FEDERAL COURT OF AUSTRALIA

SCAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 677

MIGRATION – application under s 39B of the Judiciary Act 1903 – allegation of actual bias by the decision maker and jurisdictional error – allegations made out – application dismissed.

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 referred to

Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 referred to

Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 referred to

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 applied

Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 referred to

Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1081 referred to

Anwari v Minister for Immigration and Multicultural Affairs [2002] FCA 217 referred to

SCAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No S 64 of 2002

von DOUSSA J

ADELAIDE

30 MAY 2002

THE COURT ORDERS THAT:

1.                  Application dismissed.

2.                  Applicant to pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal) made on 31 January 2002 in which the Tribunal affirmed a decision not to grant the applicant a protection visa.

2                     The Tribunal’s decision, being one made after 2 October 2001, is a privative clause decision as defined by s 474(2) and (3)(b) of the Migration Act 1958 (Cth) (the Act) and therefore subject to the provisions of s 474(1) which provides:

“(1) A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

3                     The applicant contends that on two grounds the decision under challenge is invalid, and that the invalidity is not protected by s 474(1). First, it is alleged that the decision is vitiated by actual bias because the Tribunal had a pre-determined fixed view on issues critical to the applicant’s claims, and secondly, because the Tribunal made a jurisdictional error in failing to make an essential finding of fact upon which the applicant’s claim depended. The applicant contends that s 474 does not operate to validate the Tribunal’s decision in these circumstances and relies upon the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616, Wilcox J in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 and Finkelstein J in Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498. It will only be necessary to consider the interpretation and scope of s 474 of the Act in the event that the applicant makes good the grounds of invalidity alleged.

Background Facts

4                     The applicant is a 24 year old who says that he was born and lived for all his life in Diptarak, Eacha in Jaghori, Ghanzni Province of Afghanistan. He says he is of Hazara ethnicity and follows the Shi’a branch of Islam. He says Diptarak is a small village of about thirty houses. His family comprise his parents, four younger brothers, three older married sisters and three younger unmarried sisters, all of whom remain in Afghanistan. He says that he worked for his family and looked after a flock of sheep and that his father had a grocery shop in Baba Bazaar which was about one and a half hours walk from Diptarak.

5                     The applicant arrived in Australia on 1 April 2001 from Indonesia, and on 8 June 2001 lodged an application for a protection visa on the ground that he was a person to whom Australia owed protection obligations under the Refugees Convention and Refugees Protocol as those expressions are defined in s 5(1) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol, and owes protection obligations to people who are refugees as defined in Article 1A(2) of the Refugees Convention, namely to any person who:

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

6                     The applicant in his application for a visa, and in subsequent communications with officers of the respondent’s department and the Tribunal, asserted that he had a well founded fear of being persecuted by reason of his race and religion by the Taliban.

7                     The applicant alleged that the Taliban had come to his village about three years before he fled to Australia. He said that his father had been beaten, he believed because he was Hazara and a Shi’a. The Taliban forbade Shi’as from praying in their particular style. He said his paternal uncle was treated in the same way. Then in 2000, the Taliban sent a letter to the village elders to say that all young Hazara men should present themselves for military service. Most attempted to escape, including the applicant’s paternal uncle. A week later his uncle was found bound and shot. The applicant said he was therefore too afraid to escape and says that if the Taliban knew that his uncle was related to him, he and other members of his family would suffer the same fate. The applicant said he and his father considered that his life was in danger from the Taliban and so a smuggler was engaged to take him from the country.

8                     In the course of his communications with officers of the respondent’s department and the Tribunal the applicant gave information about a passport upon which he said he travelled to Australia, about his work looking after the family sheep, about the area in which he lived, and about a number of concerns which the respondent’s delegate responsible for deciding the applicant’s visa application held about the credibility of information being supplied by him.

9                     In the course of considering the applicant’s application, the delegate, and later the Tribunal, considered country information about the activities of the Taliban in the region of Afghanistan from which the applicant claimed to come, and also had an audio tape of an interview between the applicant and an officer of the respondent’s department submitted to language analysis by the Swedish firm Eqvator. The analysis report stated that the applicant speaks the Hazaragi dialect of Dari and has a Pakistani accent. The report stated “with considerable certainty” that the applicant’s language originates from Quetta in Pakistan.

10                  In its findings and reasons for decision the Tribunal said that it found the applicant’s evidence about his life in Afghanistan unconvincing, and did not accept that he had given a truthful account. The difficulties which the Tribunal perceived with his evidence caused the Tribunal to conclude that it was unable to be satisfied that the applicant is a national of Afghanistan. The Tribunal said that as the applicant had made no claims for persecution against any country other than Afghanistan, there was consequently no basis on which it could find that the applicant had a well founded fear of persecution elsewhere which could attract Australia’s protection obligations. In the result, the Tribunal affirmed the decision not to grant him a protection visa.

