SBBR v Minister for Immigration & Multicultural & Indigenous Affairs

a summary of the refugee claims of sbbs 4 This applicant said that he feared persecution at the hands of the Taliban because his oldest brother had fought with an opposition party against the Taliban. As was the case with SBBR, this applicant also said that he feared that the Taliban would impute to him a political opinion that was contrary to those of the Taliban; in his case, he advanced his concern because of his brother's conduct. 5 In each of the two reviews, the Tribunal recorded an identical submission: "The applicant claims to fear persecution by the Taliban, namely forced recruitment into the Taliban forces, because of his imputed political opinion or, alternatively or additionally, because he is an able-bodied Afghan male. The applicant claims to fear persecution by the Taliban because he left Afghanistan and travelled to a Western country."

summary of response to invitation to comment 6 In each case the Tribunal member invited the applicant to respond to a proposition that the Taliban is now a spent force. Paragraph 12 of the Tribunal's reasons, which, in each case, contains identical language setting out the invitation and the applicant's response was as follows: "After the conclusion of the hearing before me, and following certain developments in Afghanistan, I invited the applicant to comment on information available to me from news sources such as the BBC and CNN that, following the USA-led coalition's bombing campaign of Afghanistan in pursuit of Al Qaeda and Osama bin Laden, the Taliban was a spent force in Afghanistani politics and that the Taliban was no longer in control of Logar Province. The applicant responded, in summary, that he would be at risk of persecution by reason of his Pashtun ethnicity by the Northern Alliance because that alliance is composed of non-Pashtun ethnic groups (Tajiks, Uzbeks and Hazaras). The applicant also responded that the Northern Alliance would not accept any United Nations peace proposals, that Afghanistan would fall into anarchy and tribal-based conflict and that the Northern Alliance would not protect him, a Pashtun, from such ethnic-based anarchy."

However, because the Tribunal came to the conclusion that the Taliban was now a spent force, it concluded that neither applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

7 In both cases the Tribunal was prepared to accept that each applicant may have incurred the enmity of the Taliban by reason of an imputed political opinion because of their relatives' allegiances. The Tribunal also accepted that each may have feared forcible conscription. The Tribunal then said in its decision in respect of SBBR. "Such experiences and fears are consistent with information about the Taliban regime which was known to have been merciless to perceived enemies and to have been implicated in widespread human rights abuses. However, I accept that the independent information set out above that the Taliban is no longer a force in Afghanistan. It is clear from the independent information that the Taliban forces have been defeated, the Taliban regime has been dispersed and its leadership eliminated from positions of power or influence in Afghanistan generally and in the Interim Authority specifically. The Taliban is no longer in a position to harm the applicant as it was before the applicant's departure from Afghanistan when it controlled Afghanistan and when it arrested and detained his brother because of his father's involvement in the Najibullah government. I am satisfied that the applicant's fear of harm by the Taliban, whether by reason of an imputed political opinion or because of his membership of a particular social group or for any other Convention reason, is not well-founded."

The Tribunal made the same remarks in the case of SBBS save that the reference to SBBR's brother and father was omitted.

language analysis 8 Having regard to the arguments that were advanced by Mr Neimann, who appeared as pro bono counsel on behalf of the applicants, it is now necessary to revert to the decisions of the Minister's delegate. In each case the delegate has arranged for a language analysis of the voice of each applicant to be conducted in Sweden. In each case, but with differing degrees of commitment, the unidentified analyst had suggested that the applicants came from, or might have come from Pakistan - and not, as they claimed, from Afghanistan. On this subject, the delegate in her reasons for refusing the applications for protection visas, said in each case: "In determining the applicant's nationality, I acknowledge that the linguistic assessment does not provide a definite or solely conclusive factor in establishing the applicant's origins or nationality. However, the linguistic assessment does raise strong and considerable doubts about the applicant's claims to be a citizen of Afghanistan. The linguistic analysis was arranged by the Australian government authorities, who were satisfied of both the expertise and independence of the analyst. Therefore, I have accorded significant weight to the linguistic analysis results in assessing the applicant's claims."

