FEDERAL COURT OF AUSTRALIA

WAIA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 868

MIGRATION – protection visa – appeal from Federal Magistrates Court dismissing application for review of decision of Refugee Review Tribunal – after conclusion of hearing before it, Tribunal obtained and relied upon 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 – whether relevant part of Tribunal’s reasoning sufficiently discrete to be unaffected by procedural unfairness – whether breach could have affected outcome – discretionary grounds for refusing relief not established – 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 2 followed

WAIA OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W351 of 2002

CARR J

20 AUGUST 2003

PERTH

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.

REASONS FOR JUDGMENT

THE COURT:

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, made 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.  He is an Hazara and a Shi’a Muslim.  He was born in the sub-village of Qashaka, which forms part of the village of Qani, which in turn forms part of the village of Tamki in the Qara Bagh District of Ghazni Province.  The appellant is aged in his mid-thirties and worked as a builder and farmer in Afghanistan.  He lived in Qashaka until his departure from Afghanistan in May 2001.

3                     The appellant initially based his claim for a protection visa on the grounds of fearing persecution by the Taliban for reasons of his race and religion.  He gave details of a Taliban raid in his area approximately two weeks before he left Afghanistan.  The Taliban had gone to his family home, dug up the floor in search of weapons, destroyed the home and taken away his younger brother.  The appellant feared that the Taliban would send him to fight at the front line, or kill him if he refused to fight for them.

4                     The appellant also complained that Pashtun nomads in his area regularly beat up Hazaras with the compliance of the Pashtun regime in his province.

5                     The appellant said that he had fought with the Mujahideen against the Soviet Army when it occupied Afghanistan and had also supported parties in opposition to the Taliban by giving them food when they were in his area, and paying taxes to them.  The appellant said that his name was on a list of people wanted by the Taliban, that the Governor of Ghazni Province would have that list and would persecute him.  The appellant’s claims, made in a series of submissions as his application progressed, were broadly consistent. 

the Tribunal’s findings and reasons

6                     The Tribunal conducted a hearing on 17 June 2002.  The date is significant for reasons which appear below.  In its reasons the Tribunal accepted that the appellant was an Afghan national, that he was an Hazara and a Shi’a Muslim.  It also accepted that he had a well-founded fear of being persecuted by the Taliban for reasons of race and religion when he lodged his protection visa application on 14 November 2001.  The Tribunal found that the appellant was a credible witness and that he genuinely feared being persecuted by Pashtuns in Afghanistan because of his race and religion. 

7                     The Tribunal then turned to consider whether the appellant’s fear of persecution was “well-founded”.  In my view, it approached that question in accordance with the relevant authorities.  It is in the next stage of its deliberations that, in my opinion, it breached the requirements of procedural fairness.  That matter and whether there are discretionary considerations which would justify refusal of relief are considered later in these reasons. 

8                     The Tribunal considered the extent and impact of recent political changes in Afghanistan and the circumstances prevailing in his home province of Ghazni.  It concluded, in summary, that due to substantial political changed circumstances in Afghanistan the appellant did not face a real chance of being persecuted by Pashtuns in Ghazni Province for reasons of his Hazara ethnicity, his adherence to the Shi’a Muslim religion, or any other Convention reason. 

the decision at first instance

9                     The grounds of the application at first instance were stated as follows:

“The Applicant ethnically is hazara and religion is Shia muslim and from Afghanistan and persecuted by Pashtuns.  And in the new government and circumstence the Applicant still has well founded fear persecution and its too dangerous and risk for applicant to return back to Afghanistan.  The applicant seek protection from Honorable Member (sic).”

10                  Her Honour’s decision was given after the Full Court decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, but before the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. 

11                  Her Honour applied NAAV.  She found that there was no material before her to suggest that the Tribunal had not made a bona fide attempt to exercise the jurisdiction given to it.  She could find no lack of bona fides on the part of the Tribunal; its decision related to the subject matter of the legislation and was reasonably capable of reference to the power given to the Tribunal by the Migration Act 1958 (Cth) (“the Act”).  There had been no breach of an inviolable limitation upon the exercise of the Tribunal’s power.  Accordingly her Honour dismissed the application with costs. 

the appeal and MY reasoning

12                  The appellant was unrepresented, although a referral had been made in his favour under Order 80 of the Federal Court Rules.  The grounds of appeal were stated in the following terms: 

“I am not satisfied with the decision of federal court of australia, because it was unfair and unjustified. 

I am seeking for justice.  I hope that you will just with me and consider my case deliberately becuase my life is still in denger if I go back (sic).” 

13                  At the hearing the appellant submitted that the Tribunal had ignored his “real fear and problem”.  The problem was that two commanders, Commanders Shajan and Fazel, formerly allied with the Taliban had now come into power within the Hazara regime.  Those commanders belonged to the Harakat e Islami Party and had a history of collaborating with Qari Baba and Pashtuns in the area.  They were actively engaged against the Wahdat Party and its followers.  The appellant said that his name was on a list, in the possession of the two commanders, of armed persons co-operating with the Wahdat Party in Ghazni Province. 

