REASONS FOR JUDGMENT
Introduction
1 The applicant arrived in Australia without lawful authority on 22 August 2001. He claims to be a citizen of Afghanistan. He lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) on 26 September 2001. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused his application on 20 December 2001. On 21 December 2001, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision. The Tribunal affirmed the decision not to grant a protection visa on 8 March 2002. On 2 April 2002, the applicant lodged an application in this Court for review of the Tribunal's decision.
Factual History
2 The ground upon which review is sought of the Tribunal's decision focuses upon its failure to provide to the applicant a linguistic analysis of his speech based on tapes of an interview between him and the delegate of the Minister. It is necessary before turning to that question to outline broadly the evidence and claims before the Tribunal.
3 The applicant's initial interview after arriving in Australia was conducted on 2 September 2001 by an officer of the Department with the assistance of a Dari interpreter. His initial claims were made in this interview. They were set out more comprehensively in a statutory declaration attached to his application for a protection visa. In that declaration he said that he is an Hazara, Shi'ite Muslim, born in Jaghori at Ghazni in Afghanistan in 1982. His mother, two brothers and two sisters all live in Afghanistan. His father was killed by the Taliban three years previously. The applicant said he had had no formal education and was illiterate but did attend a Mosque in Haidar for about a year and undertook religious education. He said that from an early age he helped his parents around the family home as well as on the farm where they grew wheat, barley, clover, lucern and ran some sheep, a couple of oxen, some goats and two cows. He also helped at his uncle's shop in the Anghoori Market as his uncle and father were in partnership in that business.
4 After the Taliban forces took over Mazar-e-Sharif & Banyan, the elders of the district in which the applicant lived decided they should submit to the Taliban. The Taliban started to collect weapons from the inhabitants. They decreed that every house in the applicant's village must provide a young male for the front lines. They took the applicant's father away and sent him to the front line where he was killed. According to the statutory declaration this was some three years before the applicant arrived in Australia.
5 Following his father's death, the applicant remained and worked with his uncle at his uncle's business in the Anghoor Market until he left Afghanistan. About a week before his departure from Afghanistan the Taliban, who had left them alone for three years, came to the shop and said they wanted a young male from the household for the front lines and wanted the applicant as he was the eldest of his siblings. His uncle gave the Taliban an amount of money which bought him a week of grace. His uncle organised a smuggler, sold his business and paid the smuggler a sum of money, the quantum of which the applicant did not know. In the last two nights before he left the applicant remained in one of the sub-village houses. His uncle picked him up by motorbike and they travelled to the Anghoori Market where the smuggler was waiting. There the applicant and the smuggler travelled by vehicle to Kandahar and thence to Spinboldak. They crossed the border to Pakistan and arrived at Quetta. They spent fifteen days in Quetta and then travelled by bus to Karachi where they remained for about fifteen days. From there the applicant was put on a plane which flew via Bangkok to Singapore and then to Jakarta. He stayed in Indonesia for about five months and then was put on a boat where he remained for seven days until the boat sailed to Christmas Island, which took five days.
6 The applicant said, in his declaration, that he could not return to Afghanistan as he feared for his life as a Hazara and Shi'ite Muslim. He said that if the Taliban caught him, they would kill him as they did his late father three years before. He also said he could not return to either Pakistan, Thailand, Singapore or Indonesia as he had no formal entry or residence entitlements in these countries.
7 The applicant's second oral interview was conducted on 28 September 2001 by the delegate who made the primary decision. This interview was again carried out with the assistance of a Dari interpreter.
8 Following the interview, the Department referred a tape recording of the applicant's speech for analysis of his linguistic patterns. A report was prepared and sent to the Department by a Swedish organisation called Eqvator. It is convenient to set out the text of that report in full:
"LINGUISTIC ý TEXTUAL ANALYSIS ¨
ANALYSIS
Date: 3.12.2001 File no: CONARA 089 Language: Dari
The criteria used for linguistic and/or textual analysis of this type include local or regional language characteristics of a phonological, morphological, syntactic and lexical nature (ie elements of sound, patterns of word formation, the formation of grammatical sentences, and vocabulary); for some languages, stylistic traits; and, in textual analysis, handwriting.
The following observations were made in conjunction with a study of the tape/document submitted for analysis. As many linguistic aspects as possible were taken into consideration.
The applicant speaks Dari.
His Dari dialect is called Hazaragi. Hazaragi is mainly spoken in central Afghanistan, but there are also Hazaragi speaking minority populations in for example Pakistan and Iran. The applicant speaks colloquial language. His accent is Pakistani. He speaks ungrammatically and says for example:
"SAIS. MO KE ASTA AZ QARIE HAIDER BUDE. QARIE HAIDER KE ASTA DA SE QOL TAQSIM SHODA BUD. YAK BA NAME SAWSANGE HAIDER, YAK BA NAME QANTAR GHOE HAIDER WA YAK BANAME LAKHCHAGE HAIDER, INA KE BUD DAR BAINE WOLESWALI JAGHORI BUD WA DAR BAINE WOLAYATE GHAZNI BUD. I MONTEQE AZ MO KE ASTA I ANGORI YAGAN SE SAD RAH PAIPIYADA DUR BUT WA YAGAN YAK SAT."
The applicant uses the Hazaragi verb prefix "MO", for example "MOKAD", "MONA", "MOSHA" and "MOGA". He uses common Hazaragi words such as "GALA", "LATA PERO", "PORTA", "GOLKHO" and "SHIGHAI". He pronounces final "T" as "D" in the word "SAT" and final "D" as "T" in the word "BUD". These are also Hazaragi traits.
He pronounces many words with a Pakistani pronunciation, for example "ONJAGA", "BAZI", "NERGAW", "MEDGAW", "KHATOM", "NOMAZ" and "TOBGANTAI". He uses the Urdu words "PAN", "BAD", and "TASOWA". Urdu is not spoken in Afghanistan.
The applicant's Hazaragi dialect is Pakistani. His mother tongue is Dari.
