WAIU v Minister for Immigration & Multicultural & Indigenous Affairs

the Tribunal's findings and reasons 11 The Tribunal accepted that the appellant was a citizen of Afghanistan. It then referred to independent country information about the then current situation in Afghanistan. 12 The Tribunal accepted that the appellant left Afghanistan in 2001 in the context of recruitment by Masoud of young men to fight in his army. 13 The Tribunal referred to the appellant's failure to raise, at the first protection visa interview, any concerns about the Northern Alliance. It said that such failure suggested that the issue did not then present itself to him as a matter of great significance or concern. The Tribunal said that it had considerable doubts that the appellant's subsequent claims about being personally targeted by the Northern Alliance were genuine. 14 The Tribunal noted that the appellant was unable to say who was holding his family members and that it would be necessary for those captors to have identified themselves in order that he might know to whom he should submit himself. The Tribunal then said this: 'The Tribunal is not satisfied that the applicant's family have been imprisoned by a commander of the Northern Alliance. Having regard to the totality of the evidence before it, and the fact that this claim was advanced the day prior to the hearing, the Tribunal considers that this claim was fabricated to enhance his overall claims. The Tribunal is not satisfied that the applicant was specifically targeted for conscription in the place of his uncle. While it accepts that he left Afghanistan in order to avoid the risk of being asked to join Massoud's (sic) forces, it considers that he is merely one of thousands of young Afghanis who fled the country in such circumstances. Were he to return, the Tribunal considers he would not be prosecuted as a "deserter" or otherwise attract adverse attention. The Tribunal is therefore not satisfied that he would have any "political opinion" imputed to him, which would place him at risk of persecution. The Tribunal is not aware of any evidence of persecution of Panjsheri Tajiks, whether in Kabul or in the Panjsher Valley itself, for reasons of their ethnicity, since the defeat of the Taliban. Therefore, it is not satisfied that he is at risk of persecution for reasons of race. Given all the above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.'

the decision at first instance 15 The appellant was legally represented before the Federal Magistrate. He claimed that he was a member of a particular social group, namely, Panjsheri Tajiks, who were defined by two factors, ethnicity (Tajiks) and the area of origin (the Panjsher Valley). He argued that the claim of risk of persecution by reason of membership of that group was not adequately characterised as a claim made under the Convention on the ground of race. He also claimed that the Tribunal had confined its consideration of his claims by regarding them as based only on ethnicity. The Tribunal's finding had excluded the possibility of a finding that he might be at risk for a Convention reason because of his membership of a social group of Panjsheri Tajiks, because that group was at risk from other Tajiks who did not come from the Panjsheri region. 16 Alternatively, the appellant argued that the Tribunal had not considered his case on the basis that he was an ethnic Tajik. 17 His Honour said that he was satisfied that if the Tribunal did not address the appellant's claimed fear of persecution for the Convention reason of his ethnicity or did not consider whether the appellant was a member of a particular social group, it would have committed a jurisdictional error. But his Honour was not satisfied that that had occurred. The appellant had made a number of general allegations concerning his fear of persecution arising out of him being a Panjsheri Tajik. The respondent's delegate had tested these claims against the country information which indicated that Panjsheri Tajiks were at an advantage at least as at the 17 December 2001 (the date of an article in the New York Times). The Tribunal had noted in its reasons that this information had been put to the appellant. It had also noted his reply to this point and other points. The Federal Magistrate said that there was no reason to believe that having put this information into its reasons for decision, the Tribunal did not consider it. The appellant had also put forward the general statement that some non-Panjsheri Tajiks hate Panjsheri Tajiks. However, he had not offered any other evidence about this. It was fair to say, so the Magistrate reasoned, that these allegations took very much second place to the appellant's major claim that he would be in danger because he was, in effect, a deserter from the Masoud forces. This was a claim which the Tribunal rejected, so the Magistrate noted, and upon which no review was sought. It was therefore "not surprising", so his Honour reasoned, that the Tribunal only dealt with these more general and really unsubstantiated allegations in the short paragraph which I have set out above. 18 His Honour accepted that that paragraph did not refer to the appellant as being a member of a social group of Panjsheri Tajiks, nor did it refer to his Tajik ethnicity alone. But, so his Honour reasoned, it indicated that the Tribunal had examined whatever evidence there was and had come to a conclusion that: '(a) This particular applicant is not in danger because he is a Pasjsheri (sic) Tajik; and (b) It did not accept his statement that he would face continuing persecution because he was a Tajik.' 19 His Honour referred to some decisions on the question whether the integers of a claim to refugee status had been properly addressed. His Honour's conclusions on that point were as follows: 'I am satisfied that in this matter before me the Tribunal did address the integers of the claim. Most of the cases in which a successful argument is made that the Tribunal has failed to consider the applicant's claim as a member of a particular social group are cases where the Tribunal has accepted (or it is clear from the evidence) that the applicant is in some danger for some reason. In this case the Tribunal does not accept the applicant is in any danger. That finding is made on the basis of consideration of the country information as against the applicant's submissions which is what the Tribunal is required to do. If you do not generally fear persecution at all you cannot fear it for a Convention related reason however so that reason may be classified. I am satisfied that the Tribunal appropriately analysed the fear which were (sic) expressed by the applicant and, having considered his statements and those of his witnesses and the likelihood of the fears being well founded on the basis of country information available to it, the Tribunal rejected the applicant's fear. I believe that must dispose of the case.' 20 His Honour dismissed the application.

