SCAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

introduction 1 This is an appeal from a decision of a judge of the Court (Tamberlin J) whereby his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the respondent not to grant to the appellant a protection visa. 2 The appellant was, for present purposes, entitled to be granted a protection visa if the Tribunal was satisfied that he was a person to whom Australia owes protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together "the Convention") (s 36(2) of the Migration Act 1958 (Cth) ("the Act")). Australia will owe protection obligations to the appellant if he is a person who: "… owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 The appellant arrived in Australia on 31 December 2000. On 10 February 2001 he made a statement with the assistance of a Dari interpreter and a migration agent. He claimed to be a 20 year old Afghani without formal education and illiterate. He said that he was a Hazara and a Muslim Shiite. The statement records incidents in which the Taliban respectively extinguished cigarettes on his left hand, stole his wages and severely beat him because he had been to Iran. The statement asserts that he left Afghanistan to avoid being taken by the Taliban and sent to the northern areas of Afghanistan to fight. The claim is made that the appellant would suffer a "gradual death" at the hands of the Taliban if he returns to Afghanistan because he escaped from Afghanistan and because he is a Shiite and a Hazara. 4 The Tribunal found that the appellant's evidence to the Tribunal contained many contradictions and inconsistencies, predominantly in the categories of his relationship with the Taliban and linguistic analysis. 5 Before the Tribunal the appellant gave evidence that up until approximately a year before he left Afghanistan he had not had problems with the Taliban which he described as "quite good" and "not too bad". In the light of this evidence the Tribunal was not satisfied that the Taliban burnt the appellant's hand with cigarettes. The Tribunal accepted the appellant's evidence that he had travelled twice to Iran and concluded that his willingness to return to Afghanistan in 1999 at a time when 90% of the country was under the control of the Taliban indicated that he was not a "Shi'a Muslim Hazara". The Tribunal was satisfied that a Shi'a Muslim Hazara would have had a well‑founded fear of persecution at the hands of the Taliban who had massacred several thousand Hazaras in August 1998. 6 The Tribunal also gave weight to linguistic evidence before it that the appellant used certain Urdu words and pronounced many words with a Pakistani accent. 7 The Tribunal took the view that the appellant is a Pakistani national and is not an Afghani Hazara Shi'a. It found that he had never suffered persecution at the hands of the Taliban, that he did not fear being conscripted to fight for the Taliban and that he did not have a well‑founded fear of being persecuted by the Taliban. The Tribunal concluded that the appellant is not a person to whom Australia has protection obligations. 8 The application for an order of review of the decision of the Tribunal was apparently prepared without the assistance of a legal practitioner. It sought to reagitate the merits of the appellant's claim to be a refugee. It did not identify any ground of review under s 476(1) of the Act. 9 The learned primary judge was satisfied that it was open to the Tribunal to reach the conclusion that it did. His Honour was not persuaded that there had been any material error in principle or law such as to warrant review of the Tribunal's decision. His Honour noted that the written reasons for decision of the Tribunal included an erroneous assertion that a statement made by the appellant to the delegate of the respondent was read to him by the Tribunal. His Honour concluded, rightly in our view, that this error of fact in the Tribunal's written reasons for decision had no material effect on the outcome of the appellant's application to the Tribunal. The primary judge dismissed the appellant's application to the Court with costs. 10 The notice of appeal in this matter has also been drawn, it would appear, without legal assistance. It does not identify any purported error in the judgment of the primary judge but simply requests that this Court examine the decision of the Tribunal and the judgment of Tamberlin J for "possible errors in law". By an affidavit which was filed with the notice of appeal, the appellant challenges the decision of the Tribunal on the merits. 11 However, at the hearing of the appeal the appellant was represented by a legal practitioner, Mr B C Harradine, on a pro‑bono basis. Mr Harradine argued that the learned primary judge erred in that he should have found that the decision of the Tribunal: "(a) Was affected by actual bias. (b) Was compounded by such errors, particularly regarding the issue of the appellant's credit, that the RRT did not have jurisdiction to make the decision. (c) Was impugned by errors of both jurisdiction and law. (d) Was based upon material 'facts' which did not exist." Leave was sought to amend the appellant's notice of appeal accordingly. The respondent opposed the grant of such leave and the Court reserved consideration of whether leave should be granted. However, the Court allowed the appeal to be argued as though the leave sought had been granted. 