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[2003] FCAFC 199
Federal Court of Australia (Full Court)
2003-08-22
Selway JJ
Original judgment source is linked above.
Background 1 This is an appeal from a judgment of a judge of this Court: SGXB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 24, dismissing an application by the appellant under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 16 October 2002. The Tribunal had affirmed a decision of the Minister's delegate not to grant a protection visa to the appellant. On 20 August 2003, we dismissed the appeal and ordered the appellant to pay the respondent's costs. We indicated we would publish our reasons for making these orders as soon as practicable. These are our reasons. 2 The delegate's decision had previously been affirmed by the Tribunal on 1 October 2001, but that decision had been set aside by the Court: SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547. The application at first instance and on appeal deals with the later decision of the Tribunal. 3 The judgment of the primary judge was given on 31 January 2003, shortly before the High Court delivered judgment in S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 dealing with the meaning and effect of s 474 of the Migration Act 1958 (Cth) ('the Act'). However in his reasons, the primary judge considered the issues raised under two regimes: firstly as if s 474 operated in the way determined by the Full Court in NAAV v Minister for Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, and secondly, on the basis that s 474 operated in a more limited way. The second regime involved the primary judge assessing whether the decision of the Tribunal was affected by jurisdictional error of the type discussed by the High Court in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Accordingly, we will deal with the appeal by considering whether the primary judge erred in concluding no jurisdictional error attended the decision of the Tribunal: see for example NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19. The Tribunal's reasons 4 The following is a summary of the appellant's account of his circumstances drawn from the reasons for decision of the Tribunal. The appellant was born in 1983 in the Jaghouri district of the Ghazni province of Afghanistan. He has lived in the sub village of his birth (Gurdon) in the village of Utqol all his life and has never married. From 1994 to 2000 he worked in the kitchen of his family's restaurant in Utqol bazaar, and he has stated that he is uneducated. He has visited the neighbouring bazaar of Angoori a few times for special occasions. 5 The appellant is a Shi'a Muslim and speaks Dari, and his ethnicity is Hazara. Both his parents and five siblings still live in Afghanistan, although his eldest brother is dead and an older brother is missing. His eldest brother was killed in about April 2000 when he refused to join the Taliban. Towards the end of 2000, the Taliban came to Utqol and took away many of the young men, including two of the appellant's brothers. They later escaped, returning home briefly before going away to an unknown location. The Taliban returned to the appellant's family home and told his father that they were going to take his remaining sons away. The family decided that the appellant should leave Afghanistan, and his father arranged for the appellant's departure a few days later. 6 In applying for a review of the decision of the delegate who had not been satisfied that the appellant was from Afghanistan, the appellant's adviser submitted to the Tribunal that the applicant's age and lack of education had made it difficult for him to answer the delegate's questions. Prior to the hearing before the Tribunal on 1 October 2002, the appellant's adviser made detailed written submissions and provided a statutory declaration from the appellant and a statement from an individual who knew the appellant in Afghanistan. The submissions were summarised by the Tribunal as follows: 'On 26 September 2002, the tribunal received a submission from the applicant's adviser. The submission stated that the applicant was a national of Afghanistan who did not have the right to live in any other country. He feared persecution due to his Hazara ethnicity, his Shi'a religion and his imputed political opinion as a supporter of Gulbuddin Hekmatyar. The adviser noted that the Governor of Ghazni province, Qari Baba, was known to have Taliban sympathies. He stated that following the Taliban's defeat of Hezb-e-Wahdat, the applicant's family had provided financial support to Hekmatyar in order to obtain protection, and the applicant feared that his support was well-known in the area, Hazaras in general and Hezb-e-Wahdat in particular would seek revenge on him. The adviser noted that Afghanistan was in turmoil, and the government was unable to provide protection for people, even in Kabul. He submitted that Ghazni was still unstable. The adviser submitted that the applicant's age and lack of education may have been the reason for his problems in responding to the delegate's questions and these factors should have been taken into account in assessing his credibility. On 