SGCB v Minister for Immigration & Multicultural & Indigenous Affairs

THE APPELLANT'S CLAIMS 7 The appellant claimed to have fled Afghanistan because he feared persecution by the then ruling regime, the Taliban, by reason of his perceived political associations. If that were made out, and if at the time of the Tribunal's decision, the appellant continued to have a well-founded fear of persecution for that reason, then he would appear to have fallen within the definition of 'refugee' in Art 1A(2) of the Convention. 8 However, in December 2001 the Taliban regime in Afghanistan fell. The appellant nevertheless before the delegate of the respondent, and before the Tribunal, continued to maintain that he had a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan. Firstly he claimed that he feared persecution from the new interim governing regime in Afghanistan, comprising in a significant measure members of the former Mujahaddin. That is because the Mujahaddin (he claimed) had and continued to persecute those who had been or were perceived to have been associated with the former communist regime in Afghanistan, and that the appellant by reason of his family links was perceived to have had such an association. Secondly, the appellant expressed the claim that, notwithstanding the fall of the Taliban regime, he and members of his family were vulnerable to persecution by the Taliban if he were to return to Afghanistan. 9 I observe that, to the Tribunal, he asserted also a fear of persecution by reason of a perceived religious belief on his part, and by reason of his ethnicity. He was born in Bamian, a region substantially comprised of Shia Muslims of Hazara ethnicity, and although he is a Sunni Muslim he feared that he would therefore be perceived as a Shia Muslim and be vulnerable to persecution. He complained further that, by reason of his mixed ethnicity, he was vulnerable to persecution by one or other of the Tajik or Pashtun ethnic groups. 10 In support of his claim to have a well-founded fear of persecution by the interim government by reason of his or his family's past actual or perceived communist associations, the appellant claimed to the Tribunal that his father and brother had been arrested and that he feared for their lives as well as for his life if he were to return to Afghanistan. He told the Tribunal that on 13 May 2003 he had received news from his family in Afghanistan about his father's and brother's arrests. The Tribunal hearing took place three days later.

the tribunal's reasons 11 The Tribunal was satisfied that the communist regime had been in power until its downfall in Afghanistan in 1992 when it was overthrown by the Mujahaddin group. It also accepted that the Mujahaddin group were now 'heavily represented' in the interim authority in Afghanistan established in December 2001. However, because the appellant and his family had suffered no adverse consequences in the period 1992 to 1996 (when the Taliban regime commenced) whilst the Mujahaddin were in control of Afghanistan, it was not satisfied the appellant now had a real fear of persecution by reason of his perceived communist connections or those of his family. It concluded: 'The Tribunal finds that although the applicant's family have been connected with the communist regime due to the fact that no action was taken against them after the downfall of the regime, the fact they did not flee Afghanistan at the time of the downfall of the regime, the fact that his uncle sought refuge in the areas controlled by the Mujahaddin and the fact that the applicant himself has not been involved with the Communist regime the Tribunal finds that there is no real chance the applicant will be persecuted in the reasonably foreseeable future because of his family's involvement in the Communist regime and his fear of persecution is not well-founded.' 12 It rejected his claims to have a well-founded fear of persecution because of his mixed ethnicity, and separately considered and rejected the existence of any well-founded fear of persecution by reason of his Tajik ethnicity or by reason of his Pashtun ethnicity. Consequently his fear of persecution for reasons of his ethnicity was held not to be well-founded. 13 It also rejected his claim to have a well-founded fear of persecution by reason of any perceived religious association deriving from his family's origin in Bamian. It had regard to his family's and his past experiences, the fact that he had been living in Kabul for most of his life, that he spoke with a Kabul accent, and that he had never experienced any adverse consequences in the past by having been presumed to be a Shia person from Bamian. It concluded there was no real prospect in the reasonably foreseeable future of the appellant being persecuted by reason of any perceived belief that he was of Shia religion. 14 The Tribunal dealt separately with the appellant's claim that members of his family had recently been arrested. It said: 'The applicant when asked further detail about the arrest such as whether his family had sought information or assistance from the UN or the government he stated that the line was no good so he did not ask. The Tribunal does not accept that if his father and brother were really arrested in the current situation with the UN troops keeping order that he would not have made these inquiries. Further the applicant claimed they were arrested for being part of the Khalq faction. For the reasons set out above the Tribunal does not accept, given that no action has been taken against them in the past that they would be arrested for their connection to a faction of the communist regime. The Tribunal finds that the applicant has fabricated this claim at the hearing in an attempt to bolster his claim for refugee status.' The 'reasons set out above' are those explaining why the Tribunal did not regard the appellant's family as having a sufficiently high pro-communist profile to have led to any persecution following the downfall of the communist regime in 1992 and whilst the Mujahaddin were in power until the advent of the Taliban in 1996. 15 Finally, the Tribunal considered the appellant's claims cumulatively, that is whether he faced a real chance of persecution by a combination of his ethnicity and his family's connections to the communist regime and his connections to Bamian. It found there was no real chance that he would be persecuted for a 'cumulation' of these reasons so that his fear of persecution was not well-founded.

