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MIGRATION - Review of RRT decision - protection visa - whether actual bias or apparent bias - whether Tribunal made a jurisdictional error or failed to accord procedural fairness - no reviewable error disclosed - credibility of evidence - application dismissed.

WAFF v Minister for Immigration [2003] FMCA 145 (17 April 2003)

WAFF v Minister for Immigration [2003] FMCA 145 (17 April 2003)
Last Updated: 6 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAFF v MINISTER FOR IMMIGRATION
[2003] FMCA 145



MIGRATION - Review of RRT decision - protection visa - whether actual bias or apparent bias - whether Tribunal made a jurisdictional error or failed to accord procedural fairness - no reviewable error disclosed - credibility of evidence - application dismissed.



Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural & Indigenous Affairs v JIA (2001) 178 ALR 421

Muin and Lie v Refugee Review Tribunal [2002] HCA 30

NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31

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

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

R v Watson; Ex parte Armstrong (1976) FLC 90-059

SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65

SCAA v the Minister for Immigration and Multicultural Affairs [2002] FCA 668

Applicant:
WAFF



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 86 of 2002



Delivered on:


17 April 2003



Delivered at:


Melbourne



Hearing date:


17 June 2002



Judgment of:


Connolly FM



REPRESENTATION

Counsel for the Applicant:


Mr Christie



Solicitors for the Applicant:


Christie & Strbac



Counsel for the Respondent:


Mr Allanson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The applicants application filed 1 March 2002 be dismissed.

(2) The applicant pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


WZ 86 of 2003

WAFF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. The matter proceeds in this court following an order that it be transferred to the Federal Magistrates Court of Australia, that order being made by Carr J on 30 April 2002 in the Federal Court of Australia, Western Australia, District Registry.

2. The applicant filed his application on 1 March 2002, to review the decision of the Refugee Review Tribunal (`the Tribunal'), which confirmed the decision of the respondent made on 2 May 2001, not to grant the applicant a protection visa. The Tribunal's decision was made on 4 February 2002 and the applicant was notified of the decision on 5 February 2002.

3. The applicant sought under section 39D of the Judiciary Act 1903 (Cth) that a writ of certiorari be directed to the Tribunal to quash its decision to refuse to grant a protection visa to the applicant. The applicant also sought an order that a writ of prohibition be directed to the respondent, prohibiting him from proceeding to act on the decision. In the alternative he sought an order quashing or setting aside the decision and an order remitting the matter from the Court to the respondent for determination according to law.

4. The grounds relied upon by the applicant were ultimately set out in the minute of proposed amended application for review, filed on 18 September 2002, save that the applicant did not pursue or rely upon the new ground 6e. The parties initially put forward their respective arguments on 17 June 2002 and then completed their submissions on

2 December 2002.

Background

5. The applicant arrived in Australia in December 2000. His arrival was not authorised. He was interviewed by an officer of the Department of Immigration & Multicultural & Indigenous Affairs (`the Department') on 21 December 2000. He told the interviewer that his name was Said Faheen Shah, that he was born in Kandaharar, Afghanistan, that he was a citizen of Afghanistan and that he had been living in Kandaharar. He said he was a Pashtun and a Muslim. He explained that he decided to leave Afghanistan because the Taliban had pressed him to join the military and because he had spoken out against the Taliban and the policies in the Mosque. He claimed that the Taliban had closed his father's shop. Further he indicated that he had not lived outside Afghanistan in the last 20 years. The applicant said that his life was in danger should he return to Afghanistan because he had spoken out against the Taliban.

6. On 29 December 2001 the applicant made an application for a protection visa in the name given in his interview. In support of the application he provided a statement (Court Book page 42 - 44). In that statement the applicant claimed that due to his ethnic and religious background as a Pashtun and Shia Muslim he feared persecution and possibly death from the Taliban if he were returned to Afghanistan.

7. On 15 January 2001 the applicant by letter advised the Department of some falsehoods in his earlier statements and in particular stated: that he had lived in Pakistan from 1980 to 1992 when his family had fled Afghanistan during the then fighting. He also said that he had used a false name in his earlier application and a false date of birth.

8. Language analysis was carried out and is dated 7 March 2001. That analysis suggested that the applicant's background was probably Peshawar, Pakistan (Court Book page 76). Information about the result of the language analysis was sent to the applicant by a letter dated

26 March 2001 (Court Book page 80). On 2 May 2001 the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (`the Minister') found that the applicant did not meet the criteria for a protection visa and refused the application. The delegate was not satisfied that the applicant was a citizen of Afghanistan as claimed. The statement of decision is set out at pages 91-99 of the Court Book.

The Tribunal hearing

9. On 7 May 2001 the applicant applied for a review of the decision of the Tribunal. A submission in support of that application was lodged by his then agent on 16 May 2001 (Court Book pages 28-36). That submission dealt extensively with the applicant's credibility in light of his admitted giving of false information when he first arrived in Australia.

10. On 16 June 2001 the Tribunal was notified that different agents, (Mr Christie) now acted on behalf of the applicant. On 28 June 2001 the original agents forwarded documents said to be identity documents from Afghanistan relating to the applicant (Court Book pages 51-63 and 65). The same documents were forwarded by Mr Christie on

12 July 2001. The applicant gave oral evidence to the Tribunal on

19 July 2001.

11. On 19 August 2001 Mr Christie wrote again to the Tribunal enclosing a statement in support of the applicant from someone alleging to have known the applicant in Afghanistan (Court Book page 127). He also made submissions directed particularly to the issue of credibility of the applicant and his claim to be from Afghanistan.

12. On 28 August 2001 the Tribunal wrote to the applicant setting out information which could have lead to an adverse decision particularly with regard to the credibility of the applicant (Court Book pages 101-102).

13. On 10 September 2001 Mr Christie forwarded a statutory declaration sworn by the applicant in answer to the letter of 28 August 2001 (Court Book pages 168, 202-203). On 25 September 2001 Mr Christie forwarded another letter supporting the claim that the applicants accent was consistent with the history he gave having lived for about 12 years in Pakistan (Court Book pages 191 - 192). On 31 October 2001 he forwarded a further statement from a witness, (Court Book pages 208-210) who said that he knew the applicants father until about 1986 when he was living in Peshawar (Court Book pages 212-214).

14. On 19 November 2001 the Tribunal wrote to the applicant setting out information regarding the change of circumstances in Afghanistan with the fall of the Taliban and seeking any submission by 30 November 2001 (Court Book pages 254-255). A submission was received on that day (Court Book pages 256-258) and a further letter on 3 December 2001 (Court Book pages 260-265) and again on 18 December 2001 (Court Book pages 195-196). On 19 December 2001 Mr Christie sent further material on behalf of the applicant, relating to the change of circumstances in Afghanistan (Court Book page 200). On 4 February 2002 the Tribunal made a decision affirming the decision of the delegate not to grant a protection visa (Court Book pages 267-291). In making its determination, the Tribunal considered first the applicants claim as to his nationality and then the change in circumstances in Afghanistan (court book at page 274).

15. The Tribunal:

a) firstly, referred to the applicants original use of a name and details he later acknowledged to be false, characterising the applicants initial claim as a pattern of deceit which led the Tribunal to question the veracity of his claims to be an Afghan (Court Book at page 274);

b) secondly, referring to the applicants use of a Pakistani passport in his own name, found that pointed to him being a Pakistani national, and that his evidence refuting this nationality was not genuine (Court Book at page 272);

c) thirdly, regarded the two witnesses statements from persons who were only discovered after the hearing and were said to have known his family, as coincidences which were far fetched (Court Book pages 271-272);

d) fourthly, found the applicants knowledge of Kandaharar to be consistent with explanations other than his having lived there as a citizen of Pakistan (Court Book page 270); and

e) finally, the documents provided by the applicant were similarly seen as put forward late in the day, and like the passports used by the applicant to be impossible of verification (Court Book page 255). The Tribunal did not accept them to be genuine Afghan documents.

16. On the whole of the material the Tribunal found the applicant to be a Pakistani national who had travelled on a Pakistani passport as far as Indonesia and then sought to conceal his actual identity by creating a false name and an account to have lived in Afghanistan all his life as an Afghan citizen (Court Book page 271).

17. The Tribunal then went on to consider the applicant's position if it were wrong as to his nationality. It found that:

a) as a Pashtun (the majority ethnic group in his province) he did not face persecution by reason of race (Court Book page 270);

b) the Taliban being a spent force intent on survival, that the applicant would not be of any interest to them (Court Book page 270); and

c) that the evidence from the monitoring of the situation in Afghanistan after the fall of the Taliban did not demonstrate that Shia's were targeted because of their faith (Court Book page 269) and the applicant did not face persecution as a Shia Muslim.

18. Accordingly, even if the applicant were a national of Afghanistan the Tribunal was not satisfied that he faced a real chance of persecution by reason of his race or religion.

19. On 1 March 2002 an application for an order to review was filed in the Federal Court of Australia seeking remedies of prohibition and certiorari. The grounds of review relied upon set out in the amended application filed 18 September 2002 are:

a) that the Tribunal failed to afford the applicant natural justice; and

b) that the Tribunal erred in law which went to its jurisdiction and exceeded its authority.

The law

20. It was submitted by the respondent that the decision of the Tribunal is a `privative clause decision' under section 474(2) of the Migration Act 1958 (Cth). Section 474 provides `Decisions under Act are final':

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

........

The combination of sections 475A and 476 limit the jurisdiction of this Court relevantly to that conferred by section 39B of the Judiciary Act 1903 (Cth). That provision includes jurisdiction in relation to any matter arising under an laws made by Parliament: section 39B(1A)(c) the validity of a decision made by the Tribunal involves such a matter. For this Court to grant relief, there must be errors identified such as to attract relief under section 39B of the Judiciary Act 1903 (Cth). The inquiry required of the Court is whether the approach adopted by the Tribunal renders its decision invalid. In R v Hickman: Ex parte Fox and Clinton (1945) 70 CLR 598, Dickson J at page 616 stated "....where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bone fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity." In this judgement Dickson J succinctly stated the three pre conditions to the valid exercise of decision making powers to which such a clause applies:

a) The decision maker is required to have made a bone fide attempt to exercises its power;

b) The decision relates to the subject matter of the legislation; and

c) The decision is reasonably capable of reference to the power given to the decision maker.

These three conditions are known as the `Hickman conditions' or `Hickman grounds for review', they have been restated on many occasions in the High Court.

21. Indeed since the case was argued before me in June and December of last year, there have been a number of decisions of the High Court and of the Full Court of the Federal Court of Australia which further clarify the issues and grounds for review with respect to the validity of a decision made by the Tribunal.

22. The High Court of Australia in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 has determined that section 474 on its proper construction, does not apply to jurisdictional errors, a breach of the rules of natural justice is a jurisdictional error. Gaudron, McHugh, Gummow, Kirby & Hayne JJ say at pages 75-76 "Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act". Gleeson CJ at page 38 says ".....if the Tribunal's decision in relation to the plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s 474. It is not, relevantly, a decision to which s 474 applies."

23. The Full Court of the Federal Court in NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 at paragraphs 12 and 13 encapsulates the current state of the law as follows:

At paragraph 12, 13 and 14: Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, the issues and grounds of review before the primary judge must be considered having regard to the reasoning in that decision.

So far as the claim of jurisdictional error is concerned, such a ground must now be considered in the light of the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (supra). The effect of the decision of the High Court is that s 474 of the Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excess of jurisdiction conferred by the Act, as such decisions are not "decisions made under ... [the] Act" for the purposes of s 474. Put shortly, s 474 does not apply to decisions which involve jurisdictional error. Whatever be the scope or extent of jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, the primary judge did not identify any ground establishing any such jurisdictional error and we are satisfied that the Tribunal did not fall into any jurisdictional error. Indeed the appellant was unable, before us, to identify any such error.

We are satisfied that there was no material before the primary judge which warranted a finding or conclusion of actual bias, jurisdictional error or breach of procedural fairness.

24. Even more recently the Full Court of the Federal Court has said in the case of SAAD v The Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65 at paragraph 40 of the judgement of Carr J (with whom both Cooper and Finklestein JJ concurred):

"I reject that submission. There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at (14) and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at (79)."

Conclusions and findings

25. I am satisfied that the applicant has not made out error which would grant relief in this case. It has not been, and could not be claimed that the decision was unrelated to the subject matter of the act or was not reasonably capable of being referred to the power under which it was made. The decision of the Tribunal was on review, the decision of the delegate to refuse to grant a protection visa to the applicant. The Tribunal reviewed the decision as required by section 414 and held that it was not satisfied that the applicant was a person to whom Australia had protective obligations under the Refugees Convention and thus did not meet the criterion for a protection visa: sections 5(1), 36(2) and 65(1). That conclusion follows from the findings set out in paragraphs 16 and 17 of these reasons.

26. To the extent that the first ground asserts actual bias I am satisfied that the ground must fail. In SCAA v the Minister for Immigration and Multicultural Affairs [2002] FCA 668 von Doussa J states `Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.' The High Court in Minister for Immigration & Multicultural & Indigenous Affairs v JIA (2001) 178 ALR 421 said `The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion' per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. `...the allegation would have had to be distinctly made and clearly proved' per Gleeson CJ and Gummow J at page 69 and Kirby J at page 127.

27. The applicant's claim that the Tribunal determination is biased seems to be based ultimately on the ground that it found against him on the issues of credit. The applicant submitted in support of the allegations of bias, the fact that no questions were put to him with respect to his identity after the two identity documents were provided to the Tribunal and that no questions were put to the two witnesses who came forward after the initial hearing. This he suggested indicated a pre determination of the matter. I do not accept that proposition.

28. Firstly the applicant did lie about his identity at the initial interview and he had to admit to certain documents (ie the passport) which he said was false. At page 254 of the court book in the Tribunal's decisions and reasons for decision it was found:

I am of the opinion that he obtained a passport in his own name, with his father's own name and with his own signature because, as a Pakistani national he was entitled to do so and there was no reason to conceal his identity.

I find that he initially denied that this passport was his because he was aware that it actually identified him as a Pakistani.

I am of the view that it was only when he realised he could not continue to deny that it was his passport when it contained his photograph and his signature that he then concocted another account in an attempt to refute he is a Pakistan national.

I find that the Applicant is not a credible witness and am not satisfied that the evidence he has provided in this regard is genuine.

It was perfectly open to the Tribunal to come to this conclusion on the facts.

29. So far as the two documents are concerned the Tribunal was entitled to give no weight to that documentation. In effect the applicant was saying that, I have been able to come into this country with false documents - I now produce further documentation from a government who is no longer in existence.

30. Further with respect to the two witnesses it was properly open to the Tribunal to find at page 254 of the court book `...the applicant had ample opportunity to brief both if he had chosen to' and for this reason he did not question them because the only questions would have related to credibility. I am also satisfied that it was a matter of fact for the Tribunal to conclude that the coincidence in these two witnesses reports are far fetched. Questions as to what weight is to be given the evidence is an issue to be properly determined by the Tribunal. I am satisfied that it was clearly open to the Tribunal to make the findings that it did about these two witnesses.

31. The Tribunal also found that the applicant had knowledge of Kandahar and spoke some Dari. This was consistent with the applicants claims. However the Tribunal makes it clear that these elements when considered together with the applicants general lack of credibility led the Tribunal to find that his knowledge of Kandahar does not lead to a conclusion that he was born in Afghanistan and is a national of Afghanistan. Again this conclusion was achieved by weighing up all of the evidence.

32. Finally it is clear that on the whole of the material, the Tribunal found the applicant to be a Pakistani national who had travelled on a Pakistani passport as far as Indonesia and then sought to cancel his actual identity. At page 255 of the court book, the Tribunal says `The situation I am left with is to consider the history of the Applicant's claims and the elements in total, the Applicant's account, and the changes in that account, the witnesses statements, the nature of those statements and the time they were made and the documents which variously attest to him being Pakistani while the others support his claim to be Afghan.' All of these matters involve acceptance or rejection of evidence and weight of evidence and are not matters of natural justice or matters going to the jurisdiction of the decision maker. The Tribunal was entitled to accept or reject the claims of the applicant. That is the proper exercise of the Tribunals fact finding function. I can find no lack of bone fides on the part of the Tribunal.

33. However, it was further submitted by Counsel for the applicant that alternatively the Tribunals conduct in not questioning the two witnesses amounted to apparent bias in that it must have refused to question them on the basis that the evidence was tainted. In support of this argument the applicant cited the decision of R v Watson; Ex Parte Armstrong (1976) FLC 90-059 where a judge of the Family Court in the course of interlocutory applications stated that he would not accept evidence of either party at the trial without corroboration. I do not find any similarity in the circumstances of this case. It was clearly open to the Tribunal to find that the coincidence of two witnesses emerging after the hearing to recall the application in the way that it is described was `far fetched' and if genuine could have been provided earlier. McHugh J in Muin and Lie v Refugee Review Tribunal (2002) HCA 30 at paragraph 140 makes the following statement "A breach of the rules of procedural fairness is jurisdictional.....once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome of the case". I am satisfied that the Tribunals decision not to question the two witnesses could not have effected the outcome of the case.

34. When the matter came before me in December the application relied on the new ground 6f of his proposed amended application for review filed 18 September 2002. The applicant in essence, submitted that the Tribunal relied on certain country information which came into the Tribunal's possession after the hearing and without giving the applicant any opportunity of commenting on it, suggesting that the applicant was thereby disadvantaged. The applicant's adviser suggested there should have been certain questions asked. The Tribunal member said he chose not to follow that line of questioning and gave his reason then why he wouldn't; that is that the applicant may have a knowledge of Kandahar from trade links. If there were to be arguments put about Peshawar, Kandahar and Jalalabad they should have been put then. The fact that the Tribunal member has subsequently referred to something else that supported the decision does not raise a natural justice point because it was a point that was decided against the applicant on the spot. The applicant had a chance to make a submission then and did not. Mr Christie himself concedes, what the Tribunal was doing was using information ex post facto to support an approach it had already taken at the hearing. There is no lack of procedural fairness or breach of natural justice in that, and could not have in anyway adversely effected the outcome of the case.

35. Accordingly I find no reviewable error has been disclosed and I dismiss the application and order that the applicant pay the respondents costs which I assess at $4,250 pursuant to Part 21 Rule 21.02(2)(e) of the Federal Magistrates Court Rules 2001.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate: Rebecca Brookes

Date: 17 April 2003
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