11                  Counsel for the applicant in his submissions identified the following seven factors as the basis of the adverse finding about the applicant’s credit:

(1) the Tribunal identified an inconsistency in answers given by the applicant about how long he had been a shepherd;

(2) the Tribunal expressed concern that the applicant did not know how to make yoghurt;

(3) the Tribunal could not accept that the Taliban had been eluded by means of the applicant hiding in his house whenever the Taliban came to the area;

(4) the Tribunal did not accept that the Taliban would persecute a person found holding a taskera (a common identification document used in Afghanistan). The applicant told the Tribunal that the Taliban came to his house on a number of occasions looking for weapons and taskeras. He said the Taliban were looking for taskeras as they did not want people to escape;

(5) the Tribunal said that against the background of all his evidence it was not satisfied that he had given a truthful account of the fate of his father who he claimed had been beaten once or of his uncle who he claimed had been shot. (Counsel argued that these conclusions were the consequence of the Tribunal’s concerns identified in the preceding four paragraphs);

(6) the Tribunal identified an apparent inconsistency in answers about what happened to the applicant’s passport document;

(7) the language analysis was inconsistent with the applicant’s assertion that apart from a very short stay in Pakistan on the way to Australia, he had always lived in Afghanistan.

12                  Each of these matters was discussed by the Tribunal in the course of its findings and reasons. Counsel for the respondent identified one further matter which involved a criticism of the applicant, relevant to the finding on credit, namely that the Tribunal expressed the opinion that aspects of the applicant’s evidence about the impact of the Taliban on his area were not credible, and seemed to the Tribunal to have been learned or rehearsed.

13                  Counsel for the applicant contended that actual bias should be inferred against the Tribunal on account of its findings in matters numbered (1), (2), (3) and (5) in the above list. In respect of those matters it was contended that the findings reflect pre-conceived “western” concepts of time, employment and civil order, and failed to take into account the applicant’s isolated existence as a subsistence farmer, his lack of education and intellectual skills, and the war like environment in which the Taliban operated. Counsel contended that the findings reflected pre-conceived ideas about how the applicant should have behaved from which the Tribunal was not prepared to depart. Counsel however did not advance the same argument in relation to matters (4), (6) and (7) in the above list. Counsel said those matters were not relied upon as part of the argument.

14                  The onus of demonstrating actual bias lies upon the applicant for judicial review. It is a heavy onus. This is a question which I have discussed in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 in which I have today delivered judgment. I shall not repeat what I there said at [36] – [38].

15                  In this case, as in SCAA, the Court is asked to infer actual bias solely from the published reasons for decision of the Tribunal.

16                  I consider that the criticism that the impugned findings reflect pre-conceived notions on the part of the Tribunal is without merit. On the first matter the applicant initially said that he had been a shepherd since he was young (implying for a very substantial period). Later, however he said he had been a shepherd for only a few years, and this assertion was proffered as an explanation why he was unable to give the respondent’s delegate particulars of what sort of illnesses sheep suffered. The inconsistency is apparent, and the identification of it by the Tribunal does not reflect any pre-conceived western notion.

17                  The second matter concerned a knowledge of how to make yoghurt. The Tribunal’s criticism was not that the applicant lacked technical knowledge on the manufacture of yoghurt. During the initial processing of the applicant’s claim, the respondent’s delegate had raised a concern felt by the delegate that the applicant did not know how to make yoghurt. This concern was answered by the applicant’s agent. The applicant sought to explain away the delegate’s concern by saying that there had been a misunderstanding caused by “problems with the interpreter in relation to this point”. The Tribunal, with the assistance of another interpreter, listened to the tape of the delegate’s interview and was satisfied that there was no problem in the interpreting at the interview with the delegate. The Tribunal’s point was that the explanation was not justified by what had happened at the interview.

18                  The third point concerned the applicant’s evidence about the impact of the Taliban on his area. On this topic the Tribunal said;

“Aspects of the applicant’s evidence about the impact of the Taliban on his area were not credible and seemed to me to have been learned and/or rehearsed. While I accept that the Taliban might have been harsh with some people and not to others as the applicant stated at the Tribunal interview, I am unable to accept that the applicant managed to avoid the Taliban for some three years by remaining indoors whenever they came. He states that the Taliban came to his village every few days looking for young Hazaras to beat and torture and that they came to his house on a few occasions (he said five to the delegate but later said that it may not have been as many as five). The applicant states that it was about a year before his departure that the Taliban wrote to say that all the young Hazara men should present themselves for military service, he later claimed that a particular date and time was indicated, yet still the applicant was able to avoid detection.”

