SGDB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court given on 20 September 2002. On a direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal was heard by a single judge. 2 The appellant arrived in Australia on 15 January 2001. The following month, on 15 February 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). A delegate of the respondent refused that application on 20 April 2001, and the delegate's decision was affirmed by the Refugee Review Tribunal (the Tribunal) on 23 July 2001. The appellant sought judicial review of the Tribunal's decision under the Act. On 8 February 2002, by consent, the decision of the Tribunal of 23 July 2001 was set aside and the application for review by the Tribunal was remitted to the Tribunal for re-hearing. On 28 June 2002, following a re-hearing of the application, the Tribunal again affirmed the decision of the delegate of the respondent not to grant to the appellant a protection visa under the Act. 3 The appellant applied under s 39B of the Judiciary Act 1903 (Cth) for an order setting aside the later decision of the Tribunal. His application was heard by the Federal Magistrates Court. It was unsuccessful. It is that decision which is the subject of the present appeal. 4 Although he dismissed the application for judicial review, the Federal Magistrate made no order for costs. The respondent by notice of appeal dated 12 December 2002 has appealed from that decision. The appeal is out of time: O 52 r 15(1) of the Federal Court Rules. The time may be extended if there are "special reasons" to do so, and the application is supported by appropriate affidavit evidence: O 52 r 15(2)(6). The appellant has, by counsel, consented to the proposed extension of time within which the respondent may appeal from the order for costs. I accordingly extend time within which the respondent may appeal from the order for costs to 12 December 2002, the date upon which the notice of appeal was filed, and direct that the notice of appeal then filed by the respondent do stand as the notice of appeal from the decision of the Magistrate on costs. 5 The appellants are husband and wife, who together with their five children applied for the protection visa. They are from Afghanistan, and are of Hazara ethnicity and Shi'a Muslim religion. The principal appellant is the husband, and I shall hereafter refer to him as "the appellant". 6 The Tribunal accepted the appellant as a credible witness. It therefore accepted, as he claimed, that the Taliban in Afghanistan threatened and beat him in about September 2000 and that the Taliban also sought to take away his eldest son, now aged about 17, to fight for them on that occasion. Consequently, the Tribunal accepted that the Taliban persecuted the appellant and threatened to persecute his eldest son so that each had a well-founded fear of being persecuted by the Taliban because of their ethnicity and religion when they left Afghanistan, and that they continued to have a well-founded fear of being persecuted for those reasons until the Taliban were effectively destroyed as a political and military force in Afghanistan. 7 The issue then turned to whether, notwithstanding the Tribunal's finding that the Taliban no longer gave rise to a well-founded fear of persecution on the part of the appellant, he and his family still had such a fear. The appellant gave evidence at the hearing that he genuinely feared being persecuted by Pashtuns if he returns to his home district. That too was accepted by the Tribunal. However, as the Tribunal said, it is necessary to determine whether that fear is "well-founded" as explained by the High Court in Chan Ye Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, and Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1. The Tribunal referred to the changed political circumstances in Afghanistan since the appellant and his family had left that country. It referred to the composition of the new governing authority, and its avowed objectives. It noted that one of its objectives was to address the problem of tribal and ethnic divisions amongst Afghan people, and that two Hazaras and two Shi'as had been appointed to the new cabinet. It noted the extent of the international commitment to the establishment of a representative and effective government in Afghanistan. It also referred to reports of the Department of Foreign Affairs and Trade indicating Hazaras do not now face persecution upon return to an area where Hazaras form the majority of the population, including Oruzgan and in the district of Shahrestan in the Hazarajat region of Afghanistan, which is the area from which the appellant comes. It concluded: "Consequently I am not satisfied that there is a real chance that the applicant will be persecuted by the Taliban or Pashtuns in the Shahrestan district of Oruzgan province for reasons of his Hazara ethnicity or Shi'a Muslim religion. I am therefore not satisfied that he has a well-founded fear of being persecuted in Afghanistan by the Taliban or Pashtuns. On the same basis, I am not satisfied that the second-named applicant (the eldest son) has a well-founded fear of being persecuted in Afghanistan by the Taliban or Pashtuns. The other members of the applicant's family were dependent upon the outcome of his application for the purpose of succeeding or otherwise in being granted a visa." 8 The consequence of the Tribunal's decision was that it was not satisfied that the appellant and his family are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act. They did not therefore satisfy the Tribunal as to the criterion set out for the grant of a protection visa in s 36(2) of the Act. In that circumstance, s 65(1) of the Act directed the Tribunal to reject their application. 