12 In support of the contention that the decision of the Tribunal was affected by actual bias it was argued, in effect, that the written reasons of the Tribunal disclose a pattern of subordinate fact finding inexplicably adverse to the appellant. Reliance was placed, in particular, on a finding made by the Tribunal that the appellant had falsely claimed not to have known until relatively recently the Urdu word for electricity. 13 The assertion that the appellant has only recently learnt the Urdu word for electricity was made by the appellant's migration agent in a letter dated 12 April 2001 to an officer of the Department of Immigration & Multicultural Affairs ("the Department"). That letter contains the following passage: "We advise that we have obtained instructions from the applicant in relation to the linguistic analysis. Our client states that the prima facie view that the Department has formed, that our client is not a citizen of Afghanistan, is not correct. We note that the linguistic analyst states that the applicant has used four Urdu words in his answers. The applicant advises that the Urdu word "bijli" means electricity. The applicant comes from an area that did not have electricity and therefore he did not know a word for this. The applicant therefore picked up the word used by the other people on the boat and during his three month stay in Indonesia." 14 However, by a handwritten communication also dated 12 April 2001 sent by the appellant personally to an officer of the Department, the appellant had himself responded to the linguistic analysis. He had asserted: "As they objected four Urdu words like 'Bijli', 'Shalwar', 'Chourghaty' and 'Badar'. They quoted wrongly because 'Bilji' and 'Chourghati', I learned these two words from my smuggler during our journey. He bought a torch for me and told that it is called 'Chourghaty' and told it is useful wherever there is no light (Bijli). When I asked what is 'Bijli', he answered it is electricity." This communication also stated "I like to learn and speak English". 15 Further, in another handwritten communication dated 23 April 2001 (ie after the decision of the delegate of the respondent refusing to grant him a protection visa) the appellant had asserted: "… I've never told about not knowing the electricity, we call it 'BARQ'. But in my before letter I just explained the word 'BIJLI' which I learned from my smuggler." 16 The topic of the appellant's use of the word "Bijli" is dealt with in the following passage from the reasons for decision of the Tribunal: "A linguistic analysis of the Applicant's interview with the delegate was undertaken by a linguistics expert in Sweden. Whilst I acknowledge the Applicant's agent's submission that the expert's opinion should be treated 'with caution', I accept that the analysis has been conducted by an independent expert and I give considerable, but not exclusive, evidentiary weight to it. In this report to DIMA, it is stated, inter alia that there were four Urdu words used by the Applicant in this interview, including the word 'bijli', which is acknowledged by the Applicant to be the Urdu word for 'electricity'. When the Applicant was asked by DIMA to respond to his use of this word, through his migration agent, the Applicant advised: The applicant comes from an area that did not have electricity and therefore he did not know a word for this. The Applicant therefore picked up the word used by the other people on the boat and during his three month stay in Indonesia…. This explanation by the Applicant was also repeated by his migration agent in a submission to the Tribunal. However, the applicant told the Tribunal that whilst he was in Iran working as a carpenter and painter for 5 months approximately 5 years ago, although he mostly used hand held tools, the shop contained electrical machinery, although he was not allowed to use it as he was unable to operate it. When the Tribunal read to the Applicant the relevant part of the delegate's decision about the Applicant's use of the Urdu word 'bijli', the Applicant initially told the Tribunal that he did not use this word. However after agreeing that it is a Pakistani word, he went on to say that if he had used it, when he had first 'picked it up', he thought it was an English word and didn't know it was an Urdu word. When asked by the Tribunal when he had first heard the word for electricity, he said that he first heard the word for electricity in Kabul and then in Iran, although the word he had heard was 'bak'. When asked by the Tribunal whether the word 'bak' is a Dari word, the Applicant said the 'bak' is the Dari word