WAFU v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 The appellant is a national of Afghanistan who came to Australia by boat without lawful authority on 22 August 2001. He lodged an application for a protection visa on 26 September 2001. The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 12 December 2001. On 13 December 2001, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 5 March 2002, the Tribunal affirmed the delegate's decision. The appellant then applied to this Court for judicial review of the Tribunal's decision. His application was remitted to the Federal Magistrates Court and dismissed on 14 November 2002. On 18 February 2003, the learned federal magistrate ordered, after considering written submissions from the parties, that there be no order as to costs. 2 On 28 April 2003, the time limited for the appellant to appeal against the decision of the learned magistrate was extended to that date. A handwritten notice of appeal, evidently prepared without the benefit of legal advice, was filed on the same day and on 9 May 2003 a cross-appeal was filed by the Minister against the costs order. An amended notice of appeal prepared for the appellant by Mr Weldon, acting as pro bono counsel, was filed on 8 August 2003. 3 The issues raised in this appeal go primarily to the question whether the Tribunal considered a claim by the appellant relevant to his assertion of a well-founded fear of persecution for a Convention reason. The appeal also raises the question whether the appellant was denied procedural fairness in the course of the hearing when the Tribunal stopped him speaking in order to enable an interpreter to interpret his answer. For the reasons which follow, I am of the view that the Tribunal did not make a jurisdictional error as alleged. 4 The Minister has also raised a cross-appeal against the learned federal magistrate's decision not to order costs. In my opinion the learned magistrate's discretion miscarried as he based its exercise upon factors which were not relevant to that discretion. The Appellant's Claims and Evidence 5 In a statutory declaration filed with his application for a protection visa, the appellant described himself as an Hazara, Shi'ite Muslim born on 1 January 1976 in Urezgan, Afghanistan. He said that he had no formal education or schooling and from an early age helped his late father on the family farm until he became ill at about 12 years of age. He was unable to work or help his father for a period of ten years because of his illness. When he was about 22 years of age he recovered his strength and began helping on the farm as a farmer. 6 He said the Taliban had come to his area about three years prior to his arrival in Australia. At the time the local commander of the Hazaras was a man called Afgari who was good to his people but was assassinated. His brother, a person called Arif, took over the position. According to the appellant he was completely different. 7 It is not stated but seems to be implied in the appellant's statutory declaration that Arif, although himself an Hazara, had some linkage to the Taliban. The Taliban used to come to the village to ask people for weapons. They assaulted people and a lot of persons disappeared. About eighteen months prior to the appellant's arrival in Australia the Taliban came to his house and asked his father for weapons. His father said there were none and was beaten on the spot. He was taken outside into a field and although family members tried to intervene, they were struck with the butts of pistols and guns. His father was killed in the field by the Taliban who cut his throat. 8 According to the appellant Arif used a person called Akbari to collect information about people living in the village and, in particular, the number of young male persons in each house. Arif summoned the appellant and asked him if he wanted to go to the front line. The appellant said he could not say no as he would have been decapitated. Arif told him that he would be sent to the front line a week later. The appellant then went back home and told his mother and brother who decided he should leave the village. They sent him to a house in another village owned by a friend of his late father. He remained there for 30 to 40 days during which time his brother arranged money for a people smuggler. The people smuggler was paid $US3,500 to get the appellant out of the country to Pakistan. 9 With the smuggler the appellant left Afghanistan, crossing the border into Pakistan. He spent about three weeks at Quetta, then went to Karachi and after about three weeks in Karachi flew to Indonesia. He spent three months there before travelling to Australia. The appellant claims that he could not return to Afghanistan because he feared for his life as a Hazari, Shi'ite Muslim. 10 Following the lodgment of the application for review of the delegate's decision with the Tribunal, the Tribunal wrote to the appellant on 11 January 2002 notifying him of a hearing date on 25 January 2002. This was later rescheduled to 14 February 2002. 