14                  At the conclusion of the hearing, I made directions to enable the parties to file and serve further submissions on this matter.  Those submissions were duly filed, but it is not necessary for me to make any further reference to them. 

15                  In my opinion, the appellant’s assertion is not made out.  It is clear from the Tribunal’s reasons that it considered, but did not accept, this claim.  At p 6 of its reasons the Tribunal said this:

‘The applicant was questioned about his written evidence to the Tribunal that Qari Baba or his supporters would have his name on a list of names of people who were wanted by the Taliban.  He responded that Dr Shajan (a district commander) and Commander Fazel were members of the Harakat Islami and joined the Taliban.  They provided the list to the Taliban.  He knows that Dr Shajan and Commander Fazel would be working for Qari Baba now because they had the trust of the Pashtun people in the area.  He added that he had heard on the radio news and through people in the detention centre that there had been fighting in Qara Bagh between the Hezb-i-Wahdat and Harakat Islami; and that there had been a fight between Hazaras and Pashtuns, in which 16 people had been killed – over who would be the delegates to represent Ghazni Province in the new Afghan Government.’

16                  The following paragraphs appeared under that portion of the Tribunal’s reasons which was headed “Findings and Reasons”: 

‘Since the Taliban has lost political power in Afghanistan, the applicant has claimed that he fears being persecuted by Pashtuns, including Pashtun nomads and Qari Baba or his supporters.  He also fears being harmed as a result of fighting in Ghazni between the Hizb-i-Wahdat and Harakat Islami.  In addition, he views the Interim Government as fragile and unable to solve the ethnic and religious problems in Afghanistan.  His evidence at the hearing in these respects was detailed, articulate and spontaneous.  I therefore find that he was a credible witness and that he genuinely fears being persecuted by Pashtuns in Afghanistan because of his race and religion. 

. . .

I have been unable to find evidence to support the applicant’s evidence at the hearing that there had been fighting in Qara Bagh between the Hezb-i-Wahdat and the Harakat Islami; nor that people had been killed in Ghazni Province in fighting between Hazaras and Pashtuns in the lead up to the loya jirga.  Even if I accept that these incidents have happened, I do not accept them as sufficient to outweigh the evidence that I have accepted as establishing that the applicant does not face a real chance of being persecuted by Pashtuns in Ghazni Province.’

17                  Between those two paragraphs the Tribunal referred to the need for the appellant’s fear of persecution for a Convention reason to be well-founded.  It also referred to changed political circumstances in Afghanistan since the appellant left that country.  In doing so, at p 18 of its reasons, it referred to two reports, one dated 20 June 2002 from the Washington Post Foreign Service and the other a BBC News Report dated 24 June 2002 (“the Two Reports”), each of which reported events which had taken place after the Tribunal hearing.  In the course of assessing the changed political circumstances in Afghanistan, the Tribunal referred to those reports in the following terms:

‘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; that two Hazaras and two Shia’s have been appointed to the new Cabinet; and that Khalili has been appointed as one of three Vice-Presidents of the Transitional Authority (reports from Washington Post Foreign Service dated 20 June 2002 and the BBC dated 24 June 2002).’ 

18                  Not surprisingly, the appellant did not refer to this matter at the hearing of the appeal.  When I read the papers, the potential significance of the dates of these reports escaped me.

19                  However, about five weeks after the hearing, I heard an appeal in WAHT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 593.  The Tribunal’s decision in WAHT was given by the same Tribunal member on the same date as in this matter.  It also involved an Afghan refugee claimant, but he was of Pashtun ethnicity and a Sunni Muslim who had always lived in Paktia Province.  His appeal to the Federal Magistrates Court had been dismissed by the same Magistrate on the same date as in this case.  He was represented on the appeal by counsel appearing on a pro bono publico basis, who raised the matter of the Tribunal’s reliance on the Two Reports. 

20                  In WAHT I found that there had been procedural unfairness on the Tribunal’s part amounting to jurisdictional error which could have affected the outcome of the case before the Tribunal.  Accordingly I allowed the appeal in WAHT, set aside the orders made by the Federal Magistrate and substituted orders that the matter be remitted to the Tribunal for determination according to law. 

21                  Subsequently, in this appeal, I caused a letter to be sent to the parties referring to my decision in WAHT (and to two other cases) and inviting the parties to file and serve submissions. 

22                  The respondent filed submissions which can be summarised as follows:

·          the respondent acknowledged that a failure by the Tribunal to accord procedural fairness to an appellant for a protection visa would cause the Tribunal to act with an excess of jurisdiction, such that it had not truly made a “decision” under the Migration Act 1958 (Cth) (“the Act”);

·          the respondent did not assert that there was any evidence or material to suggest that the Tribunal had put either of the Two Reports to the appellant or his advisers for comment; and

·          the material question was whether the use of those reports by the Tribunal, in circumstances where the appellant was not given an opportunity to comment on them, may have affected the outcome of the application for a protection visa.

23                  The respondent submitted that in order for the Tribunal to determine whether the appellant had a well-founded fear of persecution, it was necessary for it to consider the extent and impact of recent political changes in Afghanistan and the circumstances prevailing in his home province of Ghazni. 

