WAEF v Minister for Immigration & Multicultural & Indigenous Affairs

The Tribunal's Decision 4 The Tribunal referred to the claims made and evidence put on behalf of the applicant before it. He gave oral evidence to the Tribunal on 4 December, 7 December and 12 December 2001 by video from the Curtin Detention Centre. 5 In his original application for a protection visa, the applicant had said he was born in 1985 in Gush Parra Cheghwakhtow Pashe, Ghazni. He claimed to be 16 years old, of Hazara ethnicity and a Shi'a Muslim. In a statement in support of that application, he said he came from a village near Baba. He did not go to school but could write his name in Dari and could read the Koran. His uncle had taught him to read the Koran and to write his name in English. 6 The applicant claimed that the Taliban first came to his village about two years after they took over the Jaghouri district. Upon coming to his village they demanded that the people hand over their weapons. They forced everyone to pray in the Sunni way even though they were all Shi'a Muslims. They forbade the people from celebrating Muharram. They closed the religious schools and forced the women to stay inside. They started to take young people away and send them to the war zones. 7 As the Tribunal recounts it, in setting out the applicant's "Claims and Evidence" the applicant claimed that when they first came to his village the Taliban searched everyone's house to see if they had weapons. They beat him and his father when they said they did not have weapons. They forced them to pray like Sunnis. They asked him why he did not have a beard and kicked him when he said he was not old enough. The following day they returned and beat him and his father again because they had not provided weapons. The applicant said his father had heard that the Taliban had a list of people whom they planned to take away and that the applicant's name was on the list. As a result, his father arranged for him to leave Afghanistan. Before he could leave, the Taliban came to the house to look for him but he was out gathering grass for animals. He said he fled from his village eventually travelling to Pakistan. He made his way across the border by a back way on a motorcycle with a Pashtun guide. He wore a chador to disguise his appearance. He was taken to Quetta and then to Karachi from whence he travelled to Indonesia. The applicant claimed in support of his protection visa application that he feared if returned to Afghanistan he would be killed by the Taliban who would send him to a war zone. 8 A tape of the applicant's arrival interview was sent by the Department to a Swedish agency providing translation and linguistic analysis services. In the analysis provided it was asserted that the applicant's Dari dialect was Pakistani. The analyst found that his dialect/language variant could "with considerable certainty" be said to originate from Pakistan. 9 The Tribunal referred to an interview conducted by the Minister's delegate with the applicant on 31 July 2001. It reviewed the transcript of the interview and listened to the tape. 10 The Tribunal also summarised, in its reasons, a submission from the applicant's adviser received on 3 December 2001 in support of his application for review. That submission referred to recent changes in Afghanistan and submitted that the applicant's fears were well-founded at the time he left that country and that as there had not been a substantial or material change in his circumstances, his status remained unchanged. The reliability of the linguistic analysis was questioned, as were the qualifications of the linguist to make the assessment that was offered. It was submitted that taking into account the applicant's age and his background and his status as an unaccompanied minor, he was a credible witness. The submission included detailed material about the current situation in Afghanistan and the continuing problems faced by Hazaras. 11 The Tribunal noted that at the hearing on 4 December 2001, the applicant's adviser was present throughout and the Tribunal was assisted by a Dari interpreter. The Tribunal's reasons went on to set out the substance of exchanges between the Tribunal and the applicant on matters of factual detail relating to his claims. The Tribunal's examination of his claims went into significant detail about his linguistic abilities, his life in Afghanistan, the local geography, the history of the Hazara people and of the conflict with the Taliban. At the continuation of the hearing on 7 December 2001, the Tribunal, at the adviser's request, asked about the Mosque that the applicant had attended. He said he had started going to the Mosque when he was about 12 or 13 years of age and had stopped when the Taliban came. He was questioned about his age, again at the request of his adviser. He appeared to have some difficulty in dealing with time periods and the Tribunal found it difficult to accept that he could not understand concepts relating to time. 12 The hearing was reconvened on 12 December 2001. Again the applicant's adviser was present. At the adviser's request, the Tribunal asked the applicant why he had not gone to school. He said there was no school in his area. He had been