FEDERAL COURT OF AUSTRALIA

SZTSC v Minister for Immigration and Border Protection [2017] FCA 1032

ORDERS

THE COURT ORDERS THAT:

1.    The applicant/appellant is given leave to rely upon the amended notice of appeal filed on 10 August 2016 raising additional Grounds 2, 3 and 4.

2.    The orders of the Federal Circuit Court of Australia made on 17 March 2016 dismissing the applicant/appellant’s application to that Court and ordering the applicant/appellant to pay the costs of the first respondent fixed in an amount of $6,646.00 are set aside and in their place the constitutional writs of mandamus and certiorari issue quashing the decision of the Refugee Review Tribunal of 5 December 2013 and directing the questions in issue before that Tribunal (now the Administrative Appeals Tribunal) to be determined before the Administrative Appeals Tribunal according to law.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal and the appellant’s costs of the proceeding before the Federal Circuit Court of Australia.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from a decision of the Federal Circuit Court of Australia (the “Federal Circuit Court”) by which that Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 5 December 2013: SZTSC v Minister for Immigration & Anor [2016] FCCA 543. By the time of the Federal Circuit Court decision on 17 March 2016, statutory changes had come to pass by which the functions of the Refugee Review Tribunal had become those of the Administrative Appeals Tribunal.

2    The Tribunal on 5 December 2013 affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the applicant a Protection (Class XA) visa under the provisions of the Migration Act 1958 (Cth) (the “Act”).

3    The question before the Federal Circuit Court was whether the applicant had made good his contention that the Tribunal had fallen into jurisdictional error in reaching or purporting to reach that decision in the exercise of the review jurisdiction conferred upon the Tribunal under s 414 of the Act. For that purpose, the Tribunal in reviewing an “RRT-reviewable decision” was entitled under the Act to exercise all the powers and discretions conferred by the Act upon the Minister (decision-maker): s 415 of the Act.

4    Because the Tribunal’s decision was made on 5 December 2013, the question of whether the Tribunal fell into jurisdictional error was a question to be determined by the Federal Circuit Court having regard to the statutory framework governing the exercise of the statutory review function at the date of the Tribunal’s decision (subject to any statutory changes purporting to operate otherwise).

5    These proceedings also engage another question which is whether the applicant appellant ought to be given leave to rely upon three grounds of appeal raising questions which were not raised before the Federal Circuit Court.

6    The solicitors for the Minister appearing on the hearing of the appeal (Ms Blake of Clayton Utz), contend that leave to rely upon the new grounds ought to be refused on the footing that the appellant has failed to demonstrate that the proposed new grounds have “clear merit”. The solicitors for the Minister do not assert that the Minister will suffer any prejudice should leave be granted. Rather, the contention is confined to the proposition that not only has the applicant appellant failed to demonstrate the “clear merit” of the new grounds, but that the proposed new grounds are of “doubtful merit”. These terms “clear merit” and “doubtful merit” as used by Mr Chami (of Clayton Utz) in the written submissions are drawn from the observations of the Full Court in Vaux v Minister for Immigration (2004) 238 FCR 588 (“Vaux”).

7    In Vaux at [46]-[48], the Full Court (Kiefel, Weinberg and Stone JJ), said this in the context of the principles governing applications for leave to amend to raise new grounds of appeal (with particular reference to “migration matters”):

46.    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47.    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48.    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

8    A number of contextual things should be noted about “migration matters” and the application of the principles governing leave to rely upon grounds of appeal going to matters not raised before the primary court.

9    First, it is not clear whether the use of the emphatic term “clearly” in [48] or the use of the terms “clear merit” and “doubtful merit” is used for rhetorical effect or is intended to convey the notion that there are “degrees of merit” that might be apparent upon analysis of the material with the result that the qualitative bar an applicant appellant needs to hurdle is one of showing that the proposed new grounds have “clear” or “manifest” or “plain” merit. The use of such phrases might be intended to convey the idea that it is not good enough or sufficient (which it is not) to simply demonstrate that the proposed grounds are “arguable”. Merit is an absolute term. The proposed new grounds are either shown to “have merit” or not. It is not clear what might be added to the analysis by casting the burden as one of showing “clear” merit or some other emphatic description of the absolute. Nevertheless, it has become accepted to describe the test to be applied as one of showing “clear merit” and I therefore adopt that taxonomic reference.

10    The use of emphatic terms such as “clear” to describe the degree of merit to be shown on an application for leave might also be intended to convey the idea that, at the threshold of the application, the merits of the grounds must be so pronounced or so clear, so manifest or so plain that there can be no real doubt, at all, that the interests of justice require an opportunity to be afforded to an applicant appellant to rely upon the new grounds. In other words, the question of whether leave ought to be granted or refused ought not to engage a great deal of analysis as it ought to be plain and clear almost from the very outset. However, in order to properly consider and determine whether leave ought to be granted or refused it is necessary to examine the merits of the contended ground in order to be satisfied just exactly how the interests of justice, in a particular case, are to be served. The granting or refusal of leave would ordinarily follow that consideration.

