FEDERAL COURT OF AUSTRALIA

WAHT v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 593

MIGRATION – protection visa – appeal from Federal Magistrates Court dismissing application for a review of decision of Refugee Review Tribunal – after conclusion of hearing before it, Tribunal obtained two country reports concerning major events in Afghanistan which had occurred since the hearing – Tribunal did not put the substance of that information to the appellant and afford him an opportunity to make submissions – whether procedural unfairness amounting to jurisdictional error – Magistrate applied the Hickman principles – subsequent decision of High Court in Plaintiff S157/2002 v Commonwealth of Australia – appeal allowed and matter remitted to Tribunal.

Migration Act 1958 (Cth), s 474

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 referred to

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2followed

Commissioner of Taxation v La Rosa [2003] FCAFC 125 referred to

WAHT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W361 of 2002

CARR J

12 JUNE 2003

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The decision of the Federal Magistrates Court dated 12 December 2002 be set aside.

3.         A writ of certiorari issue directed to the Refugee Review Tribunal to quash its decision, made on 28 June 2002, to affirm the respondent’s decision not to grant a protection visa.

4.         The matter to which that decision relates be remitted to the Refugee Review Tribunal for determination according to law. 

5.         The respondent pay the appellant’s costs of the proceedings in the Federal Magistrates Court and of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

introduction

1                     This is an appeal from a decision of a Federal Magistrate given on 12 December 2002.  Her Honour’s decision was to dismiss the appellant’s application for an order of review of a decision by the Refugee Review Tribunal, on 28 June 2002, to affirm a decision of a delegate of the respondent not to grant the appellant a protection visa.  The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge.

factual and procedural background

2                     The appellant is a citizen of Afghanistan.  Ethnically he is a Pashtun and a Sunni Muslim who (until his departure from Afghanistan on 16 July 2001) has always lived in the village of Hazarkhil in Paktia Province.  The appellant arrived in Australia by boat without any visa documentation in approximately September 2001. 

3                     His claims in support of his application for a protection visa were as follows.  There had been for many years a vendetta between his family and another village family.  The other family had high-ranking members in the Taliban.  When the Taliban came to power someone reported to the Taliban that the appellant’s father had worked for the Mujahideen and that he had weapons.  The Taliban had searched for the weapons but found none.  They took away his father for about seven days and tortured him.  When his father was returned, he died as a result of his injuries.  The appellant and his brother had been in hiding since then (a period of about 4½ years).  The appellant’s brother had later been taken by the Taliban.  They had also tried to take the appellant and when he refused had beaten him.  The appellant had then escaped Afghanistan with the help of a smuggler.  The Taliban were still in his area.  He faced persecution by them for having been to a non-Muslim western country.  As his father had been accused of joining the Northern Alliance, he would be considered an enemy of the people in his area who were influenced by the Taliban.  His home area was not influenced by the Central Government and was predominantly Taliban.  The son of the former governor in his area, Nasrullah, was now in power and would be aware of his family and the accusations against them. 

4                     The appellant’s migration agents filed written submissions on his behalf to the respondent’s delegate to the effect that the situation in Afghanistan was still in a state of flux and presented a continuing danger for persons returning. 

5                     On 9 May 2002 the appellant’s migration agents filed further submissions with the Tribunal.  Those submissions reviewed current developments in Afghanistan including reports which were said to confirm that there was a high risk of instability in that country and that effective protection could not be afforded to the appellant at that stage.  They submitted that the appellant would face serious harm if returned to Afghanistan because of the ethnic clashes in Paktia.  Other reasons were given for this submission including a claim that the Taliban were regrouping to take advantage of the civil war. 

6                     On 13 June 2002 (the day of the Tribunal hearing) the appellant’s solicitors filed further submissions dealing with the then current situation in Afghanistan.  The submissions were accompanied by a report from Amnesty International Australia which referred to abuses against Pashtuns. 

7                     At the Tribunal hearing the appellant produced a letter from his maternal uncle in Afghanistan which referred to the personal danger which he feared from former Taliban members now in the new provincial government.  At the Tribunal hearing the appellant also claimed that his family had been blamed for the assassination of Nasrullah and consequently he feared harm from Nasrullah’s relatives. 

