FEDERAL COURT OF AUSTRALIA

WACF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1385

WACF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND

INDIGENOUS AFFAIRS

W190 of 2003

CARR J

28 NOVEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.         Leave is granted to the applicant WACF to file and serve within 14 days a notice of appeal from the judgment of the Federal Magistrate’s Court, given on 29 May 2002, dismissing his application to review a decision of the Refugee Review Tribunal.

2.         Costs of the application to extend time to appeal be costs in the appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of a Federal Magistrate given on 29 May 2002.  The learned Magistrate dismissed the applicant’s application for review of a decision by the Refugee Review Tribunal delivered on 16 November 2001.  The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant to the applicant a protection visa. 

factual and procedural background

2                     The applicant arrived in Australia on 5 July 2001.  On 6 July 2001 he applied for a protection visa. 

3                     The applicant’s claims were as follows.  He was a citizen of Afghanistan, having been born in Ghazni, and was then aged about 20 years.  He was of Hazara ethnicity.  He worked as a servant in a mosque, had not gone to school and could not read or write.  The Taliban had come to his village about three years before his arrival in Australia and had taken his uncle who never came back.  The Taliban would not let people pray the Shi’a way.  One day his father had told him he would be sent to a foreign country.  He left with smugglers who took him to Pakistan, then to another country, said to be Indonesia, before coming to Australia.  He feared that he would be taken by the Taliban, put in gaol and forced to work or be killed, if he were returned to Afghanistan, because he was a Hazara. 

4                     An interview of the applicant on 12 July 2001 was tape-recorded.  In a letter dated 31 August 2001 from the respondent’s Department to the applicant and his advisers, they were informed of a linguistic analysis of the taped interview and the findings of that analysis.  Those findings included a comment that the applicant seemed to pretend illiteracy, that while his language background was Afghanistan, his pronunciation of some words indicated that he had lived a long time in other countries, most likely Pakistan, and that he was probably literate. 

5                     The applicant was later informed that responses to questions at the interview raised doubts about his claim to be a national of Afghanistan.  He was invited to comment.  Both his advisers and the applicant commented in response to those matters before the respondent’s delegate made his decision.

6                     The applicant was invited to attend the hearing before the Tribunal.  He did so.  His advisers also provided written submissions.  Those submissions included submissions relating to questions about the applicant’s lack of documentation, the issue of the language analysis, the applicant’s literacy, findings made by the delegate on the applicant’s credibility and the risk of persecution faced by him as an Hazara person and Shi’a Muslim in Afghanistan. 

the proceedings in the federal magistrate’s court

7                     The applicant was unrepresented at first instance.  He complained to the Federal Magistrate about the standard of interpretation both before his Honour and at the Tribunal.  His Honour was satisfied that the interpreter did in fact well and truly interpret what was being said by the applicant and others in Court.  As to the interpretation before the Tribunal, the applicant’s complaint was that the interpreter had not properly and fairly interpreted without bias the matters which he had raised.  His Honour found that there was insufficient evidence to establish any such bias. 

8                     His Honour’s decision was given shortly before the hearing of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.  He noted the then divergence of opinion about the application of s 474 of the Migration Act 1958 (Cth) (“the Act”).  His Honour held that even if he were to adopt an approach which would allow judicial review on the basis of jurisdictional error, no such error had been demonstrated in the reasoning and process of the Tribunal. 

the first appeal

9                     On 4 July 2002 the applicant filed an appeal from the judgment of the Federal Magistrates Court.  His grounds were stated as follows:

‘I’m throughly aggrived (sic) by the decision of RRT and Federal Court, because they haven’t consider (sic) my case seriously.  As well as I didn’t any lawyer (sic) in Federal Court and it is very difficult for me to discuss law things in Federal Court.  I don’t know anything about law.  I request with the Full Federal Court to reconsider my case.’

10                  On 28 August 2002, the Federal Court advised the parties that the appeal was listed for hearing on 11 October 2002. 

11                  On 7 October 2002, a Ms Lorna Thompson contacted the respondent’s solicitor by telephone and advised that she was assisting the applicant to obtain legal representation.  Ms Thompson sought the respondent’s consent to adjourn the hearing of the appeal. 