11 On 25 January 2002, the appellant's solicitors wrote to the Tribunal advising that their client required a Dari/Hazarghi interpreter and not as indicated in the Tribunal's invitation, a Dari/Persian speaker. The appellant claimed lack of understanding between himself and interpreters at each stage of the refugee determination process to that point. The solicitors also noted that to that point they had not been provided with a copy of a language analysis report, relied upon by the delegate, or the tapes upon which it was based. It had been relied upon by the delegate to hold that the appellant came from Pakistan and not, as claimed, from Afghanistan. It was said that if the Tribunal intended to rely on the report a copy of both the report and the tapes should be sent to the appellant's solicitors. The Tribunal replied on 4 February 2002 saying: 'The Member reviewing your case has asked me to inform you that the Tribunal is not able to provide a copy of the Department's tapes or the linguistic analysis report, as they are the property of the Department of Immigration. Therefore, in order to obtain the tapes and the report, you will need to negotiate with the Department.' 12 The appellant's solicitors responded on 13 February 2002 pointing out that they had already attempted to obtain the materials from the department and had been refused. They reiterated their request for advice as to whether the Tribunal intended to rely on the report and the tapes on which it was based. If it did so, procedural fairness would require that the report and tapes upon which the report was based should be provided to the appellant for comment. They then made submissions about the inadequacies of such linguistic reports similar to those which had been made to the department earlier. They also pointed out that the appellant instructed that each interpreter he had had spoke in 'official' or 'Kabuli' type language and that as he is illiterate he did not understand some words spoken by the interpreter. The interpreter, he said, did not understand or misinterpreted words spoken by the appellant. Examples were given arising out of the interview with the department. 13 The Tribunal conducted a hearing on 14 February 2002. The Tribunal's Reasons for Decision 14 In its reasons for decision, the Tribunal referred to the linguistic analysis and to the submissions made on behalf of the appellant in relation to it. The Tribunal was satisfied, notwithstanding the linguistic analysis, that the appellant came from Afghanistan and was an ethnic Hazara as he claimed. The Tribunal also found that he did not have residency or citizenship rights in Pakistan. 15 In connection with his claim of fear of persecution by the Taliban the Tribunal found, on the basis of independent country information, that the Taliban is no longer a force in Afghanistan, that Taliban forces have been defeated, the regime dispersed and its leadership eliminated from positions of power or influence in Afghanistan generally and specifically in the Interim Authority established to govern that country. The Taliban is no longer in a position to harm the appellant as it was prior to his departure from Afghanistan when it controlled that country. 16 The Tribunal went on to consider whether the appellant was at risk of persecution on the basis of religion or ethnicity or for any other Convention reason by another political party or ethnic grouping. It found that the harm suffered by Hazaras and Shi'as at the hands of other groups was not by reason of their ethnicity or religion but as a consequence of constantly shifting political alliances which have characterised recent Afghan history. It found that despite current media interest in Afghanistan there was no report or suggestion of any persecution of Hazaras since the fall of the Taliban. Moreover the Tribunal had been unable to locate any reports of mistreatment of Hazaras by Pashtuns or any other group. The Tribunal could not be satisfied that there was a real chance that the appellant would be persecuted for a Convention reason in the reasonably foreseeable future by the authorities or political parties currently in place in Afghanistan. The Reasons for Decision in the Federal Magistrates Court 17 The appellant appeared in person in the Federal Magistrates Court assisted by an interpreter. The learned magistrate characterised the 'main thrust' of the appellant's complaint thus: '…the RRT had failed to either have regard or proper regard to a reason for the applicant leaving Afghanistan together with the reason which he asserts now to be the reason why he is unable to return to Afghanistan and in those circumstances he claims that he should be able to rely upon that reason in order to overturn the decision of the Tribunal and to persuade this court to reverse the decision of the RRT …' The reason advanced to the learned magistrate by the appellant as the basis for his well-founded fear of persecution if returned to Afghanistan related to the individual named Arif referred to in his statutory declaration in support of the protection visa application. Arif's conduct in Afghanistan before he left and information about Arif received more recently, that he was now in a position of authority in the appellant's home region, was the reason he sought refugee status and did not wish to return to Afghanistan. 18 The appellant's case before the learned magistrate appears really to have been put on the basis that the Tribunal had failed to have regard to an alternative claim or contention by the appellant that he had a well-founded fear of persecution by the local commander, Arif, who was still in power in the area from which he had come. The Court however considered itself precluded from entertaining an application for judicial review upon that basis having regard to the operation of s 474 of the Migration Act 1958 (Cth) as construed by the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. 19 In the view of the learned magistrate the appellant's submissions were directed primarily to the issue of whether there had been a bona fide attempt by the Tribunal to exercise the power vested in it. The appellant had, in argument, said that when he sought to provide further explanation in relation to the person referred to in his statutory declaration as 'Arif' he was told by the Tribunal that he did not need to continue with those submissions. That, together with the suggestion that the matter was either not given appropriate weight or properly considered at all were the primary reasons upon which the appellant based his application and, at least potentially, according to the learned magistrate, raised the issue of a failure to exercise good faith. 20 The Federal Magistrates Court took the view that the material sought to be relied upon by the appellant was substantially before the Tribunal and was considered among all the other material which the Tribunal considered. He was satisfied that the Tribunal acted within power and could not be said to have acted other than in good faith. Moreover, the Court accepted the submission made for the Minister that in any event Arif had been referred to in the context of Taliban control and direction of his activities. 21 His Honour of course was operating under the authority of NAAV which was subsequently overtaken by the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. Grounds of Appeal 22 The grounds of appeal in the amended notice of appeal were in the following terms: '2(a) The Federal Magistrates Court erred in its construction of s 474 of the Migration Act 1958 (Cth) and therefore impermissibly fettered itself in the way that it approached the application for judicial review. (b) The Federal Magistrates Court erred in holding that the decision of the Refugee Review Tribunal dated 5 March 2002 was not invalid because: (i) it was made in excess of jurisdiction; or (ii) it revealed jurisdiction error. Particulars 1. The learned federal magistrate should have found that the Refugee Review Tribunal did not adequately or at all consider that the submission that the applicant was entitled to protection because of his well-founded fear of persecution as a member of the Hazara race by a person named Arif. (sic) 2. The learned federal magistrate should have found that the Refugee Review Tribunal denied procedural fairness to the applicant because difficulties in comprehension and translation meant that his case was inadequately put.' Evidence on the Appeal 23 Affidavit evidence was tendered on the appeal relating to the adequacy of the translation of the evidence given before the Tribunal. The appellant relied upon his own affidavit and the affidavit of Dr Hamid Saberi who is an NAATI accredited interpreter in Dari and Farsi and a recognised interpreter in the Hazaraghi language. He expressed the opinion in his affidavit that on the tape he listened to the appellant was speaking Hazaraghi while the interpreter was speaking Dari. He found the interpreter's performance to be very poor with noticeable mistakes. On a couple of occasions he could not understand Hazaraghii words. 24 According to Dr Saberi, at one point in the hearing the appellant was providing an explanation to the Tribunal in reply to a question from the Tribunal as to whether Commander Arif had negotiated with the Taliban. The appellant gave an explanation in Hazaraghi which said: 'Yes. Afgari was better. He (His) fought the Taliban. Arif, however, was a supporter of the Taliban. Another person called Akbari would inform Arif on people. Then Arif would send people to the front line.' At this point, according to Dr Saberi, the Tribunal interjected in English 'Stop. Enough.' The appellant's speech was then translated into English and the Tribunal member immediately asked another question. 25 The respondent filed an affidavit sworn by Mr Abdul Yosufi, an NAATI accredited interpreter and translator in Farsi, Persian and Dari languages. He is also an NAATI recognised Hazaraghi and Pashto interpreter. He examined the English transcript of the hearing before the Tribunal and then prepared a copy of the transcript with his interpretation of the appellant's answers added to it. This was also reproduced as an exhibit to an affidavit of Mr Blades of the Australian Government Solicitor's office. Whether the Tribunal made a Jurisdictional Error in Dealing with the Appellant's Claims 26 Central to the appellant's case was the alleged failure by the Tribunal to consider whether he had a well-founded fear of persecution by Arif. The way in which this asserted fear was related to a Convention reason for the apprehended persecution was not formulated with any clarity at the hearing of the appeal. In the event it was put that had the appellant been allowed to develop his evidence before the Tribunal he would have indicated that by virtue of his activity and opposition to Arif and being known by Arif as somebody who was opposed to him, he was exposed to persecution on the grounds of his political belief or at least a political belief imputed to him by Arif. This, it was said, was the substance of the case which he did not have an opportunity to put to the Tribunal because of the inadequacy of the interpretation. 27 Counsel for the appellant relied upon a transcript of proceedings before the Tribunal which had a checked translation inserted by Mr Yosufi and which, in that form, was exhibited to the affidavit of Mr Blades which was received in evidence. Counsel was invited to take the Court to the critical areas of the transcript for the purposes of this appeal. In so doing counsel relied substantially upon a passage which it was said evidenced a failure by the Tribunal to allow the appellant to explain his claim with respect to fear of persecution by Arif if he were to be returned to Afghanistan. I will return to that issue below. Counsel made it plain that it was not the appellant's case that there was a fundamental mistranslation of a phrase or a sentence or an answer that properly translated would have altered or entirely changed the nature of the proceedings. He said: 'The appellant's case is that confusion of language, confusion of intention, deprived him at a crucial point, namely, in respect of the fear of persecution by this one person - that at that crucial point to the whole of his application and his appeal he was denied the chance adequate[ly] to explain it.' The relevant passage from the transcript of the hearing before the Tribunal is quoted below. The appellant referred to the assassination of Afgari and the accession of his brother Arif to control of the appellant's local area: 'Ms Barron (The Tribunal Member): And that Mr Arif, was he located near your village or was he a local leader, or what was his position? Second Interpreter (Mr Yosufi): The Arif who was the brother of Afgari was he the commander of that area and site? First Interpreter (The Tribunal Interpreter): Yes Second Interpreter: Yes Ms Barron: Was he Hazara? (Note: First interpreter puts question to Applicant but second interpreter has not provided his interpretation of what first interpreter said here) First Interpreter: Yes. Yes, he was brother of Mr Afgari. Second Interpreter: Yes he was Hazara. He was the brother of Mr Afgari. Ms Barron: And who did - did he negotiate with the Taliban? Second Interpreter: The brother of Afgari, Arif, did Arif also talked to the Taliban and negotiate and reconcile with the Taliban? (Applicant speaks) Ms Barron: Stop, enough. First Interpreter: Yes, after Mr Afgari, he took that leadership but Afgari was better than his brother Arif, at the beginning he fought against Taliban - I mean Afgari - fought against Taliban, but Arif did not fight the Taliban and he was actually supporting Taliban and after there was another man called Akbari, A-k-b-a-r-i, Akbari. He was going to the people's houses and trying to provide something good to Afgari. For example, he was providing (indistinct) youths of the family, and then Arif has prepared a list of these people and gave it to the Taliban and Taliban posted to go to front line. Second Interpreter: Yes Arif, Afgari was better he fought against the Taliban and captured there (sic) men, this Arif was supporter of the Taliban, another person was called Akbari with him, these two, he would go to the people's homes and would say that this home has this many people and this home has this many people and Arif would write the name in the base and would sent to war. Ms Barron: So what was the relationship - you were mentioning a Mr Arif and Mr Akbari, what was the relationship between the two? Second Interpreter: You mentioned the name of Akbari and also you introduced Arif, what was the relationship, Akbari and Arif what was their relationship? (First Interpreter asks question to Applicant, he answers, then First Interpreter speaks to Applicant again) First Interpreter: Both of them were supporters of Taliban. I ask any kind of relationship, he said no. Second Interpreter: They were both the Taliban persons. DIDN'T THEY HAVE FAMILY RELATIONSHIP? No (indistinct).' 28 It is apparent from this portion of the transcript that the Tribunal member stopped the appellant from speaking further in order to enable the first interpreter to interpret the answer. As can be seen from the translation the answer occupied thirteen lines of text. It is of importance that when a person is speaking to a Tribunal or, for that matter, to the Court through an interpreter, the interpretation should be accurate. The chances of accuracy will be reduced the longer the passage that has to be interpreted at one time. There was no denial of natural justice by reason of the intervention of the Tribunal member in this way. It is true that the Tribunal member went on after the response to that question to ask further questions rather than immediately asking the appellant whether the appellant had anything further he wanted to add in response to the question. It is important however to recognise that the appellant was represented at the hearing by an advisor and the advisor was asked at the end of the appellant's evidence whether there was anything further the advisor would like the Tribunal member to put to the interpreter. That question itself was interpreted. 29 The answer that was provided to the Tribunal's question in the passage quoted was broadly consistent with the position already put in the appellant's statutory declaration. That is the suggestion that Arif had been aligned with the Taliban in effectively press ganging young men to fight for them at the front. Subsequently the appellant was offered the opportunity to explain why he had decided to leave Afghanistan. He referred to Arif and repeated what he had said in the statutory declaration about being sent from the country by his family. 30 Later in the hearing the Tribunal member put to the appellant that the situation in Afghanistan had changed dramatically. She then asked the appellant why he feared returning to Afghanistan. He said, as interpreted by the first interpreter: 'I am afraid because I am Haraza and Shia and from many years ago until now these groups are under pressure. Nobody like our villages and our race. I'm afraid…' He was asked whether he was saying he was always under pressure because of religion and race. He responded, according to the Tribunal interpreter: 'And race, yes. I'm afraid if I go back to Afghanistan I will be killed, as many other Hazaras who were killed because it was told if someone is killing a Hazara or a Shia his place will be in the heaven.' Mr Yosufi's version of this answer was in similar terms. The Tribunal member then observed that Hazaras and Shi'as are represented on the Interim Government in Afghanistan and that the Hazara ethnic group is supporting that Interim Government. She asked why the appellant thought Hazara were still being targeted. The Tribunal interpreter's version of the answer was: 'I have got this experience with many governments in Afghanistan. There was many new leaders of the state of government in Afghanistan and when they took the power, the people of Afghanistan were happy that after this they would not be the black sheep and killing of brothers by brothers and we were hopeful for peace and security, but after some short period there was the same still.' Again, Mr Yosufi's version was similar. In further answers along this line the appellant spoke of Pashtoons denying Hazara rights and mistreating them. He spoke of incidents in Afghanistan and his uncertainty that Hazara people would have the same rights as Pashtoons and the same security. 31 The Tribunal member then asked the advisor whether there was anything else she would like her to put to the Tribunal interpreter and the advisor said no. There was nothing further said that was specific to Arif beyond that point in exchange between the Tribunal and the advisor. 32 In summarising the appellant's claims and evidence the Tribunal set out the text of the statutory declaration which included the passages referred to earlier relating to Arif. In referring to his evidence at the hearing it made no mention of Arif. It did refer, however, to the historical marginalisation of Hazaras and occasional violent clashes between different Hazara militias or parties. 33 The findings and reasons section of the Tribunal's reasons made no reference to any apprehended persecution by Arif on a Convention ground. To the extent that Arif was Taliban aligned, the threat of conscription to Taliban forces which emanated from him and which was the occasion of the appellant's departure from Afghanistan had disappeared with the overthrow of the Taliban. There was no other basis revealed in the oral evidence or in the written materials submitted by the appellant or on his behalf for asserting a fear of persecution by Arif based upon a Convention ground. 