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MIGRATION - allegation of bad faith and lack of bona fides - no lack of bona fides made out - role of lawyer in advancing an allegation of lack of bona fides.

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 (6 December 2002)
Last Updated: 6 December 2002


FEDERAL COURT OF AUSTRALIA
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397


MIGRATION - allegation of bad faith and lack of bona fides - no lack of bona fides made out - role of lawyer in advancing an allegation of lack of bona fides.

SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 discussed

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 distinguished

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 referred to

SCAS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 140 of 2002

HEEREY, MOORE & KIEFEL JJ

6 DECEMBER 2002

SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S140 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SCAS OF 2002

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
HEEREY, MOORE & KIEFEL JJ


DATE OF ORDER:
28 NOVEMBER 2002


WHERE MADE:
ADELAIDE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S140 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SCAS OF 2002

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
HEEREY, MOORE & KIEFEL JJ


DATE:
6 DECEMBER 2002


PLACE:
SYDNEY (HEARD IN ADELAIDE)





REASONS FOR JUDGMENT
THE COURT:

Introduction

1 This is an appeal from a judgment of a judge of this Court of 10 May 2002, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 14 February 2002. The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the appellant a protection visa. At the hearing of the appeal on 28 November 2002 we dismissed the appeal with costs. The following are our reasons for doing so.

Background

2 The appellant, who arrived in Australia in April 2001, claimed to be a citizen of Afghanistan. The appellant's claim for a protection visa was based on an assertion that he was at risk of persecution by the Taliban due to his race (Hazara), religion (Shia Muslim) and membership of a particular social group ("the rich"). His initial application contained descriptions of incidents in which the appellant and his father suffered harassment and abuse at the hands of the Taliban.

3 The delegate found that the appellant's claims were not credible, as they were inconsistent and some were implausible. The delegate also noted that a linguistic analysis obtained by the Minister's delegate from Eqvato Stockholm did not support the appellant's claims that he had lived his whole life in Afghanistan. The linguistic examiner concluded that the appellant's dialect originated from Quetta, in Pakistan.

The Tribunal's decision

4 The Tribunal had before it the file from the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") and written submissions in support of the review. The appellant gave oral evidence to the Tribunal on 21 December 2001. In his submissions to the Tribunal, the appellant included a letter from a Mr Hussaini. Mr Hussaini claimed to be resident in Afghanistan, and indicated a willingness to provide evidence to the Tribunal to support the appellant's claims about where he had lived. In the letter he said he knew the appellant, his parents, and his grandfather, and knew which village they lived in.

5 At the hearing, the appellant was apparently distressed and had some difficulty expressing himself. The appellant repeatedly restated his claim that if he returned to Afghanistan he would be targeted by the Taliban, and may be killed if he was forced to fight on their behalf. He maintained that life "was good" prior to the Taliban taking control of the area in which he lived. The Tribunal raised the fact that the Taliban no longer controls Afghanistan. The appellant maintained that he was fearful of returning to Afghanistan, as he was Hazara, and they were regularly targeted by Pashtuns and other hostile tribes.

6 The Tribunal also raised the issue of the linguistic analysis. The appellant stated that his accent was influenced by relatives from Pakistan who had spent time with him in Afghanistan. The Tribunal informed the appellant that they would be seeking an opinion from another linguist. The appellant said that he had no objection to this course of action.

7 The Tribunal later obtained a second linguistic analysis from Dr Mousavi of Oxford University. The conclusion of Dr Mousavi, was that "on the basis only of a linguistic analysis of his Hazaragi accent, [the appellant] would appear to be a Pakistani Hazara from Quetta". Alternatively, Dr Mousavi stated that based on the appellant's knowledge of the village of Aecha, the appellant could have been born in Aecha, Jaghouri (Afghanistan), but migrated to Quetta as a child. In addition, Dr Mousavi noted that the phrases and colloquialisms used by the appellant indicate that he had had a broad social exposure to many different accents, and probably lived mainly in a city as opposed to a rural village, as claimed.