11    It seems to me that the approach is to ask and examine whether the contended grounds “have merit” (that is, clear merit). If so an “explanation” for the failure to raise those grounds before the primary court needs to be put before the Full Court. In the context of those two things, the Full Court needs to consider whether any “prejudice” is suffered by the respondent by the grant of leave. These three considerations need to be weighed in the balance according to the circumstances of each individual case.

12    Second, the tests described at [7] have emerged, not surprisingly, in the context of inter-parties adversarial litigation and whilst, of course, the proceedings before the Federal Circuit Court involve adversarial proceedings as between an applicant and the Minister (with the Tribunal a necessary second respondent), it should be remembered that those proceedings are, first, concerned with questions of jurisdictional error in the context of a person’s application to a very particular kind of Tribunal conducting a review function which is not itself adversarial and, second, the jurisdiction sought to be invoked is, if properly invoked, a jurisdiction which “secures a basic element of the rule of law”: Plaintiff S 157 v Commonwealth (2003) 211 CLR 476 at [5], Gleeson CJ.

13    Third, the questions in issue before the Federal Circuit Court ultimately go to whether the Tribunal’s statutory review function under the Act has miscarried in a jurisdictional sense. If so, the grant of the constitutional writs (and the grounds upon which the writs might go) is the mechanism by which an applicant seeks to secure a review before the Tribunal, according to law. The opportunity and entitlement of an applicant to have a review of the decision of the Minister’s delegate, according to law, is a step by which an applicant seeks to make good a right to the grant of a protection visa on the footing that the Tribunal ought to be able to reach the statutory state of satisfaction, according to the criteria, contemplated by s 36(2) of the Act, and in particular, relevantly, s 36(2)(a) or s 36(2)(aa) (or both), on the merits, on the basis of all the material put before the Tribunal. Section 36(2)(a) of the Act is, of course, concerned with whether the Minister (and in the context of a review before the Tribunal whether the Tribunal exercising powers conferred upon the Minister) is satisfied (as a pre-condition to the obligation to grant a protection visa under s 65 of the Act) that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (each of which is more fully described at [14]). Section 36(2)(aa) is concerned with whether the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer “significant harm” as that term is understood for the purposes of s 36 of the Act.

14    Fourth, the question before the Tribunal, in the exercise of its review function, as to whether it can reach the relevant state of statutory satisfaction goes to whether an applicant can make good, on all the material before the Tribunal, a claim to a protection visa in the context of the adoption into the domestic law of Australia (according to the relevant statutory integers) of relevant aspects of the Convention relating to the Status of Refugees made at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees made at New York on 31 January 1967 to which, in both cases, Australia is a signatory.

15    Fifth, in migration cases it is often the position that the applicant suffers from two particular difficulties.

16    First, the applicant often has no real facility in the use of the English language which is the language of the Tribunal, the Federal Circuit Court and all other Courts in Australia. Thus the services of an interpreter are very often required in order to assist an applicant before the Tribunal and the Federal Circuit Court and then before this Court. Often the language of the applicant will be the language of a particular region within a country requiring an understanding on the part of the interpreter of a particular dialect.

17    Second, an applicant often finds it difficult to obtain timely legal advice or legal advice at all. A number of lawyers, very commendably, provide their support to applicants (on a range of bases), seeking to assert rights according to law in this area of Australia’s jurisprudence. Sometimes, however, it can be difficult for applicants, even with some limited legal assistance, to frame coherently a ground of challenge at first instance to a decision of the Tribunal or to comply with the timeframes for taking particular steps.

18    Notwithstanding these considerations it is nevertheless necessary for applicants seeking leave to rely upon new grounds of appeal to explain the reasons for not having raised the questions sought to be agitated on appeal, in the proceedings at the outset before the Federal Circuit Court: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101], per Jessup J.

19    I now propose to examine whether the proposed new grounds have clear merit and whether the failure to raise the questions now sought to be agitated is properly explained. As mentioned earlier, the solicitors for the Minister do not assert any prejudice in granting leave to rely upon the new grounds. Having regard to the grounds now sought to be agitated, it is necessary to examine the way the claims were framed before the Tribunal, the findings of the Tribunal and the treatment of particular matters by the Tribunal. Before doing that, a number of matters should be mentioned to identify the context within which the questions arise.

20    On 7 April 2016 the appellant filed a notice of appeal from the decision of the Federal Circuit Court. The only ground relied upon by the appellant was this:

The Court fell into jurisdictional error in not considering an integer of the Applicant/Appellant’s claim in respect [of] being an amputee.

21    On 10 August 2016 the appellant filed an amended notice of appeal in which the appellant continues to rely upon the ground previously raised but also seeks to rely upon these additional grounds.

22    First, (Ground 2), the Federal Circuit Court fell into jurisdictional error in not setting aside the decision of the Tribunal as having been made beyond jurisdiction in circumstances where the standard of interpreting provided at the Tribunal hearing was inadequate such that:

(a)    the appellant was effectively prevented from giving evidence and presenting arguments in relation to certain issues arising in relation to the decision under review,

(b)    the appellant was unable to be accorded procedural fairness on aspects of his claim ultimately determined adversely to him, and

(c)    errors were made that were material to conclusions reached adverse to the appellant.

