FEDERAL COURT OF AUSTRALIA SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 793 MIGRATION – application for review of RRT decision affirming refusal to grant applicant protection visa – procedural fairness – content of procedural fairness – obligation of decision maker to provide applicant with opportunity to comment on concerns of decision maker – adverse findings. MIGRATION – prejudgment of credibility of applicant's witnesses – whether comments dissuaded applicant from calling witnesses. MIGRATION – well-founded fear of persecution – whether objective fear – applicant fled Afghanistan due to fear of persecution from Taliban – whether 'real chance' test properly applied. Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 applied SCAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 798 of 2003 LANDER J 24 JUNE 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 798 OF 2003 BETWEEN: SCAZ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE OF ORDER: 24 JUNE 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is dismissed. 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 S 798 OF 2003 BETWEEN: SCAZ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE: 24 JUNE 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application for review of a decision made by the Refugee Review Tribunal (RRT) on 10 September 2003. 2 The applicant is aged 29 years. He is married with a four year old son. He is, on the RRT's findings, an ethnic Tajik and a Shi'a Muslim. He was a resident of Khoshi District in Logar Province before coming to Australia. He fled Afghanistan in December 2000 and arrived in Australia on 15 January 2001. On 20 February 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). On 10 April 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant a protection visa. On 18 April 2001 the applicant applied to the RRT for a review of that decision. On 27 July 2001 the RRT affirmed the delegate's decision. The applicant sought review of the RRT decision in the Federal Court of Australia. On 26 November 2001 the Minister agreed to have the matter remitted to a differently constituted RRT because of a possible breach of s 424A of the Act. 3 On 29 January 2002 that RRT again affirmed the delegate's decision. Again, the applicant sought review of this decision by the Federal Court of Australia. On 6 November 2002 von Doussa J allowed the applicant's application and declared that the decision of the RRT was invalid and of no effect. He remitted the matter to the RRT to be reheard according to law. On 26 November 2002 the Minister appealed against the order made by von Doussa J but on 13 May 2003 the Minister withdrew the appeal. The consequence of the withdrawal of the appeal was that the matter was remitted to the RRT according to von Doussa J's order. 4 On 5 August 2003 the matter came before the RRT for the third time and, on 10 September 2003, the RRT published its decision, again affirming the decision of the delegate of the Minister not to grant a protection visa. 5 It is from that third decision that this application for a review is brought. 6 As I have already noted, the RRT has found that the applicant was an ethnic Tajik and a Shi'a Muslim and a national of Afghanistan immediately prior to his coming to Australia. 7 The RRT also found that the applicant fled Afghanistan because he feared the Taliban would harm him because of his ethnicity and his religion. 8 It follows that the RRT must have been of the opinion that at the time the applicant left Afghanistan and entered Australia he had a well-founded fear of persecution for a Convention reason. 9 Section 36(2) of the Act provides: '(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who: (i)is mentioned in paragraph (a); and (ii) holds a protection visa.' 10 The Refugees Convention and the Refugees Protocol referred to in that subsection are the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the status of refugees as defined in s 5(1) of the Act: 'Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.' 11 Article 1A(2) of the Refugees Convention defines a 'refugee' as a person who: '…Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' 12 The applicant must establish that he has a subjective fear of persecution for one of the Convention reasons and that, objectively, it is a well-founded fear. 13 As I have already noted, the applicant satisfied the Tribunal that, when he fled Afghanistan, he did so because he had a well-founded fear of persecution for a Convention reason. 