24                  As to the first matter, the Tribunal had made four main points, namely:

(i)         the Taliban were effectively eliminated as a political and military force in Afghanistan;

(ii)        by reason of the appointment of certain members to the Cabinet of the Interim Authority and the support pledged by Khalili, Hazaras and Shia’s were fairly represented on that authority;

(iii)       Hamid Karzai was now President of the Transitional Authority, the principal objectives of which included the development of a representative and democratic Afghan Government, addressing the problem of tribal and ethnic divisions amongst Afghan people, two Hazaras and two Shia’s had been appointed to the new Cabinet and Khalili had been appointed as one of the three Vice-Presidents of the Transitional Authority.  [This information was sourced from the Two Reports]; and

(iv)       there was unprecedented international commitment to the establishment of a representative and effective government in Afghanistan.

25                  The respondent submitted that the Tribunal had then considered, discretely, and rejected the prospect of the appellant being persecuted by Pashtuns in his local area, or in any area of Ghazni Province.  This distinct issue, so it was put, was unaffected by the existence of the Two Reports. 

26                  The respondent submitted that the Court could infer with confidence that, even if the findings of the Tribunal had not included the propositions listed in paragraph (iii) above, the Tribunal would still have concluded that, by reason of the extent and impact of recent political changes in Afghanistan, the appellant no longer faced a well-founded fear of persecution by reason of the political power of the Taliban.  The respondent contended that “quite aside” from the findings sourced in the contents of the Two Reports, the Tribunal was satisfied about the elimination of the Taliban, the mix of Hazaras and Shia’s in the Interim Authority, and the international commitment to representative and effective government in Afghanistan.  Further or alternatively, the appellant had ample opportunity to make submissions and comments on the circumstances in Afghanistan arising after the defeat of the Taliban, both before the primary decision-maker and before the Tribunal and had done so. 

27                  As I have mentioned, the Tribunal’s decision in this matter was made on 28 June 2002.  The Act was amended on 3 July 2002 by the introduction of s 422B which seeks to exclude the common law requirements of natural justice.  The amendment does not apply retrospectively – see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [30].  See also Applicant S194 of 2002 v Refugee Review Tribunal [2003] FCA 615 and VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678. 

28                  In my view, by not informing the appellant of the substantial new material in the reports, 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 information in the Two Reports was new material, of which the appellant was unlikely to have been aware, concerning circumstances that had changed not only since the date of application, but since the date of the Tribunal hearing.  It is similar to the examples given by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at par [141] and the information concerning recent developments in Indonesia discussed in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  I consider that the extent of the Tribunal’s failure to act in accordance with procedural fairness in this matter meant that it 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 2 at [76]-[78].

29                  I think that the respondent was correct in conceding that the only remaining issue was whether the use of the Two Reports by the Tribunal may have affected the outcome of the review before it. 

30                  I must say that I found the question a difficult one.  I acknowledge that the Tribunal dealt first with the elimination of the Taliban as a political and military force and then turned, using the words “in addition”, to the matter of whether the appellant faced a real chance of being persecuted by Pashtuns in Ghazni Province. 

31                  The factual circumstances might thus arguably be said to be relevantly different from those which applied in WAHT, where the Tribunal’s conclusion that the appellant in that case would not be persecuted in Paktia Province by remnants of the Taliban, was expressly linked to a finding that the Taliban had been effectively eliminated as a political and military force in Afghanistan, which in turn was based to some extent on the Two Reports. 

32                  In Muin v Refugee Review Tribunal at [140] McHugh J observed:

‘As this Court said in Stead v State Government Insurance Commission [(1986) 161 CLR 141 at 145],

    “It is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome.” 

I am not confident that the breach could have had no bearing on the outcome in this case.’

33                  Gummow J in Muin simply said that he would not withhold relief on any discretionary grounds [171].  Kirby J at [202] said:

‘Ordinarily, where an aggrieved party establishes a want or excess of jurisdiction, the writ of prohibition issues almost as of right.  In my view, there is no discretionary reason for refusing the plaintiffs the relief that they each seek.’

34                  See also Hayne J at [277].

35                  Each case must, of course, be decided on the facts peculiar to it.  The outcome of this case, for example, cannot be dictated by the outcome of WAHT.   

36                  I have given consideration to the use by the Tribunal of the words “in addition …” in this portion of its reasoning, but I are not satisfied that the information in the Two Reports to the effect that the Afghan government was addressing the problem of tribal and ethnic divisions among Afghan people played no part in its assessment of what was likely to happen in Ghazni Province. 

37                  On balance, I accept that it is quite possible that the Tribunal’s conclusion that the appellant would not face a real chance of being persecuted by Pashtuns in Ghazni Province was to some extent implicitly based on its overall assessment of the situation in Afghanistan, including the information in the Two Reports.  In short, I am not satisfied that the breach of procedural fairness to which I have referred above could not have affected the outcome of the case before the Tribunal.  Its decision should be quashed. 

38                  I do not think that the interests of justice would be served by remitting this matter 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.

Conclusion

39                  For the foregoing reasons I will 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:              20 August 2003