helping his father on the farm. The Tribunal asked him why he found it hard to explain periods of time or to recall dates in the Afghan calendar. The applicant told the Tribunal that the main reason was because the Taliban had hit him on the head with a stick and he had suffered from memory loss. The Tribunal noted that he had not previously mentioned that he suffered from memory loss although he had said the Taliban had hit him. 13 The Tribunal referred to the adviser's submissions that it needed to take into account that the applicant was an unaccompanied minor who had been very distressed at his onshore protection interview. He had been particularly frightened by the delegate informing him of the penalties for being untruthful. The Tribunal told the adviser at the time that having read the transcript and listened to the tapes, the delegate's questions did not appear unreasonable. The Tribunal then referred to other submissions of the adviser in respect of credibility, the language analysis, the behaviour of the Taliban and country information relevant to that. 14 The Tribunal considered a written submission from the adviser responding to the language analysis. That submission referred to the movement of people between Afghanistan and Pakistan which had introduced new words and changes in the accent of Afghans. It was submitted for the applicant that Urdu words identified by the analyst were actually Hazargi words which were similar to the Urdu words. Further country information was submitted in support of the contention that the changing situation in Afghanistan could not be considered to amount to substantial or material change sufficient to negate a well-founded fear of persecution. 15 In the section of its Reasons for Decision headed "Findings and Reasons", the Tribunal began by saying it had given the applicant the benefit of the doubt on the question of his age and accepted that he was 16 years of age and an unaccompanied minor. It referred in that context to the guidelines for assessing the evidence of unaccompanied minors set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1992). It noted that the applicant had the assistance of a qualified lawyer in preparing his protection visa application and his application for review by the Tribunal. It also noted that he would shortly be 17 years of age and that throughout the three hearings before the Tribunal he appeared to understand the proceedings and what was required of him. It further stated that it was reasonable that applicants whose claims were plausible and credible, unless there were good reasons to the contrary, should be given the benefit of the doubt. The Tribunal then turned to the applicant's claim that he was a national of Afghanistan, of Hazara ethnicity and that he was a Shi'a Muslim. It referred to country information about Hazaras and concluded that the applicant was an Hazara. The Tribunal said: "He speaks the Hazaragi dialect spoken by Hazaras, and he has the physical appearance of an Hazara. The Tribunal also accepts that the applicant is a Shi'a Muslim which is the faith of most Hazaras. He was able to satisfactorily describe Shi'a religious practices and showed familiarity with Shi'a religious festivals." The Tribunal noted however that there are Hazara communities outside Afghanistan and, in particular, a large number of Hazaras living in Pakistan. In this context it referred to country information including information from the Australian Department of Foreign Affairs and Trade. The Tribunal said: "The Tribunal is not satisfied that the applicant is an Hazara from Afghanistan. The Tribunal does not accept that the applicant is a national of Afghanistan for the following reasons." The reasons to which it referred included the applicant's difficulty in placing events within the correct timeframe. Although he had claimed at his onshore protection interview and at the first hearing before the Tribunal that he did not know his date of birth, the applicant had said at the second hearing that he had been born in 1364 (on the Afghani calendar), claiming that he had been too frightened to tell the delegate this at his interview because it might have repercussions for his family and the delegate had frightened him by warning him of the penalties for providing false and misleading information. The Tribunal said that it did not accept that explanation. The Tribunal found the applicant had been evasive about his date of birth and his understanding of the Afghan calendar. 