12                  On 8 October 2002, the following sequence of events took place:

(a)        Mr Julian Burnside QC telephoned the respondent’s solicitor and advised that Ms Thompson had sought his assistance to obtain legal representation for the applicant.  Mr Burnside enquired if the respondent would object to an adjournment of the hearing for five or six weeks so as to allow him to find a lawyer who would be willing to represent the then appellant.  The respondent’s solicitor informed Mr Burnside that she would obtain instructions from the respondent and revert to him.

(b)        The respondent’s solicitor then caused copies of the respondent’s outline of submissions and chronology to be faxed to Mr Burnside as well as a copy of the appeal papers which were sent by overnight courier.

(c)        Having received instructions from the respondent, the respondent’s solicitor advised Mr Burnside by email that the respondent would not consent to an adjournment of the hearing, but that if legal representation could be found for the then appellant, the respondent would be prepared to reconsider an application for an adjournment of the hearing.

(d)        An assistant to Mr Matthew Howard (a barrister in Perth) telephoned the respondent’s solicitor and advised that Mr Howard, at Mr Burnside’s request, had agreed to represent the then appellant at the hearing.

(e)        The respondent’s solicitor immediately caused to be delivered to Mr Howard copies of the respondent’s outline of submissions, chronology of events and appeal papers. 

(f)         Later that evening the respondent’s solicitor was notified by Mr Burnside that the then appellant had decided to discontinue his appeal. 

13                  The exchange of emails at that stage was as follows:

(a)    ‘Dear Teresa

After all that, I gather that Mr Hussain has agreed to withdraw his appeal. (!) I have told Matt Howard.’

(b)   ‘Sorry, Julian.  Didn’t quite understand your email.  Am I correct that Mr Hussain has decided to withdraw his appeal?  Can you confirm.

Regards

Teresa’

(c)    ‘Dear Teresa

That’s right.

Apparently he has had advice from somewhere that it is not worth pursuing.  It looks like reasonable advice.  Apparently he has signed a withdrawal.’

14                  On 9 October 2002 the respondent’s solicitor received a copy of a notice of discontinuance of the appeal which appeared to have been filed with the Court by the then appellant on that day. 

15                  On the same day the Court contacted the respondent’s solicitor and advised that it required the usual affidavit to be filed deposing to the fact that the then appellant understood the notice of discontinuance signed by him. 

16                  However, there was a strike at the Detention Centre at which the then appellant was held and no affidavit could be obtained prior to the hearing date. 

17                  On 11 October 2002, the parties appeared before French J.  His Honour sought and obtained confirmation from the then appellant through an interpreter that he wished to discontinue the appeal.  He then made the following orders:

‘1.        The appeal is discontinued. 

 2.        The appellant is to pay the respondent’s costs.’

18                  Over ten months later, on 18 September 2003, the present motion for leave to extend time to appeal was filed in this Court. 

the applicant’s submissions

19                  In a written outline filed on behalf of the applicant the following submissions were made:

·          when the applicant agreed to withdraw his appeal in October 2002, the prevailing view of the law and its interpretation by the Full Court in NAAV was that there was little likelihood of success in any challenge to a decision of the Refugee Review Tribunal;

·          on 4 February 2003 the High Court of Australia handed down its judgment in Plaintiff S157/2002 v The Commonwealth which, so it was submitted, significantly narrowed the interpretation of the “privative clause”; 

·          on 9 April 2003 Driver FM delivered a judgment in WAIO v MIMIA [2003] FMCA 114 in which it was held that an applicant who had not been provided with a copy of a linguistic analysis report or the analyst’s qualifications had been denied procedural fairness.  In that judgment his Honour had also referred to professional studies which had cast serious doubt on the credibility of the linguistic analyses being carried out on behalf of the respondent’s Department.  The linguistic analysis had been given significant weight by the Tribunal in the applicant’s case, but he had not been provided with a copy of the report or details of the analyst’s qualification; 

·          the applicant was not personally aware of these developments;

·          Mr Michael Jones, solicitor for the applicant, first received instructions from him in January 2003 to advise in respect of an application for a writ of habeas corpus.  He was not instructed to proceed with such an application; 

·          the significance of the judgment in WAIO to the applicant’s circumstances first came to Mr Jones’ attention in about July 2003.  He sought further instructions from the applicant, following which he obtained documents relating to the applicant’s original protection visa application and the proceedings in the Tribunal;

·          following consideration of the “professional sources” referred to in WAIO and the documents received from the applicant’s former solicitors, Mr Jones obtained instructions from the applicant in late August 2003 to make the present application;

·          it has at all times been “difficult and time consuming” to obtain instructions from the applicant due to his continued detention at Port Hedland and due to language difficulties; and 

·          the applicant’s claim to be eligible for protection in Australia was rejected largely on the basis of “evidence” that has been comprehensively dismissed by eminent Australian and international linguistic experts.  The applicant will contend that he was denied natural justice by not being given a copy of the analysis or details of the expert’s credentials.  Those are matters which, so it is put, raise serious issues of justice in the case and call for the Court to exercise its discretion to allow the appeal to be heard.