14 When he came before the RRT for the third time, effectively, the only issue was whether or not the fear, which he honestly held at the time he left Afghanistan, could be objectively assessed as well-founded, having regard to the change in circumstances which have occurred in that country since he fled. 15 In a sense, the applicant has been disadvantaged by the failure of the RRT (differently constituted) to consider his application according to law prior to the time he came before the RRT for the third time. If the delegate of the Minister had considered his application appropriately when the applicant first applied, it is likely that the applicant would have been granted a protection visa. The delegate of the Minister refused his application because it was the delegate's opinion that the applicant was masquerading as an Afghani. That opinion has been shown to be wrong. The first RRT accepted that the applicant was an Afghani but held that he had not been truthful in his claims of persecution. The second RRT held that the applicant was an Afghani but held that political changes in Afghanistan since the applicant fled meant that his claims of persecution could no longer be regarded as well founded. 16 Since the first RRT decision on 27 July 2001, the applicant has been the 'victim', and I use that word in a neutral sense, of the system. As a result, when he came before the third RRT he had to establish that the circumstances then existing in Afghanistan allowed him to say that his accepted fear of persecution was still well founded. That hearing was close to three years after he had left Afghanistan. He was, therefore, at a distinct disadvantage in establishing his case before the RRT. 17 Whatever his legal rights are, and it is only those that this Court can address, there must come a time when, as a matter of compassion or fairness, an applicant such as SCAZ is entitled to a visa to remain in Australia. It may not be that he is entitled to a protection visa but, no doubt, the Minister has a discretion to grant someone, such as this applicant, a visa to stay in Australia, notwithstanding that he may not qualify for a protection visa. However, that is an executive decision. This Court may only address the applicant's rights according to law to have the third decision of the RRT reviewed. 18 As part of his application for a protection visa the applicant provided the delegate of the Minister with a statement. 19 He said that four or five years before he arrived in Australia the Taliban took control of the province in which he lived. He said that, in time, the Taliban became very harsh with the people in the area and some time in 1999 or 2000 they arrested two of his brothers and took them away. His brothers have not been seen since. He said the Taliban persecuted the Shi'a people by arresting them and beating them. Six months before he left Afghanistan his father was arrested and taken away and tortured for three days and three nights. His father was returned to the family home but died the next day. He said that the Taliban prevented them from celebrating their religious activities and destroyed their shrines. The Taliban beat their elders. They threatened to shoot anyone who wished to celebrate in accordance with the Shi'a religion. 20 People began hiding from the Taliban because they were frightened of the danger that the Taliban presented. 21 The family decided that the applicant should flee Afghanistan because he was the oldest child apart from those two children who had been taken away by the Taliban. He approached a people smuggler and paid to be taken across the Afghani/Pakistani border. He flew from Pakistan to Indonesia and travelled to Australia by boat from Indonesia. 22 He said in that statement: 'I cannot return to Afghanistan or I will be killed. I would either be sent to the frontline where I would be killed or killed immediately by the Taliban. The Taliban would do this to me because I am Shi'a and Tajik. They do not care if I live as they are fighting against the Shi'a. If they can use me in the frontline and I am killed it does not matter to them. The Taliban do not want the Shi'a in Afghanistan. I cannot return to Afghanistan and I am asking the Australian Government for asylum.' 23 The applicant's claim before this Court is that the RRT failed to accord the applicant procedural fairness. 24 The applicant received a letter from the RRT informing him that he was entitled to appear before the RRT and enclosing a document entitled 'Response to Hearing Invitation'. 25 The applicant's migration agent responded to that invitation by advising that the applicant wished to attend and listed 18 witnesses whom the applicant intended to call to give evidence as to the truthfulness of his account. The Response to Hearing Invitation said that the witnesses would give evidence: 'regarding my identity, refugee claims and general integrity'. 26 Eighteen persons were listed with the accompanying information: 'We the Afghan community members after extending our sincere regards would like to draw the attention of your Excellency to the fact that [the applicant] belongs to Afghan nationality. We know, if he is deported, Taleban [sic] will execute him. Therefore, we strongly support his application applied for protection visa in Australia. We kindly request your honour to help him in this regard.' 27 On 23 July 2003 the District Registrar of the RRT replied to the response to hearing invitation in the following terms: 'Having considered the large number of witnesses you propose to call, the Member has decided she would prefer to receive written evidence from them rather than oral evidence at the hearing. Please could you arrange for the witnesses to provide a statement to the Tribunal setting out the evidence each wishes to provide in support of [the applicant]. The statement should include the name of the witness, his place of birth, how long he has been in Australia, how long he has known [the applicant] and the circumstances under which he knew [the applicant] in Afghanistan. Please arrange for the statements to be provided to the Tribunal by the date of the hearing. The Tribunal will make arrangements to take oral evidence from witnesses at another time if it is appropriate to do so.' 28 On 4 August 2003 the applicant's migration consultant advised the RRT that she would obtain the required statements prior to the hearing. 29 The RRT hearing took place on 5 August 2003. On that date, an opinion was also provided from Professor William Maley, Foundation Director, Asia-Pacific College of Diplomacy, Australian National University. 30 Professor Maley's statement addressed the risk that might confront a Tajik Shiite Muslim if that person returned to the Province of Logar. It was his opinion that the dangers confronting such a person would be considerable. He thought there was little prospect of the administration being able to protect a Tajik Shiite in Logar from the risk of injury. 31 The statements, which are all dated 4 August 2003, were, in fact, provided on 12 August 2003, not prior to the hearing. The statements mainly addressed the applicant's nationality. Some of them addressed his ethnicity and his religion. A few of them addressed the risk of his persecution. 32 The statements were provided by persons who had, themselves, arrived in Australia between 1999 and April 2001. None of the statements were from persons who had been in Afghanistan after April 2001. 33 The applicant claims that the RRT made a jurisdictional error in that it did not consider the evidence of the applicant's witnesses. In particular, it was asserted that the applicant was led into error by the way in which the hearing was conducted as a result of which the applicant did not ask the RRT to call those witnesses to give evidence. 34 It was also said that, because the RRT made no reference to the witnesses' evidence of it being unsafe for the applicant to return to Afghanistan, it might be taken that the evidence which was provided to the RRT after the hearing was not considered by the RRT. 35 It was also said that the RRT prejudged the applicant's case in that, during the hearing, the RRT said of the proposed witnesses: 'Well I presume they are all TPV holders who in the not too distant future will be making their own claims.' 36 It was contended that that statement indicated not bias but a prejudgment of the worth of the evidence of the witnesses. 37 It was contended that the RRT did not accord procedural fairness in failing to hear the applicant's witnesses or, alternatively, not giving notice to the applicant that it intended to disregard the evidence of the witnesses if submitted. It was also suggested that the letter written to the applicant dissuaded the applicant from calling the witnesses. 38 I do not believe that the RRT misled the applicant in the way in which it conducted the hearing. 39 Nothing was said to the applicant or to the applicant's adviser which would have indicated to either of them that the witnesses' evidence should not be pursued or should not be called for any particular reason. 40 The applicant's purpose in attempting to call the witnesses, to whom I have referred, was to establish that the applicant was an Afghani national. It was clear early in the hearing before the RRT that that was not an issue and that the RRT accepted that he was an Afghani national. 41 The witnesses could give no better evidence than the applicant in relation to the objective element of the criterion under s 36(2) of the Act. None of the witnesses had been in Afghanistan for two and a half years before the hearing before the RRT and none of them could give evidence of the circumstances existing in Afghanistan at the time of the hearing before the RRT. The best they could give was hearsay evidence which had been reported to them from their families. 42 None of the witnesses could assist the applicant in making out his case that his subjective fear of persecution was objectively well founded. 43 I do not believe that the RRT failed to provide procedural fairness to the applicant and, therefore, this ground for review must be dismissed. 44 The applicant also argued that the RRT made a jurisdictional error in failing to give the applicant an opportunity to make submissions in relation to an adverse finding. 