23    That ground is framed in an odd way. The real point is that the Federal Circuit Court is said to have erred by failing to recognise the contended jurisdictional error on the part of the Tribunal. The Federal Circuit Court did not itself fall into jurisdictional error. I will reframe Grounds 3 and 4 to put each ground on the footing that the Federal Circuit Court erred in failing to recognise the contended jurisdictional error on the part of the Tribunal rather than, as framed, a contention that the Federal Circuit Court itself fell into jurisdictional error.

24    Second, (Ground 3), the Federal Circuit Court erred by failing to recognise jurisdictional error on the part of the Tribunal in circumstances where the Tribunal failed to properly consider “the integer of the appellant’s claim that related to his status and individual circumstances as a ‘Hazara Shia’”. In the course of the oral hearing, counsel for the appellant sought to add these words after the quoted words “and a failed asylum seeker”. Particulars of Ground 3 are given. The first particular is that, at para 68 of the Tribunal’s decision, the Tribunal made a series of “clearly wrong and/or transposed factual findings” when considering the appellant’s claim relating to his status as a “Hazara Shia”. The incorrect transposed factual matters include these observations at para 68 of the Tribunal’s reasons:

When the substance of this information was put to the applicant for comment at hearing he referred to a situation in Kabul where a government minister had said that he would remove an university director of social sciences from his position because he had billeted Hazaras.

25    None of these factual matters relate to the circumstances of the appellant.

26    The Tribunal also said at para 68, of the matters recited at [24] of these reasons, this:

Whilst this may be true and the country information indicates that there is still societal discrimination against Hazara Shias, this matter would seem to have no direct relevance to the 68 year old applicant and his individual circumstances.

27    The evidence shows that the applicant was born in 1982 and was not, at any relevant time, a “68 years old applicant”.

28    Also at para 68, the Tribunal said this:

In his comments, the applicant also referred to the situation of Hazaras in other areas of Afghanistan (such as Bamiyan) but I find these are [of] limited relevance to his situation in Kabul. That the applicant has not made any claim that he has ever previously been harmed or threatened in Kabul supports my findings.

[emphasis added]

29    Again, the appellant’s evidence did not include any evidence of a situation concerning Hazaras in the area of Bamiyan.

30    Further, the appellant says that the Tribunal, at para 68, fell into factual error in considering the individual circumstances of the appellant by observing that the appellant had “not made any claim that he has ever previously been harmed or threatened in Kabul”. The Tribunal member observed that that factual matter “supports my findings”. The Tribunal, at para 62, had recognised that the appellant had claimed that an incident had occurred in Kabul one night where there was an attack on his house (and men on the roof of his house) during which weapons were fired with four to five rounds striking the house. Further elements of that claim are set out at para 62. The appellant contends that the observation at para 68 quoted above makes it plain that the Tribunal was talking about circumstances relating to some other person. The appellant’s claim about an attack upon him or an attempted attack upon him at his house was also a claim made before the delegate who had accepted that element of the claimed events.

31    Third, (Ground 4), the Federal Circuit Court erred in failing to find jurisdictional error on the part of the Tribunal “in circumstances where the Tribunal below made unreasonable, irrational and/or clearly wrong factual findings in considering the evidence of the appellant and the integer of the appellant’s claim that related to his status and individual circumstances as a “Hazara Shia”. Again, the appellant’s counsel, Mr Lawrence, in oral submissions sought to add the following words to that ground, “and a failed asylum seeker”.

32    In the course of the argument the appellant’s counsel treated Grounds 3 and 4 together.

The Tribunal’s decision

33    Before the Tribunal, the appellant made the claims described at [34]-[52] of these reasons.

34    The appellant claimed to be a Hazara Shia born in 1982 in Marak in the district of Markazi Behsud in the province of Maidan Wardak in the country of Afghanistan. He is married and has four daughters. He received two years of education and the Tribunal notes that he claimed to have worked as a shop assistant, weaver, driver and car dealer. The Tribunal observes that the appellant moved to Kabul in 1989 and resided in Marak during winter seasons.

35    The appellant’s father was a soldier in the communist controlled Afghan Army for 10 years before being killed in 1990 (when the appellant was around 7 or 8 years of age) in Maidan Shahr by a man from the appellant’s village who was a member of the Mujahadeen Party (Harkat-e-Islami). The majority of the members of the village supported the Mujahadeen Party. The appellant’s father was not popular in the village because of his connection with the communist controlled Afghan Army. After his father’s death, government officials visited the appellant’s home and sought information from the family as to the whereabouts of a particular person who I will describe as “Z”. Later, when the appellant was 20 years of age, he learned that Z was the man responsible for his father’s death. The Tribunal records the circumstances under which the appellant came to learn of that matter.

36    The appellant contended that he wanted to pursue charges against Z by putting an application before the courts. However, he was warned off by his maternal uncle and village elders who told him that Z still exercised power in the village and with the present government. The appellant contended that he had attended the District Council to file a complaint against Z and was told that Council authorities would need to arrest Z if a complaint was to be filed. The Council officer said that the matter would be pursued and although the appellant attended the Council a number of times and was told that the matter was being pursued, it became apparent to the appellant that nothing was being done.

37    The Tribunal notes that in 1995, during the Civil War in Afghanistan, the appellant was injured by a mine and lost his left leg from the knee down: para 25.

38    The Tribunal also notes that in 2003 the appellant started a business as a mini-bus driver transporting passengers between Kabul and Jalrez in Maidan Wardak. The appellant claimed that he made this journey up to five times a month. Travel was slow due to the condition of the roads. The journey became more dangerous. He said that he regularly came under attack during the journey and the areas he travelled through were largely Pashtun.

39    He told the Tribunal that at the beginning of 2010 he was travelling from Behsud to Kabul when his mini-bus came under weapons fire in the area of Band-e Mamaki. He sustained severe bruising and cuts. A number of passengers were also injured and became unconscious. The bus was driven to Kabul by one of the passengers: para 27.

40    The appellant claimed that a few months after these events his house was attacked at night and the attackers fired shots at the house. He said that after these two incidents he suspected that Z was behind both events. He told the Tribunal that he believed this to be so because people from his mother’s village had said that Z had admitted responsibility for the attacks.

41    He said that villagers would often abuse him openly because of his father’s past allegiances with the communist controlled Afghan Army, and due to the complaint he had made to the Council about Z. The appellant claimed to fear for his safety in the course of travel between Kabul and Wardak province. He said that every summer the Kuchis descended upon his village and they would “pilfer and loot”. He said that he has land in Marak and Kabul and has nowhere else to go. His village used to have 70 houses, but now only has three.

42    The Tribunal notes that the appellant claimed to fear that he would be suspected of having converted to Christianity or Buddhism and feared being accused of having abandoned his culture and religion.

43    The appellant also claimed to fear harm based on his membership of a particular social group as “a failed asylum seeker returning from a Western country”.

44    As to the appellant’s native tongue, the appellant speaks Hazaragi. The appellant appeared before the Tribunal “with the assistance of an interpreter in the Hazaragi and English languages and was represented by a registered migration agent”.

45    As to the injury referred to in para 25 quoted above, these further references occur in the material before the Tribunal. In the appellant’s statutory declaration in English translated from the Hazaragi language by an interpreter, the appellant recites the matter set out at para 25 by the Tribunal but also states that since the injury, he has used a prosthetic leg.

46    In a report of a psychologist, Dr Toofan Hamidi, of 14 December 2012, Dr Hamidi observes that the appellant is a person “suffering from a physical disability (left leg amputated) [who] has been having difficulties [finding] a job and has not been able to support his family financially”.

47    In the delegate’s Decision Record of 29 July 2013, further details are recorded in these terms:

In 1995, during the civil war, the applicant was running from his house in Kabul due to fighting and was injured by a mine. He lost his left leg from the knee down. He received extensive treatment through an International Red Cross hospital in Kabul, and has used a prosthetic leg since.

48    In the transcript of the record of interview between the Tribunal member Mr Corrigan and the appellant (an exchange conducted with the assistance of an interpreter) on 26 September 2013, the appellant explains that when the incident which caused the loss of his leg occurred, Kabul was under rocket attack although the appellant could not be sure whether he was injured by a bomb blast or injured by shrapnel as a result of the rocket attack. The appellant said that the incident occurred about 18 or 19 years ago, a few days after the Taliban entered Kabul. The event occurred during a period when warlike actions were occurring in the form of tribal fighting between the Pashtun and the Hazari: Appeal Book (“AB”) pp 91-92; 100-101.

49    In the course of the hearing on 26 September 2013, the Tribunal asked the appellant whether there was anything further that he wished to add and, on this topic, the appellant said at AB 130:

I just want to tell you that I had really a very hard life in Afghanistan. I lost my, my leg. I can’t work on my land. I lost everything there. I really suffered a lot.

50    He also said this at AB 131:

[indistinct on the oral recording] Your country – new like prosthesis that they make for me. I, I’m really happy for and I am very grateful for that. Now I have a [leg], now I have a leg to walk [on].

51    As to independent country information, the Tribunal had regard to a report dated 6 August 2013 entitled UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (the “Report”) which discusses the security conditions in Afghanistan at the date of the report, and potential risk profiles. The report is said to identify individuals who are members of minority ethnic groups, including Hazaras, whose circumstances require careful examination in determining the possible risks to which they are exposed. The Tribunal notes and quotes a number of aspects of the Report including these observations:

The security situation in Afghanistan remains unpredictable, with civilians continuing to bear the brunt of the conflict. The Center for Strategic and International Studies has noted that, “There are few prospects of anything approaching local security in much of Afghanistan until long after 2014.

…

Shia representation in government has increased, and overt discrimination by Sunnis against the Shia community has reportedly decreased. However, violent attacks targeting the Shia population continue to occur; for example, a double attack in Kabul and Mazar-e Sharif in December 2011, apparently targeting Shias, killed at least 58 people. It should be noted that in Afghanistan ethnicity and religion are often inextricably linked, especially in the case of the Hazara ethnic group, which is predominantly Shia. As a result, it is not always possible to distinguish clearly between a risk on the ground of religion and a risk on the ground of ethnicity.

52    As to the circumstances confronting Hazaras, the Tribunal identifies these matters in the Report (among others):

Hazaras have also been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse. Pashtuns are reportedly increasingly resentful of the Hazara minority, who have historically been marginalized and discriminated against by the Pashtuns, but who have made significant economic and political advances since the 2001 fall of the Taliban regime. Nevertheless, Hazaras have accused the Government of giving preferential treatment to Pashtuns at the expense of minorities in general and Hazaras in particular. Hazaras are also reported to continue to be subject to harassment, intimidation and killings at the hands of the Taliban and other AGEs.

The findings of the Tribunal

53    The Tribunal accepted that the appellant was born in Behsud Maidan Wardak province and that he lived there for some years of his life. The Tribunal accepted that he (his family) has a property there and that his immediate family are residing there. The Tribunal accepted that the appellant has spent time, over the years, living there and that it constitutes a home area for him. The Tribunal observes that the appellant provided considerable evidence of his time and connection to Kabul, as well. In his protection visa application he recites that he lived in Marak in winter, and Kabul, in summer. It recites that the appellant was educated in Kabul from 1989-1991 and that he was self-employed as a carpet weaver in Kabul from 1994-2003, and self-employed as a car dealer in Kabul from 2011-2012.

54    The Tribunal observes that at the hearing, the appellant said that he had lived in Kabul for six to seven years and that in the period 1994-2003 when he lived in Kabul, he would also go to Behsud. These circumstances caused the Tribunal to suggest to the appellant that Kabul also seemed to be a home area for him. He said that if he were to go to Kabul, he could not travel to and from Behsud because his car would be stopped and he would be killed. In his submissions, the appellant said that he considered his home area to be Behsud and not Kabul. Nevertheless, the Tribunal concludes, on the evidence before it, that Kabul was a home area for the appellant and his claims were to be assessed taking into account the home area of Kabul.

55    The Tribunal accepted that the appellant’s father was a soldier in the Afghan Army (when under communist control) before being killed in 1990 by a man from his village called Z who was a member of the Mujahadeen Party; that the appellant’s father was not very popular in the village because of his connection to the former communist Government; that the applicant had been consistent in these claims and his account was plausible having regard to the violent conflict that existed at that time between the pro-Soviet communist Government and the Mujahadeen.

56    The Tribunal did not accept that the appellant had made any complaint to anybody in authority concerning the death of his father in 1990.

57    The reasoning was that the Communists had lost power in Afghanistan in 1992 and the two key political parties in Wardak province were Hezb-e-Wahdat and Harekat-e Islami which were both former Mujahadeen parties. The first received support from Iran during the Soviet invasion. The second was a Shia party who fought the Soviet authorities. The Tribunal observed that the appellant’s father had been killed approximately two decades ago and that it was “far-fetched” that the appellant would have believed that the pro-Mujahadeen authorities in Wardak province would have attempted to bring a person responsible for the death of a former communist soldier to justice, many years later.

58    The Tribunal put the notion that the appellant’s contended belief was “far-fetched” to him. He responded that he thought that the government was a “good government” and that given his experience of life in Kabul, he thought the local authorities would take action and that Z would be arrested. As to that response, the Tribunal said this at para 58:

I do not accept the applicant’s explanation as according to his claims he had lived for a substantial period of his life in his village in Wardak and I do not accept that he could be so ignorant of the political and historical situation there. Given [Z’s] influence with the local authorities [and that] he would have no reason to fear the applicant, I do not accept that [Z] targeted the applicant in the way that he has claimed or that the applicant is of any adverse interest to [Z].

59    At para 59 the Tribunal accepts that the appellant’s vehicle was attacked in 2010 when he was transporting people between Kabul and Jahrez. The Tribunal did not accept that these events occurred at the instigation of Z. The Tribunal notes that at the hearing the appellant claimed that Z had told the Taliban that the appellant was transporting foreigners and goods and that Z was linked to the Taliban. In later submissions the appellant contended that Z was a member of the Taliban. As to these matters the Tribunal said this at 59:

I do not accept that these are plausible or credible explanations. As put to the applicant for comment at the hearing, the applicant had claimed that [Z] was a Hazara involved with Harekat-i-Islami (a Shia enemy of the Taliban) and it was therefore very unlikely that they would be acting in concert together. In response, the applicant said that [Z] was a cruel person who had an association with the Taliban. I further expressed doubt to the applicant about his claim given there was evidence that the Taliban were targeting people assisting the foreign forces and NGOs and that it would be inconsistent that they would allow [Z] to do so.

60    As to these matters, the Tribunal made these findings at para 59:

I do not consider the applicant’s explanations to be at all adequate or plausible as they are inconsistent with country information concerning the relationship between the Taliban and Harakat-i-Islami and those who assist foreign forces and NGOs. Further as put to him for comment at the hearing, the applicant’s account that the vehicle shooting incident was instigated by [Z] is inconsistent with his claim that [Z] was a very powerful man in the area who could have targeted the applicant directly rather than having the Taliban shoot at a passenger bus with 18 innocent people aboard. I do not find the applicant’s explanation that [Z] did this so he would not be blamed as they were related to be plausible or credible in the circumstances.

