SBAL v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 572

FEDERAL COURT OF AUSTRALIA

SBAL v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 572

SBAL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.228 of 2001

MANSFIELD J
10 MAY 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.228 OF 2001

BETWEEN:	SBAL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	10 MAY 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay to the respondent costs of the application.

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.228 OF 2001

BETWEEN:	SBAL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	10 MAY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant seeks an order under s 39B of the Judiciary Act1903 (Cth) that the decision of the Refugee Review Tribunal (the Tribunal) made on 30 November 2001 was invalid and of no effect. The Tribunal affirmed a decision of a delegate of the respondent made on 7 September 2001 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 31 May 2001.

2. The applicant is a young man.  He claimed to have come from the Paktia province of Afghanistan, to be of Pashtun ethnicity, and to be a Sunni Muslim.  He said he came from the village of Ali Sangai, Chawlai in the Paktia province, was uneducated, and had not worked other than around his family house.  He claimed to have left Afghanistan about the end of May 2001 to avoid being compulsorily conscripted by the Taliban.  He fears he will be killed by the Taliban if he were to return to Afghanistan, because he was not prepared to go to the front line, but instead ran away.

3. The applicant’s claim failed because the Tribunal was not satisfied the applicant was truthful, and so was not satisfied that he is a national of Afghanistan as he claims.  Consequently, it was not satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  That requirement is a criterion for the grant of a protection visa specified by s 36(2) of the Act.  In practical terms, it meant that the Tribunal had to be satisfied that the applicant is a refugee as defined in the Act.  It was not satisfied he is a refugee because it was not satisfied of the basis upon which he claimed that status, namely that he was from Afghanistan.

4. The Tribunal gave reasons why it did not accept that he had been truthful about his experiences and where he had lived.  In large measure, those reasons are as a result of the impression of the applicant the Tribunal gleaned during the course of the hearing which it conducted with the applicant on 18 October 2001.  It formed the “strong impression” that the applicant was relating a story he had learned, rather than relating actual experiences which he had undergone.  It explained why it reached its conclusion by reference to a number of factors.  In doing so, it indicated that it had taken account of the applicant’s young age, and so was aware that his experiences or recollections may not be reliable but he might still be essentially truthful.  Nevertheless it concluded the factors to which it referred, taken together, resulted in it not being satisfied that the applicant had been truthful.

5. The Tribunal explained its impression of the applicant having learned his story by reference in part to his vagueness or lack of memory of a number of details which it expected the applicant to be able to recall.  It thought he was vague about how far his village was from another village which he said he visited quite frequently.   It described his evidence about what he did during his normal daily activities as “vague and unconvincing”.  It described his evidence about how the Taliban imposed rules of social conduct upon people as “obviously learned”, although it acknowledged that the applicant did not claim to have had personal experience of submitting to the Taliban’s rules.  It thought his account of how the Taliban came to take him away in early 2001 was also recited, in part because of apparent inconsistency in the number of times the Taliban had come wanting to take him away.

6. The applicant’s village was close to the Pakistan border.  It was only about a half an hour away by foot.  Despite the proximity the applicant told the Tribunal that he had never been to Pakistan.  His response was in part by way of comment upon linguistic analysis conducted of an interview recorded of the applicant.  The Tribunal found it difficult to accept the applicant would not have gone with his cousin into Pakistan, bearing in mind his asserted close relationship with his cousin and the proximity of Pakistan.  Although it did not place any weight on the linguistic analysis itself, it noted the applicant had spontaneously used English at an interview with a delegate of the respondent on one occasion, suggesting to the Tribunal, in the face of the applicant’s denial that he had any facility at all with English, that he had lived in an area where some English is spoken, such as Pakistan.

7. It was the combination of those factors, rather than any individual factor, which lead the Tribunal not to be satisfied that the applicant had given a truthful account of his experience and where he had lived, and which in turn lead to the Tribunal rejecting his claim because it was not satisfied as to the criterion specified in s 36(2) of the Act.

   CONSIDERATION

8. The application was instituted by the applicant in person. It did not identify any ground by which the Court might make the order sought. It simply complained that the decision of the Tribunal is unfair, and in effect must therefore have been in error. The applicant appeared at the hearing in person, and again did not identify any matters capable of warranting the order sought under s 39B of the Judiciary Act. His contentions complained of the finding of the Tribunal that it was not satisfied that he is, as he claimed, a national of Afghanistan. He reasserted matters which had been put to the Tribunal upon which, he claimed, it was evident that he is a national of Afghanistan. It is understandable in his circumstances that his contentions were not focussed upon grounds of review available under s 39B of the Judiciary Act. Those grounds do not include reviewing the Tribunal’s findings of fact on the merits. I have also examined the Tribunal’s reasons for myself, given the applicant’s circumstances, to discern whether reviewable errors on its part sufficient to invoke s 39B of the Judiciary Act arise.