Observations made in conjunction with a study of the dialect/language variant occurring in the text/tape recording submitted for analysis suggest that:
ý The dialect/language variant occurring in the text/tape recording may with considerable certainty be said to originate from: PAKISTAN,
BALUCHISTAN
¨ The dialect/language variant appears to be most similar to that of
(country, region):
Another possibility, although somewhat less certain, could be
(country, region):
¨ The observations do not permit of any unequivocal statement
The language used in the document shows traits from both
(country, region):
and (country, region):
¨ The observations made in conjunction with the study do not permit of any particular opinion (recording too short, of too poor quality):
Assessment code: PERS-3"
Of the six possible alternative observations for which the standard form of report allowed, only the first was completed indicating the view of the writer that the applicant's dialect or language variant could be said with considerable certainty to originate from Baluchistan in Pakistan.
9 On 5 December 2001, the Department wrote to the applicant with a copy to his solicitors advising him of the outcome of the linguistic analysis. The letter said, inter alia:
"In your application and at your interview on 28 September 2001, you claimed that you were a citizen of Afghanistan, Hazara and a Muslim Shi'ite.
A linguistic analysis of your taped interview was conducted by Eqvator, language analyses service based in Stockholm. The analyst's conclusion is that the dialect/language variant occurring in the text/tape recording may with considerable certainty be said to originate from of 'Pakistan, Baluchistan'.(sic) This information leads me to doubt your claim to be a citizen of Afghanistan, Hazara and a Muslim Shi'ite.
If you want to make representations or comment about the analyst's conclusion, you may do so in writing."
A copy of the report itself was not provided. The letter went on to refer to the time requirements for responses.
10 On 12 December 2001, the applicant's solicitors wrote to the Department enclosing a request for copies of all documents and tapes in relation to the applicant's application. They also sought a copy of the linguistic analysis tape recorded prior to their obtaining instructions from him. They wanted a copy of the initial tape and of the report so it could be checked by an independent expert. They also asked the Department to advise the name and qualifications of the analyst and the analyst's experience and expertise. They observed:
"We note you have not indicated how this person has any experience or expertise in order to provide reports. It is submitted that merely stating someone has provided a report from a language based service in Stockholm is totally inadequate in terms of establishing the person's expertise or credentials in relation to providing an expert report. It is submitted that no conclusions can be drawn from that report without the person providing their qualifications and experience."
They submitted that Afghanistan has undergone a series of civil wars for the last thirty years and that they were unaware of any individual who could positively say with any certainty what the linguistic situation is in various regions of Afghanistan. Country information indicated that Pakistanis were serving with the Taliban. There was no indication that the linguistic report provided to the Department had considered this possibility of linguistic influence.
11 Notwithstanding the solicitor's request, the Department did not provide a copy of the report or the tape and proceeded to make a determination refusing the protection visa. In the delegate's decision it was said that the linguistic analysis results were faxed to the applicant for comment on 5 December 2001, but he failed to respond. Due to the high degree of certainty of the assessment that the applicant was not from his claimed country of origin, the delegate attached considerable weight to the language analysis results. A review officer, on 20 December 2001, referred to the "natural justice letter" faxed to the applicant on 5 December 2001, the absence of any response and the fax from the applicant's representatives received on 12 December. It was said that the applicant's representatives had expressed "various concerns about the process of linguistic analysis and the qualifications of the expert" but that the applicant had "not made any comment on the specific conclusion, that his language can with considerable certainty be said to originate from Baluchistan in Pakistan". The review officer supported the case officer's conclusion.
12 Following the lodgment of the application for review of the delegate's decision on 21 December 2001 with the Tribunal, the Tribunal sent a letter to the applicant on 9 January 2002 and a copy to the applicant's solicitors. In this letter the Tribunal referred to the language analysis. It said:
"The Tribunal has before it the results of language analysis which indicates that your dialect/language variant "may with considerable certainty be said to originate from Pakistan, Baluchistan." Specifically, the analyst said that your mother tongue is Dari but your "Hazaragi dialect is Pakistani." The analyst said that you pronounce "many words with a Pakistani pronunciation, for example 'ONJAGA', 'BAZI, 'NERGAW', 'MEDGAW', 'KHATOM', 'NOMAZ', and 'TOBGANTAI'." He said that you use the Urdu words 'PAN', 'BAD' and 'TASOWA', and made the point that the Urdu language is not spoken in Afghanistan. [Enclosed is information about the firm Eqvator, which conducted the analysis, and the particular analyst who was used. This information has been prepared in this format by the Tribunal and is based upon information provided to DIMA by Eqvator.]
This information is relevant because if the Tribunal were to conclude, on the basis of it, that you are not from Afghanistan, that would lead it to conclude that your claims about your experiences in that country are not truthful, and that your claimed fears are not well-founded."
A copy of the report itself was not provided. The report was not included in the Book of Court Documents prepared for this hearing. It was handed up in Court at the hearing. No satisfactory explanation was given for that omission. There appears to be some concern that the provision of such reports to applicants will enable them to coach others so they can anticipate the things looked for by language analysts in future. If this is the reason for not providing the report to the applicant or his representatives at the outset, it is questionable. It is no reason at all for not providing the report to the Court.
13 The Tribunal's letter of 9 January 2002 referred to inconsistencies between what the applicant had said at various times in the course of his interviews and the statements supporting his claims. The letter invited him to comment on the information. It also sought his comments on his fears in light of the changed situation in Afghanistan following the defeat of the Taliban and the installation of an interim government. Attached to the letter was a document entitled "Information about Eqvator". In that document Eqvator was described as "…an agency specialised in translations and linguistic analyses for Government authorities." Linguistic analysis had been developed in the early 90s and, according to the document which reads as a promotional statement, the organisation provides linguistic analyses for the Swedish Migration Board as well as for immigration authorities and national police departments in Europe and Australia.
14 The methodology of linguistic analysis was described thus:
"The linguistic analysis is one among many methods to help document-less asylum seekers confirm their statements about their origin country. The asylum seekers are asked to speak freely in their genuine idiom. We require a recording of good technical quality … and of sufficient length (at least 15 minutes. Some languages, f.ex. Afghanistan/Pakistan, require a longer recording). The speech is analysed by a native speaker who gives his/her opinion of the origin of the recorded language. This assessment is given with more or less certainty. In some cases the analyst only excludes a certain country. In such and other doubtful cases the tape is forwarded to another analyst specialised in the same language. Apart from what is said on the tape, Eqvator and the analyst do not know any details about the case."
