WAIB v Minister for Immigration & Multicultural & Indigenous Affairs

tribunal reasons 7 The reasons of the Tribunal given on 26 June 2002 may be summarised as having: (a) accepted that the appellant was from Afghanistan and is Pashtun; (b) accepted that the appellant had a fear of the Taliban when he departed from Afghanistan as they had come and harassed and harmed his family on the basis that it was thought they had weapons; (c) rejected that such incident had occurred by reason of the appellant's father's military history; (d) did not accept that, with the fall of the Taliban and the significant changes that have occurred in Afghanistan, the incident described at (b) above would result in any harm to the appellant if he were to return to Afghanistan; (e) rejected that the appellant held any subjective fear relating to his cousins and, in any event, any fear of that nature was not related to the Convention; (f) concluded that, whilst the appellant would experience some difficulty and hardship on return to Afghanistan by reasons of 'humanitarian matters', he did not have a well-founded fear of persecution for a Convention-based reason. 8 Under the heading 'Claims and evidence' the Tribunal said that the father's rank was discussed with the appellant and he was questioned as to why his rank had risen in different interviews from being Lieutenant, to Lieutenant Colonel, to Brigadier General. The Tribunal recounted that the appellant had said that none of these were correct and in fact his father was a Colonel. 9 In relation to the claim by the appellant concerning his father, the Tribunal said: 'I am prepared to accept that his father was in the Najibullah military. I do not accept however that he was a person of significance nor of rank. I consider that if he was, the applicant would have been better able to say what he did and what rank he held. Also, if he indeed was a high profile military officer and people sought to harm him due to this, I do not accept that he would have been able to live without harm in the post Najibullah period. I do not accept that the Mujahadeen would not have known who he was and where he was. I do not accept that he could live in his local area, chopping wood and having and running a farm without people knowing who he was and what his history was. I do not accept that he could go into the mountains during the day and in this manner avoid detection and interest. The fact that he lived in his local area without harm for this period indicates that he was not of interest to anyone and was not of the rank claimed. I do not accept as true the applicant's claims relating to the Taliban coming for his father for this reason. I accept that he was a low level soldier only - as many would have been at the time. I do not accept that this low rank has or did cause him any harm in the post Najibullah period. I find that this part of the applicant's history was fabricated.' 10 During the course of the Tribunal hearing it was put to the appellant that he had first said his father was a Colonel and later was a General and he was asked to explain the inconsistency. He said that he had stated his father was a Colonel and did not say he was General and this latter reference was a result of a misinterpretation. Nevertheless, he said that usually he said he was a Lieutenant. When the difference was again put to him he confirmed that his father was a Colonel.

post-tribunal hearing evidence 11 On 18 February 2003 the appellant swore an affidavit in which he stated he had always known and correctly described his father's rank in the army as 'Dagarwaal'. He attested this was a senior army rank in the Communist Government of the Najibullah prior to its collapse in 1992. He said that he had been told when preparing his second statement on 17 February 2002 that an error had been made in the interpretation of 'Dagarwaal' in his previous statement dated 9 November 2001. Accordingly, he included in his second statement a correction of what he understood to be the previous interpretation error. He said he did not know the Australian equivalent to the rank of 'Dagarwaal' and therefore had to rely on the interpreters provided to him by the respondent and by the Tribunal. He denied that at any time he had made a mistake as to his father's military rank. 12 In an affidavit of Mr Ali Madani, student and lecturer, sworn on 12 February 2003 it was attested that the word used by the appellant for his father's rank 'Dagarwaal' was the equivalent to the Australian rank of Colonel. Mr Madani was an Afghani who migrated to Australia in 1992, fluent in Pashtu and familiar with the military ranks in the Afghan army during the Communist era and their approximate equivalence in the British or Australian armies. He was formerly a Professor of the School of Journalism at Kabul University.