the magistrate's decision 16 The appellant appeared in person at the hearing of his application for prerogative relief before the Federal Magistrate. It is not surprising that he did not understand the limited grounds upon which the Magistrate's Court might interfere and set aside a decision of the Tribunal. It appears from the Federal Magistrate's recital of the course of the hearing that the appellant largely sought to re-argue matters of fact. 17 Significantly, for the purposes of considering the present appeal, the appellant had shortly prior to the hearing of the application in the Federal Magistrates Court provided to the Court certain documentation including a photocopy of a newspaper article which 'purportedly sets out facts about members of his family who are accused of plotting as part of an Islamic association to set off a bomb in Kabul'. The article was said to be dated 13 March 2002 and was said to have been received by the appellant on 4 September 2002. The appellant asserted that he had received that information, and that it provided proof of what he had alleged and given evidence about to the Tribunal (based on the telephone conversation of 13 May 2002) about the arrest of his father and brother and so substantiating independently that which he had asserted at the time. 18 At the time of the Federal Magistrate's consideration of the application, the decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (NAAV)had been given. NAAV upheld the validity of s 474 of theAct, that is the privative clause provision. The learned Magistrate described the interpretation and scope of s 474 as decided in NAAV as follows: 'The effect of the clause is to protect from judicial review decisions of the RRT which might otherwise be found to be invalid by reason of jurisdictional error.' The learned Magistrate, in the light of the Full Court decision in NAAV, described 'on a generous view' the grounds of review remaining open to the appellant as being that the decision exceeded the constitutional limits upon legislative power imposed by the Constitution, that the decision was not made in good faith, that the decision was not reasonably capable of reference to the power under which it was made, and that the decision was not made by reference to the subject matter, scope and objects of the Act. Those matters are what fall within the so called Hickman principles: see R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 614-617. The learned Federal Magistrate did not consider that any of those grounds was made out on the material available on the hearing of the application. There is no complaint on that score on this appeal. 19 The other grounds of review which the learned Federal Magistrate described as being available following the decision in NAAV were that: . the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s 474, must be observed for the effective exercise of the power; and . the decision was made in breach of a limit or condition on a power which, notwithstanding s 474, is implied from the statute or imposed by the common law and which must be observed for the effective exercise of the power.