The statement then went on to set out the basis upon which Eqvator selected its analysts. Many of them were said to be accredited translators and interpreters. While being an accredited interpreter or translator did not automatically qualify a person for the conduct of language analyses, interpreting on a daily basis was said to give an analyst the possibility of staying in contact with the dialects he/she was analysing. As for the qualifications of the analyst, an academic education with the language in question as a speciality was not required. The minimum requirement for an analyst was:
"1. that the analyst has the language in question as his mother tongue
2. that he/she has proved capable of listening, making and formulating observations on a linguistic level
3. that he/she is able to give logical and credible answers to questions put by Eqvator's linguist in conjunction with the assessment writing
4. that his/her assessment fits in with other assessments in the same case (cross checking)
5. that he/she has passed a thorough test where he/she shall identify languages and dialects
6. that he/she has passed our security control"
15 By a letter dated 15 January 2002, the solicitors for the applicant said they could not comment on the language analysis report unless they were provided with a copy of it. They observed that in their experience there had been errors in the reports and in one case a report obtained had indicated words allegedly spoken by the client were not in fact spoken. The solicitors noted that the name and qualifications of the analyst conducting the report and the analyst's experience and expertise had not been provided. They asserted that a mere statement that someone had provided a report from a language-based service in Stockholm was "… totally inadequate in terms of establishing the person's expertise or credentials in relation to providing an expert report". They submitted that no conclusions could be drawn from such a report without the person providing their qualifications and experience. They noted that in the past the Department had refused to provide names, qualifications and experience of the analysts in order to protect their privacy. The solicitors submitted that this did not represent procedural fairness and was inconsistent with accepted practice in all areas of the law. They requested the tape used for the linguistic analysis report and a copy of the report. They indicated that the applicant wanted the opportunity to consult an independent language analyst. The tape had previously been requested under FOI legislation but that request was denied. The letter then went on to deal with alleged inconsistencies and other matters.
16 The applicant himself sent the Tribunal a handwritten letter dated 10 January 2002 annexed to his solicitor's letter. He referred to the history of civil war in Afghanistan and the movement of people into neighbouring countries and into Iran and associated with that the development of variations in accents, traditions and customs. He said the shop in which he worked with his uncle was on the main road to Pakistan so he had constant contact with people who may have influenced his accent. The letter went on to refer to observations by the analyst of his use of certain words, said to be Urdu. His comments in respect of those were to the following effect:
1. In relation to the reference to the word "PAN". The actual word is "panj" which means five (5). Sometimes it is used to mean training.
2. The second word he referred to was "BAD". He was not sure whether this was an Urdu word, but in Dari it means "air" or "after".
3. "TASOWA" is an Arabic word referring to a date in the Islamic calendar.
17 The Tribunal responded to the solicitors' letter on 17 January 2002 advising that the Tribunal did not have in its possession the specific tape used for the language analysis. The departmental file indicated that the solicitors had already received a copy of the interview tape which was the only tape which the Tribunal had. The Tribunal noted the solicitors' advice that the Department had refused their request for a copy of the analysis tape and of the analyst's report under FOI legislation. That, however, was said to be a matter between the applicant and the Department. The letter concluded:
"However, the Tribunal has quoted to you all the negative points contained in the analyst's report, and you have submitted your client's comments on those points. The Member will take those comments into account, and there will be a further opportunity for you and your client to raise any further points before or at the Hearing. At this stage, the Member anticipates that the Hearing will be scheduled some time in late February, but you will receive a formal invitation in due course."
The hearing was set down for 27 February 2002.
18 By a letter dated 20 February 2002, the Tribunal sent to the applicant and his solicitors a copy of a response from the Eqvator analyst to objections raised to his report. In the response, which was dated 11 February 2002, the analyst acknowledged that languages and dialects undergo constant change, accelerated by international communications, media and modern travel. However he asserted that considerable changes do not happen overnight and that the applicant's town was situated in the heart of the Jaghori district which was not that close to Pakistan. Even if an Afghan Hazara living in his home community in Angori had been in daily contact with Pakistanis and Afghans returning from abroad, it was unlikely that these contacts should result in the complete change of his dialect. He referred to some thirty languages spoken in local areas in Afghanistan and a degree of mixture of dialects had occurred with people with different languages and dialects had settled in regions other than the ways from which they originated. However the ethnic groups comprising Afghani society had traditionally not intermixed to any great extent and therefore their dialects had remained remarkably intact even during the war.
19 The analyst asserted that when an analysis was made all aspects of the applicant's dialect were taken into account. The lexical aspect (ie the words used) was only one element. Other aspects were the melody of the language, pronunciation, stress and sentence structure. The analyst said he no longer had access to the relevant recording and so it was difficult for him to make comments in the specific case. He pointed out that the usage of a few foreign words in a recording was never the basis upon which the dialect was judged, but was an additional point. As to the words referred to, he said that the word "PAN" was Urdu and "PANJ" was Dari. The word "PAN" could not mean training in Dari. The word "BAD" exists in Dari as well as in Urdu. The use of the word "TA SOWA" meaning "until tomorrow" was Pakistani Hazaragi not Afghani Hazaragi. The analyst said that he had had close, and continued to have, close contact with the languages of Afghanistan and with Afghan refugees from Jaghori as well as from other regions during the war years. He said he had worked on a daily basis with the Afghan languages Dari and Pashtu for the last twenty years.
20 On 26 February 2002, the applicant's solicitors sent a letter to the Tribunal advising that they had requested their own linguistic analysis of the applicant's speech based on his DIMIA interview. This was to be provided by their own expert in Arizona in the United States. The expert did not expect to be able to provide the report before 28 February 2002. They therefore sought an extension of time to provide a complete response. They advised that the linguist concerned had informed them that his report would state that the applicant speaks Hazaragi and that he did not come across any evidence suggesting that he was a Pakistani or had been raised in Pakistan.
21 The solicitors also asked the Tribunal to note that the applicant had stated that he did not say many of the words attributed to him and that the analyst appeared to have misunderstood them. The letter continued referring, inter alia, to the inadequacy of the Eqvator information sheets concerning the qualifications of the analysts they used and the absence of any information to suggest that the analyst actually used on this occasion had even been in Afghanistan in recent years.
