SFGB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-10-24|Before: Bennett JJ

Background 1 The appellant arrived in Australia on 2 August 2001. He was and is an 'unlawful non-citizen' for the purposes of the Migration Act 1958 (Cth) ('the Act'). He was taken into detention. 2 On 29 October 2001, the appellant lodged an application for a protection visa. In order to obtain such a visa the respondent had to be satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. In general terms the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') had to be satisfied that the appellant was a 'refugee' as defined in the Convention being a person who: '…owing to a well-founded fear of being persecuted for reason 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 claimed that he is a Shi'a Hazara from Shahrestan in Oruzgan province in Afghanistan. He claimed that he had a well-founded fear of persecution by reason of his race and/or religion. At the time that he first applied for a protection visa the Taliban were in effective control of most of Afghanistan, including Oruzgan province. However, following the intervention in Afghanistan of the United States and other countries (including Australia) in and after October 2001, the Taliban government was replaced by an interim government headed by Hamid Karzai. Notwithstanding these changes the appellant still maintained that he had a well-founded fear of persecution by reason of his race and/or religion. In particular, he claimed that the dangers he would otherwise have faced remained real in that part of Oruzgan province where he lived, notwithstanding what may have been the situation elsewhere. 4 His application for a protection visa was considered by a delegate of the Minister. The delegate delivered her reasons for decision on 21 March 2002. The delegate was not satisfied that the appellant had a well-founded fear of persecution. The primary reason for this was that the delegate did not accept that the appellant was credible in his claim to be an Afghani citizen: '…I have a number of concerns regarding the inconsistencies in the applicant's statements and the evasive nature of many of his responses to the questions asked at interview. I am not satisfied that the applicant's claims about his background and his experiences are credible and I am not satisfied that the applicant is a national of Afghanistan. I have no definitive evidence to make a finding that he is a national of any other country. As his claims of persecution relate to Afghanistan and he has not made claims against any other country, I am not satisfied the applicant has a well founded fear of persecution.'

5 The appellant applied to the Refugee Review Tribunal ('the Tribunal') for a review of the delegate's decision. The Tribunal affirmed the decision of the delegate, but on a different basis. This is made clear in the reasons of the Tribunal:

'The applicant was clearly distressed at the hearing and required a short adjournment and time to consult with his adviser before he was able to proceed. A brief report dated 10 April 2002 by a psychologist who examined the applicant after his protection visa application was refused…gave some insight into the causes and depth of the applicant's distress. I informed the applicant that it was my preliminary view that the determination of his matter would not turn on the same issue as had been central to the delegate, that is, his credibility and the issue of his nationality. I informed the applicant that I accepted for the purposes of determining his review application that he is a Shi'a Hazara from Shahrestan in Oruzgan province and that he had left Afghanistan because he feared further persecution by the Taliban because of his race, his religion, and his imputed political opinion in support of Hezb-e-Wahdat. I then discussed with the applicant the independent information concerning the current situation in Afghanistan, which I have set out below, and invited his comments and further details, if any, of his claims'.

6 Later in its reasons the Tribunal expressly found that it was satisfied that the appellant 'is a national of Afghanistan.'

7 It is abundantly clear from its reasons that the Tribunal accepted that the appellant had a well-founded fear of persecution for a Convention reason from the Taliban government at the time that he left Afghanistan. 8 The Tribunal accepted that the appellant would face difficulties if he returned to Afghanistan. For example, the Tribunal referred to the 'historical marginalisation' of the Hazaran people and the low social and economic position they have historically occupied in Afghani society. However, the Tribunal found that this marginalisation did not constitute persecution for the purposes of the Convention: 'Historical marginalisation of Hazaras in Afghanistan, particularly in the late 19th and early 20th centuries, and subsequent friction and even conflict with other ethnic groups, does not of itself mean that an individual Hazara now faces a real chance of persecution for a Convention reason, particularly in the absence of claims of any particular difficulties encountered by his family or village other than at the hands of the Taliban. Notwithstanding speculation on the basis of historical conflicts, there is nothing in the current material which persuades me that Pashtuns and the Taliban are interchangeable terms or that Pashtuns or Tajiks generally are engaged in ongoing persecution of Hazaras. The independent information set out above shows that the Interim Authority is not dominated by Pashtuns and, in any event, is committed to broad ethnic representation, an aim specifically supported by the international efforts to assist Afghanistan to recover from the depredations of the Taliban regime and of prior civil war.'