20                  Mr Jones swore an affidavit in support of the motion.  In that affidavit Mr Jones deposes to having received instructions in early April 2003 from the applicant to give advice in relation to the applicant’s immigration status and the prospects of obtaining a visa to remain in Australia.  Mr Jones says that he provided the applicant with some advice by letter on 24 April 2003.  He later obtained further instructions from the applicant by telephone, in early May.  The applicant informed him that he had “appealed” from the decision of the Tribunal to the Federal Magistrate’s Court and then to this Court, but had discontinued the latter appeal. 

21                  Mr Jones then sought information about the history of the applicant’s case from his former solicitors.  The solicitor who had acted for the applicant in the Tribunal had since formed his own firm.  It was not until after 16 July 2003 that Mr Jones received a copy of the applicant’s file, a copy of the judgment of the Federal Magistrate in this matter and certain other information. 

22                  Mr Jones deposes to the fact that due to pressure of other work he was not able to give the applicant’s file any “in depth attention” until the end of August 2003.  On reading the decision of the Tribunal in detail, he says that it appeared to him that the Tribunal may never have put to the applicant that he was in fact a citizen of Pakistan.  On 5 September 2003 he spoke to the applicant by telephone and asked him whether the Tribunal had ever told him that it thought he was a citizen of Pakistan.  The applicant had said no.  In response to Mr Jones’ question what he would have done if he thought that the Tribunal believed him to be a citizen of Pakistan, the applicant said: 

‘I would have asked my lawyer, or tried myself, to contact the Pakistani authorities to try to get evidence that I was not a citizen of that country.’ 

23                  Mr Jones appeared by videolink at the hearing of the motion and made oral submissions in relation to the matters of delay and whether there were arguable grounds for the proposed appeal. 

Respondent’s submissions

24                  The respondent submits that there is no sufficient explanation for the delay to September 2003 in bringing this motion so as to justify an extension of time. 

25                  The respondent also submits that the applicant has not demonstrated that his appeal has sufficient prospects of success to make it just that he should now be allowed to proceed with it. 

26                  The respondent submits that the Court should exercise its discretion to dismiss the application for an extension of time. 

my reasoning

27                  My jurisdiction to hear this application is conferred by s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth).  The applicable rule in the Federal Court Rules is Order 52 rule 15(2) which relevantly provides that a judge may, for special reasons, give leave to file and serve a notice of appeal, notwithstanding an applicant’s failure to file and serve a notice of appeal within the times referred to in Order 52 rule 15(1). 

28                  It is customary to resort to the most useful decision of a Full Court of this Court in Jess v Scott (1986) 12 FCR 187 when deciding applications such as these.  But, as the Full Court in that case was at pains to point out (at 196), a discretion to relax the requirements of general rules should not itself become entangled in a web of rules spun out of the Court’s discretionary decisions.  Their Honours added: 

‘Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case.’ 

29                  As Jess v Scott shows, a special reason is one that takes the case out of the ordinary (see p 195). 

30                  The authorities cited by the respondent show that the Court is required to consider whether the applicant has demonstrated that his appeal may have sufficient prospect of success to make it just that he or she should now be allowed to proceed with it: W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13] RD Nicholson J; Atkinson v Commissioner of Taxation [2000] FCA 998 at [3]. 

31                  I have previously, in cases where an applicant has only been a few days out of time and had not received a copy of the reasons in good time, declined to require him to show a reasonable prospect of success or a good arguable case before being granted an extension of time in which to lodge a notice of appeal – see WABD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 299 and WABX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 300.  I did so in reliance upon the observations of Ackner LJ (with Robert Goff LJ and Browne-Wilkinson LJ concurring) in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 at 521, a case cited with approval by the Full Court in Jess v Scott at 192. 