22 The applicant's solicitors provided their own expert's report on 28 February. The analyst upon whom they relied identified himself as one Jan Mohammad and said he was born and raised in Afghanistan. He spoke Dari as well as other languages spoken in Afghanistan. He said he had an MA Degree in theoretical linguistics from Ohio University in 1991 and was, at the time of his report, a Ph D candidate in the Department of Linguistics at the University of Arizona. He said that as a linguist who spoke Dari and who was familiar with its dialects, he considered himself qualified to analyse the speech of any subject from a linguistic point of view. He said he had reviewed the tape of the applicant's interview conducted on 28 September 2001. He considered phonetic, morphological, lexical and syntactic characteristics of his speech. He had also looked for any other influences on his speech from languages such as Urdu, English, and other local languages spoken in the Baluchistan province of Pakistan. He had taken into consideration the ease or difficulties with which the applicant conducted himself while responding to questions. Based on his analysis of the applicant's speech, the analyst said he spoke the Hazaragi dialect of Dari spoken by members of the Hazara ethnic group in central parts of Afghanistan. His conclusion was based on the fact that the applicant's speech bore all the grammatical characteristics of the Hazaragi dialect spoken in Afghanistan. The words and phrases were pronounced the way they are in the Hazaragi dialect and he gave examples. There were pronounced or said differently in other dialects of Dari. Moreover, the applicant conjugated his verbs the way in which they were conjugated in the Hazaragi dialect. An important characteristic of the applicant's speech was that it had no traces of influence from Urdu, English and Pashto evident in the speech of those Hazaras who were either citizens of Pakistan or who had stayed in Pakistan for an extended period of time. The speakers of the Hazaragi dialect in Pakistan used many English and Urdu words while interacting with each other. Remarkably, the applicant's speech was completely devoid of such influence.
23 The applicant's expert referred to the analysis provided by Eqvator which asserted that the applicant had pronounced "many words with a Pakistani pronunciation". It was not clear from the Eqvator's conclusion how these words were said with a "Pakistani pronunciation". That phrase was itself vague because there were many languages spoken in Pakistan. It was not clear which of the languages had influenced the applicant's pronunciation of these words. Secondly, Eqvator's language analyst had failed to mention how these words were pronounced in the Hazaragi dialect spoken in Afghanistan so that differences in pronunciations could easily be seen. He then criticised specific observations of the Eqvator of the language analyst about the particular word "onjaga". He said:
"The words listed above by Eqvator are pronounce/said (sic) differently than they are in the Dari dialect. For instance, the word 'onjaga' which means 'there', is pronounced 'onja' in Dari. However, in the Hazaragi dialect and the Herati dialect of Dari this word is pronounce (sic) 'onjaga'. It should be noted that in Urdu the word 'jaga' means 'place'. Eqvator's language analyst may have thought that the Hazaragi word 'onjaga' is the same as the Urdu word 'jaga' or bears the influence of Urdu. It would be incorrect to reach such a conclusion because, in addition to the Hazaragi dialect, the same word exists in other dialects of Dari as well (ie, Herati dialect)."
24 The analyst observed that not only did the applicant's speech show any traces of influence from Urdu or English but it contained lexical items specifically used by Afghans. He gave examples of this. He noted also certain words that exist both in Dari/Hazaragi and Urdu languages but which were pronounced differently in those languages. The applicant used some of those words in his speech. If he were a Pakistani or had been raised in Pakistan then, according to the analyst, it would be assumed that he would pronounce or say those words the way they were said in Urdu or other local Pakistan languages. However he did not do so. He also observed:
"In addition to the linguistic features, which support Mr Jafari's claim that he is an Afghan, there is more evidence in his speech which points to the same conclusion. For instance, Mr Jafari speaks very naturally. He is calm in his speech. If he were a Pakistani or had to alter his speech to sound like an Afghan Hazara, he would have had a hard time giving details in response to many questions without any noticeable problem in his speech."
The analyst concluded that the applicant speaks the variety of Hazaragi which is spoken in Afghanistan. There was no trace of any influence in his speech from Urdu, English or any other local language spoken in Pakistan.
The Tribunal's Reasons
25 The Tribunal made extensive reference to the applicant's claims, evidence and to country information as well as setting out the greater part of the detailed reply which had been prepared by the original language analyst. It dealt with the recent history of Afghanistan, the defeat of the Taliban, the establishment of an interim government, the existence and activities of Taliban remnants and ongoing security within the country. It referred to oral evidence given by the applicant at the hearing and the subsequent submission, with the report of the applicant's linguist, sent on 28 February. In reference to the report from the applicant's analyst the Tribunal observed:
"The agent enclosed a report on linguistic analysis of the applicant's speech prepared by an academic from the University of Arizona, and a brief biography of that academic. The biography, and the report itself were written on plain paper, and had been sent by facsimile. The sender's location was identified on the facsimile as "SAFI DOLLAR STORE"…."
It then went on to refer to the text of the report, most of which it set out.
26 In its findings and reasons the Tribunal referred to inconsistencies in the claims and evidence given by the Tribunal particularly with respect to the time of his father's death. It said it was not satisfied that his father was taken by the Taliban at any time and was not satisfied that he himself had ever been sought by the Taliban. The Tribunal noted that the applicant was not aware of some facts of which the Tribunal would have expected him to be aware such as the identity of the overall Taliban leader. It also noted that the applicant sometimes volunteered information about which he was not asked when unable to answer questions which he was asked. This led the Tribunal "… to wonder whether he had learned certain facts, rather than been personally aware of them from his own experience".
27 On the matter of the language analysis, the Tribunal noted that the documentation from the applicant's analyst "… was printed on plain paper and was dispatched from a 'dollar store'." The Tribunal observed that it would have expected that, if the person concerned was associated with the University, his report or at least the covering letter would have been written on paper bearing some official letterhead and would have been sent from the University. The Tribunal said it was not impressed by some of the reasoning in the report. It referred specifically and only to the criticism of the term "Pakistani pronunciation" which was used in the Eqvator report. The Tribunal said:
"In the Tribunal's opinion, it is clear from the context of the Eqvator report that the analyst was maintaining that the applicant spoke the Hazaragi dialect of Dari in the manner with which Pakistani Hazaras speak it as their mother tongue, not that he was speaking the language as if he had been raised speaking another Pakistani language."