9 It is also apparent that the Tribunal was aware of the general security issues that the appellant may face if returned to Afghanistan:

'It is apparent from the information available to me about the unstable security situation in Afghanistan, combined with the long drought and the coming winter, that the applicant's return to Afghanistan may raise legitimate humanitarian concerns. In the applicant's case, these circumstances are exacerbated by his fragile emotional and psychological state, which increase his vulnerability and reduce his capacity easily to resettle in his country of nationality when that country is unstable, impoverished and dangerous and when several members of his family, who might otherwise provide support, are missing or dead.'

10 On the face of its reasons the Tribunal carried out what appears to be a reasonably extensive review of the then currently available information on the situation in Afghanistan. The Tribunal described that information as 'comprehensive' and noted that it came from a number of different perspectives - official and otherwise. The Tribunal concluded that it was not able to locate any reports that would suggest that the appellant was at risk of persecution in Afghanistan for a Convention reason:

'…I have been unable to locate any reports which support the applicant's contention that he would be at harm of persecution, whether by former Taliban members or supporters (or a regrouped Taliban), the Northern Alliance, the Interim Authority or any other political group or by Pashtun or Tajik citizens, by reason of his Hazara ethnicity, or Shi'a religion, or political support, actual or imputed, for Hazara political groups… I have been unable to locate any reports of mistreatment of Hazaras, Shi'as or Wahdat supporters (actual or imputed) qua Hazaras, Shi'as or Wahdat supporters by the Northern Alliance or any other group. I have also been unable to locate any reports of mistreatment of Hazaras in the Hazarajat region which includes the applicant's part of Oruzgan province, or in the applicant's district specifically… Despite the current media spotlight on Afghanistan there has been no report or suggestion of any persecution of Hazaras since the fall of the Taliban. As stated above, I have been unable to locate any reports of mistreatment of Hazaras, Shi'as or Hezb-e-Wahdat supporters (as Hazaras, Shi'as or Wahdat supporters) by Pashtuns or Tajiks or any other ethnic group.' Consequently the Tribunal concluded that any fear by the appellant of persecution for a Convention reason was not well-founded: 'I do not accept that the applicant is at risk of persecution on the basis of his religion or ethnicity or for any other Convention reason by any other political party or grouping in Afghanistan. The independent information which I have set out above indicates that the political groups currently operating in Afghanistan, unlike the Taliban, did not persecute Hazaras or Shi'as because of their ethnicity or religion, and that the harm suffered by Hazaras and Shi'as at the hands of these groups was not by reason of their ethnicity or religion but as a consequence of the constantly shifting political alliances which have characterised recent Afghan history. For Hazaras and Shi'as, the most potent danger during recent history was the Taliban, which persecuted these groups deliberately as a part of their political and theological ideology. None of the political groups which still operate in Afghanistan resemble the Taliban in this respect. The defeat and elimination of the Taliban constitutes, for persons in the situation of the applicant who were the targeted enemies of the Taliban, such a fundamental change in circumstances that I am satisfied that the applicant does not have a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan.'

Proceedings before the Primary Judge 11 Pursuant to s 39B of the Judiciary Act 1903 (Cth) the appellant instituted judicial review proceedings in this Court seeking certiorari, prohibition and mandamus in relation to the Tribunal and its decision. Those proceedings were heard by the primary judge on 23 October 2002. His Honour delivered his judgment and reasons on 15 November 2002. 12 The application seeking judicial review, and the affidavit filed in support of it, were both absolutely silent as to the grounds or reasons upon which judicial review was sought. However, it would appear from the reasons of the primary judge that the argument put before him on behalf of the appellant was that the Tribunal erred in not proceeding in the manner suggested by Gaudron J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan') at 412-415. In that case her Honour drew attention to the terms of the Refugee Convention and suggested that determination of the status of 'refugee' involved a two stage process. The first step is to determine whether the visa applicant had a well-founded fear of persecution at the time of departure from the country of origin. The second step was to determine whether the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. Her Honour drew attention to art 1C(5) of the Refugee Convention which provides: 'This Convention shall cease to apply to any person falling under the terms of Section A if: … (5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.'

13 The primary judge held that the test proposed by Gaudron J was inconsistent with the views of the majority of the High Court, noting that Gaudron J had acknowledged as much in Re Minister of Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at 254. The primary judge referred in particular to the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496 at [27], [30] and [35].

