SFTB v Minister for Immigration & Multicultural & Indigenous Affairs - [2003] FCAFC 108 - FCAFC 2003 case summary — Zoe

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SFTB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 108

Federal Court of Australia (Full Court)|2003-05-27|Before: Jacobson JJ

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Court

Federal Court of Australia (Full Court)

Decision date

2003-05-27

Before

Jacobson JJ

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate given on 11 October 2002, dismissing an application for review of a decision of the Refugee Review Tribunal ('Tribunal'). The Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol. It therefore held that the criterion for the grant of a protection visa set out in s 36(2) of the Migration Act 1958 (Cth) ('Migration Act') had not been satisfied. 2 The appellant, an unaccompanied minor then aged 14 years, arrived in Australia by boat in August 2001. He claimed to be a citizen of Afghanistan, specifically a Shia Hazara, born in the Qarabagh district of the Ghazni Province where he had lived all of his life. He claimed to fear persecution by the Taliban in Afghanistan. His application for a protection visa was refused by a delegate of the respondent. On the basis of linguistic analysis the delegate did not accept that the appellant was a national of Afghanistan and held that he had lived in Pakistan for many years, probably for all of his life. Consequently the delegate rejected the appellant's account of his experiences at the hands of the Taliban as a complete fabrication. 3 The Tribunal took a different view of the linguistic evidence. While it accepted that the linguistic report had some evidentiary value it stated that it was 'outweighed by the calibre of the applicant's evidence' at the hearings. The Tribunal accepted the appellant's claims as to his birthplace, his citizenship and his residence. It accepted that the Hazaras' 'adherence to the Shi'a Muslim religion sets them apart from Sunni Muslims in Afghanistan' and added: 'Accordingly, I accept that the Taliban beat the applicant on three occasions because he was an Hazara and Shi'a Muslim. I also accept that the Taliban tortured his father, took away his brother and caused the death of his grandmother for those reasons. In the circumstances, it is understandable that he would continue to fear being persecuted by the Taliban, remnants of the Taliban or Pushtuns upon returning to Ghazni Province.' 4 The Tribunal found, however, that because of the change in regime in Afghanistan the appellant's fear of persecution should he be returned to that country was not well-founded. The Tribunal's decision was upheld by Federal Magistrate Brown. 5 The appellant appeals from the whole of the Federal Magistrate's judgment. His original Notice of Appeal was filed on 1 November 2002. At the hearing he sought leave to rely on the quite different grounds of appeal set out in his Notice of Further Amended Grounds of Appeal filed on 30 April 2003. The respondent objected to leave being granted but did not object to the Court's decision on that point being deferred until argument on those grounds of appeal had been heard. Those grounds allege that the Federal Magistrate erred in failing to identify certain errors on the part of the Tribunal. These errors include the Tribunal failing to afford procedural fairness to the appellant and applying incorrect tests as to what constitutes persecution in accordance with s 91R of the Migration Act, and whether the appellant's fear was well-founded.

[8]

Costs order made by the Federal Magistrate 13 Another consequence of proceeding without a tutor or next friend was identified in SBAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 426 ('SBAH'). In that case Emmett and Conti JJ considered O 43 of the Federal Court Rules, which deals with proceedings by or against persons with disabilities, including infancy. Consistent with the views expressed in Applicant X and in Odhiambo their Honours held that the Rule did not mandate the appointment of a tutor but commented that it might be in the interests of a respondent to a proceeding to ensure that a tutor is appointed. Their Honours observed that in the absence of a tutor (or presumably a next friend), the infant would not be precluded from litigating the same questions in a new proceeding. 14 In the same case Magdwick J agreed with this opinion. His Honour stated at par [1], 'Emmett and Conti JJ have analysed the legal position of a child in whose name legal proceedings are commenced and (subject to appeals) concluded, without a court having deliberately assigned carriage of the child's case to an apparently well-motivated and responsible adult by the "next friend" or "tutor" procedure. The result of such analysis appears to be that if the proceedings terminate in the child's favour, the child may have the benefit of that. If, however, the proceedings result in the rejection of some right, privilege, power or benefit claimed for the child, the child may not be held to that result unless, as an adult, he or she does not seek to disturb the adverse result.' 15 These views raise the question of the status of the order for costs made against the appellant by Federal Magistrate Brown. However, any issue as to the costs order was resolved by an undertaking given by the respondent that if he were successful in this appeal he would not pursue the costs of the appeal, or the proceeding below, and would not use the order for costs made below in any manner adverse to the appellant.