the appeal 21 There were three grounds in the amended grounds of appeal. The first ground was that the Tribunal acted without or in excess of jurisdiction by failing to provide to the appellant a real opportunity to appear before it to give evidence and present arguments, in breach of s 425 of the Act. 22 Mr S A Walker of counsel, who appeared for the appellant both at first instance and at the hearing of the appeal on a pro bono publico basis, submitted that the appellant was not in a fit state "to represent himself" (I have put this quote in italics because the appellant's solicitor was present during the hearing before the Tribunal) at the time of the Tribunal hearing. 23 This claim was not made at first instance and accordingly the matter was not dealt with in his Honour's reasons. The respondent did not object to this ground being raised in the appeal, possibly because Mr Walker made it clear that he would be relying purely on what was contained in the Tribunal's reasons. 24 The relevant passages in the Tribunal's reasons to which Mr Walker took me were as follows: 'The applicant became distressed as the hearing progressed on the first day, and in fact fainted after standing up when the hearing was adjourned. The Tribunal observed his condition, during the hearing, and was satisfied that he was able to comprehend the questions put to him and to respond appropriately. . . . At this point the hearing was adjourned until the following day. As noted above, the applicant fainted when he stood up after the hearing was adjourned. He received prompt attention from the detention centre personnel, and the Tribunal requested that he be seen immediately by a doctor. When the hearing resumed the following day, the Tribunal asked the applicant if he had received appropriate attention and was capable of continuing the hearing. He confirmed that that was the case. His agent also said she was happy for the hearing to proceed. The applicant was advised that he could seek a further adjournment at any time if he wished. [The applicant was much more composed than he was on the previous day, but again became distressed as the hearing progressed. Again, however, the Tribunal was satisfied that he was able to comprehend the questions put to him and to respond.] . . . The applicant's agent was asked if there were any further questions which should be put to the witness. She asked him to clarify when precisely he was in a detention centre in Australia. He said he was in the detention (sic) between March and May 2001. The Tribunal asked the applicant if there were any other matters which the Tribunal should ask the witness about. He said he could not think of anything.' 25 Mr Walker submitted that this response was consistent with difficulty on the part of the appellant, perhaps, in focusing upon the issues and responding. 26 Mr Walker then took me to the following passage in the Tribunal's reasons: 'The Tribunal pointed out that he had failed to mention his mother's death in his second statement, which was made in February 2002, and asked why he had not mentioned this. He said that, on the day when he was told by his sister of his mother's death, he was visiting his case officer and was crying and had told the case officer of his mother's death. He said the case officer had apparently not written this new information down. He confirmed that, by "case officer," he was referring to a departmental officer who interviewed him. He said the interview was in the presence of an interpreter and his agent. The Tribunal said it was aware from the tape recording of the interview (on 20 February 2002) that he had told the case officer of his mother's death, but said the issue it wished to highlight was that this important point was not included in the statement he had prepared, and which was read to him before he signed it on 15 February, after the phone call in which he said he was informed of his mother's death. The Tribunal said the absence of this important issue from that statement made it have doubts about this claim. He said he did not know about procedures and had not been thinking clearly when he obtained the news. He thought it was in his statement.' 27 Mr Walker submitted that it might be thought that the appellant's failure to include this information in a statement five days earlier on 15 February 2002 would be of no particular moment in terms of his credibility, but that did not seem to be the way in which the Tribunal approached the matter when it weighed it against the appellant. 28 In the next paragraph of its reasons the Tribunal recorded the fact that it had pointed out to the appellant that, given that he had not found out about his mother's death until six months after the event, he was effectively saying that his mother was killed while trying to return to Kabul during the time of the Taliban, and before he himself had left Afghanistan. It had asked him to comment. The Tribunal noted in its reasons that it was at this point that the appellant began to become agitated again. It had urged him to take his time and to try to relax. He had then told the Tribunal that his sister was illiterate and did not know dates and times. He had said that they were both upset and were crying during the conversation in question, so that there may have been some misunderstanding about the time of his mother's death. Mr Walker contended that this illustrated how difficult it was for the appellant effectively to convey his position to the Tribunal, and that had told against him. 29 Then Mr Walker referred to this passage in the Tribunal's reasons: 'Without going into detail, because of the applicant's apparently increasing distress, the Tribunal referred to the conflict about his evidence regarding the circumstances in which he was being asked to fight.' 