61    On this question of plausibility and credibility, the Tribunal added this at para 59:

Additionally, country information indicates that the Taliban systemically targeted civilians who are associated with or perceived as supportive of the government and international community and I find that his claim that [Z], a Hazara was working with the Taliban (and is a member of them) to be doing exactly that and that he was then able to get the Taliban to target the applicant to be implausible and a claim that I do not accept in the light of this country information and [Z’s] Hazara ethnicity and Harakat-i-Islami membership and claimed high level of influence in the local government of the province.

62    At para 60, the Tribunal accepts that the appellant’s vehicle was attacked by the Taliban whilst travelling between Kabul and Maidan Wardak province and that the appellant was injured. The Tribunal finds, however, that the appellant “can avoid this harm by not travelling on the roads outside Kabul”. That finding seems to be based on the notion that the appellant need not travel outside Kabul because “[o]n his own evidence he did not travel outside Kabul after the shooting incident and instead he worked as a car dealer in Kabul and he has previously worked there as a weaver”. The Tribunal at para 60 adds this:

I do not accept that the applicant faces a real chance of serious harm in the reasonably foreseeable future as he can avoid this harm (as he has done in the past) by not transporting persons or goods between the two areas or otherwise travelling outside the capital including to Wardak province … Given his work history in Kabul, I find that not transporting goods and people on the roads outside Kabul would not constitute serious harm to him such as a denial of the capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist under s 91R(2) or serious harm more broadly.

[emphasis added]

63    At para 61, the Tribunal makes the following further finding:

Considering his circumstances and the evidence overall, I further find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Afghanistan that there is a real risk that he will suffer significant harm on these roads.

[emphasis added]

64    The appellant relies upon an aspect of para 62 of the Tribunal’s reasons as suggesting that the Tribunal failed to engage with the appellant’s “individual circumstances” in reaching aspects of its findings. The point made about para 62 is that it recognises a claim made by the appellant in relation to threats of harm made upon him at his residence in Kabul. In para 62 the Tribunal says that it does not accept that the incident occurred or that Z was behind it. Even though that conclusion is reached, the paragraph is said to recognise that claims were made by the appellant and thus on the Tribunal’s own reasoning there is an inconsistency between para 62 and the matters asserted in the last sentence of para 68 as described at [28] of these reasons. Paragraph 62 is in these terms:

The applicant has claimed that there was an incident at his home in Kabul one night where there was an attack on his house when there were men on his roof and that they fired 4-5 bullets into the house. He stated at the hearing that he did not see them and that he did not hear them say anything. He stated that he had heard through a relative that [Z] had said that he did not want any of [the appellant’s] family to be alive. I do not accept that this incident occurred or that [Z] was behind it. For the reasons, set out above I do not accept that [Z] has any adverse interest in the applicant and I find it far-fetched that he would be motivated to have sent armed men to the applicant’s house located far away from Behsud to harm him and his family.

[emphasis added]

65    At para 65, the Tribunal concluded that the appellant would not face a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia. The Tribunal recognised, in this context, that the UNHCR had recently observed that “a particularly careful examination of the possible risks” confronting members of minority ethnic groups, including Hazaras, is necessary.

66    The Tribunal also observed that Hazaras had made significant economic and political advances since the fall of the Taliban in 2001 although “Hazaras are also reported to continue to be subject to harassment, intimidation and killings at the hands of the Taliban and other AGE’s”: para 65. Also, “sometimes” ethnicity or religion is a contributing factor in the conduct of insurgents, including the Taliban, towards individuals: para 66. The Tribunal notes observations of the Department of Foreign Affairs and Trade (“DFAT”) that the Hazara Community was “not being persecuted on any consistent basis”: para 66. The Tribunal notes that in DFAT’s report of 2 July 2013 the observation is made that “Hazaras continue to face societal discrimination but not in a systemic way”: para 66. Also at para 66, the Tribunal says this:

Considering the totality of these reports, I accept that there are some incidents where Hazaras have been targeted by the Taliban and that ethnicity (and religion) is sometimes a contributing factor. However, I do not accept that all Hazaras in Afghanistan face a real chance of persecution in the reasonably foreseeable future and I find that it is necessary to consider Hazara cases in their individual circumstances.

[emphasis added]

67    At para 67, the Tribunal takes into account particular attacks in Kabul where Shias were targeted and concludes that while these attacks were “horrific” their unprecedented nature and lack of Taliban involvement meant that these circumstances did not alter the Tribunal’s assessment that “all Hazara Shias do not face a real chance of persecution, now or in the reasonably foreseeable future …”.

68    At para 68, the Tribunal then considers the “individual circumstances” of the appellant consistent with its observation at para 67 of an obligation to do so. In this paragraph, the Tribunal makes the factual observations quoted at [24] and [26] of these reasons, which do not relate to the individual circumstances of the appellant. Further incorrect factual observations are made at para 68, quoted at [28] of these reasons, and, importantly, the Tribunal observes that those matters “support” the findings of the Tribunal. In other words, the errors were material to the decision.

