WADG of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 162

FEDERAL COURT OF AUSTRALIA

WADG of 2001 v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 162

WADG OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 584 OF 2001 WHITLAM, NORTH & STONE JJ 31 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 584 OF 2001

BETWEEN: APPELLANT WADG OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM, NORTH & STONE JJ

DATE OF ORDER: 31 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant to pay the respondent's costs of and incidental to this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 584 OF 2001

BETWEEN: APPELLANT WADG OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM, NORTH & STONE JJ

DATE: 31 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The appellant brings this appeal against a judgment of R D Nicholson J made on 18 December 2001. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 27 June 2001. The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant the appellant a protection visa.

proceedings before the Tribunal 2 The appellant arrived in Australia on 26 December 2000. The appellant's application for a protection visa states that he was born on the 6 February 1983. His claims before the Tribunal were as follows. 3 He said he is from Afghanistan and that he fears persecution by the Taliban if he were to return. He said he is a Shia Muslim from the province of Ghazni. He claimed to be of Hazara ethnicity. He claimed that he had four brothers, and helped his mother at home, including by tending a small flock of ten sheep. He claimed that his father was killed in 1998 in Bamian. His father was a delivery driver, and was killed when he went to Bamian to deliver some goods. The appellant claimed that this was part of an indiscriminate killing of Hazara people by the Taliban. Not long after his father was killed, some Taliban visited the appellant's home and alleged that the appellant's father was working with the Hezbe Wahdat. They demanded money and were paid by the appellant's uncle. Then, in November 2000, some Taliban came to his house, and again demanded money. They threatened to take the appellant to prison unless they were paid. Again, the money was paid by a relative, but this time the appellant's mother persuaded the appellant's paternal uncle to arrange for his escape from Afghanistan. 4 The Tribunal set out the claims of the appellant in considerable detail. It then analysed the claims, taking into account the way in which the appellant gave his evidence, country information available to the Tribunal, and two linguistic reports of the language spoken by the appellant. 5 The Tribunal found major difficulties with the appellant's evidence. It is only necessary to mention some examples by way of illustration. For instance, the Tribunal observed that the appellant knew very little about the circumstances of his father's death. The Tribunal found that the appellant was ignorant of basic information about the area in which he lived. And, despite the fact that the appellant said that his father was a delivery driver, the appellant appeared totally unaware of a food blockade between June 1997 and June 1998 which stopped food deliveries from some of the areas in his locality. 6 In relation to his role in looking after the small flock of sheep the Tribunal said: "The applicant claimed to have been looking after the family's sheep for 5 years but he did not know much about his flock. He did not know the age of the sheep in his flock. He was incorrect when asked about the age at which sheep mature and the age at which they had lambs. He was not aware that sheep are fertile throughout the year which is something the Tribunal would have expected him to know given he claimed to have a flock of 4 males and 4 females. He was incorrect in relation to the gestation period of a sheep. He did not know the period for which they could be milked after having a lamb. (The Tribunal obtained its information about sheep from Encyclopedia Britannica 1998 CD ROM). The Tribunal finds it implausible that the family would have a flock of equal numbers of male and female sheep and given that the sheep were kept for their milk that they would kill the female sheep for meat in preference to the male sheep. Due to the applicant's lack of knowledge about sheep and the implausible nature of some of his evidence the Tribunal does not accept that he looked after sheep." 7 In rejecting the appellant's application the Tribunal concluded as follows: "The implausible nature of much of the applicant's evidence, his lack of knowledge about matters in Afghanistan, the fact he had not been truthful when he claimed he looks after sheep led the Tribunal to question whether he is in fact from Afghanistan. The Tribunal refers to the language analysis of the Department's expert that draws the conclusion that the applicant's language has been influenced by the language spoken in Quetta Pakistan. The Tribunal is aware that there are many Hazara Shias who are residents of Quetta Pakistan (see: DFAT Country Information Report No. 97/00 Hazara refugees in Pakistan 10 May 2000 Cisnet CX41933). The Tribunal does not find the language analysis conclusive but it is another factor that adds weight to the view the applicant is not from Afghanistan. As a result of the many problems with the applicant's evidence about his life and experiences in Afghanistan, the Tribunal is not satisfied that the applicant is truthful when he claims to be a national of Afghanistan. Many of these factors would not, on their own, be determinative however taking all of these factors into account the Tribunal is of the view that the applicant has fabricated his claim for refugee status. The Tribunal is not satisfied that the applicant is from Afghanistan but there is insufficient material for the Tribunal to determine where the applicant is from or of which other country he is an national. For these reasons the Tribunal is not satisfied that the applicant is a national of Afghanistan."