30 Mr Walker submitted that this was a clear indication that the Tribunal took the view that because of the level of distress having increased, it was not appropriate to go into detail with the appellant on this issue. This, so he submitted, established some impediment to the full exercise of the review function of the Tribunal and indicated that it was circumscribing its inquiries. The same submission was made in relation to the fact that at the end of the hearing the Tribunal had said that it had no further questions and that in view of the appellant's apparent distress, had suggested that the hearing be closed. The hearing conducted by the Tribunal was, so it was put, more limited by reason of the appellant's distress; the hearing was closed before it otherwise would have been. 31 Mr Walker then referred to what he submitted was "the really significant material in relation to section 425 and the appellant's position". The Tribunal had continued in these terms: 'It [the Tribunal] said that it would allow time for the applicant to consider whether there were any other points he wished to put before the Tribunal and to have discussions with his agent in a less formal atmosphere. It would then allow the agent to put any such points to it and to make closing submissions. The applicant indicated that he was very agreeable to that course of action and his agent likewise concurred. She suggested that a week would be sufficient time, and the Tribunal said it would be willing to allow more time if necessary (and subsequently did so, at the agent's request). The Tribunal said it would be prepared to have a further hearing if it appeared to be necessary and if it had medical advice that the applicant was fit to participate.' 32 I mention here, before outlining and considering Mr Walker's submission, something which happened after the Tribunal hearing. On 6 September 2002, the appellant's agent forwarded a detailed submission to the Tribunal. That letter included a statement that the appellant was still fainting and losing consciousness on a regular basis, was currently taking medication which made him drowsy and had collapsed again on the previous day. The letter included the following: 'Please advise if there are issues of concern which may have been overlooked. We do request however, that should you have any remaining concerns following this submission that our client has the opportunity to attend another hearing. Our client instructs that he was extremely nervous, depressed and mentally unstable at the hearings. He also instructs that his memory is extremely weak which may be a result of the grief that he has endured.' 33 Mr Walker submitted that in the light of that explicit request, there should have been another hearing if there were any matters on which the Tribunal was against the appellant. All the circumstances together, so it was put, imposed a requirement on the Tribunal to convene another hearing. 34 The Tribunal's decision in that regard was reflected in the following passage from its reasons: 'Given the agent's advice regarding the applicant's medical condition, the Tribunal decided not to convene a third hearing. The Tribunal considers that the agent's submission, see below, has provided the applicant's response to the various issues left outstanding and that a further hearing would therefore needlessly distress the applicant.' 35 Mr Walker submitted that the Tribunal had been influenced in its decision not to have a third hearing by its "gratuitous but well-meant" concern for the appellant's medical condition. It was of primary importance that the appellant should have a real and full opportunity to deal with the issues. If his medical condition at the time pointed against an immediate third hearing, it could have been still held after some little delay and after some appropriate medical attention. The Tribunal had accepted that the appellant's mother had been killed, but was not satisfied as to the timing of the incident. It had referred to the fact that no reference had been made to the matter in the written statement of 15 February 2002. Mr Walker submitted that "a composed and effectively communicating appellant" might well have been able to make the point to the Tribunal that he was not only upset about the news of his mother's death in February 2002, but was so upset and found it so difficult to cope that that was why he did not put it into the written statement, but of course had made the point in the interview on 20 February 2002. Although the Tribunal had noted correctly that the claim about his mother's death had no direct bearing on his own claims, it was, so it was contended, a point that seemed to have counted heavily against him and ultimately the Tribunal disbelieved several of his claims. Considering the reasons as a whole, it was reasonable to conclude that the appellant's credibility suffered due to the claim about his mother's death and failure to include that matter in the written statement.