69    I am satisfied that the Tribunal has reached a conclusion that it cannot be satisfied that the appellant has a well-founded fear of persecution as a Hazara Shia should he return to Afghanistan, on the basis of incorrect facts entirely unrelated to the “individual circumstances” of the appellant in circumstances where those incorrect facts were material to the decision reached by the Tribunal (because it says those facts support its findings). Similarly, I am satisfied that on the basis of incorrect facts entirely unrelated to the individual circumstances of the appellant and material to the decision, the Tribunal has reached a conclusion that it cannot be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm, and thus Australia does not owe protection obligations to the appellant.

70    In proceeding in this way, the Tribunal has failed to discharge the statutory review function required of it and has fallen into jurisdictional error. Sometimes, this is said to be a “constructive failure” to discharge the review function. However, that term is inappropriate because, in these circumstances, there is an actual failure to discharge the statutory review function and thus jurisdictional error arises.

71    Accordingly, I am satisfied that appeal Ground 3 has “clear merit”.

72    As to the injury suffered by the appellant, the Tribunal accepted that the appellant “suffered a very serious injury 19 years ago in which his leg was amputated when he was hit by a bomb during fighting in Kabul between the Taliban and the Mujahadin”. However, because the event occurred “a long time ago”, it seemed to the Tribunal “remote” that “a similar incident would happen again”. The Tribunal accepted that there were “mines” in Behsud. The Tribunal also accepted that injury to the appellant’s family from such mines “could occur to them”. However, the Tribunal was assessing the appellant’s “prospects in Kabul”, not Behsud. Thus, the Tribunal at para 69, concluded:

Given the country information concerning the situation in Kabul, I find that the chance that he will be severely harmed or significantly harmed in Kabul in a manner to which he was in the mid-1990s to be remote.

73    The Tribunal considered it “speculative” that the Taliban might “regain power” and thus be in a position to assert power in Kabul. Thus, at para 70, the Tribunal said this:

I find that he does not face a real chance of persecution from the Taliban or any other group on account of his race or religion now or in the reasonably foreseeable future in Kabul.

74    Also, at para 70, the Tribunal said this:

Considering the evidence overall, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the [applicant] being removed to Afghanistan that there is a real risk he will suffer significant harm in Kabul.

75    This finding is said to be reliant upon a consideration of “the evidence overall” which includes reliance upon the incorrect facts recited in para 68 of the Tribunal’s reasons which are said to support the Tribunal’s decision.

76    I also accept that in considering the “individual circumstances” of the applicant (consistent with the factual inquiry the Tribunal said it was purporting to conduct), as a Hazara in Afghanistan, should he return to Kabul, the Tribunal did not take into account the circumstances of the appellant as an amputee reliant for mobility on a prosthetic limb attached below the knee.

77    At [104], the Federal Circuit Court said this:

I am not satisfied that a claim was made or arose squarely on the material before the court (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27: [2004] FCAFC 263 at [65]-[68]) that the fact that the Applicant was an amputee gave rise to either a Refugees Convention or a complementary protection claim or made him particularly vulnerable. The evidence before the Tribunal as to the Applicant’s life in Afghanistan after he suffered this injury (including his employment as a carpet weaver, driver and car dealer and the presence of his family in Kabul) was not such as to raise a claim on the material before the Court that the Applicant’s acknowledged disability made him vulnerable either to serious harm or, as contended in oral submissions, significant harm within the complementary protection criterion. There was no suggestion on the material or evidence before the Tribunal that men using a prosthetic leg below the knee faced some greater hardship than the population generally. There was no contention or material before the Tribunal such as to suggest that there was some particular social group consisting of amputees.

78    The Tribunal recites the fact that the appellant was injured by a mine and lost his left leg from the knee down in 1995 during the civil war. The Tribunal also described that injury as a “very serious” one. Other references in the material before the Tribunal refer to the injury and give emphasis to it. I accept that there was no obvious or expressly identified claim before the Tribunal that the appellant’s disability made him vulnerable either to serious harm or significant harm within the complementary protection criterion. However, it seems to me, that there is enough material before the Tribunal to warrant the Tribunal considering in its reasoning the implications of the appellant having suffered a very serious injury and being reliant for his mobility in protecting himself, upon a prosthetic leg. I cannot see that consideration weighed in the reasoning leading to the Tribunal’s conclusions.

79    In any event, for the reasons earlier identified, I am satisfied that the Tribunal fell into jurisdictional error.

80    It is not necessary to address the grounds in relation to the services of the interpreter.

81    I now turn to the question of the explanation of the failure to raise these matters before the primary court.

82    As to that matter, the appellant relied upon an affidavit of Mr Thomas McLoughlin. Mr McLoughlin says this. He is the pro bono solicitor for the appellant in these proceedings and he has been on the record since 3 August 2016. He was the pro bono solicitor for the appellant in the Federal Circuit Court proceedings. However, he did not file the notice of appeal in this matter. Rather, that document was filed by the appellant. As to the amended notice of appeal dated 10 August 2016, Mr McLoughlin says that the reasons for seeking leave to argue grounds not argued before the Federal Circuit Court include these matters.