By contrast, the Tribunal declared itself "impressed by Eqvator's response to the objections raised by the applicant which, to the Tribunal, appeared to be logical and well reasoned". The Tribunal therefore said it gave "significantly greater weight" to the results of the analysis conducted by Eqvator than it gave "to the report commissioned by the applicant's agent". The Tribunal was satisfied that the applicant had speech patterns which suggested a language background in Pakistan. The Tribunal then said:
"Having regard to its lack of satisfaction about the applicants (sic) claims about his family's interactions with the Taliban, its reservations about some of his evidence, and the results of the language analysis, the Tribunal is not satisfied that the applicant is a citizen of Afghanistan."
28 The Tribunal's treatment of the linguistic analysis issue was less than satisfactory. Its criticism of the applicant's analyst for faxing his report from a "dollar store" in the USA overlooked the fact that the applicant's analyst is a Ph D student at the University of Arizona and not a member of the university staff. It overlooked also the fact that the report was required as a matter of some urgency having regard to the timeframe within which an assessment of the tapes and response to them had to be obtained. The reasoning of the applicant's analyst was detailed and particular to the applicant's case, whereas the second Eqvator report, which so impressed the Tribunal, was not based upon any reassessment of the particular case. As the analyst in the second report said:
"I don't have access to the CONARA 089:s recording any longer. It is therefore difficult for me to make comments in this specific case. I need to know in which context the words are used in order to give more detailed answers. I must again point out that the usage of a few foreign words in a recording is never the bases on which the dialect is judged, but it is an additional point."
29 Having found adversely to the applicant on the linguistic analysis, the Tribunal went on to say that, even if it were satisfied that the applicant was a citizen of Afghanistan, it would not be satisfied that he would now have a well-founded fear of persecution in that country. It adverted to significant changes in Afghanistan since the applicant left the country and arrived in Australia and lodged his initial claims.
30 The Tribunal found that it was beyond question that under Taliban rule Hazaras in general faced at least some degree of risk of arbitrary adverse attention by the Taliban by reason of their ethnicity and religion. However, the Taliban no longer rule. While Hazaras were marginalised in Afghanistan in the late 19th and early 20th centuries and while there had been many instances of friction and conflict between Hazaras and other ethnic groups, this did not mean that an individual Hazara would now face a real chance of persecution for a Convention reason. There was nothing in the material before the Tribunal which persuaded it that Pashtuns and the Taliban were interchangeable terms or that Pashtuns generally were engaged in ongoing persecution of Hazaras. Although Afghanistan had been under intense and continuing media scrutiny in the months leading up to its decision, the Tribunal had been unable to identify any report or suggestion of any persecution of Hazaras since the fall of the Taliban. It had been unable to locate any current reports of mistreatment of Hazaras or Shias by the Northern Alliance or by Pashtuns or any other group. It noted, moreover, that the applicant claimed to come from an area which was exclusively Hazara such that the prospect of localised clashes with other ethnic groups affecting him would be remote. The Tribunal said:
"The defeat and elimination of the Taliban constitutes, for persons in the situation of the applicant who claimed to fear the Taliban (and, in particular, conscription by the Taliban), such a fundamental change in circumstances that the Tribunal is satisfied that he does not have a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan. The Tribunal does not accept that there is a real chance that the applicant would be persecuted now by the Taliban, or by Pashtuns generally, whether by reason of his ethnicity or religion or any other Convention reason. The Tribunal does not accept that there is a real chance that the Taliban will return to power in Afghanistan in the reasonably foreseeable future."
The Grounds of Review
31 The application for review in this case, in its substituted form, seeks prerogative and injunctive relief under s 39B of the Judiciary Act 1903 (Cth). There is one stated ground:
"The First Respondent's decision was not a bona fide exercise of the First Respondent's power. Alternatively, the First Respondent erred in law which went to its jurisdiction and exceeded its authority:
PARTICULARS
a) The First Respondent failed to accord the Applicant natural justice in making the said Decision.
b) The First Respondent made its decision that it was not satisfied that the Applicant was a citizen of Afghanistan, based on a language analysis and report by an unidentified analyst from the Swedish organisation Eqvator (the Eqvator analyst) to the effect that the applicant spoke Dari as his mother tongue, but that his Hazaragi dialect was Pakistani.
c) Despite requests made by the Applicant's solicitors, both the First Respondent and the Second Respondent refused or neglected to provide the Applicant or his solicitors with a copy of either the tape on which the analysis was based or a copy of the report containing the analysis.
d) The Applicant was thereby unable to comment on or to provide direct contrary evidence, either that the tape was not his or that certain words claimed by the analyst to be Urdu words were not Urdu words, but rather were Hazaragi words which had been misheard or misinterpreted by the analyst and that certain other words, claimed by the analyst to be pronounced with a "Pakistani accent", were words which had been misheard, or misunderstood by the analyst or which had not been pronounced as claimed by the analyst.
e) The Hazaragi dialect does not exist as a written language, separate from the Dari language. The Dari language is based on Arabic script and there is no generally agreed and consistent spelling of Dari words into western script.
f) The Second Respondent by letter dated 5 December 2002 informed the Applicant and his Solicitors that, "The analyst's conclusion is that the dialect/language variant occurring in the text/tape recording may with considerable certainty be said to originate from of Pakistan, Baluchistan".
g) The First Respondent by letter dated 9 January 2002 confirmed the above and gave the Applicant examples (in western script) of 7 words stated to have been pronounced with a Pakistani accent and examples (in western script) of 3 words stated to be Urdu.
h) The Applicant explained that he believed that the 3 Urdu words supposedly used by him were, in 2 cases, Hazaragi words and, in the third case, a formal Arabic religious word. He denied he spoke with a Pakistani accent.
i) The Applicant's advisers obtained a report from a linguistic expert (the Applicant's expert) from the United States, based on the tape recording of an interview between the Applicant and the Second Respondent's delegate. Copies of this tape had been provided by the Second Respondent to both the Applicant and the First Respondent. The report concluded that the Applicant's speech had all the characteristics of the Hazaragi dialect spoken in Afghanistan and showed no traces of influence from Urdu, English or Pashto evident in the speech of those Hazaras who have stayed in Pakistan for an extended period. The Applicant's expert noted that the words claimed by the Eqvator analyst to be spoken with a Pakistani accent were spoken differently as between Dari and Hazaragi.
j) The First Respondent provided the Applicant's comments to the Eqvator analyst and obtained a response, however the analyst did not then have a copy of the tape recording.
k) The Eqvator analyst in his original report had referred to the word "tasowa"as a single Urdu word, whilst in his further response this was change to "ta sowa" as 2 words stated to mean "until tomorrow". In the original report the Eqvator analyst referred to the word "tobgantai" as a single word spoken with a Pakistani accent. In his further response (and without reference to the tape) the Eqvator analyst stated that it was a compound word with the changed spelling "topgantai" and that "top" was Dari and the Applicant's pronunciation was Pakistani and "gantai" was Urdu.
l) The First Respondent did not provide the Eqvator analyst with a copy of the Applicant's expert's report or with a copy of tape recording on which such report was based.
m) Commensurate with its obligation pursuant to s425 to provide the Applicant with a hearing and its obligation pursuant to s424A(1) to:
"(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."