27 September 2002, the Tribunal received a statutory declaration from the applicant stating that the area he comes from is surrounded by Pashtun groups, and that supporters of Hekmatyar's Hizb-i-Islami party are based at a place called Lashkary, which is near his district. Hizb-i-Islami and the Hazara group Hezb-e-Wahdat used to fight each other. The applicant claims that after the Taliban defeated Hezb-e-Wahdat, Hekmatyar's party took control of the district, and a Hazara community leader called Bashi Habid changed sides and joined the Heymatyar group. His family had to join Bashi Habid. The applicant states that he and his father and brother joined Hekmatyar's party to ensure their personal safety. The applicant states that now Hezb-e-Wahdat is again in power, it is dangerous for him to return as Hezb-e-Wahdat will want revenge because he gave support to Hizb-i-Islami. The applicant states that Hazaras have been persecuted in the past because of their ethnicity and their religion. The people in the surrounding area are Pashtuns and they will harm him. He states that he does not know the whereabouts of his family.' 7 At the hearing before the Tribunal, the appellant expressed concerns that the interpreter was not an ethnic Hazara from his area of Afghanistan. The Tribunal explained the role of the interpreter to the appellant, and stated that if he had any difficulties during the hearing, he should make them known. The Tribunal noted that during the hearing, the appellant appeared not to have any difficulty communicating. In submissions made by the adviser after the hearing, no complaint was made about the interpreter. 8 The Tribunal asked the appellant a number of questions about his age, his family, his father's restaurant, the Taliban's activities in Ghazni and Utqol, the communities of Ghazni and Utqol and their leadership, and various political connections of his family. The Tribunal accepted that the appellant was an Hazara and a Shi'a Muslim. The Tribunal also accepted that the appellant was from Afghanistan and had lived there for most of his life, however it did express doubts about the date of his departure from Afghanistan, and whether he had lived there while the Taliban was in power. However, the Tribunal stated that it would give the appellant the benefit of the doubt, and accept his claims relating to life under the Taliban, including the killing of his eldest brother and the arrest of his other brothers. 9 The Tribunal then considered whether the appellant had a well-founded fear of persecution if he were to return to Afghanistan. The Tribunal was satisfied that the Taliban has been removed as a political and military force in Afghanistan. It found that there was not a real chance that the appellant would be persecuted by the Taliban if he were to return to Afghanistan today. The Tribunal noted the diverse ethnic and religious composition of the new Transitional Authority in Afghanistan, which includes Shi'a Muslims and Hazaras. It found that the appellant was unlikely to suffer any persecution as a result of his race or ethnicity if he were to return to Afghanistan. 10 The Tribunal then addressed the appellant's claims that he would be persecuted by the Hezb-e-Wahdat party (which controls the Jaghouri district), because he and his family had previously given support to Hizb-i-Islami after the Taliban took control of the area. The Tribunal did not accept this claim for a number of reasons. It said that there was no information submitted by the appellant's adviser or independent information supporting the claim that Hizb-i-Islami was active in Taliban controlled areas of Afghanistan. The Tribunal said: 'Having considered the information submitted by the adviser and the applicant's statutory declaration of 10 October 2002, the Tribunal does not accept that Hizb-i-Islami was active in Jaghouri district when it was under Taliban control, and does not accept the applicant's claim that he joined the Hizb-i-Islami party. The Tribunal finds that the applicant has recently fabricated this claim in an attempt to give himself a political profile which would strengthen his claim for refugee status in respect of the changed situation in Afghanistan following the demise of the Taliban.' It concluded that the appellant and his family were not members or supporters of Hizb-i-Islami, and he would therefore not be harmed by Hezb-e-Wahdat if he were to return to Afghanistan. 11 The appellant also claimed that he would be harmed by Pashtuns as a result of his Hazara ethnicity. After considering a range of independent country information, the Tribunal found that there was not a real chance that the appellant would be persecuted by Pashtuns if he were to return to Afghanistan. It also noted that the Jaghouri district is a 100 per cent Hazara area according to UNHCR, and that there appeared to be no problems for ethnic Hazaras in Jaghouri at the present time. 12 The Tribunal concluded that any fears the appellant may have about returning to Afghanistan were not well founded, and there was not a real chance that he would be persecuted if he were to return. The Tribunal affirmed the delegate's decision not to grant a visa.
