SBBC v Minister for Immigration & Multicultural & Indigenous Affairs

The Tribunal's reasons 7 The Tribunal affirmed the decision of the delegate of the respondent because it was not satisfied that the applicant is a national of Afghanistan. Consequently, it was not satisfied that he is a person to whom Australia has protection obligations under the Convention and so he did not meet the criterion set out in s 36(2) of the Act for a protection visa. Inevitably, that conclusion of the Tribunal involved its rejection of the applicant's claims about his life in Afghanistan as presented to it. 8 The Tribunal, in reaching that conclusion, had regard expressly to the difficulties asylum seekers can face in putting their claims forward to be recognised as a refugee, including that the claims are being presented in a foreign country and only through officials and advisers with the assistance of interpreters. It was, nevertheless, left with: "… the strong impression at the hearing that the applicant was telling me a story which had been concocted for or by him and which he had learned. I also consider that what he has said about particular incidents had been fabricated on the basis of well publicised information about the Taliban's attitude and actions and that he, probably with the assistance from people he paid to help him to come to Australia, has collated a story from events which actually occurred to other people and which have been reported."

It gave detailed reasons for reaching that view. I will refer to those reasons in the course of addressing the grounds of review.

The grounds of Review 9 By amended application dated 27 May 2002, the applicant contended that the Tribunal exceeded its jurisdiction in affirming the decision of the delegate of the respondent not to grant the applicant a protection visa, and erred in law in reaching that decision. Those grounds of review were refined in the course of submissions. 10 The first of the grounds of review recognised that the decision is a privative clause decision as defined in s 474(2) of the Act. It was contended that the Tribunal did not make its decision in accordance with "a bona fide attempt to exercise its power": R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616. The respondent acknowledges that the apparently wide words of s 474(1) must be read as subject to what are called "the Hickman principles" referred to by Dixon J in that case, including the condition referred to above. It is then submitted that the Tribunal was actually biased in its approach to the applicant's claim so that it did not bona fide attempt to exercise its power to review the decision of the delegate of the Tribunal. If that is made out, it would bring the case within one of the acknowledged exceptions to the operation of the privative provisions in s 474(1) of the Act: see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [35]. The respondent disputed that the Tribunal was actually biased as alleged. 11 The second ground of review was based upon the decision in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. McHugh, Gummow and Hayne JJ at 22 [84] said: "If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found."

Their Honours, at 22 [83] said that such a failure could also amount to the Tribunal exceeding its authority or powers, or making a decision which was not authorised by the Act and in respect of which it did not have jurisdiction. 12 In essence, in this matter, it is submitted that the Tribunal failed to make findings of fact about the applicant's case which it should have made, and by its focus on immaterial issues and wrong questions and by its disregard of relevant material, it failed to carry out its duty to address the real question before it. The respondent contends that such an error or failure on the part of the Tribunal is not made out. The respondent further contends that, even if such a failure on the part of the Tribunal is made out, it would not entitle the Court to make an order setting aside the Tribunal's decision under s 39B of the Judiciary Act having regard to s 474(1) of the Act. It will be necessary to address the operation of s 474(1) in the light of any findings as to particular failings on the part of the Tribunal amounting to jurisdictional error as expressed in Yusuf, because as has elsewhere been pointed out, Yusuf was decided before the introduction into the Act of the amendments affected by the Migration Legislation Amendment (Judicial Review) Act 2001 on 2 October 2001. If, on the other hand, the applicant does not make out jurisdictional error in the sense explained in Yusuf, it will be unnecessary to address that question. 13 There is no dispute as to what constitutes actual bias. It amounts to a pre-judgment involving a state of mind by the decision-maker that is committed to a conclusion formed adversely to the application so as to be incapable of alteration, irrespective of the evidence or arguments presented: see the discussion by von Doussa J in SCAA v the Minister at [36]-[38]. Whilst errors in reasoning and fact finding may be so egregious as to warrant an inference that the decision-maker has pre-judged the case to the point of being unable to decide it impartially, it would be wrong to leap too readily from factual error or faulty reasoning to a finding of actual bias: see SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 at [35]. Von Doussa J in SCAA pointed out that it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. His Honour added at [38]: "However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision-maker antithetical to that party's interests such as a hostile attitude throughout the hearing [reference omitted], or a failure to enquire into and to obtain readily available and important information relating to central matters for determination [references omitted], an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias."