The Tribunal’s decision

8                     The Tribunal accepted that the appellant was a citizen of Afghanistan and that the Taliban had persecuted him and members of his immediate family for a Convention reason (political opinion).

9                     The Tribunal said that it was prepared to accept that the appellant was a member of a particular social group, namely his deceased father’s family.  However, for reasons which it gave, it said that it found his evidence at the hearing in relation to his fear of being persecuted by Nasrullah’s relatives to be unconvincing.  It also rejected his claims that he would face harm from the Taliban or former Taliban supporters in Paktia Province for a political reason, as being far-fetched.  In doing so, the Tribunal can be seen to have relied on independent country information.  It also rejected the assertions made in the uncle’s letter.  In particular, it rejected the assertions in the uncle’s letter that the appellant’s brother had, since the appellant’s departure, been taken away, tortured and threatened and that people from the local government had been recently asking the appellant’s mother about the appellant every day. 

10                  Based on its assessment of the country reports concerning the defeat of the Taliban, the Tribunal found that the Taliban were effectively eliminated as a political and military force in Afghanistan.  In the light of those reports and that finding and its specific findings in relation to the appellant, the Tribunal said that it was not satisfied that he had a well-founded fear of being persecuted by the Taliban or former members of the Taliban for reasons of political opinion or for any other Convention reason.  Furthermore, so it stated, it was not satisfied that he had a well-founded fear of being persecuted by Nasrullah’s relatives for reasons of his membership of a particular social group or for any other Convention reason. 

the proceedings at first instance

11                  The appellant was represented by counsel in the Federal Magistrates Court.  He raised grounds which asserted a breach of natural justice, bad faith by the Tribunal (or possibly only bad faith on the Minister’s part – it is not clear) in delaying the processing of his application and error of law.  The breach of natural justice claim is pursued in the appeal. 

12                  Her Honour applied the principles explained by the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 and found that there was no reviewable error. 

The grounds of appeal

13                  There were five grounds in the amended notice of appeal.  The first two grounds concerned natural justice. 

14                  The appellant contended that the Tribunal had relied on reports, one from the Washington Post Foreign Service dated 20 June 2002, and the other from the BBC dated 24 June 2002, as to the appointment of Mr Hamid Karzai as President of Afghanistan’s Transitional Authority and the appointment of his cabinet, to make a finding that the Taliban were effectively eliminated as a political and military force in Afghanistan.  This was a finding which was said to be central to the Tribunal’s reasoning. 

15                  These events which were the subject of these two reports occurred after the hearing before the Tribunal. 

16                  The appellant contended that in all the circumstances of his case, the failure to put these two reports to him for comment and/or to notify him that the Tribunal proposed to rely upon events that took place subsequent to the hearing (that Mr Hamid Karzai had been sworn in as President of Afghanistan’s Transitional Authority and had appointed a cabinet) amounted to a denial of natural justice such that the decision of the Tribunal was not a decision made under the Act for the purposes of s 474 of the Migration Act 1958 (Cth) (“the Act”). 

17                  Counsel for the respondent took me to the submissions which the appellant’s migration agent had made to the respondent’s delegate and also to the two respective sets of submissions made to the Tribunal by the same migration agent and a firm of solicitors who subsequently acted for him.  Counsel submitted that when the Tribunal made its findings that the Taliban were effectively eliminated as a political and military force in Afghanistan, this was not a fact or group of facts which the appellant had not addressed.  He submitted that the appellant had already put his material concerning “war lords, tribal division and banditry” to the Tribunal.  The appointment of Mr Karzai as President of the Afghanistan Transitional Authority and the other matters referred to in the two reports were not, so it was put, material to the appellant’s claims of being more particularly at risk because of the personal vendetta arising out of his father’s history and the vendetta with the Nasrullah family.  The updated information, so it was submitted, was not material to the appellant’s claims.  In particular, the rejection of the Nasrullah-based claim was, so it was submitted, “entirely independent of any changes in the interim government; it was freestanding of those background political events”.

