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MIGRATION - Application for review of decision of the Refugee Review Tribunal - changed circumstances - no well-founded fear - no jurisdictional error - privative clause decision - application dismissed.

SFXB v Minister for Immigration [2002] FMCA 296 (28 November 2002)

SFXB v Minister for Immigration [2002] FMCA 296 (28 November 2002)
Last Updated: 31 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SFXB v MINISTER FOR IMMIGRATION
[2002] FMCA 296



MIGRATION - Application for review of decision of the Refugee Review Tribunal - changed circumstances - no well-founded fear - no jurisdictional error - privative clause decision - application dismissed.



Judiciary Act 1903

Migration Act 1958

Craig v South Australia (1995) 184 CLR 163

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

SDAV v MIMIA [2002] FCA 1022

SCAM v MIMIA [2002] FCA 964

MIMA v GUI [1999] FCA 1496

MIMA v SINGH (1997) 72 FCR 288

MIMA v Haji Ibrahim [2000] HCA 55

Re The Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 467

Applicant A v MIMIA (1997) 190 CLR 225

Applicant:
SFXB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ201 of 2002



Delivered on:


28 November 2002



Delivered at:


Sydney



Hearing Date:


20 November 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr Tredrea



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


AZ201 of 2002

SFXB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application under section 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 19 June 2002 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the applicant. The application for review was filed in the Federal Court of Australia on 27 May 2002 and was transferred to this Court by von Doussa J on 8 August 2002. The applicant was ordered to file and serve particulars of the application and contentions of fact and law. He did not do so.

2. The matter was listed for hearing on 16 September 2002. On that date a legal representative for the applicant sought an adjournment so that legal advice could be provided to the applicant. The hearing was adjourned to 22 October 2002. On that date the applicant indicated that he had thought that he had legal representation from the Refugee Advocacy Service of South Australia (RASSA). The bundle of relevant documents (the Court Book) and the respondent's submissions had been taken away from him by lawyers and not returned. It was the understanding of counsel for the respondent that, as they had advised the applicant by facsimile letter on 21 October 2002, a lawyer would not be representing him at the hearing. I granted an adjournment until 20 November 2002 and directed the solicitor for the respondent to request RASSA to explain to the applicant that they no longer represented him, to return the Court book and submissions to him and to indicate whether any legal representation could be provided for a hearing on 20 November 2002. I have been provided with copies of correspondence indicating that this was done and that RASSA advised the applicant by letter dated 17 October 2002 that they were unable to provide him with representation on 22 October 2002. They are not able to provide representation today. The Court book was returned to the applicant on 22 October 2002 and the respondent provided a copy of their submissions to the applicant on 1 November 2002, also confirming to him that RASSA had advised that they would not be providing legal representation.

3. The applicant, who was born in 1975, is a citizen of Afghanistan of Pashtun ethnicity from the district of Spin Bulak in Kandahar province.

4. He arrived in Australia in June 2001. On 31 July 2001 he lodged an application for a Protection (Class XA) visa under the Migration Act 1958 ("the Act"). On 26 March 2002 a delegate of the Minister refused to grant a Protection visa and on 5 April 2002 the applicant applied to the Tribunal for a review of that decision.

5. The applicant's claims were put on a number of bases. In a letter to the Tribunal dated 12 June 2002 the applicant's migration agent contended that the applicant's claims for protection rested on three issues:-

i) That having had sex with the daughter of the village elder who had the power to order his death he feared persecution on the ground of "belonging to a different tribe to the village elder". It was submitted that a death sentence for unproved sexual assault would be excessive and totally disproportionate and "commensurate with persecution" against which the government would be unable to offer effective protection.

ii) A "sur place" claim that because he had been to a western country and applied for refugee status he would be considered a traitor by the local Pashtun community in his village on the basis that there was a high probability that many local Pashtuns were either Taliban members or supported them and that the Taliban remained strong and active in Kandahar. It was submitted that the applicant would be seen as a traitor to the Taliban cause and persecuted for holding an anti-Taliban political opinion.

iii) A well-founded fear of persecution from the Taliban. This had been the initial basis for his claim. After the change in circumstances in Afghanistan the applicant argued that there was still a current threat from the Taliban especially in the south and south-eastern provinces and that they may gain control of Afghanistan again province by province. It was submitted this also raised the question of effective protection by the interim government.

6. In addition to these three grounds the applicant also raised concerns that in the year before he came to Australia three family members were taken by the Taliban (his father and two brothers), that one brother had been killed by the Taliban and the whereabouts of his other brother and father were unknown. The applicant also claimed that there was a threat of ethnic reprisals against Pashtuns (as "payback" for Taliban atrocities) from Tajiks and Hazaras. He claimed to fear persecution due to an imputed political opinion of support for the Taliban because of his Pashtun ethnicity.

