WAEY v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal and a cross appeal from a decision of a Federal Magistrate given on 21 March 2003. 2 Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice of the Federal Court of Australia has determined that the appeal should be heard by a single Judge. 3 The matter was originally to be heard in Western Australia but has been transferred to this registry. The appellant is unrepresented and presently resides in the Baxter Detention Centre. 4 The decision from which this appeal is brought involved a review by a Federal Magistrate of a decision of the Refugee Review Tribunal (the RRT) which had confirmed a decision of the respondent not to grant the appellant a protection visa under the Migration Act 1958 (the Act). 5 The Federal Magistrate dismissed the appellant's application for a review. The grounds of appeal to this Court are unfortunately unhelpful. I set out the grounds in full: 'I, [the appellant], is not satisfied with the decision of McInnis FM which was made on 21 March 2003, Because it was unfair to me. They could not consider my case. I want you to consider my case fairly. I have been in detention for two years. My friends who came with me at the same time, they were given chance to the community, but I was not given a chance. I request you to grant me a chance to join the community like my friends on human rights base.' 6 There is nothing in the grounds of appeal which suggests error on the part of the learned Magistrate. The grounds do not point to any error on the part of the RRT but seem to suggest that the appellant would seek to re-argue the merits of the appellant's contentions which were rejected by the RRT. The merits, of course, are not for this Court, nor were they indeed for the Magistrate: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. 7 Nevertheless, and because the appellant complains of an inconsistency between decisions of two differently constituted Tribunals, I will attempt to address what I perceive to be the appellant's concerns in relation to the RRT's review and the Magistrate's decision. 8 The appellant claims to be an Afghani of Hazara ethnicity. 9 He arrived in Australia on 15 June 2001. On 3 July 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act. 10 On 12 October 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant a protection visa and on 17 October 2001 the appellant applied for review of that decision to the RRT. The RRT decision was made on 1 February 2002 and published to the appellant on 4 February 2002. 11 On 18 February 2002 the appellant sought a review of the decision of the RRT and on 3 May 2002 that application was transferred to the Federal Magistrates Court. 12 The decision from which this appeal was brought was made by the Federal Magistrate on 21 March 2003. 13 In his application for a visa the appellant claimed that he is a Shi'ite Muslim of Hazara ethnicity from a village Pidga in the District of Jaghori in the Ghazni Province of Afghanistan. He claimed that he left Afghanistan because the Taliban were taking persons away from their houses to fight. He claimed in his application for a protection visa that he feared that if he returned to Afghanistan he would be taken by the Taliban and sent to fight at the battle front because he is a Hazara and Shi'a Muslim. When he made his application for a protection visa he gave no other reason for what he claimed was a well founded fear of persecution. 14 The delegate rejected his application I think for two reasons. First because the delegate was not prepared to accept that the appellant had resided in Afghanistan before coming to Australia and was 'not satisfied that he does not presently enjoy protection, residential rights or nationality of Pakistan'. Secondly, the delegate did not accept that the applicant had experienced mistreatment amounting to persecution at the hands of the Taliban or that there was any real chance of persecution should he return to Afghanistan. 15 When the matter came before the RRT, the RRT wrote to the appellant offering the appellant the opportunity to give evidence at a hearing before the RRT. In its letter to the appellant, the RRT wrote: 'The Tribunal member asks me to draw to your attention that an issue to be considered is the extent of changed circumstances in Afghanistan, such that a fear of persecution by the Taliban may no longer be well-founded. Your adviser is invited to address this issue in his foreshadowed written submission, prior to the date of hearing.' 16 The appellant was represented by solicitors before the RRT and they responded to that invitation and presented a long and detailed submission to the RRT claiming that the appellant had a fear of persecution by reason of his actual or imputed political opinion (anti-Taliban), his Hazara ethnicity and his Shi'a religion. 17 The appellant appeared before the RRT and detailed his experiences with the Taliban and the Taliban's behaviour in his village. He claimed that the Taliban remained active under the name of Pashtuns who he said were everywhere. He said that his village was surrounded by Pashtun villages and that if he returned to Afghanistan he would be killed. It was his claim that the Taliban had simply changed their features by shaving their beard. 