When the time came for the Tribunal to review the decisions of the delegate, the Tribunal did not rely on the language analysis. Unlike the delegate, the Tribunal was prepared to accept that each applicant is a national of Afghanistan.

9 Mr Niemann attacked the two decisions of the Tribunal by referring to the Tribunal's alleged failure to address the manner in which the delegate had made use of the language analysis tests. He claimed that the delegate knew, or ought to have known, that linguistic analysis reports of the type that had been conducted by "Eqvator" of Stockholm, Sweden have not been previously accepted as reliable by the Tribunal when attempting to determine the difference between a Pakistani dialect and that of an Afghani. The use of linguist analysis has produced mixed reactions as is apparent from an article that appeared in the Australian Financial Review on 9 April 2002. The article said in part: "In two cases last year, Federal Court Justice Tamberlin ruled that it was open to the Immigration Department to rely on linguistic analysis. Five years ago, linguist Ruth Schmidt of the University of Oslo told European researchers that Eqvator's analysis was inconsistent, unscientific an d unreliable. Another Norwegian linguist, Professor Even Hovhaugen, said there was a lack of professionalism at all levels of Eqvator's testing, from the design of the tests to the evaluations." 10 Mr Niemann further submitted that the delegate had preferred the linguistic reports which he described as an "untested, unreliable linguistic report" notwithstanding the direct and tested testimony of the applicant. Counsel also said that the delegate had before her a detailed and well reasoned submission from Messrs Macpherson and Kelly, solicitors and migration agents for the applicants, which provided a common sense and clear explanation in support of a submission that the linguistic reports could not be relied on. In the circumstances, the decision by the delegate in each case was, according to the submission of the applicants, "biased, perverse and contrary to the evidence". 11 The proposition that the two decisions of the delegate were "biased perverse and contrary to the evidence" was strongly rejected by Mr Roder, counsel for the Minister. I am inclined to agree with Mr Roder; to suggest that a decision-maker is "biased" or "perverse" is a most serious accusation - and in these two cases, it is not justifiable from the material that is in the appeal books. It might be said, arguably, that the delegate's decisions were "contrary to the evidence"; but even if that be correct (and I do not say that it is) that would not, without more, elevate a decision to such a height that it could properly be called either biased or perverse. It seems to me, therefore, that Mr Niemann's argument falls at the first hurdle, for the balance of his argument is dependent upon a finding that the delegate's two decisions were "biased perverse and contrary to the evidence". 12 However, in deference to the ingenuity of the argument, I will examine the balance of Mr Niemann's submissions as if it had been established to my satisfaction that bias or perversity existed. The next step was the submission that there was a statutory obligation on the part of the Tribunal pursuant to s 414 of the Migration Act 1958 (Cth) ("the Act") to review the decisions of the delegate and that the Tribunal had failed to perform that duty. As Mr Niemann put it, the Tribunal did not review, or effectively review or correct, the errors of the delegate for, as he claimed, a duty to review a decision involves more than simply hearing the application afresh. The submission continued with the proposition that it was not sufficient for the Tribunal to acknowledge that it had read the decision of the delegate when it had allegedly failed to address what the delegate had said in her reasons. The argument concluded with the premise that, because of the failure on the part of the Tribunal to review properly the decisions of the Tribunal, each applicant has suffered a substantial loss because of the Tribunal's jurisdictional error. When pressed, in the course of argument, to identify the loss, Mr Niemann said that it was the opportunity to have the matter sent back to the delegate to determine the matter according to law. In my opinion, this argument cannot succeed, either as a matter of fact or as a matter of law. 13 I will deal first with the facts. The only factual error in the delegate's reasons that was identified by Mr Niemann was the alleged misuse of the language analysis tests. As to that, the Tribunal addressed the subject by saying: "I do not consider it necessary to come to a concluded view about the origin of the applicant's accent and language."

That statement was not, however, according to the submissions of Mr Niemann, a sufficient or appropriate review. Mr Niemann argued that, by avoiding the issue, the Tribunal had not performed its functions and the error that was within the delegate's reasons became "self-perpetuating".