[10]

The proceedings before the Tribunal 17 The appellant appeared before the Tribunal on two occasions, namely 4 March 2002 and 28 March 2002. Prior to that, under cover of a letter dated 18 February 2002, Macpherson and Kelley, migration agents, provided the Tribunal with over 20 pages of written submissions in support of the appellant's application, including independent country information in respect of the situation in Afghanistan at that time. 18 At the first hearing, on 4 March 2002, the appellant was accompanied by a social worker. The transcript of that proceeding shows that the social worker was permitted by the Tribunal to remain during the hearing but was told that she should remain quiet during the interview, 'unless the applicant becomes distressed'. The Tribunal explained the process to the appellant and asked if he understood, if he was comfortable about the hearing and about answering questions put to him by the Tribunal. The appellant gave an affirmative response to all these enquiries. The Tribunal questioned the appellant about the area in which he lived and his memories of the Taliban coming to his village and how they treated his family and neighbours. These questions were obviously directed to ascertaining the appellant's true nationality and the basis of his fear of persecution. It would appear that the appellant became upset at the end of the interview and began to talk about the pressure he had been under and his difficulty in concentrating. He said that he had been seeing a psychologist and was taking sleeping tablets. The transcript (and presumably the interview) ended at that point. 19 The transcript of the second interview runs for 13 pages, the first nine of which record the Tribunal asking the appellant details about how he lived in Afghanistan as well as about the psychological report that had been obtained about him and whether he had made attempts to contact his family through the Red Cross. The appellant complained that when he first arrived in Australia he had difficulty understanding the questions that he was asked and was not able to give as much information as he should because of his worry and stress. The Tribunal encouraged him to go on talking as long as he had something more to say. The Tribunal member and the appellant then had quite a long exchange about the linguistic analysis; the difficulty for the Tribunal in determining the appellant's nationality; and aspects of his experiences in Afghanistan. 20 The Tribunal then asked the appellant if he knew anything about the situation in Ghazni and what would happen if he was to go back there. The last four pages of the transcript show that the remainder of the interview concentrated mainly on this point. 21 The gist of the appellant's response was that, although the Taliban were no longer in control, the vast majority of them were still alive. He claimed that they hated the Hazara and would still try to kill them. He clearly equated the Taliban with the Pashtun people although recognising that some Pashtun also disliked the Taliban. Twice during the interview the Tribunal member cut short the migration agent when he was attempting to make the same point. She stated that such a 'sweeping statement' was not helpful and was not fair on the Pashtun who had also been persecuted by the Taliban. 22 The Tribunal member accepted that Afghanistan is a 'dangerous place', stating she was aware of remnant Taliban forces in Afghanistan, including in Ghazni, and that this would be 'prominent' in her assessment. She stated that her task was to determine whether the appellant would be persecuted by Pashtuns or Taliban, by reason of his being a Hazara, if he went back to Ghazni. The Tribunal member referred to updated reports about the situation in Ghazni that she was getting about twice a week and said that she would have to 'go away and have another think about that'. She invited the migration agent to fax to her any relevant articles he might have.