9. Despite the literal breadth of s 474(1) of the Act, the respondent acknowledges that the Court may review a decision of the Tribunal in accordance with the principles derived from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. I do not think that any of the provisos to those principles are made out. There is no challenge to the constitutional authority of the Commonwealth Parliament to have granted power to the Tribunal to review decisions of delegates of the respondent in the way in which the Act currently provides. The exercise of power by the Tribunal is clearly related to the subject matter of the Act. Although it may be possible to cavil about the Tribunal’s reasons for rejecting the applicant’s claim to have come from Afghanistan, in my judgment such criticisms of the Tribunal’s reasoning as the applicant advanced do not demonstrate that the Tribunal did not bona fide attempt to conduct a review of the delegate’s decision in accordance with its powers and obligations under the Act.

10. There is arguably capacity for the Court to review decisions of the Tribunal for “jurisdictional error”, taken at its broadest in terms of the jurisdictional error explained by the High Court in Craig v South Australia (1995) 184 CLR 163 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. The respondent does not accept that jurisdictional error, as there discussed, is a sufficient foundation for the Court to exercise power under s 39B of the Judiciary Act in the face of s 474(1) of the Act, because he contends that s 474(1) expands or extends the jurisdiction of the Tribunal. It is unnecessary to embark upon consideration of that contention. In my judgment, the reasons of the Tribunal do not involve jurisdictional error in the way in which those cases discuss it. It did not make any error in the law to be applied, nor in the application of the law to the facts. Nor can it be said to have failed to take into account a relevant consideration, or to have taken into account an irrelevant consideration, in a way which affects the exercise of its jurisdiction. The most that can be said, in the light of the applicant’s submissions and my own consideration of the Tribunal’s reasons, is that certain of its reasons may not be persuasive to other minds. I am not to be taken as expressing agreement or disagreement with the Tribunal’s process of reasoning. It is understandable that the applicant contended that the Tribunal had applied a somewhat finicky approach to the assessment of his credibility and chose to act on certain pieces of his evidence without acting upon other pieces of his evidence. However, even if that be the case, it has not been shown that the Tribunal’s reasons or its analysis was not open to it. In this matter, too, its conclusion as to the applicant’s credibility appears to be based to a significant degree upon its perception of the way in which the applicant presented his evidence to the Tribunal. That is not a matter upon which the Court is in a position to form any judgment different from the Tribunal’s assessment. The Tribunal, as the factual decision-maker, is uniquely placed to form views on such matters.

11. Following the hearing, the applicant submitted to the Court a medical report from a medical officer at the Woomera Immigration Reception and Processing Centre.  It relevantly reads:

    “He has stated to me that a factor in the rejection of his case for asylum was that speech analysis of his conversation concluded that he was not from the region which he stated.  [He] suffered from meningitis as a child.  As a result of this he has been left with a long term disability.  This disability includes an obvious speech impediment, such that it is difficult for native speakers of his country of origin to correctly understand him.  In addition he has weakness of his right arm, and is unable to fully use his fingers, and usefully use his arm for any vocation.

    Of most importance however is his speech impediment which would naturally make any analysis of his speech difficult.”

12. I do not consider that that medical report provides any reason for setting aside the Tribunal’s decision.  Although it referred to language analysis of a recording of an interview with the applicant, the Tribunal expressly said it did not consider the language analysis “either supports or is against the applicant’s claim to be an Afghan national”.  Consequently, that analysis did not play a part in the Tribunal’s decision.  On the basis of the medical evidence, it may have been inappropriate for the Tribunal to rely upon the linguist’s analysis in the circumstances of the applicant’s speech disability.  However, it did not in fact do so.  It cannot therefore be shown to have been in error of a reviewable nature in that regard.  To the extent to which the Tribunal made use of the applicant’s language adversely to him in its assessment of his credibility, that was because the Tribunal noted the applicant himself had appeared to use English spontaneously at an interview with a delegate of the respondent.  His use of English suggested to the Tribunal that the applicant probably, in view of his denial that he has any facility at all with English, had lived in an area where some English is spoken.  The medical report does not throw light upon, or qualify, the analysis of the Tribunal based upon the applicant’s spontaneous and brief use of English in his interview with a delegate of the respondent.

13. I am not therefore persuaded that the Tribunal has fallen into error in a way which enlivens the Court’s power to intervene under s 39B of the Judiciary Act. In my judgment the application must be dismissed. I so order. I see no reason why the normal rule as to costs should not apply. I accordingly order that the applicant pay to the respondent costs of the application to be taxed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             10 May 2002

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 April 2002
Date of Judgment:	10 May 2002