The proceedings before the Primary Judge 13 At the hearing before the primary judge, the appellant (who was not represented) restated the claims he had made before the Tribunal relating to his political involvement in Afghanistan and his fears of persecution by Pashtuns. 14 His Honour then examined the Tribunal's decision under the second regime referred to earlier to ascertain whether there had been jurisdictional error. His Honour said at [17]: 'In my judgment, no such jurisdictional error is demonstrated on the part of the Tribunal in this matter. It has identified the correct issue, and it had regard to the nature of the claims which the applicant presented. It has asked the correct questions in relation to the issues raised. It has addressed each of the applicant's claims. In doing so, it has had regard to material relevant to those claims, and has made decisions as to which of that material it places the greater weight upon. It has not simply ignored the applicant's claims or the material advanced by him or on his behalf. In reaching its decision, it has not relied on irrelevant material in any way which affects the exercise of its powers. In my view, the applicant's complaints merely seek to have the Court revisit the findings of fact which the Tribunal made, upon material available to it and for reasons which it expressed, so as to have the Court substitute its view as to those facts in lieu of the view of the Tribunal. That is not the function of the Court upon the present application. I do not think the applicant's contentions go beyond the rearguing of issues of fact decided adversely to him by the Tribunal.' 15 The primary judge dismissed the application with costs.
Proceedings before the Full Court 16 The appellant filed a notice of appeal in this matter on 11 February 2003. The Grounds of Appeal in that notice were as follows: 'With regard of my Hazara Shi'a ethnicity, I would be definitely exposed to persecution, serious harm, a threat to my life and liberty, significant physical harassment or ill treatment and significant economic hardship and denial of access to earn livelihood by the various opponent groups of Sunni faith. Tribunal has accepted me as a Hazara Shi'a of Afghanistan. Animosity between the various groups against Hazara - stems from historical factor, religion and ethnicity, we have been targeted throughout the last century. I humbly request you to pursue my claim and reconsider due to my Hazara Shi'a ethnicity as it proved by the Tribunal and I would definitely be exposed to persecution upon my repatriation to Afghanistan.' No mention was made of the appellant's political activity in Afghanistan. 17 At the hearing of the appeal, the appellant repeated aspects of his claims, and maintained that he was being truthful. He also raised again the issue that the interpreter during the hearing before the Tribunal was not an Hazara, and thus could not fully understand his claims. We should set out a passage in the Tribunal's reasons that dealt with this issue: 'The applicant expressed concern because the interpreter was not an ethnic Hazara from his part of Afghanistan and she did not speak the Hazaragi dialect. He said that he had not been successful in the past before the Department and the Tribunal because he did not have an Hazaragi interpreter who understood his background. The Tribunal explained that the interpreter was experienced in interpreting for Hazaras from the applicant's part of Afghanistan both for the Department and the Tribunal. The Tribunal had not previously encountered any problems when this interpreter had assisted in other hearings of Hazaras from the Jaghouri district. The Tribunal noted that the applicant had not indicated in the past that he had any difficulty understanding non-Hazara interpreters, and indeed, it was clear to the Tribunal that the applicant was not having any difficulty understanding the interpreter now. The applicant agreed that he could understand the interpreter but said that he wanted someone from his ethnic background who understood his claims. The Tribunal informed the applicant that the interpreter was not there to explain his claims to the Tribunal. She was simply there to interpret accurately what was said at the hearing. The Tribunal informed the applicant that the hearing would proceed with this interpreter but that he should inform the Tribunal immediately if he had any problems understanding what she was saying. The Tribunal requested the interpreter to do likewise. The applicant did not identify any problems understanding the interpreter although when the Tribunal expressed disbelief about some elements of his claims, the applicant said that the Tribunal didn't believe him because he did not have an Hazara interpreter who understood the situation for Hazaras. The Tribunal again explained the role of the interpreter. The applicant did not appear to the Tribunal to have any difficulty understanding the interpreter at any point in the hearing, and no did the interpreter advise that she was having any difficulty understanding the applicant.' In our opinion, having regard to the findings of the Tribunal and the absence of evidence in this Court countering the interpretation, the appellant's concerns about the interpreter do not raise an arguable issue of procedural fairness. The appellant did not otherwise direct the Court to any other error in the judgment of the primary judge or the reasons of the Tribunal. 18 It is for these reasons that the appeal is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons herein of the Honourable Justices Moore, Tamberlin and Selway.
SGXB
Minister for Immigration & Multicultural & Indigenous Affairs
(2003) 195 ALR 24
(2002) 193 ALR 449
(1995) 184 CLR 163
(2001) 206 CLR 323