reasons of federal magistrate 13 The case as argued before the Federal Magistrate on 18 February 2003 centred upon the translations of questions and answers and the issues of interpretation relating to the rank of the appellant's father. That being the case, the Federal Magistrate admitted into evidence the affidavits of Mr Madani and the appellant on the issue. The Federal Magistrate also referred to the submission on behalf of the appellant dated 17 February 2002 in which his father was described as a Brigadier General. He then recounted the way in which these issues had been dealt with by the Tribunal. 14 The reasons of the Federal Magistrate recite that it was put to him that the apparent misinterpretation of the questions and the attempt to deal with them had left the presiding member with a misunderstanding of the explanation put by the appellant which affected the Tribunal's reasoning and the outcome of the decision. The Federal Magistrate accepted that there was authority, in particular the cases of W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788, Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 and Tobasi v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 322, that under the Act as it stood prior to 1 October 2001, it was a ground of review that misinterpretation during the course of a tribunal hearing resulted in procedural unfairness for reasons like those advanced by the appellant in this proceeding. He accepted this was the continuing position under the law as it stood post 1 October 2001 and the decision of the High Court in Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24. 15 However, the Federal Magistrate was not persuaded that the appellant had established procedural unfairness leading to misunderstanding, faulty reasoning and an unjust outcome. He considered that the presiding member had been left in no doubt that the appellant's final position was that his father was the Afghan equivalent of a Colonel. 16 His Honour concluded that if the affidavit material of Mr Madani had been before the presiding member it was possible the presiding member would not have reached the same adverse conclusion on credibility which he had reached. However, he considered the critical thing was whether procedural fairness had been denied at the Tribunal hearing. He did not find that was the case. 17 The critical paragraphs in his reasoning to this effect read as follows: '23. It may be that the presiding member was mistaken in concluding that the applicant lacked credibility in his various references to the rank of his father. However, such a mistake, in my view, does not establish an error of law going to jurisdiction. On the written material before the presiding member, quite apart from what the applicant said at the hearing before the presiding member, there was material on which the presiding member could reasonably conclude that the applicant had been inconsistent and confused in his references to his father's rank. It was, accordingly, reasonably open to the presiding member to draw an adverse conclusion on credibility. 24. I do not accept that the conclusion on credibility was adverse and that it was a material part of the reasoning process leading to that conclusion that the applicant was found to have been inconsistent and confused in his references to the asserted rank of his father. Although the presiding member went on to state that the account of the applicant also lacked credibility by reason of the lack of harm that came to his father during the Najibullah period, that does not discount the significance of the conclusion on inconsistency in the applicant's accounts. 25. Nevertheless, whether the presiding member was right or wrong in that finding of inconsistency, the conclusion reached by the presiding member was not, in my view, affected by interpretation problems at the hearing before him. I conclude that there was no procedural unfairness in the conduct of that proceeding.'

amended grounds of appeal and application 18 On the hearing of this appeal, counsel for the appellant sought leave to amend the grounds of appeal and amend the substituted application of review. In the latter case the proposed additional ground would be: 'The Tribunal's failure to give the Applicant particulars of the information alleged by the Tribunal to have been given by the Applicant at his initial interview on arrival in Australia, namely that the Applicant's father's rank in the Najibullah army was that of "lieutenant", and to ensure, as far as was reasonably practicable, that the Applicant understood why the inconsistency between his alleged statement on arrival as to his father's rank and his subsequent claims was relevant to the review and to invite the Applicant to comment on the alleged inconsistency, constituted by breach of s 424A(1) of the Migration Act and further that such breach by the Tribunal was a jurisdictional error.' The amendment to the ground of appeal would add a ground that the learned Federal Magistrate erred in failing to determine that the Tribunal's failure to give particulars constituted jurisdictional error in terms of the added ground to the substituted application for review. 19 The existing ground of appeal is that the Federal Magistrate erred in law in determining that notwithstanding the misinterpretation, it had not affected the Tribunal's understanding of the appellant's evidence and it therefore erred in determining the Tribunal had not failed to accord the appellant natural justice in making the decision. 20 The proposed amendments are opposed on behalf of the respondent. It is submitted that if the appellant's case does not succeed on the existing ground then it will not succeed on the ground under s 424A of the Act. 21 The case for the appellant in this respect places reliance on the decision of the Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74. There the Full Court (North, Merkel and Weinberg JJ), after referring to the power to allow grounds to be argued on appeal that were not argued before the primary judge, said the proper approach to the exercise of the power was explained in H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43. There Branson, Marshall and Katz JJ at [6] referred to a case where, had the issue been argued before the primary judge evidence could have been given which might have prevented the point from succeeding, as being an instance where the issue will not be allowed to be raised on appeal. In other cases it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided. Here it is said for the appellant that no further evidence is required for the point to be argued. 22 In opposition, counsel for the respondent referred to VAAC at [34] where it was said that a Full Court was unlikely to be sympathetic to an application for leave to amend a notice of appeal where there has been a deliberate standing by or where an appellant has made a tactical decision not to pursue the argument. Also at [36] where an added consideration referred to was the nature of and consequences for the individual concerned (here, the appellant). 23 These applications on behalf of the appellant were reserved. In my view they fall to be considered in the context of the reasoning relating to the appeal as it presently stands.

appellant's submissions 24 For the appellant it is argued that it could not be said in respect of the circumstances of this proceeding that the failure to comply with s 424A of the Act did not deprive the appellant of the possibility of a different outcome given, in particular, the substantial role of the Tribunal's findings as to credibility in its decision: Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27. Additionally, reliance is placed on the statement by Kirby J in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 130-131, at [131]-[132] based on Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 to the effect that where a mistake affects the credibility of an applicant and concerns the acceptance or rejection of the testimony of a witness it will be rare that compliance with the requirements of procedural fairness could be found to have made no difference to the result so as to justify the withholding of the relief. Here it is said that it is impossible to dissect the issue of credibility from the totality of the reasoning of the Tribunal. 25 On the issue of the characterisation of the passage in the reasoning of the Tribunal under the heading the claim relating to his father, quoted above, it is contended the Tribunal should be seen as relying on two parallel arguments, although it is impossible to say the Tribunal could have relied entirely on the second argument.