14 The Tribunal did not use the word "review" in its reasons but I see no magic in the presence or absence of that word. Even though the word "review" does not appear in the Tribunal's reasons, the Tribunal's reasons have sufficiently revealed that it had covered all the matters of importance that related to the two applicants' claims and, in that sense, it could be said that the Tribunal had "reviewed" the decisions of the delegate: cf the remarks of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" [2001] HCA 77 at [18-21] and [40] (Ex parte "A""). 15 The matter of importance is to ensure that the Tribunal has properly exercised its powers. Those powers are set out in s 415 of the Act which is in the following terms: "(1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (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. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of the appeals from decisions of the Tribunal) to be a decision of the Minister. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations." 16 The decisions of the delegate in each of these applications were "RRT-reviewable decisions" and "the person who made the decision" in each case was the delegate. Thus, the Tribunal was entitled, when reviewing the decisions of the delegate, to "exercise all the powers and discretions" that were enjoyed by the delegate. That statement, without more, is sufficient warrant for the Tribunal to consider afresh a matter that is under review. Consistent with the fact that the Tribunal will hear an application for a protection visa afresh, s 424 of the Act permits the Tribunal to seek additional information for the purposes of its review. Furthermore, the Tribunal must invite an applicant to appear, to give evidence and to present arguments: s 425. 17 The breadth of the Tribunal's powers when it engages upon a review of a decision of a delegate is so large that it is quite appropriate for the Tribunal to arrange the format of its decision as if it were hearing the application at first instance. It can (but, in my opinion, it is not obliged to) refer to the detail of the delegate's decision, identifying where, and for what reason, it agrees or disagrees with the decision of the delegate. The Tribunal will, in my opinion, effectively carry out its duty of review if it complies with the provisions of subs 430(1) of the Act: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." In my opinion, the Tribunal, in each case, complied with the requirements of this subsection. That being so, I have concluded that the decisions of the Tribunal are free from both errors of fact and errors of law. Even if the reasons of the Tribunal, because of the failure to use the word "review", or because of the failure to engage in an exercise of identifying where and why the Tribunal agreed or disagreed with the delegate, could be classed as an error of law, that is not enough to warrant interference by this Court. Even under the regime that existed before the 2001 amendments to the Act, the applicant had to that extra step and satisfy the review court that the legal error was material. In my opinion, neither applicant was able to meet that test. 18 Mr Niemann did raise a further interesting argument to the effect that Article 16 of the Refugee Convention provides that a refugee shall have free access to the courts of law of all contracting states. If there had been some error in the decisions of the Tribunal, it might have been necessary to consider the provisions of the Convention and the effect upon them of the recent amendments to the Act. There being no such error, that argument need not be addressed. Finally, it is not to be overlooked that the present applications for relief are directed solely to the decisions of the Tribunal. They are the decisions that the applicants seek to have set aside. There is no relief directed to the decisions of the delegate. Indeed, as Kirby J said in Ex parte "A" at [38]: "Indeed no such relief would be appropriate, given that the delegate's decision was overtaken by the decision of the Tribunal." 19 Mr Niemann made no challenge to the decisions of the Tribunal save to say, that they were tainted in some way because of their failure to address the biased or perverse decisions of the delegate. I cannot agree. As I have said, I am not satisfied that the decisions of the delegate were biased or perverse. I do not see how it could be said that the Tribunal did other than that which was required of it by the Act. Furthermore, it is necessary, in my opinion, to have regard to the substance - rather than the form - of the Tribunal's reasons. The High Court has warned against an over zealous scrutiny of the Tribunal's reasons: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; see also Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577. 20 Each application must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate: Dated: 3 July 2002 Counsel for the First and Second Applicants: Mr GR Niemann pro bono counsel

Solicitor for the First and Second Applicant: Refugee Advocacy Service of South Australia Inc

Counsel for the Respondent: Mr MJ Roder

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 3 June 2002

Date of Judgment: 3 July 2002