WAHU v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-07-09|Before: Nicholson J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court of Australia constituted by Driver FM, delivered on 16 April 2003. Revised reasons for judgment were delivered on 28 April 2003. In that decision his Honour dismissed an application by the appellant seeking review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 26 June 2002. The application was made under the Migration Act 1958 (Cth) ('the Act'): see ss 36(2), 65(1), 91R and 91S qualifying some aspects of Art 1A(2) of the Refugees Convention and Refugees Protocols. In that decision the Tribunal affirmed the decision of a delegate of the respondent not to grant to the appellant a protection visa (class XA). 2 The appellant is an Afghani national who applied for the visa on 12 November 2001 after arriving in Australia on 22 August in that year.

tribunal's findings and reasons 3 The Tribunal commenced by stating that the situation in Afghanistan had changed from the time of the appellant's departure and his making of his initial claims to the date of the decision of the Tribunal. It found the extent of change in Afghanistan in that relatively short period was extreme. The change included the deployment of a UN-mandated security force to maintain security in Kabul and its surrounding areas and, potentially, in other areas of Afghanistan. In addition there was a level of international commitment to rebuilding Afghanistan and there were reports that the Taliban had lost control of their last stronghold in Afghanistan. 4 The Tribunal found the appellant to be a citizen of Afghanistan, a Pashtoon and a semi-illiterate farmer from a rural area of Paktia Province. It found he had never personally been involved in any political parties nor with any military or other groups. The Tribunal accepted he had close relatives in Khowst, a nearby Province. It also found that the appellant's father fought for a period with the Jamiat-e-Islami, although that is an ethnic Tajik based political party. It found that his father was wounded six or seven years earlier in an incident involving a battle between members of the Jamiat-e-Islami and the Hezb-e-Islami parties, which were at the time rival militias. It found that the appellant's father was travelling with the commander of Jamiat-e-Islami as a passenger. It found that when his father returned to his farm he had a problem with the Taliban. However, it found also that the Taliban were no longer a threat or influence in the area nor in Afghanistan. 5 The Tribunal did not accept a further claim of the appellant that, although the Taliban may have gone, he could not return to Afghanistan because of the harm he would face from the leader of the Hezb-e-Islami party who was involved in the fight six or seven years earlier. It did not accept that the particular commander of the Hezb-e-Islami party would blame either the appellant's father or the appellant for something they had no control over years ago. It did not accept that if the father was a passenger as claimed by the appellant, the opposing commander would seek from then on to kill him or, failing to do so, seek to kill members of his family. It found the claim to be opportunistic and invented. It therefore did not accept that the appellant's father had any profile such that anyone would later seek to harm him. As a consequence it did not accept the claim by the appellant that he or other members of his family have been or would be so harmed. 6 The reasons of the Tribunal then state (at p 19): 'I note that the [appellant] has obtained a fax from an uncle in the Netherlands. I accept that it was sent from the Netherlands. I do not accept as true however the content of the fax. I do not accept that a person could find out this information from a remote village in Afghanistan. I find that the content of the fax is fabricated.' 7 The Tribunal also stated that the appellant had made a claim at the hearing for the first time that there was a dispute over land with his cousins. The Tribunal was prepared to accept there may have been a dispute. However, it said that because it had not been mentioned earlier it was of little significance. The appellant had been unable to connect it with the conditions of the Refugees Convention and Protocol. 8 After noting advice that Pashtoons and other ethnic groups would not have difficulty in resettling in areas where they formed an ethnic majority and that Kabul was considered as safe for returnees, the Tribunal concluded it did not accept that the appellant would face any harm if he were to return to Afghanistan. Consequently it found he did not have a well-founded fear of persecution for reasons of a ground in the Refugees Convention. Therefore, the Tribunal concluded the appellant did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 9 Under a sub-heading reading 'Humanitarian considerations' the Tribunal noted that the situation prevailing in Afghanistan 'has serious concerns of a humanitarian nature'. It referred to statements by various international agencies that it was too early to repatriate Afghanis in other countries home to Afghanistan because of uncertainty relating to food, shelter and the presence of bandits in some remote areas. The Tribunal considered these were matters which the respondent could consider in determining when and how the appellant may be returned to Afghanistan.