18 The Pashtuns who he said included the Taliban, controlled Ghazni Province. 19 The RRT accepted that the appellant was a national of Afghanistan and that he was of Hazara ethnicity. In that regard that RRT disagreed with the first of the delegate's reasons for rejecting the appellant's claim for a protection visa. 20 It found that the Hazaras faced some degree of adverse attention by the Taliban whilst the Taliban was in control by reason of their ethnicity and also by reason of their religion. It also accepted that the Taliban authorities did take young men for military service and the Taliban may have targeted young Hazaras for that purpose because of their ethnicity and religion. 21 However, the Tribunal found that the Taliban had been effectively eliminated as a political and military force in Afghanistan. It rejected the appellant's contention that the Taliban retained effective power. It found, on the other hand, that Hazaras had five portfolios in the new government and that the new government had been welcomed by a leader of the Hazara Shi'a. 22 More particularly it rejected the appellant's contention that the Pashtuns and the Taliban were interchangeable terms or that the Pashtuns generally were engaged in persecution of Hazaras. 23 The RRT was not satisfied that the appellant would face any real chance of persecution from the Taliban or any other group on return to Afghanistan. 24 It concluded: 'The defeat and elimination of the Taliban constitutes, for persons in the situation of the Applicant who claim to fear the Taliban (and, in particular, conscription by the Taliban), such a fundamental change in circumstances that the Tribunal is satisfied that the applicant does not have a well founded fear of persecution for a Convention reason if he were to return to Afghanistan. The Tribunal does not accept that there is a real chance that the Applicant would be persecuted now by the Taliban, whether by reason of his ethnicity or religion or any other Convention reason. The Tribunal is satisfied that there is no real chance that in the foreseeable future the Taliban will persecute Hazaras by seeking to conscript their young men for front-line duty. The Tribunal does not accept that there is a real chance that the Taliban will return to power in Afghanistan in the reasonably foreseeable future.' 25 For those reasons the RRT affirmed the Minister's delegate's decision. 26 In the further review before the Magistrate, the Magistrate recited the history of the matter and how the matter came to be before the RRT. He referred to the decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. However, the Magistrate also referred to the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and said: 'I am satisfied in the present case that there has not been a jurisdictional error or breach of an inviolable right. Hence even with the opportunity to consider jurisdictional error arising from the recent High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003) I am satisfied there is no basis upon which it could be said that the Court should allow the application for judicial review.' 27 It is clear that the Magistrate recognised that he had power to review the decision of the RRT if it could be demonstrated that the decision was tainted by jurisdictional error. 28 There was no argument put to the Magistrate, nor to me, that the RRT failed to accord the appellant procedural fairness. No argument was put to me, and I infer to the Magistrate, that there was any other error which might amount to jurisdictional error. 29 The appellant has simply argued before the Magistrate and again before me that the decision should not have been made. He sought before the Magistrate, and on the appeal from the Magistrate, a review on the merits which is not permissible. 30 He argued before the Magistrate that the decision was wrong because it was inconsistent with other decisions of differently constituted Refugee Review Tribunals. The grounds of appeal before me raise the same matter. 31 There are subtle differences between the circumstances relied upon by parties for review of the Minister's decisions in refusing to grant protection visas. Those subtle differences will impact upon different minds and in different ways. To some members those differences will be more important than others. 32 In my opinion, the fact that one person might be granted a protection visa in circumstances which are similar to another who is not granted a protection visa is not a ground to set aside the administrative decision if otherwise the decision has been made according to law: SDAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 812 at [23] and SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709 at [26] - [34]. It is not a matter which can be reviewed by the Court because it is not a matter for judicial review. 33 In my opinion the appeal must fail. 34 The respondent cross appealed against the RRT's refusal to make an order for costs in the respondent's favour. 