14 In this matter the applicant relies largely upon the conduct by the Tribunal at the hearing it conducted on 23 October 2001, together with the reasons of the Tribunal ultimately given for rejecting the claim. It is contended that the Tribunal at the hearing unjustifiably asked the applicant many questions of peripheral significance in an endeavour to catch him out, and with an "unjustifiable suspiciousness" of the correctness or reliability of the answers given and with a mind closed to persuasion whatever the answer. 15 One aspect of the applicant's evidence which concerned the Tribunal was his activities as a taxi driver from 1998 until he left Afghanistan. The Tribunal found: "The applicant's evidence was that he had been a taxi driver for the two or three years prior to his departure from Afghanistan. There are aspects of his account which are very puzzling: for example, why so many Hazara people from Jaghori would have wanted to go by taxi on the long journey to the Taliban heartland of Kandahar given the Taliban's treatment of many Hazara people and given the arduousness of the journey necessary to get there; why vehicle registration and a driver's licence issued in Kabul were so much more valuable than if issued in Kandahar; and why it was not until the year before he left Afghanistan that he obtained a driver's licence having already made the long trip to Kabul some two or so years earlier to obtain the vehicle registration. It is as well difficult to see that the applicant purchased a new Toyota Corolla in Kandahar in about 1998 and how he considered that such a vehicle would be suitable for what appears to have been a busy taxi service covering the long and difficult route between the Jaghori area and Kandahar carrying only four or five passengers at a time. There was as well a difficulty with the applicant's knowledge of the geography of his area. He knew a number of the main towns and where they are in relation to each other but was not aware that Jaghori is a town, stating that it was not a town but was a district. I am mindful that it is often difficult to locate confidently places named by applicants from Afghanistan on maps available to the Tribunal: there are spelling difficulties emerging from translation and accurate and complete maps are not always available for particular areas. But Jaghori is the main town in the area known as Jaghori and it is only about twenty kilometres to the north of Anghori, a place which the applicant seems to have used as a starting point for several of the journeys he claims to have regularly made about the area and beyond in his taxi. If he was driving about as he claims, it is in my view not plausible that he would not have known that Jaghori was a town."

16 In the course of the hearing, the Tribunal asked the applicant about how many passengers his car could carry, its cost, where he acquired it (Kandahar), the source of funds to acquire it, its yellow identifying colour and where it was painted (Kabul). The Tribunal raised with the applicant why he picked that model of car when he might have got a larger vehicle to carry more passengers. It asked him why he took the car to be painted in Kabul, instead of Kandahar where he had bought it. When he said that he had taken it to Kabul to be painted because it was also taken there for registration, the Tribunal asked why he had not also had it registered in Kandahar. At one point the applicant said that it was safer to do that in Kabul, because there was no war there, although he did not then explain why he had not gone to Kabul to buy the car, and at a later point that it was "worth" more to have the car registered in Kabul. He also told the Tribunal that he had been driving the car unregistered for some months before taking it to Kabul for registration (and presumably painting) because the Taliban had announced a policy that all cars must be registered. He also told the Tribunal that he had gone to Kabul to get a driver's licence about one year before he had left Afghanistan, although he had not previously had a driver's licence. He first explained that he had taken the car to Kabul for registration because the Taliban required it, but when it was pointed out by the Tribunal that he had said that the Taliban had been in power in his area prior to him acquiring the car, he said that that Taliban edict only came six or seven months after he had been driving the car. He was also asked about the routes that he had commonly driven as a taxi driver. 17 Whilst it is apparent that the Tribunal, by its questioning, was testing the reliability of the applicant's claims, it was not inappropriate for it to do so. The Tribunal is not obliged to accept at face value every claim made by every applicant for a protection visa. It is sometimes only by reference to the detailed circumstances of a story, and the consistency or otherwise with which those detailed circumstances are reported, that the picture emerges as to whether a person is accurately reporting past experiences or is to some degree or entirely fabricating some of those experiences. As the Tribunal observed towards the end of its reasons for decision, it is also sometimes the case that the way in which questions on matters of detail are answered forms an impression as to whether that which is being reported is reliable, or is in part or wholly fabricated. Of course, as the Tribunal noted, allowance must be made for the circumstances in which the questioning takes place, including in this instance that it took place through an interpreter, and the background and claimed circumstances of the asylum seeker. The Tribunal is recorded in its reasons as having made such allowance as it considered appropriate for those matters. I do not discern from the Tribunal's questions about those matters that it had a mind closed to reception of the applicant's evidence. It did regard some of his evidence as implausible. Towards the end of the hearing it pointed out to the applicant, and to his migration agent who was present during the hearing, its concerns about certain of the applicant's evidence. It invited further responses to those concerns. That does not indicate a mind closed to acceptance of his claims. 18 Nor do I consider that the Tribunal's reasons, indicating why his evidence about his work as a taxi driver was "puzzling" demonstrate that it may not have approached his claims with a mind open to persuasion. With one qualification, each of the features of that evidence which the Tribunal regarded as curious were features which emerged from the applicant's evidence and about which he was questioned by the Tribunal, in some instance by the Tribunal pointing out that his answers seemed unlikely. The one reservation is that it does not appear to me that the applicant positively asserted that his passengers travelling between Kandahar and his home area were generally Hazaras. However, the gravamen of the Tribunal's point is why so many people would have wished to have made that journey, and from the applicant's point of view why he as an Hazara would have been prepared to do so into the heartland of the Taliban area, given the Taliban's aversion and animosity towards Hazaras. 19 I have also carefully considered the transcript of the hearing before the Tribunal dealing with the questioning of the applicant about his knowledge of the geography of his area. The Tribunal acknowledged in its reasons that he knew a number of the main towns and their relationship to each other. The transcript clearly indicates that the applicant was not aware that Jaghori is a town. The Tribunal considered whether that lack of knowledge might be due to spelling difficulties or interpretation difficulties, but it excluded those explanations. It has not remarked in its reasons in detail about what he said as to his local shopping bazaar and its proximity to the Anghori bazaar, although during the hearing it said it was hard to understand why the two bazaars should be so close. Its questioning, in my judgment, does not demonstrate that it was not prepared to accept the applicant's claims as to his origins, but rather it indicates questioning to test the reliability of his claims and, as noted above, ultimately to reach a view about his reliability. It was at the end of that process, rather than from the beginning of its consideration of the applicant's claims that, in my judgment, it is shown to have reached the view, as expressed that: "I am not satisfied that the applicant has given an accurate account of his work as a taxi driver and this, as well as his lack of knowledge that Jaghori is a town, casts doubt over his claim to have been in Ghazni province as he has claimed."

20 The Tribunal then turned to "difficulties" with the applicant's evidence about his contact with the Taliban. It accurately recorded his claims, and provided reasons why it found it difficult to accept them. It regarded the claim that he had been shot at on his way from Kandahar from Jaghori, and that he had then complained to the Taliban, as unlikely because that incident first occurred in March 2000 although he complained that the route was a dangerous one and he had been traversing it for some two years, and secondly because it was unlikely that he as a Hazara person would have complained to a Taliban office at all about such an incident. The Tribunal's observation that: "I am unable to accept that a person who had lived in a Hazara area as the applicant claims would have wanted to do other than keep a very low profile in relation to the Taliban"

is one which, in my view, it was entitled to express. It is certainly not capricious reasoning. 21 The Tribunal did not accept the applicant's claim of having had an altercation with the Kuchis, who claimed an entitlement to graze their animals on his family's land, not for any particular consideration peculiar to that claim but because the balance of his evidence did not persuade the Tribunal that he had lived in Afghanistan in the way that he had claimed. It regarded his claims about being summonsed by the Taliban by a document left at his home, rather than being arrested, as not plausible given independent country information about the way in which the Taliban operated, particularly in respect of persons suspected of having weapons concealed or of persons who were associated with opposition parties. It observed inconsistency in his evidence as to whether he had been beaten on the occasions he had been stopped by the Taliban because of the length of his beard or because he was playing music. 22 I do not think that the reasoning of the Tribunal demonstrates a mind which, at all times, was closed to acceptance of the applicant's claims. The transcript of his examination indicates an inquisitorial approach conducted by the Tribunal in a way which, in my judgment, was consistent with the Tribunal testing the reliability of his claims with a view to deciding whether or not to accept them. The fact that, ultimately, his claims were not accepted does not indicate actual bias on the part of the Tribunal. It was in the end obliged to form a view about them. 23 The Tribunal referred to an analysis of the applicant's language which indicated that the applicant probably has his language background in Afghanistan, but has a slight Pakistani influenced accent suggesting that he has lived for some time in Pakistan. The Tribunal took the view that that document did not support or provide evidence to reject the applicant's claim about where he has lived, and gave it no real weight. The way it measured the weight to be given to that document does not suggest actual bias against acceptance of the applicant's claims. 24 The Tribunal further concluded: "Also in view of the difficulties with the applicant's story, I am unable to give weight to the driver's licence and the taskera. I am not satisfied that these documents were issued to the applicant in Afghanistan as he has claimed. Nor does the statement provided by Mr … assist in overcoming the difficulties with the applicant's account."