the review application 8 The appellant then sought review of the Tribunal's decision. As recorded by the primary judge the application relied on the provisions of s 476(1) of the Migration Act 1958 (Cth) (the Act) as they were, up to, and including, 1 October 2001. 9 His Honour comprehensively summarised the claims made by the appellant before the Tribunal. He then recorded eighteen matters of inconsistency or implausibility which the Tribunal found against the appellant. These matters were relied upon by the respondent to demonstrate that the conclusion of the Tribunal was open to it. His Honour then said: "9. The applicant in his submissions sought to address three of the matters on which the Tribunal made and supported its adverse credibility findings. The first was how long it took for sheep to give birth; the second was how long before lamb became a sheep; and the third was whether the Tribunal was correct in saying that there was a town as well as district by the name of Jaghoori. In relation to the second, the applicant said he had made a mistake in his response because he addressed the lifetime of a sheep rather than the transition stage from a lamb. 10. In his reply, he asked that this Court should consult people from the Jaghoori district on both the first and second questions who would be able to provide information to the Court likely to support his evidence before the Tribunal. Again, however, it is not for this Court to make such an inquiry but only to see whether the Tribunal was entitled at law to the conclusion it has reached even if there may be unreviewable mistakes in the conclusion of the Tribunal. 11. The position is that the Tribunal's conclusions, and particularly its conclusion that it was not satisfied the applicant was truthful when he claimed to be a citizen of Afghanistan, were based on a vast number of matters. It had before it evidence that the applicant lacked knowledge about matters of which he could be expected to be familiar. There were inconsistencies between his evidence and country information. There were significant aspects of his evidence which the Tribunal found to be implausible." 10 His Honour concluded that the appellant had not made out any ground of review under s 476(1) of the Act.

the appeal 11 The appellant then instituted the appeal which is presently before this Court. The sole ground of appeal stated in the original notice of appeal was as follows: "I am not satisfied by the decision of the Federal Court of Australia I seek to have Justice from honourable member. Thank you." 12 This statement does not raise any ground of appeal at all. 13 At the hearing of the appeal, Dr Cameron, who appeared as pro bono counsel for the appellant, applied to substitute the original ground with five new grounds of appeal. The respondent was given sufficient notice of these new proposed grounds to enable him to prepare, as he did, further written submissions in relation to these grounds. Consequently, this application was not opposed by the respondent, and leave was granted to amend the notice of appeal. The five new grounds of appeal are that the primary judge erred in law when he failed: 1. to satisfy himself that the Appellant was of full age, being over the age of 18 years, and to consider whether the appointment of a tutor and/or guardian was necessary in all the circumstances of the case to assist the Appellant with his application for review. 2. to consider whether the failure of the Respondent to appoint a guardian under the provisions of section 6 of the Immigration (Guardianship of Children) Act 1946 affected the validity of his decision to refuse the Appellant a protection visa under the provisions of the Migration Act 1958. 3. to satisfy himself that the Appellant had been notified of the decision of the Tribunal in compliance with the provisions of section 430D(2) of the Migration Act 1958. 4. to consider whether there had been sufficient compliance by the Tribunal with the provisions of sections 424A and 424B of the Migration Act 1958 in relation to the linguistic analyses carried on behalf of the Tribunal. 5. to take into account that findings of fact by the Tribunal were illogical and unsupported by evidence.

application to further amend the notice of appeal 14 At the hearing of the appeal, the appellant also sought leave to further amend the notice of appeal by adding two new grounds. The proposed new grounds of appeal were that the primary judge erred in law when he failed: "6. to hold that the Tribunal had no jurisdiction to affirm the decision of the Minister's delegate, there having been no valid application for a protection visa in accordance with the provisions of the Act, the Appellant having been under the age of 18 years at the time of his application, and no parent or guardian having signed the application on his behalf. 7. To consider whether, in the circumstances of the case, the hearing of the application should be adjourned to investigate the possibility of counsel being found to represent the Appellant under the provisions of Order 80 of the Federal Court Rules." 15 The respondent opposed leave to amend the notice of appeal by adding these two new grounds. 16 This application for leave was argued as a preliminary issue, and leave was refused. The reasons for the refusal of leave to amend are as follows. 17 The document formulating the proposed further grounds of appeal was filed in court on the morning of the appeal. Neither of the grounds had been argued before the primary judge. 18 Proposed ground 6 arose out of a discussion in the course of an appeal heard the day before the hearing of the current appeal, by the same Full Bench, and, argued by the same counsel as counsel for the appellant in this case. 19 It is an inconvenient course to allow grounds to be raised at such short notice. The requirement that parties to appeals file outlines of argument prior to the hearing of the appeal, is designed to ensure that the issues on appeal are clarified, and that there is an opportunity for the opposing arguments to be considered and formulated In the present appeal, comprehensive submissions had been filed in relation to the five new grounds of appeal raised prior to the hearing. No such submissions had been filed in relation to the further proposed grounds of appeal. 20 There is inconvenience in allowing the proposed grounds of appeal to be agitated in these circumstances. If there were no other opportunity for the appellant to vindicate rights which are the subject of the proposed grounds, the Court would be slow to shut out the appellant from arguing such grounds. However, in relation to proposed ground 6, the appellant remains able to assert the invalidity of the original refusal to grant him a protection visa, even if proposed ground 6 is not argued in this appeal. It is open to the appellant to make an application for a protection visa, and, in so doing, to assert that no previous valid application has been made. The position is as described by Gyles J in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at 507 as follows: "It is not immediately apparent to me why the appropriate method of proceeding, if the appellant is correct, is not for an unsuccessful applicant to simply make another substantive application and, if the Minister fails to deal with it because of s 48A [of the Act], then to bring proceedings in the nature of mandamus to compel the Minister to act. This would avoid the absurdity of an applicant appealing to the Court to have its own application to the RRT being declared invalid, whilst continuing to press an appeal on the merits. However, the Minister does not oppose the amendment to the notice of appeal to raise the issue, and we must consider it." 21 Consequently, leave to insert proposed ground 6 into the notice of appeal was refused. 22 In relation to proposed ground 7, leave to amend was refused because the ground was bound to fail. Order 80 rule 1(5) of the Federal Court Rules provides that: "Nothing in this order requires the Court to make a referral, or to consider a litigant's case for referral, under this order." 23 This rule makes it clear that there is no obligation on the part of the Court to consider an application for pro bono assistance.