FEDERAL magistrate's reasons 10 Early in his reasons Driver FM rejected what he said were invitations on behalf of the appellant to review the merits of the Tribunal decision, those lying beyond his jurisdiction. He said that the function of the Court was to consider and decide whether the Tribunal made 'an error of law going to its jurisdiction'. Reference was made to the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. He said it was clear from that decision that not every error of law amounts to an error of jurisdiction. He then referred to the facsimile concerning the uncle in the following terms: '5. In this matter the [appellant], apart from taking issue with the merits of the [Tribunal] decision, which I cannot review, has raised one specific issue in relation to the validity of the [Tribunal] decision. The [appellant] sought to rely upon a facsimile transmission said to be from an uncle in the Netherlands... The document states that an uncle and a brother of the [appellant] had been taken by a Commander Haji Zafar and had been found dead. The document goes on to say that the [appellant's] life is in danger in Afghanistan and that Commander Haji Zafar is still looking for him. The document is relevant to the [appellant's] claim that he faces persecution in Afghanistan because of political opinion through his family relationship with his father.' After referring to the way that the facts had been dealt with by the Tribunal he stated that the appellant had submitted that the Tribunal had not made appropriate inquiries as the truthfulness and accuracy of the contents of the facsimile. He rejected this submission in the following terms: '8. I reject that submission. The fax is, on its face, dubious. It is unsigned and undated. In addition, the information in it is hard to reconcile with earlier information provided by the [appellant] to the [Tribunal] about the fate of his uncle and brother. That information appears in the court book at pages 29 and 30. The earlier information was that the uncle and brother had been taken by the Taliban and that their fate was unknown. The fax purported to come from the uncle in the Netherlands provides information that the uncle and brother were probably killed by a local warlord following the fall of the Taliban. The [Tribunal] was entitled to form a view on the credibility of the fax from the Netherlands. The finding on the credibility of that evidence was one that was reasonably open to the [Tribunal].' 11 In relation to whether the Tribunal had fallen into error going to jurisdiction his Honour said: '9. The other findings made by the [Tribunal] on the claims made by the [appellant] were also findings that the [Tribunal] was entitled to make on the information before it. The [Tribunal] dealt with the various elements of the claims put forward by the [appellant]. The [Tribunal] did not misunderstand the nature of its jurisdiction, or misconceive its duty, or fail to apply itself to the question which the Migration Act requires the [Tribunal] to apply itself to. The [Tribunal] did not misunderstand the nature of the opinion which it was to form. It appears that the proceedings before the [Tribunal] were fair. Nothing has been advanced before me that establishes that any legal error was made by the [Tribunal], let alone an error of law going to jurisdiction.' Therefore he considered no basis had been made out for him to interfere with the decision of the Tribunal.

grounds of appeal 12 The grounds of appeal focus on the manner in which the Tribunal dealt with the facts concerning the appellant's uncle. It is claimed that the Tribunal thereby made a jurisdictional error in failing to comply with the requirements of procedural fairness. This is particularised in terms of the Tribunal having failed to put to the appellant its adverse position concerning the facts; having failed to consider another facsimile provided by the appellant; and because the appellant was unwell and psychiatrically unfit to attend and present his case. The second particularisation was not relied upon.

fresh evidence 13 Following the hearing of oral argument on the appeal, leave was granted to the appellant to file fresh evidence. The affidavit of Sister Keogh dated 13 April 2004 annexed the transcript of the hearing before the Tribunal and is received without objection. 14 An affidavit of a solicitor for the Refugee Advocacy Service of South Australia Inc (Ms Najjar) dated 19 April 2004 was filed annexing several documents, principally concerned with the appellant's mental state while in detention. The Court may, in its discretion, receive such further evidence: Federal Court of Australia Act 1976 (Cth) s 27. The Court agreed to do so having regard to the decision of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553. In that decision the Full Court (Gray, Cooper and Selway JJ) held that the Tribunal was in jurisdictional error because it proceeded to hearing when the respondent was not in a fit state to represent himself. Although the Tribunal was neither aware nor at fault, the Full Court nevertheless held that a meaningful invitation as required by s 425 of the Act had not been extended to the respondent. 15 I allow objections raised on behalf of the respondent to pars 5 - 7 inclusive of the solicitor's affidavit and to exhibit NN2, save to the extent par 7 exhibits as NN3 extracts from medical notes on the appellant's file.