35 In his reasons the Magistrate said: 'The only issue of real concern was the apparent inconsistency between decisions of two differently constituted Refugee Review Tribunals. Whilst is it (sic) clear on the material before me that there do appear to be different outcomes and different conclusions reached where the circumstances of each Applicant appear at least to me to be very similar that as a matter of law that does not provide a basis for judicial review. It does provide a basis for some concern and the lack of consistency understandably would lead to the applicant in the present case pursuing this application. Applying reasons which I have delivered in the matter of WAFU v Minister for Immigration [2002] FMCA 325 and adding to those the existence of what is an apparently inconsistent decision by the RRT, it would be appropriate in my view in the exercise of my discretion to make no order as to costs. Accordingly the only order to be made in this matter is that the application be dismissed.' 36 The Magistrate had an unfettered discretion on the question of costs. However, that discretion had to be exercised judicially and therefore in accordance with principle. Ordinarily an appropriate exercise of a Magistrate's discretion on the question of the costs of an application for judicial review would be that costs follow the event: Donald Campbell & Co v Pollack (1927) AC 732 at 809 - 811; Minister for Immigration & Multicultural Affairs v X [2002] FCAFC 93. In Latoudis v Casey (1990) 170 CLR 534, McHugh J said at 567: 'The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.' 37 That is not to say that such an order would invariably follow. There may be reasons relating to the conduct of the matter, the issues raised, the merits of the matter or circumstances peculiar to the parties which would mean that some other order should be made. 38 An order depriving a successful party of costs will be made where the justice of the case so requires. Sometimes it is said that the Court will depart from the usual order 'because of exceptional, special or unusual circumstances': Minister for Immigration & Multicultural Affairs v X (supra) at [5]. Such an order will only be made for some reason connected with the litigation. To have regard to matters unconnected with the litigation would mean that the discretion has miscarried. 39 In this case the Magistrate gave two reasons which cumulatively led to his refusal to make the usual order; first his decision in WAFU v Minister for Immigration [2002] FMCA 325 and secondly 'an apparently inconsistent decision by the RRT'. It is necessary therefore to have regard to the Magistrate's earlier decision. In that decision he relied on two matters in refusing to award the Minister the costs of a successful defence of a judicial review application. In doing so he said that 'the authorities permit departure from the general rule that costs follow the event where it might be said there are special circumstances'. The two matters which he said constituted special reasons were that the applicant, an Afghani citizen, had not become aware of the Taliban's demise and secondly, whilst any costs were unlikely to be recovered, the costs became a debt due to the Commonwealth and could 'be used as an effective bar to the applicant making further application at some future date to migrate to Australia'. 40 I make no comment upon the first matter relied upon in WAFU v Minister for Immigration (supra) which was a matter relevant to the exercise of the Magistrate's discretion in that case, but has no relevance in relation to the exercise of the discretion in this case. However the second reason in WAFU v Minister for Immigration for refusing to order the applicant in that case to pay the Minister's costs was not relevant to the exercise of the Magistrate's discretion. 41 Whether or not the costs become a debt due to the Commonwealth and whether or not the existence of the debt would preclude a further application for a visa were not relevant matters in assessing whether or not the applicant in that case should pay the Minister's costs. 42 Those are matters unconnected with the litigation and are irrelevant to the exercise of the discretion as to costs. 43 In my opinion therefore the Magistrate's previous decision in WAFU v Minister for Immigration was not capable of supporting his decision in this case to refuse the Minister the costs before him. The second reason was 'an apparently inconsistent decision by the RRT'. An apparently inconsistent decision of the RRT was not a reason for invoking the Magistrate's jurisdiction to review the decision of the Tribunal. Therefore in my opinion that also was not a relevant matter in the Magistrate's consideration of the appropriate order for costs. 44 In my opinion the Magistrate erred in failing to award the Minister the costs of the application for judicial review and I would allow the cross appeal and make an order that the appellant (the cross respondent) pay the respondent's costs of the proceedings before the Magistrate. 45 I would hear the parties as to the costs of the appeal to this Court. 46 The orders of the Court will be: