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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - procedural fairness - whether applicant had an adequate opportunity to address the question of changed circumstances in Afghanistan - whether the RRT failed to take into account relevant considerations concerning the risk to Hazaras in the applicant's home district - whether the RRT unfairly took into account country information that was not disclosed to the applicant.

SGDB v Minister for Immigration (No.2) [2003] FMCA 127 (28 May 2003)

SGDB v Minister for Immigration (No.2) [2003] FMCA 127 (28 May 2003)
Last Updated: 30 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SGDB v MINISTER FOR IMMIGRATION (No.2)
[2003] FMCA 127



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - procedural fairness - whether applicant had an adequate opportunity to address the question of changed circumstances in Afghanistan - whether the RRT failed to take into account relevant considerations concerning the risk to Hazaras in the applicant's home district - whether the RRT unfairly took into account country information that was not disclosed to the applicant.



Migration Act 1958 (Cth), ss.36, 65, 417, 424A, 474

Chan Ye Kin v Minister for Immigration (1989) 169 CLR 379

Minister for Immigration v Ibrahim (2000) 204 CLR 1

NAAV v Minister for Immigration [2002] FCAFC 228

NAEE v Minister for Immigration [2003] FMCA 105

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

SGDB v Minister for Immigration (No 1) [2002] FMCA 217

VAAC v Minister for Immigration [2003] FCAFC 74


Applicant:
SGDB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ230 of 2002



Delivered on:


28 May 2003



Delivered at:


Sydney, via telephone to Adelaide



Hearing Date:


7 April 2003



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Mr G Barrett, QC appeared pro bono publico



Solicitors for the Applicant:


Refugee Advocacy Service of South Australia



Counsel for the Respondent:


Mr M Roder



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The application is dismissed

.FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ230 of 2002

SGDB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 28 June 2002 and communicated to the applicants by letter dated 1 July 2002. The RRT affirmed a decision of the delegate of the respondent Minister not to grant to the applicants a protection visa. There are seven applicants: the principal applicant, his wife and five children.

2. The matter has a rather long and involved history. The applicants arrived in Australia on 15 January 2001. On 15 February 2001 they applied for protection visas under the Migration Act 1958 (Cth) ("the Migration Act"). A delegate of the respondent refused that application on 20 April 2001, and the delegate's decision was initially affirmed by the RRT on 23 July 2001. The applicants sought judicial review in the Federal Court of that decision of the RRT and on 8 February 2002, by consent, the decision of the RRT of 23 July 2001 was set aside and the application for review was remitted to the RRT for rehearing. The decision of the RRT currently before me for review was made following that rehearing.

3. This is the second time that I have heard the application. In SGDB v Minister for Immigration [2002] FMCA 217 I dismissed the application with no order as to costs. The applicants appealed against my decision to dismiss the application and the respondent appealed against my decision that there be no order as to costs. Prior to the hearing of the appeal, the High Court gave judgment in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2. Because I had based my decision to dismiss the application upon the decision of the Full Federal Court in NAAV v Minister for Immigration (2002) 193 ALR 449, His Honour Mansfield J allowed the appeal and remitted the matter to me to rehear it according to law.

4. I am aware of a difference of view in the Federal Court on the interpretation of the High Court decision. The issue, as I understand it, is whether the privative clause in s.474 of the Migration Act has any work to do once a jurisdictional error has been established. However, that issue only needs to be addressed if jurisdictional error is established.

5. On this occasion the application proceeded before me on the basis of an amended application filed on 4 April 2003. In that amended application the applicants assert that the RRT decision is vitiated by jurisdictional error in that the RRT did not observe procedural fairness in the hearing before it because no adequate opportunity was given to the applicants to address the question of the changed political circumstances in Afghanistan. In addition, it is alleged that the RRT did not take into account relevant matters and material filed on the applicants' behalf, such as the dangerousness for Hazaras in the area in which they lived.

6. At trial the applicants were represented pro bono by Mr Barrett. It is appropriate that I place on record the Court's appreciation for the willingness of counsel to appear on this basis. Mr Barrett, by leave, further amended the application orally to include an argument that the RRT breached the rules of procedural fairness by relying upon country information that was only accessed, or became available, after the RRT hearing and which was not disclosed to the applicants.

7. The applicants all applied for protection visas. They are from Afghanistan, and are of Hazara ethnicity and Shi'a Muslim religion. The principal applicant is the husband and I shall refer to him in the balance of these reasons as "the applicant".

8. The decision of the delegate and the first decision of the RRT in 2001 turned on the nationality of the applicant. The delegate and the first RRT did not accept that the applicant was from Afghanistan. They made adverse findings on credibility. After a lengthy hearing, the second RRT accepted the applicant as a credible witness. It therefore accepted, as he claimed, that the applicant was from Afghanistan and that the Taliban in Afghanistan threatened and beat him in about September 2000, and that the Taliban also sought to take away his eldest son, now aged about 17, to fight for them. The RRT accepted that the Taliban persecuted the applicant and threatened to persecute his eldest son so that each had a well founded fear of being persecuted by the Taliban because of their ethnicity and religion when they left Afghanistan. The RRT found that they continued to have a well founded fear of being persecuted for those reasons until the Taliban were effectively destroyed as a political and military force in Afghanistan.

9. In paragraph 7 of his decision, Mansfield J dealt with the critical findings made by the second RRT:

The issue then turned to whether, notwithstanding the Tribunal's finding that the Taliban no longer gave rise to a well-founded fear of persecution on the part of the appellant, he and his family still had such a fear. The appellant gave evidence at the hearing that he genuinely feared being persecuted by Pashtuns if he returns to his home district. That too was accepted by the Tribunal. However, as the Tribunal said, it is necessary to determine whether that fear is "well-founded" as explained by the High Court in Chan Ye Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, and Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1. The Tribunal referred to the changed political circumstances in Afghanistan since the appellant and his family had left that country. It referred to the composition of the new governing authority, and its avowed objectives. It noted that one of its objectives was to address the problem of tribal and ethnic divisions amongst Afghan people, and that two Hazaras and two Shi'as had been appointed to the new cabinet. It noted the extent of the international commitment to the establishment of a representative and effective government in Afghanistan. It also referred to reports of the Department of Foreign Affairs and Trade indicating Hazaras do not now face persecution upon return to an area where Hazaras form the majority of the population, including Oruzgan and in the district of Shahrestan in the Hazarajat region of Afghanistan, which is the area from which the appellant comes. It concluded:

"Consequently I am not satisfied that there is a real chance that the applicant will be persecuted by the Taliban or Pashtuns in the Shahrestan district of Oruzgan province for reasons of his Hazara ethnicity or Shi'a Muslim religion. I am therefore not satisfied that he has a well-founded fear of being persecuted in Afghanistan by the Taliban or Pashtuns. On the same basis, I am not satisfied that the second-named applicant (the eldest son) has a well-founded fear of being persecuted in Afghanistan by the Taliban or Pashtuns. The other members of the applicant's family were dependent upon the outcome of his application for the purpose of succeeding or otherwise in being granted a visa."

10. The RRT found that it was not satisfied that the applicant and his family are persons to whom Australia has protection obligations under the Refugees Convention and Protocol. Accordingly, they did not satisfy the RRT as to the criterion set out for the grant of a protection visa in s.36(2) of the Migration Act. Therefore, pursuant to s.65(1) of the Migration Act the RRT rejected their application.

11. The appeal book in the appeal before Mansfield J was put into evidence in these proceedings. In addition, the transcript of the second proceedings in the RRT was put into evidence.

Consideration and findings

12. The second RRT hearing was conducted over two days on 15 and 18 April 2002. All of the first day and a substantial part of the second day were taken up with the question of the nationality of the applicant. Part way through the second day the presiding member stated that she was satisfied that the applicant was from Afghanistan. She then identified the issue to be determined of whether the applicant's fear of returning to Afghanistan was well founded. Mr Barrett submits that from this point the RRT proceeding was unfair in that the applicant and his advisers were given inadequate time to make submissions about the changed political circumstances in Afghanistan and their relevance to the continuing fear of the applicant, and because the RRT relied upon country information which was not referred to at the RRT hearing and which was not disclosed to the applicant prior to the RRT decision. Mr Barrett also submits that the RRT erred in not referring at all in its reasons for decision to a substantial submission from the applicant's migration agent to the RRT on 8 April 2002 which referred to contemporary events in Afghanistan and the absence of effective State protection.

13. I accept, as did Mansfield J, that the agent's submission of 8 April 2002 was not referred to by the presiding member in her reasons. Rather, the presiding member relied upon two reports of the Department of Foreign Affairs and Trade, the first dated 2 April 2002 (CX 63508) and the second on the same date (CX 663521).

14. The presiding member acknowledged that the applicant had a subjective fear of returning to Afghanistan and rightly stated that the question for resolution was whether there was an objective basis for that fear sufficient to permit the RRT to find that the applicant's fear was well founded. In relation to document CX 63508 the presiding member said at page 127 of the appeal book:

[it] states that the security situation in [the applicant's home province of Oruzgan] continues to be uncertain, and there are reports of remnants of the Taliban or Al-Qaeda in the northern part of Oruzgan. Such reports provide some objective basis for the applicant's fear of being harmed if he returns there.

15. Nevertheless, the presiding member found that the available country information, in particular the two DFAT reports, established that the applicant's fear was not well founded, having regard to the substantial political changes that had taken place in Afghanistan. At page 128 of the appeal book the presiding member accepted the two DFAT reports as "authoritative" and said:

These reports indicate that, as an Hazara, the applicant would not face persecution on returning to an area where Hazaras form the majority of the population; that "there is a sizeable minority of Hazaras in Oruzgan"; and that "there have been no reports of violence or harassment against" Hazaras in Oruzgan. I also refer to the applicant's evidence that, although Pashtuns live nearby, he comes from an Hazara area of Afghanistan. That is consistent with the internet report on Hazarajat set out above that includes the applicant's district of Shahrestan in the Hazarajat region of Afghanistan.

16. While on first reading there appears to be inconsistency between the presiding member's initial finding that the first DFAT report provides some objective basis for the applicant's fear and her conclusion that his fear was not well founded, this is explicable on the basis that she must have concluded that there was less than a ten percent chance that the applicant would be persecuted should he return to Afghanistan. The presiding member clearly set out the correct test at page 127 of the appeal book. At paragraph 17 of his reasons for decision, Mansfield J stated that it is arguable that unless there was other material which enabled the RRT to take the step of saying that, in practical terms, there is no real chance that the applicant would be persecuted if he returns to his home province (that being the focus of the RRT's attention), the RRT may have erred in law by reaching its decision based upon a finding that something probably would not happen, rather than that there is no real chance of it happening, even though ultimately it expressed itself in those terms. In my view, a fair reading of the presiding member's reasons for decision indicates that she applied the correct test and that, although she was satisfied that there was some objective basis for the applicant's fear, in the light of the available country information, that objective basis was so small that it could be discounted.

17. In my initial decision in this matter I expressed some other concerns with the reasoning of the presiding member. I still have those concerns but, on reflection, I now consider that those concerns go to the merits of the decision, rather than the legality of it.

18. It is also arguable that the RRT in this case committed an error of jurisdiction in that the RRT proceeding was procedurally unfair. First, the bulk of the second hearing before the RRT was taken up with a consideration of the nationality of the applicant. It was only towards the end of that hearing that the presiding member announced that she accepted that the applicant was a credible witness and that he and his family were Afghans who were genuine refugees when they came to Australia. The applicant and his migration agent were given an opportunity at a late stage in that hearing to make oral submissions on the question of whether the applicant's fear of persecution was well founded in the light of changed political circumstances in Afghanistan. The presiding member did refer to the two DFAT reports at that hearing. However, the time available to make oral submissions was quite limited and the applicant was taken somewhat by surprise, given that the hearing had been largely taken up with an examination of his nationality and the credibility of his claims of persecution at the hands of the Taliban. In addition, the presiding member stated that she would deliver a decision within one week of the hearing, which would have dissuaded the applicant and his migration agent from seeking to make extensive further written submissions.

19. In my view, the short time available to address what turned out to be the real issue at the oral hearing before the RRT on 18 April 2002 does not itself establish procedural unfairness. The issue was clearly raised by the presiding member and the presiding member referred to the two critical DFAT documents. While the time was brief, the conduct of the hearing was fair. What is more important is what happened after the hearing.

20. As noted above, the migration agent had previously put in a written submission directed to the issue of changed circumstances in Afghanistan and would reasonably have expected that the presiding member would have referred to it. She did not. Rather, the RRT relied upon country information which, in large part, was not disclosed to the applicant (appeal book, pages 130-131). It is apparent from that document that many of the materials cited in the decision were either not in existence or not accessed until after the RRT hearing. Although the two DFAT reports were critical to the ultimate conclusion reached by the presiding member, in my view, all of the country information referred to by her in the reasons for decision was material in leading to her conclusion that the very substantial political changes in Afghanistan meant that the applicant's fear of persecution should he return there was not well founded. In my view, under the general law, the RRT was under an obligation to disclose to the applicant all of the country information which it proposed to rely on which had a bearing upon this critical issue: NAEE & Anor v Minister for Immigration [2003] FMCA 105. However, as I found in that case, s.424A of the Migration Act excludes the common law rules of procedural fairness in relation to country information. But for the operation of s.424A(3)

I would find that the decision of the RRT is vitiated by jurisdictional error by reason of procedural unfairness under the general law. The operation of s.424A(3) prevents that finding.

21. It was put to me by Mr Roder, on behalf of the Minister, that I had no evidence of what the applicant would have put to the RRT if he had been given a further opportunity. I disagree. In my view, it is clear from the available evidence that, if the applicant had been given the opportunity, he would have drawn attention to his migration agent's submission to the RRT on 8 April 2002, in particular relating to the absence of effective State protection outside of Kabul. The opportunity that the applicant lost was a real one but s.424A(3) protects the decision of the RRT.

22. The remaining question is whether the RRT committed jurisdictional error in failing to take into account a relevant consideration, namely the danger faced by Hazaras in the area in which the applicant lived. As I have already noted, there is no express reference to the submission by the applicant's migration agent about the absence of State protection and the continuing ethnic rivalries between Hazaras and Pashtuns in Afghanistan. In my view, however, the RRT did not fail to deal with that element of the applicant's claim. The presiding member said at page 127 of the appeal book:

I accept the applicant's evidence at the hearing that he genuinely fears being persecuted by Pashtuns if he returns to his home district. He explained that he held this fear because many Pashtuns lived in his area; because Pashtuns were effectively interchangeable with the Taliban; and because his adherence to the Shi'a Muslim religion sets him apart from the predominantly Sunni Muslim Pashtuns and their religious differences will continue to be a problem.

23. As I have already noted, the presiding member found some objective basis for the applicant's fear of being harmed if he returned to his home district. Nevertheless, the presiding member concluded, in the light of the available country information, that:

I am not satisfied that there is a real chance that the applicant will be persecuted by the Taliban or Pashtuns in the Sharashtan district of Oruztan province for reasons of his Hazara ethnicity or Shi'a Muslim religion.

24. Given that the presiding member concluded that there was no real chance of persecution for a Convention reason it was unnecessary for her to consider specifically the existence or non existence of effective State protection. The presiding member may have made factual errors in coming to that conclusion but that goes to the merits of the RRT decision, not its legality.

25. The presiding member noted humanitarian concerns relating to the return of asylum seekers to Afghanistan in circumstances of significant practical difficulties. She noted that the Minister, under s.417 of the Act, has the power to substitute a more favourable decision for that of the RRT when he considers that it is in the public interest to do so. In my initial decision in this matter I recommended that the Minister consider exercising that power. I do not need to repeat that recommendation.

26. I find that the RRT did not commit any error of law going to its jurisdiction, having regard to s.424A(3) of the Migration Act and, accordingly, I will dismiss the application.

Costs

27. The Minister seeks costs in the sum of $9,336.33. I declined to make a costs order in the first proceedings before me on 20 September 2002. Mansfield J, in remitting the proceedings back to this Court for rehearing, ordered that costs of the appeal be costs of the cause. In supplementary written submissions by way of letter dated 16 May 2003, Mr Leerdam, for the Minister, submits that a refusal of costs would be a denial of the respondent's entitlement.

28. There is, however, no entitlement to costs in favour of a successful party. There is an expectation but the matter is within the discretion of the Court. A costs order is opposed in further written submissions by Mr Barrett, noting that there is precedent for the proposition that there should be no order for costs in circumstances like the present: VAAC v Minister for Immigration [2003] FCAFC 74 at [40].

29. There will be no order as to costs. These proceedings came about because the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth necessitated a rehearing of the application for review in this Court. That was a factor beyond the control of either party. It would be unjust to require the applicant to pay the costs of this rehearing when the rehearing was necessitated by a change in the law as found by the High Court.

The detention of the applicants

30. This family of seven persons has been in immigration detention for nearly two and a half years. After six tribunal and court hearings their rights of appeal have not yet been exhausted. They can appeal from this decision to the Federal Court and may then seek special leave to appeal to the High Court if they are unsuccessful. In those circumstances they may remain in detention for a long time yet. The applicants and their legal advisers need to consider whose interests would be served by further legal proceedings, and how the interests of this family can best be served. In my view, the interests of the family are likely to be best served by their release from detention pending consideration of humanitarian issues, in particular the question of whether, and if so, when, it is safe for them to return to Afghanistan.

31. I had the opportunity to observe the family when they represented themselves on 20 September 2002. I saw the frustration and anguish in the faces. I heard it in their voices. It is likely that the family has been traumatised by their lengthy detention. I can only imagine the pressures that they are under and the difficulties of attempting to raise children in such an environment. They could hardly represent a threat to this country if released pending a final decision on their status. It would not be easy for a family to seven to disappear into the broader community. Surely someone could vouch for them so as to ensure their availability for removal should all avenues of appeal be exhausted, and a decision made that they must leave Australia. I leave that matter in the hands of the parties.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 May 2003
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