specific evidence 16 The fax from the appellant's uncle read as follows: 'From Hakim Ghul, I contact the house, my family and I know that Haji Zafar come with some papers to your Uncles house, your mother and brother both were in the house. This Commander asked from your Uncle about your father. Your Uncle told them that the Taliban took your father and we have not seen him since. But Commander Zafar did not accept this and took your Uncle and Brother. After two days your brother and Uncle's dead bodies was found in front of the shop in the market. Now I am telling you and advise you not to come back to Afghanistan, your life is in danger in Afghanistan. Haji Zafar is till looking for you and he did'nt receive any information from your Uncle and brother. Your mother is now mentally patient.' (sic) As appears from papers in the appeal book the advisor's original copy of this fax bore a originating number which the Tribunal ascertained was from a location in the Netherlands. 17 Prior to the decision by the Tribunal (delivered on 26 June 2002), on 11 June 2002 a letter by facsimile was sent on behalf of the appellant by the migration agent acting for him in the following terms: '"Please find attached a fax that we received from our machine as explained during the hearing the fax has come from outside the detention centre. The fax states at the top that it was sent from the Waikerie Post shop to my fax 08 91912513. I have shown the fax to our client, he explains this fax has come from a former villager of our client's area, this person is now living in Melbourne. Our client has insisted that his fax be forwarded to you. Our client has also requested me to inform you that prior to his hearing our client had been extremely depressed and suicidal, he was placed under watch. He had not eaten for two days prior to the hearing. He had also been head banging in the effort to self harm. This was due to him hearing about his family. Questioning him after the hearing as to why he seemed vague with some of his answers he believes that the days prior contributed to his mental state. He is still under observation. Finally we request the member to note that the area our client is from and also Khost where he has relatives are the most unstable and insecure areas of Afghanistan. The Interim Government have no control of those areas. Effective protection cannot be afforded or secured for our client."' 18 The letter attached to the fax from Mohammed Zadran read as follows: '"I am ready at any time to answer about [the appellant's] father. Dear respectful! I am Mohammed Zadran and I am witness of [the appellant] that he is son of [the appellant's father] an (sic) he is Zadran by relation and I know about all story of his father that was happened on him. There was four commanders group of Mugabedden and they have done fight between them and his father has got damage in the fight. If you want to ask me something about his father I am ready at any time answer you by phone and face to face as well."' The fax appeared on its face to be from a person living in Melbourne who was prepared to give evidence by phone or in person as provided for s 429 of the Act. It does not appear that the Tribunal made contact with that person.

appellant's contentions 19 The primary contention of the appellant is that the Tribunal's view that the contents of the fax alleged to be from the uncle in the Netherlands were fabricated was never put to the appellant. This, it is said, constitutes a breach of the rules of natural justice: VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [27] where the Full Court (North, Merkel and Weinberg JJ) accepted that it was well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it. Further, it is said that had the appellant been given an opportunity to correct the view, a different view might have been taken as to his credibility: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [2] - [4] per Gleeson CJ. It is also said that there was no evidence before the Tribunal that the contents of the fax were a concoction so that the finding made by the Tribunal was unjustified speculation. 20 Three related submissions are made. First, it is said there was abundance of evidence as to the culture of revenge through the generations and that this was overlooked by the Tribunal. Second, it is said the Tribunal made no inquiries as to the state of communications in the relevant areas of Afghanistan. Third, it is said there was no evidence to justify the adverse finding. These three contentions raise other issues which are not raised by the substituted notice of appeal, namely, grounds of a failure to take into account a relevant consideration; failure to inquire; and absence of evidence to support a finding. None of these were addressed in argument. 21 In relation to the issue of procedural fairness two other decisions are relied upon. It is argued that the Federal Magistrate upheld the Tribunal's analysis of the contents of the fax on the basis that the fax was undated and unsigned. However, it is said that when it was accepted that the fax emanated from the Netherlands, to rely on those matters was 'wholly illusive': WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 (Lee, Hill and Marshall JJ) at [52] - [53]. Likewise, reliance is placed on WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1 (Lee, Hill and Carr JJ) at [42]. There it was said that the Tribunal had a duty to raise clearly with an appellant the critical issues on which his or her application might depend. 22 Here it is submitted that the decision of the Tribunal was to a large degree predicated on the finding as to the untruthfulness of the contents of the fax. It is contended that the consequence of the failure to convey to him that it considered the fax to be a fabrication meant that he had not been in the position to adduce sufficient evidence to challenge the suggestion of fabrication or elaborate on the modes of communication between his relatives. 23 It is also submitted that there is no question that the breach of procedural fairness, if established, would constitute an error of law of a jurisdictional character: S157/2002 at [25] and [83]; Ex parte Aala at [52] and [129].

