SFTB v Minister for Immigration & Multicultural & Indigenous Affairs

The appellant's competence as a minor to bring proceedings 6 Before discussing the substance of the appellant's claims there is a preliminary issue as to the competence of the appellant, being a minor at all relevant times, to bring the application heard by the Federal Magistrate and the present appeal.

Proceedings by minors in the Federal Court 7 At common law an infant generally cannot take action except by a next friend or tutor; see Myers v Nominal Defendant [1966] 1 NSWLR 659 at 668 and Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 83. Where a jurisdiction is statutory the statute may expressly or by implication displace the common law rule; see Haines v Leves (1987) 8 NSWLR 442 at 449-451 and Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 985. In Applicant X v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524 ('Applicant X')North J considered that, both at common law and under the Migration Act, the issue was whether a tutor (and presumably a next friend) is necessary or appropriate having regard to the best interests of the infant as a primary consideration. His Honour noted (at 542) that an important factor against requiring the appointment of a tutor is 'the likelihood that such requirement would stifle the litigation and thereby prevent the applicants from pursuing their claims'. He concluded that there was no evidence that the fundamental needs of the applicants in that case could be met except by pursuing the litigation. Accordingly he held that the appointment of a tutor was not required. In Odhiambo v Minister for Immigration & Multicultural Affairs [2002] 69 ALD 312 ('Odhiambo') the Full Court, for the reasons given by North J in Applicant X, held that it was competent for a minor to seek review of a Tribunal decision in this Court without the involvement of a next friend.

Proceedings by minors in the Federal Magistrates Court 8 As previously mentioned this is an appeal from the decision of a Federal Magistrate. Rule 11.08(2) of the Federal Magistrates Court Rules provides that, unless the Court otherwise orders, a minor in a proceeding needs a 'litigation guardian'. Unless the Court does otherwise order, the consequence is that the minor may 'start, continue, respond to or seek to be included as a party to a proceeding' only by his or her litigation guardian; r 11.09(1). 9 The procedural implications of the appellant being a minor do not appear to have been considered in the proceeding below. No litigation guardian was appointed and no order was made under r 11.08(2). When the matter was raised by the Court at the outset of the hearing of this appeal neither counsel was able to offer any assistance in relation to the implications of there being no litigation guardian, and no order dispensing with this requirement, for the status of the proceeding below.

Failure to appoint litigation guardian 10 In determining the effect of the failure to appoint a litigation guardian in accordance with the Federal Magistrates Court Rules it is important to bear in mind that the object of those Rules is to assist the 'just, efficient and economical resolution of proceedings'; r 1.03(1). Where the Rules are 'insufficient or inappropriate' the Court, 'may apply the Federal Court Rules or the Family Law Rules, in whole or in part and modified or dispensed with, as necessary'; r 1.05(2). The Court may also dispense with compliance with the Rules at any time, in the interests of justice; r 1.06. In view of those provisions, we are of the opinion that the position with respect to proceedings in the Federal Magistrates Court is the same as that articulated by North J in Applicant X with respect to proceedings in this Court. In the absence of any evidence suggesting that the appellant's interests were not fully protected below, we are of the opinion that the proceedings in the Federal Magistrates Court were not vitiated by lack of competence on the part of the appellant.

Appellant's competence to bring this appeal 11 On the same basis, and given that counsel for the respondent indicated that the respondent made no objection, we are also of the opinion that the appellant is competent to bring this appeal without the intervention of a next friend or tutor.

Leave to amend grounds of appeal 12 The appellant's age is, however, a factor to be considered in deciding whether he should be given leave to amend his grounds of appeal in the manner described in par [5] above. As indicated above, counsel for the respondent objected to this course. Nevertheless he was quite able to address the points raised by the amended grounds and, in our view, there is no prejudice to the respondent in the appellant being given the leave sought. In these circumstances we propose to grant that leave.

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.

Procedural fairness 16 The appellant claims to have been denied procedural fairness and that the entirety of the circumstances support a claim of apprehended bias on the part of the Tribunal. The elements of this claim are that: (a) as a minor the Tribunal should have ensured that the appellant was properly represented at the two Tribunal hearings; (b) the Tribunal should have questioned the appellant as to his understanding of the process and otherwise conducted the hearings in a manner appropriate to the appellant's age and psychological condition; and (c) the Tribunal denied him the opportunity to present his evidence as to the current situation in Afghanistan and to respond to information it relied on.

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.

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".

In neither of the present cases did the tribunal feel it was necessary for the applicant to be actively represented by the guardian in order that it might conduct the hearing for which Pt 7 provides. In all the circumstances, we do not think the tribunal can be criticised for this. Although both appellants were apparently then under the age of 18, they were not "children" or demonstrably unable to have proper regard for their own best interests. They had, in the most difficult of circumstances, apparently lived independent lives for many years. The tribunal provided an apparently satisfactory interpreter in each case and it knew that each applicant had received qualified and independent assistance in the formulation of his application for a protection visa and at each stage of the tribunal's enquiry. That matter, we regard, as extremely important. As counsel for the minister submitted, it is difficult to see how the extent or quality of legal assistance would have been any greater if it had been commissioned by an independent guardian of these applicants.

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.

On the first occasion I went to the Refugee Review Tribunal, it was soon after I came out of Woomera, and I was feeling sick. I was only just recovering from all the things that happened to me at Woomera and from not eating for a few days. … I was sick that day. I found it hard to concentrate. The Tribunal member asked me lots of questions.

On the second day of the Refugee Review Tribunal hearing I had a Migration Agent. I did not speak to this man beforehand. I only saw him at the Tribunal. I was already in the hearing in fact when this man came in. We did not have time to speak and he did not know anything about my matter. The man was not allowed to say anything in the hearing. After the hearing the man just went. Apparently he was busy and we did not have time to talk.

It was on this second occasion that the Tribunal member said that I did not have to say anything about convincing her that Afghanistan was unsafe. … She didn't ask me any more. I could have said a lot more. I had more things to say, if she was not convinced. If she had asked me I would have said more.

The hearings were a little bit awkward, because it was through television in Melbourne. It was not face to face. It would have been easier if it was face to face.

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.

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.

Associate: Dated: 27 May 2003 Counsel for the Appellant: Mr I Charman

Solicitor for the Appellant: Refugee Advocacy Service of South Australia