Consideration

grounds 1, 3, 4 & 5 24 Ground 1 asserts error on the part of the primary judge by failing to consider whether a guardian should be appointed. However, at the hearing, counsel for the appellant accepted that the Minister was appointed guardian by operation of s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (the Guardianship Act). Consequently, counsel for the appellant relied upon several different arguments. He initially argued under ground 1 that the primary judge erred in failing to appoint a tutor to provide assistance and advice to the appellant for the purposes of the conduct of the hearing of the application for review. 25 The basis of the argument was that the appellant was a minor, and that he therefore needed the assistance of a tutor to conduct the litigation. 26 The primary judge found that the appellant was born on 6 December 1983. Thus, at the date of the hearing before the primary judge, namely 18 December 2001, the appellant was no longer a minor. 27 Upon questioning by the bench, counsel for the appellant accepted, correctly, that there was evidence before the primary judge upon which he was entitled to find that the appellant was born on 6 December 1983. It follows that the foundation for this ground of appeal does not exist. 28 It should, however, be observed that the appointment of a tutor is governed by Order 43 rule 2(1) of the Federal Court Rules. That rule does not contemplate that the Court may act on its own motion to have a tutor appointed. Counsel did not suggest any basis in law for the existence of a duty imposed on the Court to consider the appointment of a tutor. 29 Counsel for the appellant also accepted that grounds of appeal 3, 4 and 5 were not independent grounds of appeal but, rather, illustrations of matters which a tutor may have considered had one been appointed. 30 In the end, counsel for the appellant contended that the primary judge erred in failing to adjourn the proceedings to allow the appellant to obtain legal representation. The appellant had a need for legal assistance because he had only obtained the age of majority within several weeks of the hearing, he was uneducated, and his application for review disclosed that he had no concept of the issues relevant to the review. 31 We do not accept that the primary judge erred in failing to consider an adjournment. There is nothing to suggest that the appellant could not have asked for an adjournment if he had thought that he needed one. He did not apply. Further, he argued the matters which he thought relevant. He demonstrated that he understood what the Tribunal had found, and he exhibited his disagreement with the findings made by the Tribunal. The basis on which the Tribunal decided the case made it unlikely that legal assistance would have advanced his cause. Ground 1 of the notice of appeal, and as a consequence grounds 3, 4 and 5, are therefore not made out.

Ground 2 32 Dr Cameron contended that the Minister, as decision maker on a protection visa application, had a conflict with his role as guardian of the appellant under s 6 of the Guardianship Act. As a result of this conflict, it was submitted, the decision to refuse the protection visa was invalid. Whatever might be thought of the desirability of the Minister acting as decision maker on visa applications, and guardian of unaccompanied minors who have made such applications, it is clear that parliament intended the Minister to fulfil both of these functions. Counsel was not able to suggest any reason why, even if such conflict does arise, the consequence is that the decision made is invalid. 33 There are possible mechanisms for managing conflict between the Minister's functions. The Minister might delegate one or both of his functions as decision maker and as guardian. If the Minister delegates a function and is thereby separated from the fulfilment of that function, the conflict does not arise. It may also be that the Court has power to supervise the function of the Minister as guardian under s 6 of the Guardianship Act: X v Minister of Immigration & Multicultural Affairs (1999) 92 FCR 524 at pars 76 – 80. 34 Consequently, ground 2 of the notice of appeal is not made out.

Conclusion 35 None of the grounds of appeal raised by the appellant has been made out, and consequently the appeal must be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 31 May 2002 Counsel for the Applicant: Dr Cameron

Counsel for the Respondent: Mr Macliver

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 29 May 2002

Date of Judgment: 31 May 2002