14 Having rejected the legal argument put by the appellant, the primary judge concluded: 'I also add that it is apparent from a reading of the reasons for decision of the Tribunal that regard was had to the relevant circumstances concerning the applicant and his treatment up to the date of the Tribunal decision. It cannot be suggested that the Tribunal had failed to take this information into account, having regard to the detailed analysis and reasoning and the specific findings of the Tribunal in this matter. Accordingly, even if, contrary to my view, there was no finding made by the Tribunal as to whether the applicant had a well-founded fear at the date of departure, there has been no error of law shown in the present case. There is no need to consider the effect of s 474 of the Act since no error on the part of the Tribunal has been shown to exist.'

15 In order to understand this conclusion it is necessary to say something of s 474 of the Act. On the face of it, the decision of the Tribunal in this matter appears to be a 'privative clause decision' for the purposes of s 474 of the Act. Section 474 of the Act provides:

'474 Decisions under Act are final (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. (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). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; …'

16 Subsequent to the decision of the primary judge in this matter the High Court delivered its decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 ('S134') and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ('S157'). In those cases the High Court 'read down' the otherwise broad terms of s 474. In light of the High Court decisions in S134 and S157, the jurisdiction of this Court in judicial review proceedings is broader than that which might have applied if s 474 was interpreted broadly. It is clear from the High Court decisions that the Court's jurisdiction is limited to 'jurisdictional errors' (S157 at [76]). In determining whether a particular error is a 'jurisdictional error' or not, it is necessary to have regard to the whole of the Act, including s 474. (See S157 at [77]-[78]).

17 The test actually applied by the primary judge in the proceedings before him would appear to have been a test of whether the Tribunal had fallen into jurisdictional error, rather than the narrower test that may have been applicable if s 474 of the Act was interpreted broadly so as to further narrow the jurisdiction of this Court. The primary judge acknowledged this, saying that it was unnecessary to consider the effect of s 474 given his conclusion that there had been no jurisdictional error in any event. Consequently it would appear, at least on the face of the reasoning, that the conclusions and reasoning of the primary judge are consistent with the subsequent decisions of the High Court in S134 and S157

This Appeal 18 The proceedings before us involve an appeal from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, leave was sought and granted for the appeal grounds to be amended. The effect of the amendment was that the arguments put before the primary judge (and on which he had decided the judicial review application before him) were abandoned. Instead a different argument was put. That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was 'Wednesbury unreasonable'. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason. 19 This argument, if it were made out, would be sufficient to establish that the Tribunal had made a 'jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was 'Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 ('S20') at 62, 67, 76, 90-91. 20 On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a 'jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a 'bright line', but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 21 In considering the argument now put it must be remembered that the Tribunal is not limited to the evidence that is formally put before it: see s 353(2) of the Act. Subject to the other provisions of the Act, including the implied and express requirements of procedural fairness, the Tribunal can inform itself as it thinks fit, including acting on information that is 'public'. Nor should it be forgotten in this context that in the course of their duties Tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world. Within the limits imposed by the Act itself there is nothing to prevent members from using this information. 22 In this case the Tribunal member identified the information upon which she relied. Insofar as the issues arising in this appeal are concerned, the member did not purport to rely upon any information that is not specifically referred to in the Tribunal's reasons. 23 The general conclusions reached by the Tribunal relating to the position of the Taliban generally in Afghanistan were supported by the material to which the Tribunal referred. It is clear enough that the Taliban have been removed from government in Afghanistan. An interim government was established. But the appellant's case did not depend upon the general situation in Afghanistan. The Tribunal clearly understood that the case being put by the appellant was that he faced a real risk of persecution if he was returned to his home region in the north of Oruzgan province. And it was accepted before us that there was no analysis by the Tribunal or the parties as to whether the appellant could return to any other area in Afghanistan: see e.g. Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. 24 As to that claim as put before the Tribunal, the Tribunal found: (a) as a general statement the Taliban had been defeated in Afghanistan. An interim government had been established. Previous circumstances of religious and political persecution were being addressed; (b) the area where the appellant lived was under the de facto or de jure control of Karim Khalili, a Hazari leader from the adjoining province of Bamian; (c) although there were reports of Taliban / al Qaeda in Oruzgan, those reports refer to areas that are not close to or accessible to the part of the province where the appellant lives; (d) in any event in recent reports the US Defence Secretary has reiterated a commitment to 'go after' the elements of the Taliban that remain. 25 The difficulty with all this is that there is no material that either party could point to that would support the factual conclusions (b) and (c). On the other hand, there is information that is clearly to the contrary. For example, a report in Time Magazine ('After Shah-I-Kot: The Next Campaign' vol 159, issue 12)of 25 March 2002, which was cited with apparent approval by the Tribunal, referred to the strength of the Taliban and al Qaeda in Oruzgan province and said that they had dispersed into small fighting forces. But most importantly the Tribunal set out at some length a DFAT report ('Oruzgan province', Country Information Report No 81/02, 2 April 2002, CX63508) dealing expressly with the situation in Oruzgan province. That report stated: 'The security situation in Oruzgan is uncertain. There are reportedly pockets of Taliban/al Qaeda in the northern part of the province, although there have been some signs that security in the rest of the province is improving slightly.'