7. At the Tribunal hearing the applicant made a further claim that his father had been detained by the Taliban because of his previous political affiliations with the Communist Party in Afghanistan and that he himself would therefore be in danger for the same reason, as the present government was also antagonistic to the Communist Party.

8. The Tribunal considered each of the grounds raised by the applicant and also noted humanitarian considerations. It was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal accepted that the applicant is a national of Afghanistan. The main basis for the Tribunal's decision, particularly in relation to his claimed fear of being targeted and conscripted by the Taliban and now by Taliban remnants or the Taliban generally if it returned to power in the reasonably foreseeable future, was the finding that as a result of the significantly changed circumstances in Afghanistan - being the demise of the Taliban regime - the applicant did not have a well-founded fear of being persecuted for a Convention reason if he returned to Afghanistan. Detailed reasons were given by the Tribunal for the conclusion that it did not accept that the Taliban retain effective power or that there is a real chance of them returning to power in the foreseeable future: "The Tribunal is aware of no evidence that the Taliban or former Taliban in Kandahar or elsewhere, are now targeting or persecuting ordinary persons because they were perceived to have opposed the Taliban in the past and does not accept that the applicant on return would face a real chance of persecution for this reason.&qu;
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9. As to the claim based on his father's political associations, the Tribunal noted that the applicant had advised that his father had been a driver for a member of the Communist Party but had not been a member himself or otherwise involved and that there were no claims of anything adverse happening to the applicant's father or his family until the particular difficulties under the Taliban. The Tribunal noted that if this was as serious a problem as finally represented by the applicant it was difficult to understand why it emerged in the way it did and at the very end of the review process. The Tribunal did not accept that the applicant would be targeted or face serious harm or persecution now (a decade later) because of his father's employment prior to 1992 or that it would be the essential and significant reason for any difficulties faced by him on return to Afghanistan.

10. The Tribunal also considered the "sur place" claim. It noted that it had not been able to find any current reports of persons returning to Afghanistan from western countries such as Australia being attacked or facing serious harm or death simply because they had returned from non-Muslim countries or were perceived to be associated with countries providing contributions to the international forces in Afghanistan. An incident cited by the applicant relating to a person returning to Afghanistan from Russia (which had previously been involved in the military occupation of Afghanistan) which occurred under the former Taliban regime did not satisfy the Tribunal that the applicant would face a real chance of persecution from the Taliban or others associated with them on return to Afghanistan.

11. The Tribunal also provided reasons and references to independent country information in support of its rejection of the claim that Pashtuns in Pashtun dominated provinces such as Kandahar were being targeted for their ethnicity or religion. The Tribunal did not accept that the applicant's stated concern in this regard was well founded.

12. The Tribunal gave consideration to the applicant's claim in relation to having sex with the unmarried teenage virgin daughter of his village elder at her instigation and in response to threats of blackmail by her. The Tribunal indicated that it had serious difficulties in relation to the likelihood of a married man and an unmarried teenage girl being alone in her home in a traditional Pashtun village under the Taliban in circumstances where sexual relations could occur and be aggressively initiated by the girl as was claimed by the applicant. Nonetheless the Tribunal accepted that an incident had occurred involving the applicant and the local chief's daughter in circumstances which may lead the chief to believe that a sexual offence had occurred. It accepted that the village elder may well be intent on harming or killing the applicant in revenge but did not accept that this was because the applicant was a Pashtun of a different clan. It was satisfied that the elder would have been greatly angered by what had happened or what he believed to have happened regardless of the clan membership of the perceived culprit. Further: "the fact that the potential consequences or punishment, judicially or extra judicially, may be disproportionate, does not of itself supply a Convention reason. In the circumstances the Tribunal is also satisfied that any lack of authority or protection against such consequences by the interim government does not supply a Convention reason. Nor does the Tribunal accept that the essential or significant reason for any intended harm would be one or more of the Convention reasons (including ethnicity or clan membership) although clan animosity may conceivably have sharpened the local chief's anger".

13. Finally the Tribunal indicated that insecurity or lack of governmental authority do not of themselves give rise to a well-founded fear of persecution for a Convention reason and that while the Tribunal accepted that the applicant may be at a real risk of personal harm either judicially or extra judicially arising from his relations with the daughter this did not amount to persecution for a Convention reason.

Contentions

14. The applicant provided no particulars of the basis for his grounds for review. At the hearing he indicated that he had not read the material in the Court book or the respondent's written submissions. Counsel for the respondent summarised his written submissions in addition to making further oral submissions and the applicant was then given an opportunity to make oral submissions. In oral submissions the applicant took issue with the findings of the Tribunal that he did not have a well-founded fear of persecution for the reasons he had claimed. His arguments in effect sought merits review of the Tribunal decision. He also complained of conditions in the Woomera detention centre.

