of the Act. His difficulties arising out of the oral hearing relate more to the Tribunal’s rejection of his account rather than any inability or incapacity on his part to articulate it at the hearing.

24. I understand ground one of the application to be a “stand alone” point not bound up with the more general procedural fairness points made in grounds two and three. Those latter grounds have especial difficulties in light of s.422B of the Act. Nevertheless, I am unable to find a jurisdictional error arising out of the way in which the Tribunal apprehended and discharged its obligations pursuant to s.425 of the Act.

25. Ground two alleges that the Tribunal acted in breach of the rules of natural justice by failing to grant the further (or as Mr Ower would prefer me to express it, the more extended) hearing. It is said that the Tribunal failed to give the applicant a reasonable opportunity to answer the matters raised in the applicant’s agent’s letter of 31 March 2006 and its enclosures.

30. Mr Ower says if I am against him on his narrower s.425 point (and I am) that I could form the view that there is no provision in Division 4 which deals with the argument relating to mental illness and inability to properly participate in a hearing (and that therefore the exhaustive statement problem does not arise). But that approach was specifically rejected in Lay Lat.

31. Mr Ower asked Federal Magistrate Morcombe, as he asks me, to deal with the procedural fairness argument before considering the implications relating to such an argument of s.422B of the Act in case the applicant wishes to agitate an attack upon Lay Lat in an appellate context. That is not, in the circumstances of this particular case, an invitation I propose to take up. In my view the argument founded on the procedural fairness submission is not one open to this Court to accept.

32. Ground three is an argument of a procedural fairness kind but one that is arguably dealt with by Division 4 of Part 7 of the Act. The suggestion is that the Tribunal failed in its duty pursuant to s.414 of the Act to conduct a review of the decision of the delegate of the Minister by not allowing further evidence and argument at a second or extended hearing to deal with the matters raised in the applicant’s agent’s letter of 31 March 2006.

33. Mr Ower candidly acknowledges that those indications of the Tribunal’s subjective state of mind are absent from this case. This case is one that suggests that the Tribunal acted wrongly in ignoring the psychiatrist reports and the evidence of Sister Higgins in not granting a further or extended hearing. To the extent that the argument is simply a procedural fairness argument, see Lay Lat. To the extent that it specifically relies upon s.414 of the Act, I am not persuaded that by failing to take the view urged upon it by the applicant’s agent as to the significance of the medical and other evidence constituted by all that was sent under cover of the letter of 31 March 2006 and granting a further or extended hearing, that the Tribunal fell into jurisdictional error. The Tribunal gives its reasons why it does not think that any purpose would be served in a subsequent hearing and they indicate that the matters relevant to the determination of the issue have been considered. It is not to the point to ask whether or not I would have come to a different view. Nothing said by the Tribunal in relation to this topic is indicative of it misunderstanding its obligations pursuant to s.414 of the Act.

34. We come to the last point agitated on behalf of the applicant (I say “last” because both before Federal Magistrate Morcombe and I, Mr Ower abandoned reliance upon ground five of the Amended Application). This point relates to a passage to be found at the conclusion of that part of the Tribunal’s reasons which deals with the issue of fear of persecution on the grounds of religion.

35. The Tribunal had this to say:
The Tribunal is satisfied that there is no concerted and systematic attempt by Nigerian Muslims as a whole to eliminate Christians. Indeed, some of the communal violence evident in recent years in some parts of Nigeria has been initiated by Christians. There is evidence that some senior Muslim clerics have joined with their Christian counterparts to appeal for peace or to work on committees aimed at ameliorating the situation. The Tribunal finds that religious violence in Nigeria is random and sporadic in nature and, therefore, not “systematic”. Section 91R of the Act requires that, in order for harm to constitute “persecution”, it must be systematic. Therefore, the religious violence that erupts from time to time, does not meet the definition of “persecution”. Therefore, the applicant does not have a well-founded fear of persecution for reasons of his Christian religion.

36. The complaint is that this demonstrates that the Tribunal has fallen into jurisdictional error in failing to properly understand its obligations pursuant to s.91R of the Act. That section provides that the relevant provisions of the Refugee’s Convention and Protocol do not apply in relation to the persecution referred to therein unless:
(c) the persecution involves systematic and discriminatory conduct.

42. In the passage cited above the Tribunal finds “that religious violence in Nigeria is random and sporadic in nature and, therefore, not ‘systematic’”. What does the Tribunal mean when it uses the word ‘random’ in this context? It will be recalled that McHugh J in Ibrahim eschewed use of the expression ‘systematic conduct’ except if it is made clear that the reference is to ‘non-random’ acts; inferentially random acts can be taken to be non-systematic. But the discussion preceding that passage in Ibrahim makes it clear that His Honour was referring to non-random acts in the sense of non-selective acts: an act would be random if it was not deliberate or premeditated or intended. Is this the sense in which the Tribunal has used the word ‘random’?

47. However, the concerns I have as to the Tribunal’s evaluation of the nature of religious violence in Nigeria is amplified by the way in which the Tribunal seemed to think that its categorisation of the religious violence as “random and sporadic” (the former word being used in the sense we have discussed), entailed (my emphasis) a finding that religious violence “that erupts from time to time”, does not meet the definition of persecution. The issue is dealt with by the Tribunal in a manner suggestive of syllogism: religious violence in Nigeria is random and sporadic; s.91R requires that the persecution be systematic; therefore the religious violence alleged cannot amount to Convention-related persecution and the application must fail. The problem is the first premise. Religious violence which erupts from time to time might yet be systematic. Perhaps the Tribunal would have rejected the claim as to religious persecution in any event, without recourse to this faulty process of reasoning. If it had been avoided perhaps the credibility findings on this issue relating to the applicant would have led to a rejection of his claim as to persecution in any event. It is difficult to know, especially as the Tribunal has expressed itself with such emphasis and certitude in these concluding remarks on this topic of systematic conduct. The conclusion is one that the Tribunal regards as axiomatic and that cannot be right. If the Tribunal were not labouring under this misapprehension it presumably would have regarded it as important to make a finding as to whether the applicant’s family members were killed during religious violence in Jos. From the Tribunal’s point of view, presumably, this task was unnecessary because it was something that only arose “from time to time”. This connotes an understanding of the word ‘systematic’ very close to the regular or methodical sense of the word identified in Ibrahim as erroneous.

48. This misapprehension can be taken, I infer, to have affected the Tribunal’s consideration of the issue of state protection as well. In all of the circumstances but especially having regard to the manner in which the Tribunal has applied its understanding of s.91R of the Act, the error must be taken to be jurisdictional."