18                  In his written submissions, the respondent argued that those matters could be “seen as essentially background, having regard to the nature of the appellant’s claims”.  The significant fact of the defeat of the Taliban (and whether the appellant was still at risk of persecution from them on return to Afghanistan) was, so it was put, in issue from the time of the decision of the delegate.  The appellant had addressed this issue at length in his various submissions to the delegate and to the Tribunal.

my reasoning in relation to grounds 1 and 2

19                  The hearing before the Tribunal was on 13 June 2002.  It received written submissions from the appellant’s advisors six days after the hearing.

20                  There is no doubt that the Tribunal subsequently relied on the Washington Post Report of 20 June 2002 and the BBC report of 24 June 2002.  It referred to the former report and quoted it extensively at pages 10 to 12 of its reasons and referred to the BBC report also at page 12.  When it came to make its findings and give its reasons it is quite clear that it relied on both these reports.  At p 17 of its reasons it said this: 

‘I also refer to reports that Hamid Karzai is now President of the Transitional Authority; that principal objectives of the Transitional Authority include the development of a representative and democratic Afghan Government, and addressing the problem of tribal and ethnic divisions amongst Afghan people; and that 12 Pashtuns have been appointed to the new Cabinet (reports from Washington Post Foreign Service dated 20 June 2002 and the BBC dated 24 June 2002).’

21                  A fair reading of this passage and the passage which preceded it discloses, in my opinion, that not only was the Tribunal relying upon these two reports to buttress its conclusion that the Taliban were effectively eliminated as a political and military force in Afghanistan but also as part of an assessment of what was being done to address the problem of tribal and ethnic divisions among Afghan people and Pashtuns in particular. 

22                  I do not accept the respondent’s submissions that the Tribunal’s conclusion that the appellant would not be at risk if returned to Afghanistan was entirely independent of the contents of the two reports dated 20 June 2002 and 24 June 2002 respectively.  In my view, the relationship between the reports and that conclusion is demonstrated, for example, by the Tribunal’s reference to the principal objectives of the Transitional Authority as including the matter of addressing the problem of tribal and ethnic divisions among Afghan people.  Those sorts of problems were at the heart of the appellant’s claims.  But his claims also depended upon fear of injury at the hands of former Taliban exercising political and military force in his Province.  The reports can be seen as containing updated and very recent information bearing on that matter also. 

23                  In my view, by not informing the appellant of this substantial new material on which it relied in making its decision, and by not giving him an opportunity to respond to that material, the Tribunal failed to accord him procedural fairness.  The appellant submitted that the Washington Post Report was equivocal in certain respects which he identified in paragraph 8 of his written submissions.  The appellant contended that the equivocal aspect of the reports would have been the subject of submissions if he had been provided with an opportunity to comment on them. 

24                  I consider that the material in the reports, being new material of which the appellant was unlikely to have been aware and which concerned circumstances that had changed not only since the date of application but since the date of the Tribunal hearing falls within the examples (and I acknowledge that they are simply examples) given by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at para [141] and the information concerning recent developments in Indonesia discussed in Muin v Refugee Review Tribunal (2002) 190 ALR 601 and in particular at [30], [64], [123], [134], [137] and [236]. 

25                  In my opinion, the failure to accord procedural fairness meant that the Tribunal acted in excess of jurisdiction: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.  In those circumstances its decision should not be regarded as having been made under the Act: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2at [76]-[78]. 

26                  In my view, the error could have affected the outcome of the case before the Tribunal.  The authorities show that where there has been a breach of the rules of natural justice, relief will normally be granted except where it is clear that the breach did not affect the outcome.  Some of the leading authorities are conveniently referred to at paragraph [84] of Hely J’s judgment in Commissioner of Taxation v La Rosa [2003] FCAFC 125. 

27                  In those circumstances it is not necessary to consider the other grounds of appeal.

28                  I do not think it is in the interests of justice for this matter to be remitted to the Federal Magistrates Court.  I think that this Court should grant the necessary relief without further delay in the processing of the appellant’s application for refugee status.

29                  For the foregoing reasons I propose to allow the appeal, set aside the orders made by the Federal Magistrates Court and substitute orders that the matter be remitted to the Tribunal for determination according to law.

Associate:

Dated:              13 June 2003