[11]

Procedural fairness in relation to a minor 23 In addition to considering the position of a minor who is without a next friend or tutor the Full Court, in Odhiambo, also considered the obligations imposed on the respondent by the Immigration (Guardianship of Children) Act 1946 (Cth) ('Guardianship Act') in respect of a minor in the position of an appellant. In that case both appellants had reached the age of 18 years at the time their appeals were heard. However, it was accepted that they were minors at all stages of their applications for protection visas and at the time of the hearing of their applications for review of the Tribunal's decision before a judge of this Court. The Court therefore considered the effect of s 6 of the Guardianship Act which provides: 'The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.' 24 The Full Court held (at [86]-[88]) that s 6 confers on the Minister all the usual incidents of guardianship and that these extend to the provision of the basic needs of the child which may include legal advice and assistance. The Court was, however, of the view that in reviewing the Tribunal's decision (and that of the primary judge) it was required it to give its attention to the conduct and decision of the Tribunal not the position or conduct of the Minister. 25 The Full Court considered that the mere fact that the appellants were minors was not sufficient to find error on the part of the Tribunal. It referred with approval to the reasons enunciated by North J in Applicant X and commented at [101]: 'An application to the tribunal for review of a decision refusing a protection visa is a statutory procedure designed to elicit an administrative decision. Analogies with court-controlled litigation may sometimes be useful; but it would be erroneous, in the absence of statutory warrant, to engraft curial rules and requirements onto such a statutory procedure. The statute must be allowed to operate on its own terms. The Migration Act makes no provision for an applicant to proceed before the tribunal by a next friend, tutor or guardian. On the contrary, s 425(1) requires the tribunal to "invite the applicant to appear before the tribunal to give evidence and present arguments". The reference, obviously, is to the applicant himself or herself. And the applicant is not only to act as a witness ("to give evidence") but also to act as advocate ("present arguments").' 26 The Full Court considered that whether the Tribunal was in error depended on its conduct in the particular case. In considering the Tribunal's conduct in the matters before it the Full Court said, at [94]-[95]: 'An applicant may be so disadvantaged, by tender years or mental disability, as to render it impossible for the tribunal to conduct the hearing envisaged by Pt 7 of the Migration Act except through a guardian who is actively representing the applicant's interests. Falling short of that extreme, there may be cases in which the tribunal will feel unable, because of the age or mental capacity of the applicant, to conduct a proper hearing unless and until the applicant has received independent legal assistance and advice. In such a case, the tribunal is free to postpone or adjourn the hearing to enable this to occur. The tribunal is master of its own procedures subject only to any relevant statutory commands. Those commands include pursuit of the objective of providing a mechanism of review that is "economical, informal and quick" … but the review must also be "fair" and "just".

[13]

It is true that neither appellant was actively represented before the tribunal. As we understand the situation, that is normal; few applicants are actively represented by a migration agent or lawyer. No doubt the main reason for this is lack of funds. However, a contributory reason must be that the inquisitorial procedure adopted by the tribunal leaves little scope for a migration agent or lawyer to make a difference to the presentation of evidence. We are not prepared to treat this matter as being so important as to require a conclusion that the tribunal ought not to have proceeded with the hearings in the absence of a lawyer or migration agent.' 27 Counsel for the appellant, Mr Charman, attempted to distinguish Odhiambo on the grounds that it was decided in the context of the Migration Act as it was before the amendments in October 2001. It was submitted that since then, as a result of those amendments and the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24('Plaintiff S157'), the concept of natural justice has been expanded. That submission cannot be accepted. Plaintiff S157 was concerned with the interpretation of s 474 of the Migration Act and whether a failure to accord procedural fairness is a ground of relief under s 39B of the Judiciary Act 1903 (Cth) and, in our view, Plaintiff S157 does not affect the authority of Odhiambo. 28 Applying Odhiambo, we do not accept that the Tribunal was in error merely because it failed to ensure that the appellant was represented before it. Any claim of procedural injustice must be supported by reference to the actual circumstances of this case and the conduct of the hearing before the Tribunal. In those circumstances the appellant's age, the paucity of his education and his psychological state are highly relevant. 29 In an affidavit sworn on 30 April 2003 and filed on 6 May 2003 the appellant commented on his two interviews with the Tribunal as follows: 'I was in Woomera for 9 months during which time I became very depressed and I tried to hang myself. I was not feeling very well. I tried to jump over the fence. I also cut myself and drank shampoo and went on a hunger strike for four days. That's when DIMIA got me and the others out and took us to Adelaide.