Those two grounds were described by the Federal Magistrate as arising where there were inviolable conditions or jurisdictional pre-conditions to the exercise of power imposed upon, but not complied with, by the Tribunal. 20 As to those matters, the Magistrate said: 'The only relevant jurisdictional pre condition [sic] on the exercise of power which the applicant could, in my view, have pointed to, if he were aware of it, was the obligation in s 65 of the Migration Act for the decision maker to be satisfied that a visa should be refused as a pre-condition to refusing a visa. … However, the applicant in these proceedings cannot point to any legal error made by the RRT in attaining the level of satisfaction. He clearly disagrees with the conclusions reached by the RRT but his application is an invitation to the Court to review the merits of that decision. In addition, even if there were a legal error made, it is not any legal error in the attainment of the necessary degree of satisfaction that would invalidate a decision. It is clear from the majority judgments in NAAV that simply identifying a wrong issue or asking a wrong question, ignoring relevant material or relying on irrelevant material will not be sufficient. Something more fundamental to the exercise of power must be identified. The applicant is unable to identify such a fundamental error. I see nothing in the decision and reasons of the RRT to indicate any such fundamental error.' 21 The Magistrate dealt with the newspaper article in the following terms: 'The newspaper article presented to the Court shortly before the hearing today was not available to the RRT. Obviously, the failure of the RRT to refer to that article is because the article was not before it. The matters contained in the article may provide some basis for the applicant to approach the Minister to consider substituting a different decision. That is for the applicant to decide, and I express no view about it.' The Magistrate otherwise did not deal with that evidence. 22 He was not satisfied or persuaded that there was any reviewable ground in support of the application, and it was dismissed with costs.

CONSIDERATION OF THE APPEAL 23 Subsequent to the decision of the learned Magistrate, the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2002) 195 ALR 24 (Plaintiff S157/2002) on 4 February 2003 gave judgment in a matter concerning the scope of operation of s 474 of the Act. The High Court disagreed with the views of the Full Court in NAAV. In Applicant NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33 at [11], the Full Court of this Court said: 'In summary, the High Court held that s 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of "decisions made under … [the] Act". Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s 474. Put shortly, s 474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice.' See also the discussion by the Full Court in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 at [45]-[51] (Lobo). 24 On the hearing of this appeal, consequently, it is clear that the learned Magistrate hearing the application misdirected himself as to the role and effect of s 474 of the Act in relation to the application. He took too narrow a view as to what may constitute jurisdictional error under the Act for the purposes of determining whether the appellant had made out a ground for setting aside the Tribunal's decision and for the issue of prerogative relief. So much was accepted by counsel for the respondent. 25 However, counsel for the respondent contended that an examination of the reasons for decision of the learned Magistrate indicates that there was in fact no causative legal error in his consideration of the claim, and that the appellant was seeking merely to attempt to re-agitate the merits of the application which, on any view of s 474, could not constitute reviewable error. It was submitted that the perceived constraints of the privative clause in the Magistrate's decision arose only as an alternative basis for dismissing the application, and that there is no legal error of a causative nature arising from the understandable misconception on the part of the learned Magistrate as to the effect of s 474 of the Act. It was then submitted that, in any event, this Court should now determine the issues on the appeal to decide whether there is jurisdictional error on the part of the Tribunal, rather than the matter being remitted to the learned Magistrate for further hearing and determination. 26 I do not accept the first of those contentions. The passage in the Magistrate's reasons is quoted in [18-19] above, and the reasons immediately preceding that passage. As I have indicated, they describe what the learned Magistrate identified as the grounds of review open to an applicant in the light of s 474 as interpreted by NAAV. His Honour identified six grounds. Having addressed four of them, his Honour then, in the passage referred to and relied upon by the respondent, was considering whether there was what he described as 'inviolable conditions or jurisdictional preconditions to the exercise of power'. In that regard, his Honour identified as 'the only relevant jurisdictional precondition' potentially available the obligation under s 65 of the Act for the decision maker to be satisfied that a visa should be refused. Section 65 directs the decision-maker, if satisfied that the criteria for the grant of a visa are met, to grant the visa and if not satisfied that the criteria for the grant of a visa are met, to refuse the visa. The Magistrate's identification of s 65 as the only relevant jurisdictional pre-condition indicates that other matters which, upon a proper construction of the Act including s 474, might require compliance by the Tribunal before it could properly exercise its jurisdiction may not have been addressed. The learned Magistrate has not sought to consider whether there is some other error which, in the light of Plaintiff S157/2002, might be seen to be a jurisdictional error. In my judgment the passage referred to by the respondent does not expose a consideration of the sorts of issues which, in the light of Plaintiff S157/2002, might give rise to jurisdictional error. It is confined to considering jurisdictional error by reference to the level of satisfaction which s 65 dictates. As the Magistrate's reasons indicate, he required something 'more fundamental to the exercise of power' to be absent before he would be satisfied of relevant jurisdictional error. 