my reasoning 36 Section 425 of the Act relevantly provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. 37 In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, the judge at first instance found, on unchallenged evidence, that the respondent had not been in a fit state to represent himself when the Tribunal considered his application. On appeal, the Full Court relevantly held as follows: '41. Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one. Through no fault of the Tribunal it was not aware of this. Even so, the Tribunal did not comply with s 425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the Tribunal made a 'jurisdictional error'.' 38 In SCAR, the Tribunal's finding on credibility was based primarily (see the Full Court's reasoning at par [9]) upon its subjective assessment of the manner in which the respondent gave his evidence. 39 At first instance in that matter, a letter from a psychologist at the Woomera Detention Centre had been admitted into evidence. That letter stated a professional opinion that the appellant had been in no condition to handle the interview before the Tribunal, being totally unable to think clearly, quite unprepared (not even knowing what day it was) and without support during the Tribunal hearing. 40 As Branson J observed in the subsequent decision of NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 at [58] and [59], fitness to take part in a Tribunal hearing depends very much on the particular circumstances of each case. Her Honour relied on the Tribunal's assessment in that case that the applicant knew the purpose of the Tribunal hearing and had been able to give a comprehensive and lucid account of his claims. 41 In my view, the Tribunal in this matter provided the appellant with a real opportunity to appear before it to give evidence and present arguments. 42 During the course of the first day of hearing there was no application for an adjournment or any indication by the appellant or his solicitor (who was in attendance) that he was not fit to participate. In the passages which I have reproduced above, the Tribunal recorded the fact that the appellant had become distressed as the hearing progressed on the first day and in fact had fainted after standing up when the hearing was adjourned. The Tribunal stated that it had observed his condition during the hearing and was satisfied that he was able to comprehend the questions put to him and to respond appropriately. The Tribunal's reasons, which record the appellant's responses to various matters put to him, confirmed this assessment. See for example the exchange referred to at p 14 of its reasons. 43 The Tribunal wrote a letter, dated 30 August 2002, to the appellant's agent, in response to the request for another hearing. That letter included the following: 'The Member has asked all the questions he wished to ask your client at the hearings held on 20 and 21 August 2002; but he is aware that [the appellant] may wish to comment further on the issues raised and to make further submissions. However, having regard to [the appellant's] obvious distress at the hearings, which apparently caused him to collapse at their conclusions, the Member does not wish unnecessarily to put him to further distress. To that end, rather than convene a further hearing, the Member invited [the appellant] to consult with you and to lodge any further submissions in writing. The Member is prepared to hold a further hearing, subject to medical advice that [the appellant] is medically fit to participate in a hearing, and subject to the Member's (sic) being satisfied that there are matters that still need to be dealt with and that cannot be dealt with by way of written submissions.' 44 There then followed the agent's letter of 6 September 2002 setting out detailed submissions. The agent dealt, in my view most comprehensively, with the matter of the death of the appellant's mother and other points which had been raised by the Tribunal at the hearing. 45 It is clear from p 21 of the Tribunal's reasons (see the extract above) that the Tribunal regarded those submissions as having provided the appellant's response to the various issues left outstanding. It is useful to remember that when the hearing concluded on 21 August 2002, the Tribunal stated that it had no further questions. 46 I do not accept the appellant's submission that the Tribunal denied the appellant a further hearing (to which he claimed he was entitled) by reason of its concern about his medical condition. 47 In my view, the Tribunal complied with its obligations under s 425. There is no evidence which puts in issue the Tribunal's assessment that the appellant was in a fit state at the hearing before it. I do not think that the first ground of appeal has been made out.