used in his village and is also the Farsi word used in Iran. When the Applicant was read the relevant part of his advisor's submission to DIMA dated 12/04/01, which dealt with the Applicant's alleged lack of knowledge of the word for 'electricity' and he was asked for his response, his response was confused. He told the Tribunal that although there was no electricity in his village, as he had said before, he knew the Farsi word for electricity ('bak') from his visits to Kabul and Iran. When pressed by the Tribunal about his use of the Urdu word for electricity ('bijli'), the Applicant then said that he may have used this Urdu word for 'electricity' in his interview with the delegate as when he was with the people smuggler, he was always telling the Applicant to turn off the electricity. The Applicant was then asked from where this smuggler came, and the Applicant said 'Afghanistan'. When the Tribunal queried that an Afghanistan person would have used an Urdu word for electricity, the Applicant then said that this first smuggler (allegedly from Afghanistan) was with the Applicant for only 2 days before handing the Applicant over to a second (Pakistani) smuggler in Pakistan, who was with the Applicant for 2/3 months. In the light of this inconsistent and contradictory evidence to the Tribunal about his use and knowledge of the Urdu word for 'electricity', I am satisfied that the Applicant both used the Urdu word 'bijli' in his interview with the delegate and knew that it meant 'electricity'. Moreover, based on the Applicant's evidence to the Tribunal that he worked in a shop in Iran which used electrical equipment, I am satisfied that he has known about the existence and nature of electricity for at least 5 years, and that his written claim that he did not know a word for electricity and only picked it up from other people on the boat and during his three month stay in Indonesia is completely false." 17 The documents referred to in [14] and [15] above were before the Tribunal but it appears that the appellant's denial of the accuracy of the statement made by his migration agent was either disregarded by the Tribunal member or escaped her attention. She expressed no conclusion as to whether the denial should be accepted. In view of the terms of the letter from the appellant's migration agent, it seems likely, in our view, that the appellant's denial escaped the Tribunal member's attention. While this is regrettable, we are not satisfied that it in any way demonstrates actual bias in the Tribunal member. 18 Reliance was also placed on the Tribunal's rejection of the appellant's claim that he had been burnt on his hand with cigarettes by the Taliban. The Tribunal in its reasons for decision stated: "During the course of the Applicant's interview with the delegate, the Applicant said that on one occasion, when he was working in the painting shop in Ghazni, two Taliban members came to the shop and requested water. The Applicant had paint on his right hand, so he handed the water over in his left hand. This infuriated the Taliban, and they extinguished their cigarettes on his hand. The Applicant said that this incident occurred when the Taliban took the area about three years ago. According to the delegate's file notes of the interview with the Applicant, the Applicant told the delegate that the Taliban were 'bothering' him at that time. These statements were read to the Applicant by the Tribunal at the Tribunal hearing and it was pointed out to the Applicant by the Tribunal that these statements were inconsistent with his earlier evidence to the Tribunal that up until a year before he had left Afghanistan, he had never had any problems with the Taliban and that the Taliban were 'quite good'." 19 Mr Harradine sought to categorise the Tribunal's finding that the appellant had said that up until a year before he left Afghanistan he had not had problems with the Taliban as a "wrong finding". In our view it was clearly open to the Tribunal to make the finding that it did. The transcript of the hearing before the Tribunal reveals that the appellant volunteered the information that the Taliban were "good" as at a date approximately a year before he finally departed from Afghanistan. He did so in the context of explaining why he had voluntarily returned to Afghanistan from Iran. Nothing concerning the Tribunal's treatment of the cigarettes burn claim, in our view, demonstrates bias on the part of the Tribunal. 20 The other factors relied upon to support the contention that the decision of the Tribunal was affected by actual bias, in our view, amount to no more than a challenge to the findings and the process of reasoning adopted by the Tribunal. They fall far short of the factors which caused the Full Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 to conclude that the decision of the Tribunal had been affected by actual bias. As Burchett J observed in Sun at 127: "… a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong‑headedness, whether in law, logic or approach." We reject the contention that the decision of the Tribunal was affected by actual bias. We are not persuaded that the Tribunal brought "a closed mind to the issues raised and would not be persuaded to another view". 