[18]

The questioning - there was sometimes when I found that she asked too many questions that I would have liked to have spent more time thinking about the answers. But obviously she was busy and wanted to ask questions quickly." 30 At the time of these interviews the appellant was aged 15 years. While in Woomera Detention Centre he had exhibited signs of stress, including self-destructive behaviour and a psychological report was commissioned. That report was not provided to the Court. The transcript shows, however, that at the beginning of the second interview, the Tribunal summarised the report for the benefit of the migration agent. It would appear that by the time of the second interview the appellant's psychological state was much improved although the report still expressed some concerns. The only direct evidence before us as to the appellant's state of mind is his own account quoted above. 31 In the case of an unrepresented minor, the circumstances of his interview on 4 March 2002 to which the appellant deposes might well support a claim of procedural unfairness. However, the Tribunal ultimately accepted those aspects of the appellant's claim that were discussed in that interview, namely that he comes from Afghanistan, that he is an Hazara and that he had suffered ill treatment at the hands of the Taliban. That being so no practical injustice was suffered as a result of those circumstances; see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502. 32 The appellant alleges that during his second interview with the Tribunal he was not given a fair opportunity to present his evidence about the current situation in Afghanistan. We do not accept that this was so. The Tribunal listened to the appellant's account and gave the migration agent the opportunity to add to it. The Tribunal asked the appellant about the situation in Ghazni and what he thought would happen to him if he returned there. The appellant did not make any comment on that specific issue but spoke only in generalities of the traditional rivalry between the Pashtun and the Hazara people and of his conviction that despite the Taliban having lost control, the persecution he had previously experienced would continue. 33 Like the appellants in Odhiambo the appellant, at each stage of the application process, was provided with an apparently competent interpreter. He had received the assistance of experienced migration agents in preparing his application and in providing written submissions to the Tribunal. In our opinion he was given a fair opportunity of stating his case. As he had fled Afghanistan while the Taliban were still in control, it is not surprising that he had little information about the situation there after the Taliban were overthrown. Given the up-to-date independent information available to the Tribunal, to which it referred at the hearing, it is also not surprising that the Tribunal placed greater emphasis on that information than on the more general comments of the appellant. 34 The appellant complains that the Tribunal relied on information received after the hearing without giving him the opportunity to comment on it. In making this submission, Mr Charman rightly acknowledged that, by virtue of s 424A(3) of the Migration Act, the Tribunal was not obliged to give such information to an applicant; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 ('VAAC'). He submitted, however, that the comments of the Tribunal, referred to in par [21] above, led the appellant to believe that the Tribunal accepted that the current situation in Afghanistan is dangerous, volatile and unpredictable. The Tribunal's ultimate conclusion, that the appellant does not have a well-founded fear of persecution should he be returned to Afghanistan, was said to be inconsistent with those comments and based on information received by the Tribunal after the hearing. Mr Charman submitted that in such circumstances the appellant should have been given an opportunity to respond to the information which led the Tribunal to its ultimate conclusion. 35 In our opinion the comments of the Tribunal and its ultimate conclusion are not inconsistent, and there was no obligation on the Tribunal to consult further with the appellant. At the end of the hearing the Tribunal was quite clear that, although it had accepted that there were remnants of Taliban forces in Ghazni, it had still 'to assess the information that the Tribunal's getting about what's happening in Ghazni'. In addition, the transcript of the interview shows that the Tribunal member specifically invited the migration agent to provide her with any additional recent information he might have on the situation in Ghazni. Those comments are not consistent with the proposition that the Tribunal had formed a conclusion or was expressing an attitude inconsistent with its ultimate conclusion. There has been no complaint about the quality of the interpreting services provided and there is no reason to doubt that these comments were competently interpreted to the appellant. In our view there was no unfairness to the appellant in relation to this issue and it is therefore not necessary for us to consider whether, as the respondent contended at the hearing on 7 May 2003, s 424A leaves any room for residual principles of procedural fairness obliging the Tribunal to provide information to an applicant (see WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409), or whether, as VAAC holds, these residual principles are still relevant. In any event, on 26 May 2003, after this matter had been listed for judgment, the respondent withdrew this submission.