The applicant’s village contained only thirty houses. In these circumstances I consider the Tribunal’s rejection of the applicant’s evidence about his avoidance of the Taliban for three years was open and reasonable on the information available, and is not a conclusion that reflects bias in the manner alleged.

19                  It will be noted that in the above passage the Tribunal expresses its view that there had been learning and/or rehearsing of evidence by the applicant. The Tribunal had the benefit of seeing and hearing the applicant give his evidence. The Tribunal was entitled to take into account its observations and impressions of the applicant, and, again, I do not think the conclusion expressed by the Tribunal gives rise to any inference of a pre-judgment.

20                  The fifth matter identified by the applicant’s counsel is merely a conclusion flowing from the earlier matters and again is not one that reflects bias. It was simply a rational step in the reasoning process.

21                  Even if the four matters relied on by counsel for the applicant are taken together, and in isolation from matters which point in a different direction, I think the allegation of bias on the part of the Tribunal is wholly unjustified.

22                  There are however matters which point the other way which must be taken into account in assessing the allegation that actual bias should be inferred from the reasons for decision.

23                  In a number of respects the Tribunal demonstrated a very fair and open minded approach to other aspects of the applicant’s case. Matter (6) identified by the applicant’s counsel concerned passport documents. The applicant gave inconsistent information about what happened to his passport document on which it would have been open to the Tribunal to take an adverse view about his credit. However the Tribunal gave weight to his explanation that he was frightened on the boat and could not remember what happened to his passport, and attached no significance to these inconsistencies. The applicant also gave confusing evidence about the geography of his area, and in respect of that evidence the Tribunal said:

“I understand that people interpret their surrounds in very different ways and there are difficulties for the Tribunal in establishing some geographical facts with certainty when maps of Afghanistan can be inconsistent or incomplete or inaccurate and where there are many ways of writing an Afghan place name in English.”

Again, the Tribunal placed no weight on this aspect of his evidence, although it would have been open to the Tribunal to take the view that his inability to clearly describe the geography of the country in which he lived gave rise to a matter for concern.

24                  In addition there was the applicant’s language analysis which the Tribunal chose to treat as not determinative of nationality, even though the contrary view could have been taken.

25                  These matters all point towards a conclusion that the Tribunal entered upon its task with an open mind, and fairly and sympathetically considered the case of the applicant. That view receives further support from the fact that at the conclusion of the Tribunal’s hearing, the Tribunal gave written notice to the applicant of matters about which it had concern, and sought further comment from him. Whilst the letter purported to be one given pursuant to s 424A of the Act, the matters canvassed in the letter went far beyond the strict requirements of the section.

26                  In summary, I consider the allegation of actual bias made against the Tribunal is wholly unwarranted and without foundation.

27                  The second ground upon which the Tribunal’s decision is impugned asserts that the Tribunal made jurisdictional error in failing to make positive findings on whether the applicant had a genuine fear of persecution, whether that fear was for a Convention reason, and as to the nationality of the applicant.

28                  In my opinion the Tribunal did not err in these respects. The claims advanced by the applicant were considered. His evidence about his life in Afghanistan was rejected as not being a truthful account, and the Tribunal was not satisfied that the applicant was a national of Afghanistan. In these circumstances the foundations for his claims disappeared. The findings by implication carried with them conclusions that the applicant did not have a fear of persecution for the Convention reason which he advanced. Being unsatisfied that the applicant was a national of Afghanistan, there was no obligation on the Tribunal to make any finding as to the applicant’s actual nationality. I agree with Carr J who said in Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 at [23]:

“ … [W]hen the applicant presented himself at the Australian border as a candidate for refugee status, and at all times subsequently, he did so on the basis that he was a national of Afghanistan who had a well founded fear of being persecuted on grounds of both race (Hazara) and religion (Shi’a). He made no other claims to refugee status. Once he was disbelieved on those claims there was nothing left in his application for refugee status. In my opinion, in those circumstances, there was no legal requirement on the Tribunal’s part to go on and make a finding as to the applicant’s actual nationality.”

29                  Carr J’s conclusion has been followed and applied by Hely J in Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1081 and by Mansfield J in Anwari v Minister for Immigration and Multicultural Affairs [2002] FCA 217.

30                  In my opinion the application should be dismissed. As the challenges to the grounds of the Tribunal’s decision fail, there is no need to consider s 474 of the Act.

Associate:

Dated: 30 May 2002

Counsel for the Applicant: Mr K Hanna

Solicitors for the Applicant: George Mancini

Counsel for the Respondent: Mr M Roder

Solicitors for the Respondent: Sparke Helmore

Date of Hearing: 22 May 2002

Date of Judgment: 30 May 2002