21 Nor are we persuaded that the Tribunal did not have jurisdiction to make the decision because, as was contended, the Tribunal identified wrong issues, asked wrong questions, ignored relevant material and relied on irrelevant material. As Kenny J, sitting as a member of the Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 observed: "A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning." 22 When McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82] spoke of errors capable of constituting "jurisdictional error", their Honours made it plain that such errors had to occur "in a way that affects the exercise of power". That is, in a way that meant that the decision was not one reached in accordance with law. The alleged errors upon which reliance was placed in this case were not of this character. There were criticisms of the approach taken by the Tribunal to its assessment of the appellant's credibility. It was plainly within the jurisdiction of the Tribunal to make an assessment of the appellant's credibility. 23 It was further contended that: "The RRT in not applying the proper approach to apparent inconsistencies in the appellant's evidence made errors of law." The ground of review thereby sought to be invoked was that identified in s 476(1)(e) of the Act which authorises an application to the Court for review of a decision of the Tribunal on the ground: "That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision …." 24 In SAAK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 86 the Full Court identified, but did not consider, the question of whether an error of the kind here relied upon could provide the ground of review under any of s 476(1)(b), (c) and (e). In our view it is likely that the "applicable law" referred to in par 476(1)(e) of the Act is, in the circumstances of this case, the Act, to the extent that the Act incorporates the Convention, the Convention and the regulations made under the Act. If this is a correct interpretation of the paragraph it is difficult to see how the asserted error of the Tribunal could come within the ambit of the paragraph. However, like the Full Court in SAAK, we do not find it necessary to answer this issue. 25 Although we may not have adopted the identical approach as the Tribunal to a determination of the appellant's credibility, we are not satisfied that the approach adopted by the Tribunal has been shown to be an improper approach. The Tribunal acknowledged in its reasons for decision that "if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt". It further acknowledged the necessity for it to be satisfied as to the applicant's general credibility. We reject the submission made by Mr Harradine that these acknowledgements by the Tribunal should be regarded as disingenuous. The Tribunal's reasons for decision show that it avoided the danger inherent in placing excessive weight on the appellant's demeanour. This was not a case in which the Tribunal was required to assess the significance of a failure to disclose apparently relevant at a first interview (see SAAK at [27]‑[42]). 26 The linguistic analysis which was before the Tribunal stated that the dialect/language spoken by the appellant could be said with considerable certainty to originate from "Pakistan, Quetta". The Tribunal acknowledged the need to treat the linguistic analysis with caution. It stated that it gave it considerable, but not exclusive, evidentiary weight. By this the Tribunal is to be understood as stating that its conclusion was not based solely on the linguistic evidence but was supported also by other evidence. The Tribunal's reasons for decision confirm that this was so. Further, in accepting the linguistic analysis the Tribunal placed weight on what it found to be inconsistencies in the appellant's evidence touching on matters raised by the linguistic analysis other than inconsistencies relating to the evidence of the appellant concerning his use of the word "bijli". This again was an approach that the Tribunal was entitled to adopt. 27 The contention that the primary judge should have concluded that the ground of review arose under s 476(1)(b), (c) or (e) of the Act on the basis that the Tribunal had made an error or errors that went to its jurisdiction must be rejected. 28 Having given careful consideration to the reasons for decision of the Tribunal we are in agreement with the primary judge that no ground can be identified upon which the decision of the Tribunal can be reviewed by the Federal Court. While we consider that the appellant should be given leave to amend his notice of appeal, the appeal from the decision of the primary judge must be dismissed. The appellant will be ordered to pay the respondent's costs of the appeal. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.