27 It is now clear that the Tribunal was obliged to accord the applicant procedural fairness in the decision-making process: see Plaintiff S157/2002, notwithstanding s 474 of the Act. See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. I note that the Tribunal's decision was made shortly prior to the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). (The decisions in the High Court to which I have referred also relate to the Tribunal's obligations prior to the commencement of that amending Act). 28 There are two respects in which, it is contended by counsel for the appellant appearing pro bono, the Tribunal failed to accord procedural fairness to the appellant. The first is the failure to warn him of the possibility of a particular adverse finding, either under s 424A of the Act or at common law, namely his evidence that on 13 May 2002 he had learned his father and brother had been arrested was concocted to bolster his claim to be a refugee. The second is the failure to give the appellant sufficient time to prepare a case, and to adjourn the hearing in the light of the appellant's information reportedly received on 13 May 2003, only three days prior to the hearing before the Tribunal. The newspaper report which he produced to the Magistrate might show that, had the appellant been given a little time, he may have been able to secure evidence tending to confirm his claim about the arrest of his father and brother. 29 As I have reached the view that it is appropriate in this matter to remit the matter to the Tribunal for further hearing, rather than to determine those matters for myself on this appeal, I propose to refer only briefly to those arguments. I am satisfied that there is some merit in them, in the sense that, the Magistrate, had he had the benefit of the decision of the High Court in Plaintiff S157/2002 might have considered an alternative course of action. I am not to be taken as indicating that the Magistrate on further review should act in a different way, but simply that by reason of his then (understandable) view as to the scope and effect of s 474 of the Act, he did not consider it was appropriate to consider these matters and in the light of Plaintiff S157/2002 it may now be appropriate for him to do so. Reference may be made to the recent Full Court decision in Lobo at [45]-[49] considering the effect of the decision in Plaintiff S157/2002. 30 As to the first of those two matters, the Tribunal in fact wrote to the appellant on 17 May 2002 following the hearing indicating that there was an issue which required his further consideration. The issue was whether he had accurately reported to the Tribunal his ethnicity as Tajik, or as Tajik Pashtun. It was identified in that letter that the different information he had supplied from time to time might indicate that he was not telling the truth regarding his ethnicity. As I have noted, ultimately the Tribunal was satisfied about that matter in the light of his further response. 31 The Tribunal did not indicate to the appellant at that time, or at all except to the extent that it asked him questions during the hearing, that there was a risk that a finding would be made that he had fabricated the claim that his father and brother had not been recently arrested and possibly executed in Kabul with the intent to bolstering his claim for refugee status. In fact, that is what the Tribunal found about that evidence. In the course of the hearing the appellant identified the name of a particular group who were responsible for that arrest. The transcript of the hearing explores that information, but does not convey any suggestion to the appellant that the information he was providing was not accepted by the Tribunal or that he should consider presenting further information in support of it. Instead, notwithstanding the three day period between the receipt of the information and the hearing, it inferred from two circumstances that the claim was fabricated. 32 The first circumstance was his failure to have made inquiries from the UN or the government about the circumstances of his father and brother, and the second was its view that, as members of the Khalq faction, they were unlikely to have been arrested in any event. Depending upon its view as to the integrity of the newspaper report to which reference has been made, which appears to confirm the arrest of his father and brother, the Magistrate might consider that, had the appellant been given an opportunity to comment upon such an adverse finding, he may have been able to respond to it in some meaningful way. Because of the limited role which, according to the learned Magistrate, the Tribunal had in light of s 474 of the Act, he took the view that the relevance of that article was only to provide some basis for the appellant to approach the Minister under s 417 of the Act. However, it is evidence which, had the learned Magistrate considered in a different context, might have been seen to show that the complaint made as to the adverse findings being made without notice had some substance. 