16 The Tribunal also adverted to inconsistent information provided by the applicant about when the Taliban first came to his village. His inability to recall when the Taliban first came, even though he could remember when they took over the district, caused the Tribunal to disbelieve his claim to have been living in a village in Afghanistan at that time. In the Tribunal's view, the first visit by the Taliban to the applicant's sub-village would have been a memorable event and as he must have been 14 or 15 years of age, he should have been able to remember it. The Tribunal noted that in his statement in support of his application for a protection visa, the applicant had said that the Taliban first came to his village about two years previously, whereas at the hearing he said it might have been one year or eight months previously. The Tribunal said: "The Tribunal does not accept that it would have taken the Taliban over a year from the time they took over Jaghouri district to get to the applicant's sub-village for the first time, and finds that both the applicant's inability to remember when the Taliban first came to his sub-village and the inconsistencies in the dates he nominated give the Tribunal cause to doubt his claim to have been living in a village in Afghanistan which was under the control of the Taliban." The Tribunal was also not satisfied by the applicant's description of his life in Afghanistan. It referred to his vague and inadequate description of the area in which he lived and other features. It had asked him about his work on the family farm. He was able to list the crops which were grown but said his father had not told him how much they sold for. He did not know the breed of sheep on the farm and could provide only a vague description of their appearance. The Tribunal said: "In summary, although the Tribunal tried to ask the applicant the sort of questions about his daily life which would give a 16 year old boy the opportunity to speak in detail about things he was familiar with, the applicant did not provide a description of his life in Afghanistan which satisfied the Tribunal that he had lived there until he came to Australia as he claimed. His inconsistent statements to the Tribunal about whether or not he had ever been to a mosque and whether he knew the names of the other families in his sub-village give the Tribunal cause to disbelieve that the applicant comes from a village in Afghanistan as he has claimed." 17 The Tribunal also expressed concern about the applicant's lack of knowledge of the history of the Hazara people in Afghanistan and the recent political history of the country. It considered it reasonable to expect that he should have a far greater knowledge of the history of his own people and the main players in the tumultuous events which had taken place in Afghanistan over the past twenty years, particularly those involved in the conflict at the time he left Afghanistan. 18 The Tribunal did not accept the applicant's claim that he had suffered from memory loss as a result of being hit by the Taliban and did not accept that this would account for the inconsistencies and inadequacies in his story. Taking into account all the available evidence including the inconsistencies and lack of detail which it had identified, the Tribunal found the applicant not to be a national of Afghanistan. It observed that it was supported in this finding by the language analysis of his speech. The Tribunal agreed that there were issues concerning the familiarity of the analyst with the dialect of the area in question and changes to the language caused by the movement of people across borders. For this reason it would not accept the language analysis as the sole determinant of whether or not the applicant was from Afghanistan. However as it had already found that the applicant was not from Afghanistan, it accepted the language analysis as being supportive of that finding. 19 As the Tribunal did not accept that the applicant was from Afghanistan, it did not accept his claims that he and his family had been persecuted by the Taliban. It found he had fabricated the claims to make a case for claiming to be a refugee. On that basis it found his claims that he would be persecuted by the Taliban or by another anti-Hazara group if he returned to Afghanistan not to be well-founded. The Tribunal then said: "The Tribunal notes the country information discussed above about the Hazara community living in Pakistan, and has considered whether the applicant might be a national of Pakistan. However, the Tribunal has concluded that there is insufficient evidence to make a finding that the applicant has rights of residence or citizenship in relation to any country other than Afghanistan. The applicant's claims have therefore been considered in relation to Afghanistan only. The applicant has not claimed that he will be persecuted in any other country." The Application for Review 20 An amended application for an order of review filed on 30 April 2002 and relying upon the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth), set out very broadly stated grounds. These were expressed in terms of jurisdictional error, error of law, taking into account irrelevant considerations, failing to take into account relevant considerations, improperly exercising the power conferred by the Act, failure to accord natural justice, failure to follow the procedures required by the Migration Act and that the Tribunal asked the wrong question or misconceived its duty. 21 The applicant sought orders prohibiting the Minister from taking action on the decision of the Tribunal and quashing or setting aside the decision. He also sought an order requiring the Tribunal to consider and decide his application again according to law. 22 The grounds for review became apparent and more specific in the applicant's written contentions of fact and law and in the oral submissions put to the Court. These reduced to three areas of attack:

1. Want of procedural fairness in consideration of the linguistic analysis.
2. Jurisdictional error in the assessment of the applicant's credibility.
3. Want of procedural fairness by reason of apparent bias.

Statutory Framework - The Privative Clause 23 Following the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the jurisdiction of the Court to entertain applications for review of decisions of the Tribunal is derived from s 39B of the Judiciary Act. That is subject to the constraints imposed by s 474 of the Migration Act, the privative clause, which was recently considered by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. 24 Section 474 provides: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act, or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision." Subsection (4) provides that decisions under thirty one specified provisions of the Act are not privative clause decisions. Subsection (5) provides for the regulations to prescribe that decisions made under other provisions of the Act are not privative clause decisions. 25 The majority view in NAAV is reflected in the judgment of von Doussa J, with which the Chief Justice and Beaumont J agreed. According to that view, s 474 expands the power of decision-makers under the Act and thereby excludes their decisions from review except in the cases of: 1. A decision that is not a bona fide attempt to exercise the power which the Act reposes in the decision-maker. 2. A decision that does not relate to the subject matter of the Act. 3. A decision that is not reasonably capable of reference to the power. On the view of the majority which binds me, the section renders lawful irregularities that would otherwise constitute jurisdictional error of the kind considered in Craig v South Australia (1995) 184 CLR 163. It was also accepted in the judgment of von Doussa J that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power. Nor will it validate a decision where there has not been a compliance with a condition that is essential to the exercise of the jurisdiction in accordance with statutory terms. These propositions are taken from the judgment of Tamberlin J in SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 265, and were accepted by von Doussa J in NAAV as "unexceptional" - [639]. His Honour however did not accept Tamberlin J's conclusion that an error of law in failing to identify the right question to be addressed in the applicant's claim constituted a failure to comply with a condition essential to the exercise of the jurisdiction of the Refugee Review Tribunal. His Honour said: "In my opinion the jurisdiction of the RRT was attracted by a valid application to the RRT made under s 414 to review an RRT-reviewable decision. Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by s 474(1), with the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of s 474(1) the decision would have been infected with a jurisdictional error of the Craig type because the wrong question had been asked." [639] It is against the background of these observations in NAAV that the grounds of review advanced on behalf of the applicant must be considered.

Procedural Fairness - Consideration of the Linguistic Analysis 26 Counsel for the applicant submitted that the Tribunal had made a finding based upon credibility dependent in part upon the linguistic analysis. It was acknowledged that the Tribunal stated that the analysis did no more than "lend support" to a finding which, in effect, it had already made. The question nevertheless remained whether it was a determinant or whether it did nothing more than confirm a finding that had already been made. 27 In this case it was said the linguistic analysis was used in application to an unaccompanied minor based upon a transcript of his interview with the delegate. Counsel submitted that it could not reasonably be expected of the applicant that he could make a proper account of himself. He may not have been speaking in the way that was natural to him or, indeed, a way that might be expected of a person of the locality from which he claimed to come. The analysis itself was brief in the extreme and yet reached the "fairly startling conclusion" that it could be said with considerable certainty that the applicant was not an Afghan national and was in fact a Pakistani. Counsel submitted that this was not a considered conclusion. So much was borne out by the fact that the conclusion was expressed by ticking a box. Counsel submitted that procedural fairness came into play because an observer after the event looking at the ticked box would find it impossible to say what were the processes that led to the ticking of it. The report on the prior page only had four or five active lines. 28 In my opinion, notwithstanding the reservations quite properly expressed by counsel about the reliability of the linguistic analysis to the extent that it is said to raise a procedural fairness point, it is not available as a ground of review. The majority position in NAAV precludes the application of procedural fairness other than as expressly provided for in the Act. In any event, in the present case the Tribunal did not purport to rely upon the linguistic analysis but to derive some comfort from it in support of conclusions which it had already reached. The ground of review advanced under this heading fails.