34 In my opinion there was no lack of opportunity at the hearing to advance such a ground if it did exist. The Tribunal did not fail to accord the appellant natural justice nor did it fail to have regard to such of his claims as were relevant to the issues before it. There is therefore no basis for the claimed jurisdictional error and the appeal must be dismissed. The Cross-Appeal on Costs 35 The respondent has cross-appealed against the learned magistrate's decision that there be no order as to costs. His Honour noted that the Court has a discretion in relation to costs orders and accepted the respondent's submission that they are not a punishment inflicted on the unsuccessful party. He also accepted the submission made by the respondent that there was no public interest element in the case which would justify departure from the usual rule that costs follow the event. Likewise, he accepted that impecuniosity or inability to pay costs is not a relevant factor in determining whether to make an award. 36 His Honour cited the 'fundamental principle and rationale' for costs orders referred to in Latoudis v Casey (1990) 170 CLR 534. This he described in the following terms: 'The rationale in simple terms according to that authority is that it is just and reasonable that the party who caused the other party to incur the cost of litigation should reimburse that party for the liability incurred. That principle applies in general to all cases including those arising out of the Migration Act' His Honour however went on to say that the Court nevertheless retains a discretion to consider whether costs should follow the event or whether there may be special circumstances in which a successful litigant should be deprived of his costs. He referred to Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 809 and 811. 37 His Honour identified two matters which he said might constitute special circumstances justifying a departure from the general rule that costs follow the event. The first was that the demise of the Taliban following the lodgment of the appellant's application before the Tribunal meant that the substantive argument which otherwise would have been advanced by the appellant with a high probability of success was no longer applicable. His Honour said: 'Hence this matter as with other matters regarding applicants from Afghanistan who fled prior to the fall of the Taliban may be regarded as somewhat different to other applications under the Migration Act as it is only the effluxion of time and dramatic change of circumstances since departure and lodging of the application which have considerably weakened the prospects of success of the Applicant's claim for a protection visa.' His Honour viewed the pursuit of rights by way of judicial review as understandable given that the appellant had undertaken at significant personal sacrifice a journey which, at least at the time of his departure, was arguably justified and consistent with those principles applicable to refugees. 38 The second matter of concern to the Court was that while recovery of costs was unlikely those costs could be regarded as a debt to the Commonwealth and used as an effective bar to the appellant making further application at some future date to migrate to Australia. In this respect he referred to s 215 of the Migration Act. In the particular circumstances of the case, having regard to the chronology of events to which he referred, his Honour took the view that the award of costs might well be seen as effectively punishment to the extent that it would provide what might be regarded as an insurmountable economic barrier to any future application which might be lodged by the appellant. 39 With respect to his Honour, in my opinion his discretion has miscarried. The Tribunal dealt with the appellant's application to it on the basis of the known facts connected with the fall of the Taliban regime in Afghanistan. The change in circumstances that had occurred between the appellant's departure from Afghanistan and his application for review by the Tribunal had no bearing upon the question whether he should seek judicial review of the Tribunal's decision, particularly having in mind the constraints upon such review. 40 The fact that a costs order may operate as an economic barrier to re-entry into Australia pursuant to the provisions of the Migration Act is a factor common to all cases in which judicial review is sought and a costs order awarded. There is no special consideration here and it does not become special because of the particular circumstances of this appellant. In my opinion therefore the cross-appeal should be allowed and the learned magistrate's order set aside and an order substituted that the appellant pay the costs of the proceedings in the Federal Magistrates Court. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.