8 After receiving the report from Dr Mousavi, the Tribunal wrote to the appellant. The letter set out the finding in the report, and noted that this contradicted the appellant's claims and raised doubts about his credibility. The appellant was invited to comment on the new information. The appellant's adviser replied by letter stating that he had discussed the information with the appellant and that the appellant re-stated his claim that he had lived in Afghanistan his entire life, and that his accent was influenced by relatives from Quetta. The appellant added that he had also been exposed to a range of dialects (including Pashtu, Tajik and Hazara) when he attended school in Sang-e-Masha.

9 The Tribunal said in its reasons that it did not accept the appellant's claims. It concluded that the appellant did not present a truthful account of his circumstances, and could not be satisfied that the appellant was a citizen of Afghanistan, or had ever lived there. The Tribunal noted that the appellant was only able to supply vague or general details about his life in Afghanistan. It relied on the linguistic analyses in concluding the appellant spoke like a person who had spent most or all of his life in Quetta. The appellant's evidence was not accepted and the delegate's decision to refuse a protection visa was affirmed.

Issues before the primary Judge

10 At the hearing before the primary Judge it was submitted by counsel for the appellant that the Tribunal's reasons contained several errors of law which were reviewable under s 39B of the Judiciary Act 1903 (Cth). It was further submitted that these errors of law constituted jurisdictional error, thus rendering the privative clauses in the Migration Act 1958 (Cth) ("the Act") inapplicable having regard to Boakye-Danqueh v MIMIA [2002] FCA 438 and Kwan v MIMA [2002] FCA 498. The primary judge dealt with each ground of review individually, although grounds that involved similar issues were considered together.

11 The first issue his Honour addressed involved two of the grounds. They were that the Tribunal failed to consider the possibility that it was wrong, and that the Tribunal erred in assessing whether the appellant's fears of persecution were well founded. The appellant's counsel submitted that the Tribunal erred in the approach it took in determining whether the appellant would be persecuted upon his return to Afghanistan, and that the Tribunal failed to consider that Dr Mousavi's evidence left open the possibility that the appellant was a person who originated from Afghanistan. His Honour concluded these grounds had not been made out. The second issue was whether the evidence of Dr Mousavi was inherently unreliable, as submitted by Counsel for the appellant. His Honour found that the complaints raised by the appellant in relation to Dr Mousavi's evidence were not substantial.

12 The third issue was whether the appellant was denied a fair hearing in breach of s 420 of the Act, because the interpreter at the Tribunal hearing was not able to correctly interpret all of the words spoken by the appellant. This contention was based on a statement within the report of Dr Mousavi noting that the interpreter had misinterpreted a number of words. However it was not suggested that there was any material misinterpretation that the Tribunal relied upon in the proceedings, and his Honour concluded that there was no basis for arguing that the Tribunal failed to accord the appellant "substantial justice".

13 The fourth issue concerned the Tribunal's rejection of the evidence of Mr Hussaini, who claimed to know the appellant's family in Afghanistan. The primary judge concluded that so long as there was evidence upon which the Tribunal could reach its conclusions, no error of law is demonstrated by showing that an alternative conclusion may have been reached. This reasoning was also used by his Honour in relation to other claims by the appellant that the Tribunal reached the wrong conclusion on the factual material, including that the Tribunal failed to have any or proper regard to relevant evidence, the emphasis placed by the Tribunal on the linguistic analyses, and that the Tribunal made a finding of fact which did not exist.

14 The fifth issue was whether the Tribunal failed to comply with s 424A of the Act when it informed the appellant of Dr Mousavi's report. His Honour found that the letter forwarded by the Tribunal did sufficiently identify the relevance of Dr Mousavi's report, particularly as the letter had resulted in a response addressing the relevant issues. The final issue was whether there had been a bona fide exercise of power. The primary judge concluded this contention had "no basis whatsoever to support it".