[19]

Jurisdictional error 36 The appellant also claims that the Tribunal fell into jurisdictional error of the kind identified in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 ('Yusuf') at 351, in a number of ways. It is said that the Tribunal failed to take account of independent evidence adduced by the appellant and instead relied solely on its own information. Moreover, it is said that, the Tribunal formed conclusions that could not be substantiated even by its own evidence. We have sufficiently considered the manner in which the Tribunal dealt with independent evidence in pars [32]-[34] above and it is not necessary to canvass the issue further. There is no evidence to support the appellant's claim which is really directed at the significance the Tribunal attached to the various sources and items of information. It is an invitation to merits review which is not within the jurisdiction of this Court. 37 The appellant also submitted that the Tribunal had failed to apply the correct test in relation to the appellant having a well-founded fear of persecution in the futurein that, when assessing whether his fear of persecution should he be returned to Afghanistan was well-founded, it failed to have regard to the more distant future as opposed to the period shortly after his return. The Tribunal, it was submitted, should have considered the 'durability of the peace' and that, although control of the country had been wrested from the Taliban, the volatility to which the Tribunal referred left the appellant vulnerable to persecution by them in the future should conditions change. In the appellant's submission, this amounted to a constructive failure to exercise jurisdiction. 38 The task of the Tribunal was to consider whether the appellant had a well-founded fear of persecution should he be returned to Afghanistan. It is for the Tribunal to assess the evidence before it and determine whether the fear is well-founded. As the relevant fear relates to events in the future it is clearly necessary for the Tribunal to consider what might happen in the future. However, to describe that task in terms other than laid down in the Migration Act is an invitation to error similar to that identified by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. In assessing the prospect of future persecution in Afghanistan, the Tribunal stated that it was necessary to consider the extent and impact of recent political changes in Afghanistan and the circumstances prevailing in the appellant's home province of Ghazni. In doing so the Tribunal said: 'The political circumstances in Afghanistan have changed substantially since the applicant left that country. I accept that the Taliban has been effectively eliminated as a political and military force in Afghanistan (see 'Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions' and reports of The Age dated 6 December 2001 and Xinhua News Agency dated 7 December 2001). Further, I refer to the Reuters reports on the appointment of members to the Cabinet of the Interim Authority and on the support pledged to the Interim Authority by Khalili and accept that Hazaras and Shi'as are fairly represented in the Interim Authority. I also accept that there is an unprecedented international commitment to the establishment of a representative and effective government in Afghanistan as evidenced by the UN-sponsored talks in Bonn; and by the establishment of the ISAF, and the agenda for the second Afghan Security Assistance Meeting to be held in Geneva on 17 May 2002.' 39 The Tribunal also referred to independent reports that indicated that Hazaras had de facto authority in Ghazni Province and that they formed the majority of the population in the appellant's home district. These passages show that the Tribunal, in forming its opinion, took into account fundamental changes in the power structures in Afghanistan and in the appellant's own district, that could reasonably be assumed to continue into the future. The fact that the Tribunal did not express its reasons in the form adopted by the appellant does not mean that it did not consider the likelihood of the appellant being persecuted, at some stage in the foreseeable future, on account of being Hazara. We do not see any evidence of jurisdictional error in the Tribunal's reasons and, in our view, the learned Federal Magistrate was correct in rejecting the appellant's submissions on this point. 40 The appellant will have leave to amend the grounds of appeal by substituting the grounds set out in the Notice of Further Amended Grounds of Appeal filed on 30 April 2003. The appeal, however, must be dismissed. There will be no order as to costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

SFTB v Minister for Immigration & Multicultural & Indigenous Affairs

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