32                  I accept the submission made by Mr J D Allanson, counsel for the respondent, that I must take into account the circumstances in which the abovementioned appeal was dismissed and what he described (with some justification) as the very long delay between early April 2003 and the filing of this motion.  I take those matters into account, but, on the other hand, I also take into account the following factors on the other side of the scales: 

(a)        four months after the applicant discontinued his appeal, the High Court explained, in Plaintiff S157/2002, that the scope for judicial review of decisions such as this one is far wider than was thought when the applicant elected (on advice) to discontinue that appeal;

(b)        at all material times the applicant has been in immigration detention, does not speak English and was not legally represented until Mr Jones took up the matter;

(c)        the delay between April and September 2003 was not the applicant’s fault, it was due first to the delay in obtaining his file from his former solicitors and then it was the fault of Mr Jones.  Mr Jones accepted responsibility for that subsequent delay.

33                  In my view, the delay has been explained, but I consider that the circumstances of the very considerable period of time which has expired since the Federal Magistrate’s decision, the circumstances which led to the discontinuance of the appeal before French J, and the subsequent delay, require me to consider whether the applicant has demonstrated that he has sufficient prospects of success to make it just that he should now be allowed to proceed with an appeal.  I now turn to that question.  

34                  In accordance with the usual practice, the applicant has lodged a draft notice of appeal which sets out the following grounds:

‘1.        The decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 November 2001 was so unreasonable that no reasonable person could have made it.

 2.        There was no evidence for finding of the Tribuanl (sic) that the Appellant was “most probably a Pakistani national’. 

 3.        The Tribunal denied the Appellant natural justice.

 4.        The Tribunal failed to comply with the requirements of s 359A [at the hearing Mr Jones foreshadowed an amendment so that this would read s 424A] of the Migration Act 1958 in relation to the Appellant.’

35                  Mr Jones told me that proposed ground 1 was not basic to the applicant’s proposed appeal. 

36                  I think it is fair to say that Mr Jones’ submissions focussed on proposed grounds 3 and 4. 

37                  In relation to proposed ground 3 Mr Jones made two points.  First the Tribunal’s “finding” that the applicant was a national of Pakistan was never put to him.  Secondly, there were at least two taped interviews with the applicant.  He had only been given the tape of an interview on 12 July 2001, which was not the tape used for the linguistic analysis. 

38                  In relation to proposed ground 4 the applicant would contend, if granted leave, that the particulars of information which s 424A required the Tribunal to give to him would include the qualifications of the linguistic analyst and the methodology employed. 

39                  I have examined the appeal papers which were filed in the proceedings before French J.  They contain a copy of the language analysis.  They confirm, as I have mentioned above, that on 31 August 2001 the respondent’s Department sent a letter to the applicant summarising the analyst’s comments.  A copy of that letter was sent to the applicant’s then solicitors.  On 4 September 2001 those solicitors, under cover of a letter of that date sent what they described as “copy language analysis” to the applicant and advised that the matter was urgent and that they would be contacting him with an interpreter within the next few days to obtain his response.  For present purposes I will work on the assumption that the linguistic analysis was the summary contained in the letter from the respondent’s Department.  On 5 September 2001 the applicant’s then solicitors forwarded a detailed response to the analyst’s conclusion that the applicant had been living for a long time in other countries, most likely in Quetta, Pakistan and that he was probably literate.  On 7 September 2001 they forwarded to the respondent’s Department a copy of the applicant’s own response. 

40                  When the matter was pending before the Tribunal the applicant’s then solicitors filed detailed submissions which included four pages of submissions in response to the linguistic report. 

41                  On the present state of the evidence I think that there may be some substance in the contention that the Tribunal has not complied with the requirements of s 424A of the Act.  That section relevantly provides that the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review.  Presumably the Tribunal felt that the applicant had been put on notice already by the respondent’s Department. 

42                  Furthermore, I think that it is reasonably arguable that s 424A requires the Tribunal to provide an applicant with particulars of the qualifications of the person who undertook the analysis.  Mr Allanson submitted that the Tribunal had made very limited use of the linguistic analysis.  That may be so, but I think that it is strongly arguable that the linguistic analysis was part of the reason for affirming the decision under review. 

43                  The Tribunal’s reasoning is, to say the least, somewhat troubling.  But that, of course, may not prevent its decision from having been made under the Act.  The reasoning was as follows:

‘I am satisfied that the Applicant arrived in Australia by boat in June 2001.  He did not have any documents or proof of identity.  He is able to speak and understand Dari.