The First Respondent could not fairly and properly rely on the Eqvator analyst's report in order to determine that it was not satisfied that the applicant was a citizen of Afghanistan without providing the Applicant with an opportunity of refuting that conclusion by obtaining and making available to the Applicant the tape recording on which the report was based; alternatively, without providing to the Eqvator analyst the tape recording that was available and which had been used by the Applicant's expert to provide a report, so that the respective experts had the same material on which to comment.
n) In the circumstances of the language analysis relied upon by the First Respondent to determine the Applicant's national identity, the particulars required to be given to the Applicant and his advisers pursuant to s424A were the actual spoken words allegedly used by the Applicant (ie the tape recording). Alternatively, if the words were to be given in writing, the provision of particulars required such words to be given in Arabic script and/or phonetic script and, in either event, the context in which such words were used."
Statutory Framework
32 The jurisdiction of the Federal Court in relation to decisions under the Migration Act 1958 (Cth) derives primarily from s 39B of the Judiciary Act which provides in the relevant parts:
"39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter."
The Migration Act, following its most recent amendments, creates a class of decision called a "privative clause decision". Such decisions are defined in s 474(2) thus:
"474(2) In this section:
"privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)."
Section 474(3) defines "decision" in broad terms which it is not necessary to enter into at present. It is not in dispute that the decision of the Tribunal, the subject of review in this case, is a "privative clause decision" within the meaning of s 474(2).
33 Section 474(1) provides:
"474(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."
34 This provision has been construed by the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 as effectively precluding judicial review of decisions to which it applies on any of the following grounds:
1. The decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution.
2. The decision was not made in good faith.
3. The decision was not reasonably capable of reference to the power under which it was made.
4. The decision related to the subject matter of the legislation.
5. The decision was not made in breach of an inviolable limitation on the power under which it was purported to have been made.
35 The Refugee Review Tribunal is established by s 457 of the Act. It has the obligation, under s 414, of reviewing, inter alia, decisions to refuse the grant of protection visas (ss 411 and 414). In undertaking such a review it may exercise all the powers and discretions conferred by the Act on the person who made the decision (s 415(1)). It may:
(a) affirm the decision;
(b) vary the decision; or
(c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision (s 415(2)).
Where the Tribunal varies or sets aside the decision and substitutes a new one, the varied or substituted decision is taken to be a decision of the Minister (s 415(3)).
36 In carrying out its functions under the Act, the Tribunal is to pursue the objective of providing a mechanism of review that is "fair, just, economical, informal and quick" (s 420(1)). In particular it is not bound by technicalities, legal forms or rules of evidence (s 420(2)(a)). It must act according to substantial justice and the merits of the case (s 420(2)(b)).
37 Also relevant in the present case are ss 424A and 425 of the Act. Section 424A provides, inter alia that:
"424A(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."
Subsections (2) and (3) are not material. Section 425(1) requires the Tribunal to invite the applicant to appear before it, to give evidence and present argument relating to the issues arising in relation to the decision under review.
Want of Good Faith as a Ground of Review in Migration Act Cases
38 The primary ground of review in this application is that the Tribunal's decision was not a bona fide exercise of its power. This ground invokes one of the grounds of review left open after the enactment of s 474 as construed by the Full Court in NAAV. The Court's construction of that section relied upon the approach to the construction of privative clauses enunciated by Dixon J in R Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The relevant passage in the judgment of Dixon J, which concerned Reg 17 of the National Security (Coalmining Industry Employment) Regulations 1946 (Cth), appeared at 614-615 in the following terms:
"The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." (emphasis added)
It is to be noted immediately that what is required by the decision-maker is not "bona fides" at large but "a bona fide attempt to exercise its power…". While this is not to be read as though it were a statutory phrase, its composite character should be recognised. The Tribunal must attempt to exercise its power and that attempt has to be made in good faith. It does not logically follow that a failure to make a bona fide attempt to exercise its power amounts to bad faith. That is to say the requirement of good faith in this context requires more than the mere absence of bad faith.
39 In R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400, Dixon J expressed the good faith requirement in terms of an "honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the power of the tribunal in relation to something that might reasonably be regarded as falling within its province". In like vein, a "person honestly acting in the supposed course of the duties or authorities arising from [an] enactment" would enjoy the protection of provisions of the enactment limiting or qualifying rights of action in respect of decisions made under it - Little v The Commonwealth (1947) 75 CLR 94 at 108 (Dixon J).
40 "Good faith" is a "protean term" which appears in a variety of statutory and common law contexts - Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 at 130 per Finn J. It has also been applied both broadly and narrowly in administrative law, particularly in England. Courts have not traditionally limited it to a requirement of "honesty" in decision-making. In Westminster Corporation v London and North Western Railway Company [1905] AC 426, Lord Macnaghten said, at 430:
"It is well settled that a public body invested with statutory powers … must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first."
The learned authors of the Eighth edition of Wade and Forsyth's Administrative Law, Clarendon Press, 1994 have remarked that courts continually accuse public authorities of bad faith merely because they have acted unreasonably or on improper grounds (at 413-414):
"Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context 'in good faith' means merely 'for legitimate reasons'. Contrary to the natural sense of the words, they impute no moral obliquity."
See also Webb v Minister of Housing and Local Government [1965] 1 WLR 755 at 784 and Roberts v Hopwood [1925] AC 578 at 603. In its ordinary meaning the term "good faith" imports the idea of honesty. Wade and Forsyth observe that "bad faith" should be restricted to cases of actual dishonesty - Cannock Chase DC v Kelly [1978] 1 WLR 1 and Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204 at 215.