26 Although there is some confusion in the Tribunal's reasoning in this regard, nevertheless it is plain that the area that the appellant comes from is the northern part of the province. It is also clear, as the respondent concedes, that there is no evidence to support the Tribunal's finding that '[n]either of [the pockets of Taliban /al Qaeda] are close, or given the harsh terrain, easily accessible to the part of the province in which the applicant lives.' Indeed, the very opposite would seem to be the case. On the face of it the area where the appellant came from would seem to be the same area as that where there were pockets of Taliban and al Qaeda. The statements of the US Defence Secretary giving a commitment to 'go after' the remnants of the Taliban that remain are, if anything, further confirmation of the continuing presence of those forces.

27 Given that the Tribunal had already accepted that the appellant had a well founded fear of persecution for a Convention reason from the Taliban at the time that he left Afghanistan and given that all of the evidence before the Tribunal seemed to point to at least a possibility that 'pockets' of the Taliban remained effective in the area from which he had come the Tribunal should have considered the question of whether the government or governments in Afghanistan were capable of and willing to protect the appellant: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 and see Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 678, 681. Alternatively, the question whether the appellant could safely return to some other area in Afghanistan could have been considered. The Tribunal did not address those issues. It did not do so because it had reached a critical factual conclusion: 'I accept the independent information set out above that the Taliban is no longer a force in Afghanistan…. There is no evidence before me to support the applicant's claim that elements of the Taliban remain viable in Afghanistan, and especially not that any such elements are in positions of power or influence, or that they still function but in other forms.' 28 The totality of this factual conclusion was incorrect. There was no evidence before the Tribunal to support that conclusion in relation to northern Oruzgan province. What evidence there was was that the Taliban remain viable in the area from which the appellant came and that the security situation 'is uncertain'. There was no evidence, one way or the other, as to whether the Taliban are in positions of power or influence in Afghanistan generally or in the northern part of Oruzgan. Accepting that there are pockets of Taliban/al Quaeda in the northern part of Oruzgan, the crucial questions are, first, whether they are in that part of the province where the appellant lives and, if they are, whether they are in positions of power or influence such that the appellant faces a real risk of persecution if he returned. The risk of persecution may come from the Taliban in circumstances where the failure of the state to intervene to protect the appellant is due to a state policy of tolerance or condonation of the persecution or where (relevantly to the present claim) the state is unable to provide the protection of the law and its agencies to the appellant: see Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 per Gleeson CJ at [29], McHugh and Gummow JJ at [87] and Kirby J at [101] and [112]-[115]. The Tribunal's unsupported findings in (b) and (c) purport to answer these questions. They remain unanswered. 29 The Tribunal did note that: 'there are no reports of [persecution on the basis of ethnicity or religion] by members or supporters of the former Taliban regime since that regime was toppled from power in November last year.'

30 The Tribunal could have reached various conclusions based upon the lack of such reports. But that is not what the Tribunal did. It reached its conclusion that the appellant did not have a well-founded fear of persecution because it had found that the Taliban was not viable. On the material before the Tribunal that conclusion was not open in relation to the northern Oruzgan province at that time. It involved a jurisdictional error.

31 In light of the new grounds of appeal first raised before us the appeal must be allowed. The matter should be remitted to the Tribunal for further consideration in accordance with the law. The appellant should have his costs of this appeal. As completely different arguments were pursued before the primary judge each party should bear its own costs in relation to the appeal before the primary judge. 32 The Court records its appreciation to counsel and particularly to Mr Plunkett and to his instructor, who have acted pro bono and at short notice. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Selway and Bennett.

Associate: Dated: 22 October 2003 Counsel for the Appellant: M Plunkett (Pro Bono)

Solicitor for the Appellant: Terry Fisher & Company (Pro Bono)

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