SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397

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".