41 De Smith, Woolf and Jowellin the Fifth Edition of their text, Judicial Review of Administrative Action, Sweet & Maxwell, 1995 equate bad faith with dishonesty, malice and self interest (at 553):
"These motives, which have the effect of distorting or unfairly biasing the decision-maker's approach to the subject of the decision, cause the decision to be taken in bad faith or for an improper purpose (the term "improper" here bearing a connotation of moral impropriety). Some of the decisions based on bad faith will also violate the ground of illegality, as the offending motive may take the decision outside the "four corners" of the authorised power. Irrespective of whether this be so, any ingredient of bad faith may in itself cause a decision to be invalid."
For a brief statement of a like view of bad faith see also Craig, Administrative Law, 4th ed, Sweet & Maxwell, 1999 at 546 and Supperstone & Goudie, Judicial Review, 2nd ed, Butterworths, 1997 at 6.11-6.13.
42 Good faith issues have not loomed large in Australian administrative law except in the context of privative clauses such as s 177 of the Income Tax Assessment Act 1936, perhaps because in most cases in which want of good faith might be established, review could be secured more readily on other grounds going to abuse or excess of power - Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed, Law Book Company, 2000 at 246-247. However the ground of want of good faith is gaining new currency in the context of judicial review under the Migration Act because of the effect of the privative clause. There is no doubt that in cases under the Migration Act want of good faith will be invoked in such a way as to test its outer limits and, in particular, whether it extends beyond the bounds of dishonesty, malice or self interest.
43 There has already been a number of cases under the Act in which good faith has been considered in connection with decisions of the Tribunal. Several of those cases predated the judgment of the Full Court NAAV. There were, prior to that judgment, differing approaches expressed at first instance to the scope of the protection against review afforded by s 474. Those differences did not turn on the content of the good faith requirement. It is therefore possible to have regard to the sweep of cases in which this requirement has been considered both before and after NAAV.
44 In SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547, Mansfield J eschewed any attempt at a comprehensive exposition of the good faith requirement. However he did not appear to limit its content to honesty, absence of malice or personal interest. This is illustrated by his Honour's finding in that case that the Tribunal had not acted in good faith because:
"… the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims." [36]
While the Tribunal recited the relevant decisions of the High Court going to the definition of "refugee" there was no point in its reasons when this consideration appeared to have attracted any attention. Each of the factors upon which the Tribunal relied to reject the applicant's claim as to nationality had demonstrated upon analysis "… a rigid and at times inexplicable finding adverse to him".
45 On the same day, 10 May 2002, that he gave judgment in SAAG, Mansfield J also gave judgment in SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591. In that case, as in SAAG, his Honour concluded by reference to the Tribunal's reasons, and without any extrinsic evidence, that it had failed to conduct the review of the application before it in good faith. His finding was based upon the Tribunal's failure to make findings about the applicant's claims and its pre-judgment of the case which amounted to actual bias. His Honour said, at [16]:
"It is not sufficient for the Court to disagree with the Tribunal's findings of fact, or its processes of reasoning. Nor is it sufficient for the Court to regard the Tribunal's findings of fact or its processes of reasoning as unreliable, or unreasonable. It will only be if the analysis of the Tribunal's findings of fact or law or its processes of reasoning leads the Court to the firm conclusion that it did not in fact conduct its review of the decision in good faith that the particular proviso to the Hickman principles will be enlivened."
His Honour appears to have accepted a contention that the reasons for decision could be so unreasonable and capricious as to lead firmly to an inference of want of good faith.
46 In SBAP v Refugee Review Tribunal [2002] FCA 590 at [49], Heerey J offered the following observation on good faith:
"Good faith or what I think is the same thing, the absence of bad faith, is not a term of art. In the context of administrative decision-making bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and provided: Ayan v Minister for Immigration & Multicultural Affairs [2000] FCA 470 at [8]. The ways in which bad faith can occur are infinite and no comprehensive definition is possible. Nevertheless it can be said that the presence or absence of honesty will often be crucial. So also will be a purpose to achieve some end (perhaps even one not in itself reprehensible) which is not an end for which the statutory power was conferred. The principles which the common law has developed in relation to malice in the law of defamation, while by no means an exact analogy, may provide some helpful concepts: see for example Horrocks v Lowe [1975] AC 135 at 149-153."
In NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713, Allsop J agreed with Heerey J and said at [24]:
"Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question."
He agreed also with the statements of principle made by Mansfield J in SAAG. However he expressed no view on the conclusion which his Honour reached in that case. To the extent it was submitted that Mansfield J's approach was one which enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker, Allsop J rejected that submission.
47 Conti J in NACL v Refugee Review Tribunal [2002] FCA 643, accepted submissions made by the Minister that the suggestion that a purported exercise of power is not bona fide is a serious allegation and one not lightly to be made and necessitates proof of extreme circumstances. For a Tribunal decision to be reviewable in the Court purportedly within the absence of bona fides exception to the Hickman principle there needs to be evidence that the Tribunal has been in extreme default of its administrative function, eg by proceeding to a determination on the premise of facts or circumstances which it knew to be untrue, or by making no real attempt to address the applicable statutory criteria. Conti J also referred to tax cases in which want of good faith has been raised and the warning that want of bona fides is a serious allegation not lightly to be made and necessitates proof of extreme circumstances - Kordan v Federal Commissioner of Taxation (2000) ATC 4812 at 4815; Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576.
48 Hely J in NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 agreed with the approach of Heerey J in SBAP and that of Allsop J in NAAG. His Honour said at [41]:
"A failure to act in good faith involves a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question."
He also observed that bad faith is not just a matter of poor execution or poor decision-making involving error. His Honour accepted that in deciding whether an inference of lack of good faith should be drawn from the circumstances regard should be had to the cumulative effect of the circumstances even though no one of them would be sufficient to sustain the conclusion.
49 In SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076, Mansfield J revisited the question of good faith following the decision of the Full Court in NAAV. He reiterated that the circumstances in which the Court might find an administrative decision-maker has not acted in good faith, are likely to be rare and extreme. That is so particularly where the only attempt to demonstrate lack of good faith is by reference to the reasons for decision themselves [28]. He observed that mere error or irrationality or apparent irrationality would not of itself demonstrate a lack of good faith but it might do so in conjunction with other factors or in all the circumstances of the case [29]. There is no simple step between unreasonableness and a finding of absence of good faith. Unreasonableness and a lack of good faith are not correlatives [33]. It was in that case a combination of factors which caused his Honour to conclude, as he had in SAAG, that the Tribunal had not exercised its powers in good faith.