the second and third grounds of appeal 48 The second ground of the appeal was that the Tribunal had failed to address or consider the question whether the appellant faced a risk of persecution by reason of his membership of the particular social group constituted by Panjsheri Tajiks, and thereby acted without or in excess of jurisdiction. It is convenient (and just) to consider that ground and the third ground together because they have much (but not everything) in common. In the third ground the appellant asserted that the Tribunal had failed to consider whether he had a well-founded fear of persecution for a Convention reason, namely race, on the basis that he was a Tajik.

my reasoning 49 At the hearing, as mentioned above, the Tribunal summarised the key elements of the appellant's claims. That is, it put to him that his main fear was persecution from elements of the Northern Alliance because he had not fought for Masoud when he was raising a new army. It also put to him that he feared that he may experience persecution from Pashtuns or other ethnic groups because he was a Panjsheri Tajik. 50 There was no evidence before the Tribunal that Panjsheri Tajiks constituted a particular social group for Convention purposes. The appellant's claims included a claim that Panjsheri was an ethnic description - see p 11 of the Tribunal's reasons. He claimed that Panjsheri Tajiks had distinct facial features, namely, rounded noses and different hair. The appellant asserted that Panjsheri Tajiks were suffering discrimination from both the Taliban and Masoud forces, that there was hostility between Pansheris and Pashtuns with the latter hating the former, and that people including non-Panjsheri Tajiks would still wish to take revenge for acts done when Panjsheri Tajiks were in power. 51 In my opinion, it is quite clear from the Tribunal's reasons that when deciding whether the appellant had a well-founded fear of persecution, it assessed that matter on the basis of what might happen to him as a Tajik from Panjsher. 52 Before the Federal Magistrate, the appellant argued that he was a member of a particular social group comprising Panjsheri Tajiks. That is, a group sharing the combined characteristics of being ethnic Tajiks who come from the Panjsher Valley. 53 If, as the appellant submitted to the Tribunal, Tajik and Panjsher are both racial characteristics, and the conclusion is that Panjsheri Tajiks are not at risk of persecution by reason of their race, I cannot see how it is possible to say that they are at risk of persecution by reason of membership of a particular social group defined as Panjsheri Tajiks. The definition identifies the one group of people, not two, and the Tribunal found that that group was not at risk of persecution by reason of race. Mr Walker conceded that there was nothing in the material before the Tribunal to indicate whether Panjsheri Tajiks might be persecuted because of attributes or perceived attributes that are non-racial. 54 In my view, his Honour did not err in concluding that the Tribunal had not fallen into jurisdictional error. I respectfully agree with his reasoning that, although the Tribunal had not referred to the appellant as a member of a social group, it examined the evidence and concluded that the appellant would not be in danger because he was a Panjsheri Tajik if he were returned to Afghanistan. In fact it referred to information available to it (and put that information to the appellant for comment) which indicated that being a Tajik from the Panjsheri was currently an advantage in Afghanistan. 55 The fact that in reaching that conclusion the Tribunal did not specifically refer to Tajik Panjsheris as a particular social group did not, in my view, amount to jurisdictional error. It asked the right question, made findings of fact and credibility and did not take into account any irrelevant material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-272. In my view the second ground of appeal has not been established. 56 The same applies, in my opinion, to the third ground of appeal - the asserted failure on the Tribunal's part to consider whether the appellant had a well-founded fear of persecution by reason of race, on the basis that he was a Tajik. In my view, the Tribunal dealt with any problems which the appellant might face by reason of his Tajik ethnicity when it considered his claims based upon being a Pansheri Tajik. Furthermore, it also considered, separately, the position of Tajiks whether in the Panjsher Valley or in Kabul. In describing the matters which it had put to the appellant, it said this: 'The Tribunal said that it had also found no evidence to suggest that Tajiks are now at risk of persecution because of their race, in either the Panjsher Valley or Kabul. He said that the Tribunal must have heard reports of explosions, such as bombs being thrown at vehicles. The Tribunal said it was aware that there were still acts of violence in the country, for example acts of banditry, but was not aware of them being specifically directed against Tajiks. He said that the real reasons for violence may not be apparent.' 57 In my opinion, the third ground of appeal has not been made out. 58 In those circumstances the Tribunal's decision was a privative clause decision within the meaning of s 474 of the Migration Act 1958 (Cth). There is nothing in the materials before me to suggest that the three conditions referred to in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 were not satisfied. Accordingly, in my opinion, the Tribunal's decision is protected from judicial review by s 474 of the Migration Act: Plaintiff S157/2002 v The Commonwealth (2003) 195 ALR 24.

Conclusion 59 For the foregoing reasons the appeal will be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate: Dated: 7 January 2004 Counsel for the Appellant: Mr S A Walker (pro bono publico)

Solicitors for the Respondent: Messrs Blake Dawson Waldron

Date of Hearing: 1 October 2003, 13 November 2003