SDAO & Anor v Minister for Immigration & Multicultural & Indigenous Affairs

Background 1 These two appeals are from decisions of Federal Magistrate Raphael, delivered on 9 July 2002, which dismissed applications made under s 39B of the Judiciary Act 1903 (Cth) to review unfavourable decisions of the Refugee Review Tribunal (the Tribunal). The Tribunal had been differently constituted in each matter. The two applications for review were heard by the Federal Magistrate consecutively on the same day. The same counsel were involved in each matter. As common issues arose, the two matters were decided at the same time in reasons for judgment common to both. In this Court the two appeals have run in parallel and by consent have been heard together by a single Judge pursuant to a direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 2 Both SDAO and SDAD arrived illegally in Australia in January 2001 on separate boats. Each of them made application for a protection visa, their respective claims being that they were citizens of Afghanistan who met the definition of a refugee under Article 1A(2) of the Refugees Convention(as defined in s 5(1) of the Migration Act 1958 (Cth) (the Act)) as they held well founded fears of being persecuted for a Convention reason by the Taliban. Initially there was doubt in each case as to the claim that the appellant was a citizen of Afghanistan, but ultimately the Tribunal, in the decision the subject of the present appeals, held that each of them was a citizen of Afghanistan, and a Shi'a Muslim of Pashtun ethnicity from a village in the Paktia Province. 3 In the case of SDAO, his application for a protection visa was refused by a delegate of the respondent on 15 May 2001. That decision was affirmed on an application for review by the Tribunal on 30 August 2001. On 30 November 2001, the Federal Court set aside the Tribunal's decision and remitted the matter to the Tribunal to be determined according to law. A differently constituted Tribunal re-heard the application for review in January 2002, and delivered reasons for its decision on 11 March 2002 affirming the decision not to grant a protection visa. 4 The application for a protection visa by SDAD was refused by a delegate of the respondent on 15 May 2001. That decision was affirmed on an application for review by the Tribunal on 31 July 2001. SDAD sought review of the Tribunal's decision, and on 23 November 2001 the Federal Court ordered, by consent, that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for determination according to law. The review was heard by a differently constituted Tribunal on 3 January 2002. On 18 January 2002 the Tribunal affirmed the decision not to grant a protection visa. 5 At the time when the applications for review of these adverse Tribunal decisions came on for hearing before the Federal Magistrate, the matters of NAAV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449, although set down for hearing, had not been heard by the Full Court and there were conflicting single Judge decisions as to the construction and scope of s 474 of the Act. Written submissions to the Federal Magistrate contended that it was possible to infer from the reasons given in each case that the decision of the Tribunal was not a bona fide attempt to exercise its power. On this basis it was contended that in accordance with the so-called Hickman conditions (R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615) the privative clause in s 474 of the Act would not operate. At the hearing before the Federal Magistrate, counsel for the appellants additionally advanced oral submissions that each of the decisions was infected by jurisdictional error on the part of the Tribunal of the kind discussed in Craig v The State of South Australia (1995) 184 CLR 163 at 179 and in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21-22 (Yusuf). It was contended that the Tribunal in each instance failed to ask itself the correct question which was a fundamental pre-requisite in considering whether the appellant was a refugee. In particular it was contended that the Tribunal decided the issue adverse to each appellant on the basis of general country information and not on the basis of the appellant as an individual. In consequence, it was argued, the Tribunal did not consider whether there was a real risk of persecution to the appellant as an individual in light of the evidence about those in charge of the province from which the appellant came, and the relationship between those in charge and the other authorities having power in the area. 6 The Federal Magistrate held that the allegation that the Tribunal acted with a lack of good faith was without substance, and further found that in each case the Tribunal had not committed the jurisdictional error alleged. Having found that the matters which were the subject of the appellants' respective claims had been taken into account by the Tribunal, the Federal Magistrate observed in par 15 of his reasons: "The claims made on behalf of these applicants seem to me to have the hallmarks of a request to substitute my reading of the evidence for that of the Tribunals. This, the courts have said time and time again they cannot do …" 7 Before this Court, counsel argued that the Federal Magistrate erred in characterising the appellants' arguments as a "request to substitute [his] reading of the evidence for that of the Tribunal …". Counsel said that the argument put was that set out above in [5] and this Court has been invited to hold that the Federal Magistrate erred in not finding that there was, for that reason, a jurisdictional error which empowered this Court to set aside the decisions of the Tribunals, notwithstanding s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.