respondent's submissions 24 The respondent submits there has not been a failure to comply with principles of natural justice. While the Tribunal did reject a document produced by the appellant in support of his claim, the Tribunal had put to the appellant at the hearing the difficulty it had in accepting that the document could be true. Also there is no evidence or other material before the Court on which it could be found that the appellant was unfit to attend the hearing to an extent that he was, by reason of his condition, denied the hearing required by s 425 of the Act.

reasoning 25 It is not in contention that a failure to provide procedural fairness may result in an error going to the jurisdiction of the Tribunal. In WACO, the Court found such an error where the Tribunal rejected a document as fabricated when the applicant in that case had not been given an opportunity to comment on the genuineness of the document. This was seen as an aspect of the principle, stated by the Court at [33] that: 'the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them' See WAEJ; WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 (French J); WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 (French J). 26 The circumstances of this claim are, however, clearly different. Reference to the transcript before the Tribunal shows that early in the course of the hearing the Tribunal member asked of the appellant if he could explain how he got the letter from the uncle. The transcript records that the appellant was crying and very distressed. He was given the opportunity to 'slow down' and to have a drink of water. He was asked by the Tribunal to explain how his uncle knew that someone in a remote village in Paktia Province had been killed. He was further asked to explain why someone from the Hezb-e-Islami party would be interested in his father, particularly six years after the alleged 1996 incident. He was told by the Tribunal member that he would have to explain this a bit better to the Tribunal because the Tribunal member did not understand why anyone would want to harm the father because of that. He was told by the Tribunal member that he was finding this all 'a bit confusing' and that it was going to have to be better explained. The transcript records the appellant as crying, very distressed and breaking down but given the opportunity to recover. These were questions put to him on multiple occasions. He was told that the responses did not make any sense to the Tribunal member. Towards the end of the hearing the Tribunal member went back to the letter which was said to come from the uncle in the Netherlands and the appellant was again asked to explain it and to explain how the uncle would know that the appellant was in detention. The appellant in the course of his explanation stated that the uncle had phoned him at the detention centre and then sent the letter. Further questions were directed both to the appellant and to his advisor on how the fax could have reached them. 27 What procedural fairness requires must be determined by reference to the particular circumstances of each case: see NAPE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1124, Hill J at [29]: 'Underlying the so-called natural justice rule is the notion of 'fairness' (see per Mason J in Kiao v West at 582 and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Lam (2003) 77 ALJR 699. It will be the particular circumstances which will make it clear whether fairness has or has not been afforded to an applicant.' 28 Here, reference to the transcript of the proceedings in the Tribunal makes patent that the Tribunal put clearly to the appellant the difficulty which it had in accepting that the uncle in the Netherlands would have knowledge of what was happening in the appellant's village. Multiple opportunities were afforded to the appellant to provide an explanation of that circumstance and related circumstances concerning the matters raised by the fax. The Tribunal was unpersuaded by the responses. In my opinion it was entitled not to be persuaded by the nature of the responses given on that occasion by the appellant in answer to the questions. This is, therefore, a case where the Tribunal clearly put to the appellant the issue of the genuineness of the content of the fax and why it thought that such content should not be accepted. Accordingly, there has been no breach of natural justice. Likewise, this case is distinguished from WACO where the opportunity to comment had not been provided. 29 Furthermore the Tribunal rejected the appellant's claim of risk of harm from a vendetta from the leader of the Hezb-e-Islami independently of the evidence of the fax. It then moved to consider the fax as essentially corroborative evidence. The appellant knew what he was required to prove and he was given opportunities to do so, so there was no unfairness in the application being rejected without further notice being given to the appellant that the Tribunal had rejected what he had put forward. Here, clear notice was given that the fax as corroborative evidence was unlikely to be accepted: cf NAAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 113 at [31]. 30 Accordingly, I agree with the respondent's submissions that there has not been a breach of procedural fairness. Grounds 1(i), (ii), 2, 3 and 4 must therefore be dismissed. Ground 1(iii) relating to the other facsimile was not pursued in the appellant's case, the significance of the facts referred to in the particular not being explained and there being no evidence whether it ever was sent to the Tribunal.