I note that the Applicant claims to be an Afghani national.  He states that he is a Hazara and a Shi’a Muslim.  The Applicant has the appearance of a Hazara.

I am satisfied that the Applicant is a Hazara and Shi’a Muslim. 

I note the information above.  I am satisfied that many Hazara, especially young men, face a risk of persecution in Afghanistan.

I now turn to the Applicant’s nationality. 

I note that the country information reveals that there are many Hazara in Pakistan as well as in Afghanistan.  Many of the Hazaras in Pakistan have Pakistani nationality. 

I note that the Applicant has no documentary evidence of his nationality.  He used a passport to travel to Indonesia but states that the smuggler took from him there.

I note the evidence of the linguistic analyst that the Applicant’s language background is in Afghanistan but that he has been in Pakistan for a long time.

I note that the Applicant has serious gaps in his knowledge for someone who claims to have been living in Afghanistan until recently. 

He really had no knowledge of or familiarity with the calendar used in Afghanistan.  He could not name the months and did not know the year of his birth or the current year. 

I note that, despite claiming that the Taliban came to his area some years ago, the Applicant could not describe the Taliban flag or the clothes worn by the Taliban soldiers. 

I note that the Applicant claimed to be illiterate but also stated that he could read the Koran.  I found the Applicant’s evidence to be evasive and unconvincing on this point.  I am not satisfied that he is illiterate. 

I also note the Applicant’s account of his journey to Australia.  I found his evidence evasive on these matters.  I am not satisfied that the Applicant has been frank. 

When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made.  This may involve an assessment of the credibility of the applicant. 

The Tribunal is not required to accept uncritically any and all allegations made by an applicant.  In addition, it is not necessary for the Tribunal to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  Moreover, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J.  See also Shu Min Pan v MIMA, (unreported, Federal Court 23 January 1997 RD Nicholson J at p 10), Chan per McHugh J at 428 and Kopalapillai v MIMA (1998) 86 FCR 547. 

I also note that the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status indicates that it is often necessary to give an Applicant the benefit of the doubt, but that the benefit of the doubt should only be extended after the Applicant has made a genuine effort to substantiate his story. 

I am satisfied that the Applicant has been evasive at times.  Certainly he was not frank and open about his journey to Australia, though this may be due to fear of reprisal from the people smugglers who assisted him.  I am not satisfied that his account of his journey is true. 

I also note that the Applicant has little knowledge of the Taliban or of life in Afghanistan.  This is inconsistent with his claims to have recently left Afghanistan and is much more consistent with a young man who has lived for some time in Pakistan.

Having heard the Applicant’s evidence and considered the above I am not satisfied that he has recently left Afghanistan as he claims.  I am satisfied that the Applicant has been in Pakistan for some considerable time. 

I considered whether the Applicant may nevertheless be an Afghani national, albeit one who has lived in Pakistan for some time but does not have effective protection there.

The opinion of the linguistic analyst that the background of the Applicant’s language is Afghani is at least consistent with a finding that the Applicant or his family have come originally from Afghanistan.  However the gaps in the knowledge which could be expected of a twenty year old Afghani suggest that the Applicant has been living elsewhere since early childhood. 

The available evidence is also consistent with a conclusion that the Applicant and his family have been long term residents of Pakistan and have had Pakistani nationality for some time.  It is quite possible that the Applicant has travelled to Indonesia on his own legitimate Pakistani passport, which he has left there or otherwise disposed of. 

I am not satisfied, on the evidence available to me, that the Applicant is an Afghani national.  I consider that he is most probably a Pakistani national.  I note that the Applicant made claims only regarding his claimed Afghani nationality.

I am not satisfied that the Applicant has a well founded fear of persecution in his country of nationality.’

44                  In view of my conclusion that the applicant has an arguable natural justice ground of appeal, I do not think that it is appropriate, at this stage, to make any further criticism of the above reasons. 

45                  In my view, the materials before the Court show that the applicant has a sufficiently arguable case to make it just that he should now be allowed to proceed with an appeal.  I consider that the circumstances which I have described above constitute special reasons within the meaning of Order 52 rule 15(2). 

46                  I think that there should be an order giving the applicant the leave which he seeks.

Associate:

Dated:              28 November 2003