Issues in the appeal and their consideration

15 The appellant filed an amended notice of appeal on 29 July 2002, appealing from the whole of the judgment of the primary judge. The grounds of the appeal are as follows:

GROUNDS
2. The Learned reviewing judge erred in finding that "...the Tribunal did not fall into procedural error by not arranging for Mr Hussaini to give additional evidence".

3. The Learned reviewing judge erred in finding that the evidence of the witness Mr Hussaini did not assist in resolving the linguistic inconsistency raised by Dr Mousavi's opinion.

16 At the hearing of the appeal, counsel for the appellant developed the argument this way. First, it was submitted that the Tribunal had not bona fide exercised their power to hear and determine the review. This submission was plainly intended to avoid the consequences of s 474. Secondly it was submitted that the Tribunal had not consciously acted in bad faith but nonetheless there had been some form of unconscious or unwitting conduct amounting to bad faith. In this respect reliance was placed on the judgment of von Doussa J in SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 at [37]. Thirdly, the conduct concerned the way in which the Tribunal evaluated the evidence of the appellant about his life in Afghanistan having regard to the difficulties he experienced in giving the account. It also concerned the way in which the Tribunal evaluated the evidence of the linguistic analyst and failed to act on the letter from Mr Hussaini which was potentially corroborative of the account given by the appellant. The approach adopted by the Tribunal in this matter was said to be similar to the approach adopted by the Tribunal, which was subsequently criticised by Mansfield J, in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547.

17 This submission is untenable. Even if it is appropriate to adopt the method of analysis undertaken in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs (we put it this way because we did not call on counsel for the Minister who had may have challenged that approach), the conclusion in that matter that the Tribunal had not acted in good faith was based, in part, on the fact that the Tribunal had expressed firm and strong conclusions about the credibility of the applicant on at least one matter of apparent significance without explaining why.

18 In the present case the Tribunal explained why it formed an adverse view about the credibility of the appellant. It acknowledged the difficulties the appellant confronted in giving evidence and adverted to evidence from a psychologist about the appellant's condition. It noted, however, that the appellant was only able to provide general and vague details of his circumstances in Afghanistan. The Tribunal then moved to the language analyses and, having accepted the analysis of Dr Mousavi, pointed to the obvious tension between the appellant's account of having lived in Afghanistan throughout his life and a language profile suggesting, at best for the appellant, that he might have been born in Afghanistan but lived most of his life in Quetta, Pakistan. It also called in aid the analysis of Dr Mousavi to reject the facts asserted by Mr Hussaini. This approach, in our opinion is unexceptionable. Indeed, by seeking the second language analysis, the Tribunal was creating a circumstance where the earlier and unfavourable language analysis might be contradicted to the benefit of the appellant. Far from showing a closed mind, it suggests the Tribunal was seeking to investigate the appellant's claims. While it is true that it could have called Mr Hussaini to give evidence but did not, that was of course open to it, as was the rejection of his evidence for the reasons just discussed.

19 We should conclude by making one observation. An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107] - [108]. It is no less serious if it is said to arise from conduct of the type discussed by von Doussa J in SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs. While members of the legal profession representing disappointed applicants for protection visas may often act for reasons of high principle, and on many occasions pro bono, that is no warrant for making the serious allegation if it is not justified on the material. Because bad faith is now one of the few grounds of invalidity in respect of which s 474 does not prevent judicial review, there may be a temptation to attach that label to a wide range of alleged errors of fact and law or to claim that because the decision-maker made so many alleged errors the only explanation is that he or she was acting in bad faith. There may be an attempt, as in the present case, to redefine the test in a way which eases the path of the applicant by introducing euphemisms such as "the narrow definition of bad faith". Ordinarily such creative advocacy may be harmless enough. But because of the nature of the allegation of bad faith, serious questions of professional ethics arise. It should be clearly understood that an allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey, Moore & Kiefel .




Associate:

Dated: 6 December 2002

Counsel for the Applicant:
Mr D Agresta






Counsel for the Respondent:
Ms Maharaj






Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
28 November 2002






Date of Judgment:
28 November 2002






Date of Publication of Reasons:
6 December 2002


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