33 In Aala, McHugh J said at p 121 [101]: 'One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.' 34 In my view, there is some prospect of the appellant succeeding in that argument. Its consideration may involve not simply an analysis of the course of the hearing before the Tribunal, and the Tribunal's obligations to notify him of the potential adverse finding, but also the weight which might be attributed to that newspaper article. See e.g. SCAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 168 at [10] and [22] per von Doussa J. I think that the task of considering such issues is better carried out by the learned Magistrate at first instance, rather than this Court on appeal, for the reasons which are discussed in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19; SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74; WAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 193; and NAMO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 266. It is of course a matter for each particular set of circumstances to determine whether that is the appropriate order. In my judgment, this case falls into the category of cases to which those decisions refer. 35 It was contended also, in reliance upon Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117, that in the particular case the Tribunal should have understood the appellant, at the hearing, as seeking an adjournment of the hearing, so that he could adduce further evidence as to what had befallen his father and brother. His solicitors by letter of 16 May 2002 to the Tribunal marked 'urgent', enclosed for the Tribunal's urgent attention, the letter from the appellant concerning those matters. It requested it be handed directly to the Tribunal member. The letter reads: 'I have got some recent news about my family. My brother and father are being arrested by the Interim government. According to the previous experiences my father and brother are being arrested because of the links of my father and uncle with the Khalq party during the communist regime. My brother and father are being arrested because of the previous animosities. It is a clear sign and alarm of danger for me because I am the head of my family.' The Tribunal appears not to have referred to that letter, although it records the appellant making the claim during the hearing of having been told by telephone of the arrest of his father and brother. The argument which is sought to be advanced is that because the Tribunal was aware of that fresh issue of importance to the claims, and because if investigated the claims might be confirmed independently, and where the appellant had taken steps to bring the issue immediately to the attention of the Tribunal and was unrepresented at the time, then the Tribunal was obliged to consider adjourning the application to seek further information about that, or to have asked the appellant whether he wished for such an adjournment (without any specific request for an adjournment). That is a proposition which goes beyond what the High Court in Bhardwaj indicated. Nevertheless, it is contended that the failure to raise the prospect of an adjournment with the appellant had the substantial effect of preventing him from adequately preparing his case, and therefore depriving him of a fair hearing. Again, that is a contention which, in my view, is more suitably addressed at first instance than on appeal. I do not express any view as to its merits. If the learned Magistrate had a different, and a correct, understanding of the role of s 474 in the Act, he might have considered that issue. I suspect the learned Magistrate did not apprehend the extent of the continuing obligation upon the Tribunal to accord procedural fairness to the appellant, or more accurately that the failure by the Tribunal to do so may give rise to jurisdictional error on its part, and so did not consider it. 36 Finally, I note the argument that there was jurisdictional error because the Tribunal's rejection of the evidence about the reported arrest of his father and brother was so irrational in the evaluation of the material that there was 'Wednesbury unreasonableness'. It is arguable that such unreasonableness applies to the availability of constitutional writs: see per Kirby J in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S190 of 2002 [2002] HCA 39. I do not propose to comment on that aspect further, other than to note the difficulties which confront the appellant in making out such a ground: see e.g. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [91]; (2003) 198 ALR 59 at 62 per Gleeson CJ. 37 As I have indicated, I think the appropriate order is to remit the matter to the Federal Magistrates Court for rehearing or further hearing. There are matters which the appellant may wish to develop at first instance on the application under s 39B of the Judiciary Act which he may not have fully developed on this appeal. Certain of the contentions in this particular case involve determinations appropriately made at first instance. The appellant may otherwise be deprived of the opportunity to pursue on appeal his rights in the light of a determination about such matters. I have endeavoured to indicate the nature of those matters in my discussion of the contentions. In that way, in this instance, I think the question of whether the Tribunal committed jurisdictional error will be determined in the interests of both the appellant and the respondent. 38 For those reasons, in my judgment the appeal should be allowed. I consider that the matter should be remitted to the Federal Magistrates Court for rehearing or further hearing according to law. I so order. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitor for the Appellant: Refugee Advocacy Service of South Australia Inc

Counsel for the Respondent: Mr M Roder with Ms M George