9 The appellant appeared in person on the hearing of the application in the Federal Magistrates Court. The Federal Magistrate properly identified the basis of the Tribunal's decision, in substance that it is safe for the appellant and his family to return to his home area in Afghanistan. As the Magistrate described it, the Tribunal's decision was that there was not a significant risk of the appellant and his family coming to harm if they were to return to that area of Afghanistan. The learned Magistrate was concerned about the Tribunal's assessment of the evidence on the issue. He said: "I have concerns about the assessment of the RRT on this issue. The country information establishes that the security situation in Afghanistan generally is uncertain. The security situation in Oruzgan in particular is objectively precarious. The UNHCR has listed Oruzgan as an area to be avoided because of its precarious security situation. Document CS63508 states that the security situation in Oruzgan is uncertain and that there are pockets of Taliban and/or Al-Queda in the northern part of the province, although there have been some signs that security in the rest of the province is improving slightly. I have the following particular concerns about the decision of the RRT: first, the assessment that it is safe for the applicant and his family to return to their home area appears objectively dubious. Second, the UNHCR has listed the province as an area to be avoided, which the presiding member did not mention. Third, the presiding member, based upon his assessment that the area was safe, did not consider whether the applicant and his family could relocate to a safer area. Fourth, there was no adequate consideration, in my view, of the capacity of the government in Afghanistan and the security services to offer protection. While the applicant and his family may be safe in their home village, they have to get there. These concerns may well lead to another administrative decision-maker reaching a different decision. They may, arguably, lead to a conclusion that the RRT fell into jurisdictional error by ignoring relevant material, or by basing a decision on irrelevant material. They may also, arguably, lead to a conclusion that the presiding member asked himself the wrong question, or failed to ask himself the correct question. However, as I found in the case of NAIN, that is not sufficient in the face of the privative clause. I am prevented by the legislation from interfering with a decision of the RRT unless a more fundamental legal error can be established. While I may disagree with the decision of the presiding member I am not able to identify, in this case, a jurisdictional prerequisite to the exercise of decision-making power that has been breached. There is no other basis in this case upon which I could disturb the decision of the presiding member as it is apparent that the Hickman proviso has been satisfied." 10 The Magistrate then referred to the Minister's power to substitute a more favourable decision to that made by the Tribunal under s 417 of the Act. He recommended that the power should be exercised in favour of the appellant. He noted that, because the Tribunal had drawn attention to the existence of the power in its reasons, the Tribunal itself was "uncertain and may not have been convinced in its own mind on the question of whether the applicant had a well-founded fear of persecution". 11 Finally, as to costs, the Magistrate considered it appropriate to make no order for costs. He gave two reasons for that view, namely his conclusion that "but for the privative clause the application made may well have succeeded", and because the Magistrate considered it appropriate to make a recommendation that the Minister consider exercising his power under s 417 of the Act. 12 At the hearing senior counsel for the appellant contended that the Tribunal had exceeded its jurisdiction by proceeding in the way in which it had done so. It conducted a hearing on 18 and 19 April 2002. As is apparent, much of the hearing concerned whether the appellant was, as he claimed, from Afghanistan. At a certain point, the Tribunal indicated that it was satisfied that the appellant was from Afghanistan so there was no need to further pursue that issue with the appellant or with other members of his family. The Tribunal then identified the issue as to whether the appellant's fear of returning to Afghanistan was well-founded as another hurdle or obstacle which he had to overcome. The complaint is made that little of the time thereafter was taken up giving the appellant or his migration