The Tribunal earlier in its reasons had described those documents accurately, and noted that they recorded information consistent with that provided by the applicant in his application for a protection visa. Those documents were also discussed in the course of the hearing. 25 Towards the end of the hearing, the Tribunal again explained to the applicant its functions, and why it was worried about his reliability as a witness. It explained why it had difficulties in relation to his claims about how he had worked as a taxi driver, and his claims as to how the Taliban had delivered to him the notice requiring him to attend its office. It observed that there are a lot of Hazara people who are Afghan nationals who live in Pakistan. I interpose that that comment does not, as contended, indicate that the Tribunal had a closed mind to acceptance or otherwise of the applicant's claims. The Tribunal then invited the applicant to comment upon its concerns because it had not then made up its mind about his claims, but wanted him to have the opportunity to comment about those difficulties. It received his response. The Tribunal informed the applicant and his migration agent that it nevertheless held serious credibility concerns about the applicant's story and discussed what should be done about the two witnesses who the applicant wanted to have called to give evidence. The Tribunal asked about the applicant's dealings with those witnesses. It was the applicant's migration agent who suggested that, in the first instance, witness statements be obtained from each of them before a decision was made as to whether the Tribunal should reconvene. In that context, however, the Tribunal requested that they each permit the Tribunal to get access to the applications each of those persons had made to the respondent and upon which they were apparently granted protection visas. The Tribunal offered to endeavour to telephone those witnesses at the time of the hearing, but the applicant's migration agent requested instead that the Tribunal reconvene at a later date to hear their evidence. The arrangement as ultimately recorded in the transcript was that the applicant's migration agent would contact those witnesses, would seek their approval to the Tribunal having access to their applications for protection visas, and would contact the Tribunal to arrange for them to give further evidence. Subsequently, the applicant's migration agent contacted the Tribunal on 31 October 2001 to indicate that he had still been unable to get permission from those witnesses to access their files, and on 12 December 2001 that agent in response to contact from the Tribunal requesting information as to the proposed evidence of the two witnesses, indicated that neither he nor his client had been able to contact either witness by telephone and that he was not confident the matter could be further pursued. Subsequently, as noted, on 14 December 2001 a handwritten statement was proffered by one of the proposed witnesses. That course of enquiry on the part of the Tribunal is consistent with it endeavouring to fulfil its functions to review the decision of the delegate in accordance with the Act. It does not support the claims of the applicant that, at all times, the Tribunal had a mind closed to reception of the applicant's claims. 26 I am not therefore persuaded that the Tribunal was biased in its approach to consideration of the applicant's claims as contended. In my judgment the Tribunal's reasons, and its conduct of the hearing on 23 October 2001, do not disclose that it had a state of mind so committed to rejecting the applicant's claims as to be incapable of alteration, irrespective of the evidence or arguments. Nor do I consider that its process of reasoning for rejecting the applicant's claims itself tends to suggest any actual bias by pre-judgment. There is no foundation on the basis of factual errors, faulty reasoning or the like which might suggest bias on its part. Accordingly, the applicant's first contention must fail. 27 The second ground of review can be dealt with considerably more shortly. It is contended that the Tribunal failed to make any finding in relation to the witnesses from whom the applicant initially requested to give evidence before the Tribunal, or as to the authenticity of his driver's licence and the taskera, or as to the language analysis report. 28 In my judgment, the Tribunal did make findings in relation to each of those matters. Ultimately, the issue for the Tribunal was whether it was satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, or relevantly in the present circumstances whether he is a refugee as defined in Article 1A(1) of the Convention by reason of being an Hazara from Afghanistan. It was not satisfied that he is from Afghanistan. It had regard to those documents in reaching that view. It was not obliged to positively find that those documents were or were not authentic, but it is implicit in the Tribunal's reasons that it did not consider those documents to be authentic. Had it done so, it would have reached a different view. It positively adverted to those documents, and expressed itself as being "unable to give weight" to them. It positively adverted to the statement provided by the witness, both by setting out its contents and in its concluding reasons. It said it was not persuaded by that evidence to accept the applicant's claims, because of its concerns about the reliability of his claims. It positively referred to the independent language analysis report, and reached a view which was open to it as to the meaning and significance of that report. 29 In my judgment, the Tribunal did not misdirect itself in law, or fail to apply the law to the facts as it was required to do. It positively addressed the question whether it was satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, by addressing whether it was satisfied that he is as he claimed a national from Afghanistan. As it was not satisfied as to that matter, it followed that it would not be satisfied that his claims to persecution by reason of his ethnicity if he were to return to Afghanistan could not be made out. I do not think it has been shown that, in reaching its conclusion, the Tribunal failed to have regard to relevant information, or had regard to irrelevant information, in such a way as affected the exercise of its jurisdiction. 30 In those circumstances, it is unnecessary to consider whether, if such a ground were made out, s 474(1) of the Act would nevertheless preclude the Court from granting appropriate relief. 31 In my judgment the application must be dismissed. I so order. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.