Assessment of Credibility 29 Counsel submitted that the Tribunal had adopted an improper approach to its function under the Act and regulations and to Australia's obligations under the Refugees Convention. By wrongly addressing the question of credibility it was said to have failed to ask the right question or to have misunderstood its proper function when administering the Refugees Convention and thereby to have erred in law and failed properly to exercise its jurisdiction. It was submitted that the very harsh and critical approach adopted by the Tribunal in its questioning, as reported in the "Claims and Evidence" section of the Reasons for Decision, did not accord with a liberal interpretation of the benefit of the doubt which should be accorded to an unaccompanied minor in assessing credibility. Rather, it was said, the questioning revealed a desire on the part of the Tribunal to "catch out" the applicant which could only have led to an adverse finding on credibility. The Tribunal was also said not to have addressed the warnings and standards for treatment of unaccompanied minors set out by the applicant's representative in correspondence and, in particular, in the UNHCR Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum. 30 It was put to counsel in the course of oral argument that the UNHCR Guidelines and other injunctions in relation to dealing with minors were no more than prudential statements about approaches that should be taken, in a practical context. to the assessment of credit. Counsel could not cite any authority for the proposition that these requirements translated into legal principles. Counsel accepted that the Guidelines might not stand as a legal text for the conduct of tribunals when confronted with an unaccompanied minor, but did provide a measure of the way in which the Tribunal carried out its functions. 31 Notwithstanding the best efforts of counsel, his submissions did not disclose anything more than a complaint about the Tribunal's fact finding processes. Even if it could be said that the Tribunal had asked itself an inappropriate question in assessing credit and had thereby erred in law, this would not, in the light of s 474, invalidate its decision or support the grant of any relief. The second ground of review therefore fails.

Bias 32 Under the heading of "bias" it did not appear that counsel was asserting actual bias, but rather a perception of bias in the Tribunal's deliberations. In this respect reliance was placed upon a passage in the transcript of the hearing before the Tribunal on 7 December 2001. The relevant passage involved an exchange between the Tribunal member and the applicant's adviser about his initial interview. The adviser submitted that the applicant had been told by the delegate that the consequence of telling a lie would be that he could face imprisonment for ten years. The Tribunal, it was said, ought not to under estimate the impact that could have on so young an applicant. The Tribunal member observed: "I don't suppose I have I am not sure if it is an advantage or not. I have a son who is almost exactly the age that [name] says he is so I think I have some idea of what does or does not impact on certainly Australian youth at this age which I appreciate is not the same as someone who comes from a village in Afghanistan." 33 It was submitted that this comment revealed an impermissible line of reasoning based not upon the evidence, but upon factors personal to the Tribunal member. Accordingly, it was said, it could give rise to a perception of bias in the Tribunal's deliberations. It was also said that the Tribunal had applied an unduly harsh approach to the assessment of the applicant's answers and that the assessment might be perceived to have been influenced by personal factors underlying the comment about the Tribunal member's own 16 year old son. 34 The short answer to this ground, is that a breach of procedural fairness based on an appearance of bias is not available as a ground of review by virtue of the operation of s 474 of the Migration Act. In any event, although it may well be said that the comment was inappropriate and had little to do with the Tribunal's proper function, I am not satisfied that it discloses any appearance of bias on the part of the Tribunal against the applicant. Having listened to the tape of that part of the hearing, I have formed the impression that if anything the Tribunal member appeared sympathetic to the applicant. This ground of review also fails.

Conclusion 35 For the preceding reasons, the application must be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Applicant: Mr J Serong (Pro Bono)

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 2 and 22 May 2002 Date of Written Submissions: 15 July 2002