merits of the claim 31 Grounds 5 and 6 challenge the finding of the Federal Magistrate that the Tribunal's findings on the merits of the claim were open to it. The Tribunal's finding that it did not accept the specific claim that the appellant would suffer harm as result of his father's involvement in a conflict years before was lawfully made. It was open to the Tribunal to not accept that the appellant's father had a 'profile' such that the appellant had a real chance of harm some six or seven years later. The Tribunal's findings are final and conclusive. 32 The learned Federal Magistrate correctly held that the credibility of the fax and the claims in it were for the Tribunal to determine. The merits of the appellant's claim and the acceptance of evidence in support of it were within the jurisdiction of the Tribunal to decide. The Tribunal's decision is reviewable only if it was infected by jurisdictional error so as to be, in law, no decision at all: S157 of 2002. If the decision was not so infected, provided that the three Hickman conditions are satisfied, s 474(1) of the Act would apply and the decision of the Tribunal would be final and conclusive. 33 There was no suggestion that the Hickman conditions have not been satisfied. That is, there was no claim of bad faith. It cannot be said in this case that the Tribunal misunderstood the nature of its jurisdiction, or misconceived its duty, or failed to apply itself to the question which s 36 of the Act prescribes, or misunderstood the nature of the opinion which it was to form.

appellant's medical and psychiatric fitness 34 The affidavit of Ms Najjar brings to the Court medical notes and the report of two doctors. The medical notes are some evidence of the observations of the appellant over the period from March 2002 to July 2002, including the day of the hearing in the Tribunal (6 June 2002). The notes document the appellant as being distressed at various times during that period, and record episodes of an expressed desire to harm himself and of self harm: see eg 3 June 2002; 5 June 2002. They also document the support and assistance which was made available to the appellant over that period. 35 The entry for the day of the hearing (6 June 2002) was made in the following terms: 'Resident seen in India compound. Had [the Tribunal] this morning. States he does not know how it went. Says it is in the hand of God. Says he will accept the outcome whatever it is. Has been eating and drinking. Says nausea has gone. Requesting to be moved back to main compound. Says he want to be with his friends who can provide support to him. Says he feels sad in mood - has been crying some of the time. Denies [ideas?] of self harm or suicidal ideation. Resident appears unsettled in India compound. States he has not been sleeping well. Plan - to discuss at HRAT meeting. …' 36 On 15 February 2003, Dr Skinner reported that she saw the appellant in January and February 2003. Dr Skinner reported some psychotic symptoms, and referred in particular to symptoms of Post Traumatic Stress Disorder. She reported the appellant as saying the symptoms had been worse since the appellant was told of the death of his brother and his uncle (and this is consistent with the medical notes). Dr Skinner, however expressed no opinion on the appellant's mental state at the time of the Tribunal hearing. In particular, she did not offer any opinion on whether the appellant was fit to attend and participate in that hearing. 37 Dr Koopowitz interviewed the appellant at the detention centre on 29 June 2003, over a year after the Tribunal hearing. The focus of his report (dated 1 December 2003) was the effect of detention on the appellant's mental health. He referred to 'traumatic events and losses following [the appellant's] relocation' but did not identify these events and losses. He did not, for example, specifically refer to the death of the appellant's brother and uncle. 38 Dr Koopowitz documented a severe mental health disorder, describing the appellant at the time he reviewed him as 'clinically very dangerously depressed'. He did not, however, state whether at the time of the Tribunal hearing the appellant would have been similarly severely affected, or what might have been the degree of disorder he was suffering. Nor did he offer any view on whether the appellant would have been able to properly participate in the hearing. 39 I agree with the respondents that save for some passages in the medical notes, none of the new evidence is directed to the relevant question, that is whether, having regard to the particular circumstances of the case including the intended purpose of the hearing before the Tribunal and the support and assistance available to the appellant, there was compliance with the implied requirement that an applicant be fit to give evidence and present arguments, or whether the appellant's psychological state rendered the Tribunal hearing a nullity: see NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 56 at [53] and at [58]; WAJR at [43]; WAIU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1 at [40]. 40 The further medical evidence does not result in the ground of appeal being made out.

conclusion 41 For these reasons I consider that the appeal must be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Pro Bono Counsel for the Applicant: Dr RA Cameron

Pro Bono Solicitor for the Applicant: Refugee Advocacy Solicitor Service of SA Inc

Counsel for the Respondent: Mr JD Allanson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 March 2004

Migration Act 1958(Cth)ss 36, 36(2), 425

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