agent an opportunity to address the Tribunal about his fears of returning to Afghanistan, notwithstanding the changed circumstances in Afghanistan, and no opportunity was extended to the appellant to put supplementary materials on that issue. Senior counsel pointed out that in the submission from the appellant's migration agent to the Tribunal of 8 April 2002 there was an extensive submission that the appellant, despite the overthrow of the Taliban, could not safely return to Afghanistan because the interim government would not provide the appellant with effective protection in Afghanistan. That submission referred to contemporary media reports indicating, it contended, "major hostilities between the ethnicities is brewing" in Afghanistan, and that the majority Pashtun group would be unlikely to allow those abuses within their population to continue, so there remained a severe ongoing risk of persecution of Tajiks, Hazaras and others involved or suspected of being involved in supporting the Northern Alliance. 13 In its reasons for decision the Tribunal did not refer at all to that material, and appears not to have referred to the submission itself. It relied upon a report of the Department of Foreign Affairs and Trade of 2 April 2002 (CX63508) which it summarised in the following terms: [It] states that the security situation in Oruzgan continues to be uncertain, and there are reports of remnants of the Taliban or Al-Qaeda in the northern part of Oruzgan. Such reports provide some objective basis for the applicant's fear of being harmed if he returns there." 14 It was also argued that the Tribunal had failed to give the appellant an opportunity to put further material to the Tribunal on the topic. 15 In addition, it was argued that the Tribunal had erred by failing to ask itself correctly whether the criterion specified in s 36(2) of the Act was met, by misapprehending the test required by Art 1A(2) of the Refugees Convention. After referring to the nature of a "well-founded" fear of persecution under the Convention, the Tribunal indicated that it was necessary to consider the extent and impact of the recent political changes in Afghanistan, including the circumstances prevailing in the appellant's home province of Oruzgan. After referring to the composition of the interim authority, including representation of Hazaras and Shi'as on it, and its objectives, and after referring to the international commitment to the establishment of a representative and effective government in Afghanistan, the Tribunal indicated that it accepted as "authoritative" the DFAT reports numbered CX63521 and CX63508. It said: "These reports indicate that, as an Hazara, the applicant would not face persecution upon returning to an area where Hazaras form the majority of the population; that 'there is a sizeable minority of Hazaras in Oruzgan'; and that 'there have been no reports of violence or harassment against' Hazaras in Oruzgan. I also refer to the applicant's evidence that, although Pashtuns live nearby, he comes from an Hazara area of Afghanistan. That is consistent with the internet report on Hazarajat set out above that includes the applicant's district of Shahrestan in the Hazarajat region of Afghanistan." On that material or for those reasons the Tribunal was not satisfied that there is a real chance that the appellant will be persecuted by the Taliban or by Pashtuns in the Shahrestan district of Oruzgan province for reasons of his Hazara ethnicity or Shi'a Muslim religion, and so was not satisfied that he has a well-founded fear of being persecuted in Afghanistan by the Taliban or Pashtuns. 16 The Tribunal had earlier in its reasons, as noted, referred to DFAT report CX63508 as providing "some objective basis for the applicant's fear of being harmed if he returns there". It was one of the DFAT reports it accepted as authoritative. The Tribunal also described that source as reporting that the applicant would not face persecution upon returning to an area where Hazaras form the majority of the population. The expression "would not face persecution" must be read together with the Tribunal's earlier comment that those reports provide "some objective basis" for the applicant's fear of being harmed if he returns there. I do not therefore read the Tribunal as saying, by use of the words "would not face", that the evidence showed the appellant would certainly not face persecution upon returning to an area where Hazaras form the majority of the population. That would mean the Tribunal had simply contradicted itself in two findings in its reasons for decision. It may be read as reflecting a view that the appellant would probably not face persecution upon returning to an area where Hazaras formed the majority of the population. 17 Consequently, on that basis, it is arguable (as senior counsel for the appellant submitted) that unless there was other material which enabled the Tribunal to take the additional step of saying that, in practical terms, there is no real chance that the appellant will be persecuted if he returns to his home province (that being the focus of the Tribunal's attention), the Tribunal may have erred in law by reaching its decision based upon a finding that something probably would not happen rather than that there is no real chance of it happening, even though ultimately it has expressed itself in those terms. 