45 The applicant's claim failed because of the changed circumstances in Afghanistan since the applicant left. Whilst the RRT was prepared to accept that there was criminal activity in Logar, the RRT was not prepared to find that the victims of the criminal activity were targeted for reasons of their ethnicity, religion, or any other Convention related reason. The RRT found: 'The Tribunal does not accept that the applicant is particularly vulnerable to such crimes in the future because of his ethnicity or religion or an adverse political opinion imputed to him. Logar is clearly a multi-ethnic, multi-religion province and none of the information available to the Tribunal indicates that since the fall of the Taliban there has been any attempt to harm any of its inhabitants for reasons of their religion or ethnicity.' 46 The RRT further found that there was no prospect of the Taliban assuming control of the province from which the applicant came in the reasonably foreseeable future. 47 The RRT concluded: 'The Tribunal is satisfied that if the applicant were to return to Afghanistan, he could safely travel to his home in Logar. Although there are reports that roads in Logar are not safe at night because of bandits, the roads have not been closed for security reasons. The Tribunal has seen no reports of Tajiks returning to Logar experiencing problems from Pasthuns when travelling back to their home villages. The information given to the applicant's adviser indicates that in the period from March 2002 to April 2003 nearly 6,000 Tajiks returned to Logar from Pakistan and Iran. Taking into account the above, the Tribunal finds that if the applicant were to return to his home in the Khoshi district of Logar province, there is not a real chance that he would be persecuted for reasons of his religion, his ethnicity, his political opinion or a political opinion imputed to him or for any other Convention reason. The Tribunal finds that there is not a real chance that the applicant would be persecuted by the Taliban or any of its allies in the reasonably foreseeable future. The Tribunal finds that the applicant's Convention related fears are not well-founded.' 48 By the time this matter came before the third RRT, the only real matter in dispute was whether or not the applicant could claim to have a well-founded fear of persecution in view of the changed circumstances in Afghanistan. 49 The RRT did not need to warn the applicant that it might find adversely to him in respect of that matter. That was a matter which had to be addressed by the applicant. 50 In Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76], Gaudron and Gummow JJ said: 'There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial.' 51 Procedural fairness cannot be considered in a vacuum. Whether a party has been accorded procedural fairness depends upon the issues before the Tribunal and the manner in which the Tribunal conducts its hearing. 52 In some cases, it will be necessary for the RRT to bring to the attention of an applicant an issue to enable the applicant to address that matter. In other cases, the issue is so obvious that no such obligation arises. 53 In this case, the issue was obvious from the start. Once it was established that the applicant was an Afghani national, the issue that the applicant needed to address was whether his reasons for leaving Afghanistan would support a well-founded fear of persecution if he were to return. In other words, the issue was whether he could claim to have a well-founded fear of persecution for a Convention reason since the overthrow of the Taliban. 54 In my opinion, the RRT did not fail to accord the applicant procedural fairness in failing to warn the applicant that it might find adversely to him on this issue. 55 The applicant argued, I think it not unfair to say faintly, that the further ground of jurisdictional error was the failure by the RRT to apply the 'real chance' test of a well-founded fear of persecution. 56 It was contended that the RRT erred by making no finding on the applicant's account of his own reasons for fearing the Taliban at the time he fled. 57 I do not think that contention is sound. 58 The RRT found: 'On the basis of the evidence provided by the applicant, the Tribunal accepts that the applicant is an ethnic Tajik, that he is a Shi'a Muslim and that he was a resident of Khoshi district in Logar province before coming to Australia. The Tribunal also accepts that the applicant fled Afghanistan because he feared he would be harmed by the Taliban because of his ethnicity and his religion.' 59 Implicit in that finding is that the applicant fled Afghanistan for a Convention based reason. 60 What needed to be addressed was whether, if the applicant returned to his province, he would still be subject to persecution for a Convention reason. The finding of the RRT was that he would not, because the former persecutors (the Taliban) were no longer in a position to persecute ethnic Tajiks who were Shi'a Muslims. 61 This was not a case about a real chance because, on the finding of the RRT, there was no chance. 62 In my opinion, the application must be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 24 June 2004 Counsel for the Applicant: Gordon Barrett QC Solicitor for the Applicant: RASSA Counsel for the Respondent: Kym Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 June 2004 Date of Judgment: 24 June 2004