respondent's submissions 26 The case for the respondent does not challenge the evidence of the discrepancies in the interpretation. It is contended for the respondent that this appeal depends on how the Tribunal's reasons can be characterised. 27 In relation to the comment by the Tribunal in the course of its reasons as to the appellant's father's rank being discussed with him, it is said this comment was not pejorative and could not be said to reflect the Tribunal dealing negatively with the appellant because of the differences in the descriptions of the rank. 28 In relation to the principal passage in the reasoning of the Tribunal quoted earlier concerning 'the claim relating to his father', it is submitted for the respondent that if the rank that the appellant's father held would have been decisive to that reasoning then a s 424A notice should have issued. However, it is submitted that if the Court is satisfied the error interpretation could have made no difference, the decision should be affirmed. The respondent contends the passage should be read in the following way. The first limb, making reference to the appellant being better able to say what his father did and what rank he held, is said to be properly understood as a statement that the appellant not being able to give a detailed or fulsome account of what his father's duties as a Colonel involved. The second limb, referring to the possibility of the father holding high rank, is said to be properly understood as the Tribunal considering the appellant's claim at its highest in any event. Therefore it is said that it cannot be said the discrepancy in interpretation was the reason or part of the reason of the Tribunal for affirming the decision under review. 29 The respondent's submissions have no quarrel with the authorities relied upon for the appellant and, in particular, the statement of principles relied upon in Stead and Aala.

REASONING 30 Although the reasons of the Tribunal should not be read with an eye focussed on detection of error, I am unable to accept that the respondent's characterisation of the reasons overcomes the effect of the words 'and what rank he held' in the first limb of the Tribunal's reasoning in the critical passage on 'the claim relating to his father'. Despite the Tribunal having, as the respondent submits, non-pejoratively stated that the appellant said his father was a Colonel, the words concerning rank clearly invoke whether the appellant 'would have been better able to say' what rank his father held in addition to what his father did. The reference to the former is additional to the latter and cannot be given the same meaning. It reintroduces reference to what the appellant was interpreted as saying concerning his father's rank and does not rely on a clear understanding by the Tribunal of the rank as that of Colonel. It therefore removes any isolation between the discrepancies in interpretation on the pre-hearing records and the reasoning of the Tribunal in this first limb. 31 Further, knowledge by the Tribunal that the appellant considered his father's correct rank was that of Colonel, does not provide an answer to the possible effect on the Tribunal of knowledge (apparently wrongly based on the consequences of misinterpretation) that the appellant had described his father's rank in other ways seemingly at odds with the rank of Colonel. The sentence here under examination in its reference to what the appellant may have 'been better able to say' in relation to that rank, shows that the Tribunal continued to rely on the apparent contradiction even though it knew the appellant ultimately asserted the rank was that of Colonel. 32 It is then necessary to consider the second limb. On the hearing of the appeal I was inclined to the view that the second limb should be read as the case for the respondent contends, namely, as if preceded by the words 'in any event'. However, on reflection I consider the case for the appellant is correct when contending that a positive finding of the status of the appellant's father would have carried with it this second limb, so that the second limb is, as contended for the appellant, properly to be seen as a parallel argument rather than an independent one. It cannot be seen to be isolated from the effects of any lack of procedural fairness on the first limb. That is, because the discrepancies in interpretation were imported into the Tribunal's reasoning on the first limb, it must necessarily be seen that a lack of procedural fairness or jurisdictional error in relation to that issue could have made a difference to the second issue. 33 As a result I do not accept the submission for the respondent that the alleged denials of procedural fairness could not have had a tangible consequence. Had the evidence concerning misinterpretations which was provided post-hearing been provided to the hearing, the Tribunal may have accepted the credibility of the appellant on the issue of his father's rank and generally. 34 As the Tribunal continued to rely on the seeming contradictions in the appellant's evidence concerning the rank of his father (a matter going fundamentally to the appellant's credibility), it was obliged to give him a notice pursuant to s 424A of the Act. Had it done so, it may have received the evidence made available post-hearing. Its failure to do so constituted a breach of natural justice: Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 at 40, at [39]-[40] and at 45, at [63]; Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 at [12] and at [98]-[105].

conclusion 35 For these reasons I consider that leave should be given to the appellant to file the amended notice of appeal and the appeal should be allowed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Pro Bono Counsel for the Appellant: Mr HNH Christie

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 19 August 2003

Date of Judgment: 28 November 2003