18 The Magistrate indicated some further concerns about the reasoning of the Tribunal, but without finally determining whether those areas of concern in fact amounted to errors on the parts of the Tribunal as set out in [9] above. What he did determine was that those concerns, even if found to be errors, were not of the kind which would lead to an order setting aside the Tribunal's decision for want of jurisdiction. 19 The learned Magistrate recognised that, in the light of s 474(1) of the Act and the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449; [2002] FCAFC 228 which he was bound to follow, errors of the type contended for would not be matters which would give rise to any order under s 39B of the Judiciary Act. What the Magistrate described as "ordinary jurisdictional error", which appears to be a shorthand way of referring to the description of jurisdictional error given by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21-22; [2001] HCA 30 at [82] and [84], did not according to NAAV lead to the Tribunal exceeding its jurisdiction. Consequently, he refused the application. 20 On 4 February 2003, the High Court gave judgment in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157/2002). The High Court determined that the privative clause provision in s 474(1) of the Act, properly construed, is a valid enactment. It found the proper construction of the Act, including s 474, imposed an obligation of providing a fair hearing as a limitation upon its decision-making authority: see per Gleeson CJ at [37]-]38]; per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [83]; and per Callinan J at [160] . Such an obligation had earlier been found to exist in relation to the Tribunal under the Act: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. The question whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction, in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002, is yet to be determined. The decision in Plaintiff S157/2002 related to the Act as it stood prior to that amendment. 21 However, in my view, it is clear that the decision in Plaintiff S157/2002 overrules NAAV as to the circumstances in which jurisdictional error will be demonstrated on the part of the Tribunal. It does so necessarily in relation to the Tribunal's obligation to accord procedural fairness, and in relation to the way in which NAAV found that s 474 had expanded the jurisdiction of the Tribunal. Consequently, I consider in the light of Plaintiff S157/2002 that the learned Magistrate erred in law by taking too narrow a view of what might constitute jurisdictional error on the part of the Tribunal. 22 In the circumstances, I allow the appeal. 23 I think it is also proper to remit the matter to the Magistrate for rehearing or further hearing according to law. I do not consider it appropriate to determine the application myself, sitting as a Full Court. Firstly, I have heard this appeal sitting as a Full Court of the Federal Court following a direction by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976. The Chief Justice's direction that the appeal should be heard by a single judge was given when the decision in NAAV would have been applied, whereas the decision in Plaintiff S157/2002 indicates the nature of jurisdictional error on the part of the Tribunal may involve complex and difficult questions of law. Such matters may be more appropriately addressed by the Magistrate at first instance and, in the event of an appeal, by a Full Court constituted as normal by three judges. It is not clear that, in the light of the High Court decision, the Chief Justice would have given such a direction, at least until the significance of the decision in Plaintiff S157/2002 has been explored in later cases. As the appeal has been heard, it is not appropriate for the certificate given under s 25A of the Federal Court of Australia Act 1976 to be withdrawn. 24 Accordingly, I do not think it is fair to the appellant in the circumstances to be deprived of the normal judicial review processes available to him. If I were to decide this matter myself, he would in effect be getting only one judicial determination in accordance with the decision in Plaintiff S157/2002 about the correctness in law of the Tribunal's decision. He has no further right of appeal, although he may seek special leave to appeal to the High Court. Allied to that consideration is the fact that, on what is clearly a complex and difficult legal question, I would be giving a judgment as a Full Court of the Federal Court. The precedential consequences of such a judgment in relation to single judges of the Court sitting at first instance has not yet been explored. 25 For those reasons, I allow the appeal and remit the matter to the Federal Magistrate who heard the application under s 39B of the Judiciary Actat first instance for rehearing or further hearing according to law. I will hear the parties as to costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.