50 A Full Court considered the question of good faith briefly in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293. Kiefel J, with whom Spender and Moore JJ agreed, agreed with the view of Allsop J in NAAG that "… bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question". The "honest attempt" formulation was also cited with evident approval by the Full Court in NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 300.
51 In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, a Full Court comprising Tamberlin, Mansfield and Jacobson JJ, extracted from the authorities a number of propositions relating to bad faith in the following terms:
1. An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
2. The allegation is not to be lightly made and must be clearly alleged and proved.
3. There are many ways in which bad faith can occur and it is not possible to give a comprehensive definition.
4. The presence or absence of honesty will often be crucial.
5. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
6. Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
7. Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
8. The Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task.
9. It is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
52 The authorities referred to above and the propositions set out by the Full Court in SBBS make it clear that absence of good faith, for the purposes of the Hickman provisoes, is not limited to cases of dishonesty or malice or personal interest. It may be found in a reckless or capricious approach to the exercise of the power in question. Consistently with the language of Dixon J in Hickman and Proctor and in Little, the term "good faith" is not to be considered in isolation from the process to which it is applied. An authority exercising a statutory power is required to act in good faith in the sense that the authority is required to make an honest attempt to exercise the power entrusted to it. An honest attempt to exercise the power is not demonstrated merely by the absence of dishonesty or malice or personal interest. And with respect to the contrary view expressed by Heerey J in SBAP it seems to me on the authorities that bad faith is not necessarily the obverse of good faith. Good faith requires more than the absence of bad faith. It requires a conscientious approach to the exercise of power.
53 Neither unreasonableness nor irrationality nor error of law or fact nor failure of procedural fairness is sufficient of itself to establish want of good faith. But a substantial departure from minimal standards of decision-making may be such as to indicate that a decision-maker has failed to adopt a conscientious approach to the task before it. It may be indicative of dishonesty or malice or actual bias or recklessness or capriciousness in the exercise of the power. The concept of "good faith" is evaluative. The threshold for finding its absence is high. It may in practice vary according to the nature and subject matter of the power being exercised as well as according to the circumstances of the particular case. In this sense it may be analogous to the variable standard imposed by the requirements of procedural fairness.
54 In assessing the requirements of good faith for the Refugee Review Tribunal, it is necessary to bear in mind that its decisions may have the most profound consequences for those affected by them. They may quite literally be life or death decisions or significantly affect the liberty of the individual whether within Australia or outside. On the other hand, it is also necessary to bear in mind that the legislature has set up the Refugee Review Tribunal as a high volume administrative decision-making mechanism which is required by the Act to carry out its functions economically, informally and quickly as well as fairly and justly (s 420). The question whether there has been a want of good faith in the given case will depend upon an assessment of all the relevant circumstances of that case.
Whether There was want of Good Faith on the Part of the Tribunal
55 As appears from the grounds of review set out in the substituted application, the applicant asserts want of good faith in connection with the Tribunal's handling of the linguistic analysis report. The principal complaint relates to the alleged breach of procedural fairness arising out of the failure of the Tribunal to provide the applicant with a copy of the Eqvator report or the tape on which it was based.
56 The alleged breach of natural justice is elaborated in the grounds by reference to the history of exchanges between the applicant and the Tribunal on the matter, the differences between the report prepared by the applicant's expert and the Eqvator report and the failure by the Tribunal to provide the Eqvator expert with a copy of the applicant's expert report or the tape on which it was based. Moreover there is said to have been a failure to comply with s 424A.
57 Both the Department and the Tribunal in this case appear to have failed to accord to the applicant the degree of fairness which might have been expected in the way in which they dealt with the linguistic analysis. Given its importance, it should have been provided in full to the applicant. No convincing reason has been advanced to explain why this did not occur.
58 The application of the rules of natural justice to the proceedings of the Tribunal were not excluded by s 424A of the Act nor by the limitations on the grounds of judicial review which applied prior to the introduction of s 474 - Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. It is however a consequence of the enactment of s 474 that a breach of the rules of natural justice on the part of the Tribunal will not vitiate the exercise of its decision-making power - NAAV at 622 per von Doussa J, Black CJ agreeing at 452 and Beaumont J at 515. See also Beaumont J at 485-486.
59 Breach of natural justice may, according to the circumstances, evidence want of good faith. Where there is shown to be actual bias on the part of the Tribunal which prevents it from carrying out its function at review there is a case for finding want of good faith in the exercise of its powers notwithstanding that the bias may be the result of opinions honestly held. And it may be that in some cases want of fairness on the part of the Tribunal will be so serious as to evidence a reckless or capricious approach to the conduct of the review which would negative good faith. In the present case however, although in my opinion the way in which the Tribunal dealt with the linguistic analyst's report left much to be desired, it did not amount to or evidence want of good faith. The Tribunal did draw to the attention of the applicant the particular points from the analyst's report which it regarded as adverse to him and invited a response. Its failure in fairness did not amount to want of good faith.
60 The Tribunal's dismissal of the report prepared by the applicant's expert and its treatment of the respective merits of the linguistic analyses was less than satisfactory. But it was open to the Tribunal to prefer one report over another and to give such weight to the respective reports as it thought appropriate - Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 at [26] per Mansfield J and Latif v Minister for Immigration & Multicultural Affairs [2001] FCA 1701 at [6] per Tamberlin J. The Tribunal's approach, while it may be open to criticism, is not indicative of recklessness or capriciousness or want of good faith.
61 In any event, the Tribunal proceeded to assess the applicant's case on the assumption that he was of Afghan nationality and found against him on the question whether he had a well-founded fear of persecution for a Convention reason if returned to Afghanistan. It held by reason of the overthrow of the Taliban regime, that he could be returned. That finding was open to the Tribunal.
Whether the Tribunal Erred in Law
62 The second limb of the single ground of review makes the contention that the Tribunal erred in law which error went to its jurisdiction and caused it to exceed its authority. This rested upon the same particulars as the want of good faith on the part of the Tribunal. In the light of s 474 as construed in NAAV no reviewable error of law is disclosed.
Conclusion
63 For the preceding reasons, the application will be dismissed with costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.