83    The appellant has limited English. Accordingly, he has relied, as has Mr McLoughlin, in the Federal Circuit Court proceedings, on Dr John Sweeney who was employed until early 2016 as a staff member at Edmund Rice Centre (“ERC”) in Homebush West in providing refugee support services. Dr Sweeney assisted the appellant and Mr McLoughlin in obtaining interpreter services to give instructions to Mr McLoughlin. Mr McLoughlin understands that Dr Sweeney was reliant upon funding being available to the ERC in order to continue providing services and from early to mid-2016 (June) funding was not available and thus, Dr Sweeney has not been available to the appellant and Mr McLoughlin since June 2016. Accordingly, the appellant suffered delay in seeking further expert advice from counsel in relation to the appeal due to the unavailability of Dr Sweeney. In late April 2016, a Hazara colleague of the appellant with good English skills contacted Mr McLoughlin’s office. The Hazara friend was able and willing to support the appellant in relation to matters concerning the appeal which had been lodged by the appellant acting on his own behalf.

84    In April 2016, Mr McLoughlin spoke with Mr Paul Bodisco of counsel. That led to a discussion with Mr Peter Kondich of counsel and then discussions with Mr Stephen Lawrence of counsel. On 27 April 2016, Mr McLoughlin attended a conference with Mr Lawrence, the appellant and his Hazara friend which resulted in Mr McLoughlin seeking instructions from the appellant through his Hazara friend to retain an accredited interpreter to review the standard of the interpreting services provided at the Tribunal hearing. The aim of the exercise was to address the difficulties arising out of the multi-lingual environment in Afghanistan and to address issues in relation to the quality of the services which had been made available. In the course of that conference, the participants listened to an audio recording of the Tribunal proceedings and it became apparent that the interpreter providing services in the course of the hearing was speaking in the language “Dari” rather than “Hazaragi”. As a result of that matter, Mr McLoughlin requested the appellant and his Hazara friend to listen to the transcript with an accredited interpreter.

85    The appellant has no income and lives on charity. Because he has limited English he has limited capacity to earn income.

86    In late July 2016, Mr McLoughlin was contacted by the appellant through his Hazara friend with news that an accredited interpreter, Mr Salman Jan, was available to meet with Mr McLoughlin.

87    Mr McLoughlin met with Mr Jan on 4 and 5 August 2016. Mr Jan provided a statement and affirmed an affidavit in relation to the work of the interpreter in the Tribunal hearing. The affidavit was filed and served on 5 August 2016. Mr McLoughlin was instructed that the appellant appeared before the Tribunal on 26 September 2013 from Sydney via an audio-visual link to the hearing room in Melbourne and, further, that the interpreter provided services over the telephone from a location remote from the appellant.

88    On 8 August 2016, Mr Lawrence advised that the affidavit of Mr Jan provided a proper basis for an amendment to the notice of appeal and an application ought to be made to amend the notice of appeal. On 10 August 2016, counsel advised that further appeal grounds should be added having regard to the apparent factual errors appearing at para 68 of the Tribunal’s decision.

89    The notice of appeal filed by the appellant was filed on 7 April 2016. The proposed amended notice of appeal was filed on 10 August 2016.

90    As Mr McLoughlin deposes, he was the solicitor for the appellant in the proceedings before the Federal Circuit Court. The ground the appellant seeks to rely upon concerning the errors appearing at para 68 of the Tribunal’s decision was sought to be introduced on the recommendation of counsel. As to the errors relating to the services of the interpreter, Mr Jan has put on an extensive affidavit about those matters. Relevantly, that affidavit sets out contended errors in the interpretation of statements made by the appellant in response to questions put to him in the course of the Tribunal hearing. These difficulties were compounded because the appellant appeared before the Tribunal in the way earlier described and the interpreter provided services over a telephone from a location remote from the appellant.

91    As to these matters, I am satisfied that the circumstances properly explain why it is that the appellant has only raised on appeal issues in relation to the services of the interpreter. I am also satisfied that the question in relation to the factual errors on the part of the Tribunal has arisen because counsel, having looked at the matter, has appreciated that there is an issue as to whether the Tribunal has failed to discharge the statutory review function in all the circumstances.

92    In relation to the question concerning the services of the interpreter, I am satisfied that leave ought to be given to amend the notice of appeal to raise those grounds. I find it unnecessary, however, to address those grounds.

93    In relation to the question concerning the errors in para 68 of the Tribunal’s reasons, I am satisfied that leave ought to be given to raise those matters as they have clear merit, the issue arose as a result of counsel examining the matter in all the circumstances described in Mr McLoughlin’s affidavit and no prejudice is suffered by the Minister in giving leave to amend to raise the ground.

94    The interests of justice require leave to be given.

95    Accordingly, the decision of the Federal Circuit Court dismissing the appellant’s application to that Court is to be set aside and in its place the constitutional writs of mandamus and certiorari are to issue quashing the decision of the Tribunal and directing the Tribunal to re-determine the appellant’s application according to law. The first respondent is to pay the appellant’s costs of the appeal and the appellant’s costs of the proceeding before the Federal Circuit Court.

Associate:

Dated:    4 September 2017