15. The respondent submitted that the Tribunal's decision was a privative clause decision under section 474 of the Act, that the Hickman conditions (discussed below) were met, that the Tribunal had appropriately assessed whether or not the applicant had a well-founded fear of persecution as at the date of determination of the application and had had appropriate regard to the country information which overwhelmingly supported the conclusion it reached that there was and is no real chance that the applicant would be persecuted by reason of his ethnicity, imputed political opinion or for any other Convention reason should he return to Afghanistan. It was submitted that an unwillingness to return to his country of origin based on an historic fear was not sufficient and that a person fleeing generalised violence or internal turmoil such as the applicant claims is not at risk of suffering persecution for a Convention reason and that the Tribunal's conclusion to this effect was correct.

16. In relation to the claimed relationship between the applicant and the daughter of the local village chief it was submitted that in this and other respects the issue of credibility of the applicant was for the Tribunal to determine, that any harm to the applicant arising from his relationship did not amount to persecution for a Convention reason, that the Tribunal had correctly applied the law and that even if there had been an error on the part of the Tribunal in this respect or in its consideration of whether the applicant belonged to a particular social group, such an error would be a jurisdictional error of the kind identified in Craig v South Australia (1995) 184 CLR 163 and as such would not provide a ground for review in light of section 474 of the Act.

Applicable law

17. The Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Act and is thus subject to the limitations on judicial review prescribed by section 474(1). Section 474(1) provides that the Tribunal's decision is final and conclusive and cannot be challenged or reviewed or called into question in any Court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account. The effect of section 474 has been considered by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. In that case the five judges constituting the Full Court agreed that this section is not to be read literally but is to be construed in the same manner as the kind of privative clause in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dixon J identified three conditions which, if met, would ordinarily mean that a decision which is the subject of a privative clause would be valid, namely:

a) the decision is a bona fide attempt to exercise the power conferred on the decision maker;

b) the decision relates to the subject matter of the legislation; and

c) the decision is reasonably capable of reference to the power given to the decision maker.

18. There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what is variously described as an "inviolable limitation or restraint" (Black CJ at [12]), a "final limitation upon the powers, duties and functions of the decision maker" (von Doussa J at [619] or a "structural" element in the operation of the Act (Black CJ at [37]). As a matter of construction the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision.

The present case

19. Despite the applicant's failure to identify any grounds for review in his application or submission to the Court I have considered all of the material before the Court including the decision of the Tribunal. This material discloses no basis for a conclusion that the decision of the Tribunal was not a bona fide attempt to exercise the power vested in it. There is nothing in this case to suggest that the Tribunal acted otherwise than in good faith in exercising its decision making function. The applicant was given the opportunity to give oral evidence on

5 June 2002 and to provide written submissions both before and after the hearing, both of which were taken into account in the Tribunal reasons for decision. The decision plainly relates to the subject matter of the Act and is referable to the power given to the Tribunal. No inviolable procedure or provision has been identified with which the Tribunal failed to comply.

20. As indicated, the Tribunal's findings that the applicant did not have a well-founded fear of persecution for a Convention reason turned, in relation to the claimed fear of the Taliban and Taliban supporters, on the significantly changed circumstances in Afghanistan since the demise of the Taliban regime. The applicant's original claim and his fears as expressed on arrival constituted a fear of the Taliban. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Toohey J at [406] stated that assessment of refugee status as a contemporaneous assessment by the decision maker:

"...does not and cannot exclude consideration of an applicant's circumstances at the time he left the country of his nationality; these circumstances are a necessary starting point of the inquiry. All that the approach demands is that a determination whether a person has a well-founded fear of being persecuted is a determination whether that circumstance exists at the time refugee status is sought. If circumstances have changed since the applicant left the country of his nationality, that is a relevant consideration. In an appropriate case the change (such as a new government) may remove any basis for a well-founded fear of persecution."

21. In the same case Gaudron J at page 415 indicated that:

"If an applicant relies on his past experiences it is, in my view, incumbent on a decision maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality."

22. In SDAV v MIMIA [2002] FCA 1022 von Doussa J indicated that where it was clear from an applicant's claims that she was unwilling to return to her country of nationality the question was whether her unwillingness was due to a well-founded fear of persecution:

"Unless her continuing fear which was the reason for her unwillingness to return was "well founded" at the time of the RRT's decision, she did not come within the scope of the definition of refugee. An unwillingness based on an historic fear is not sufficient. There must be a current well-founded fear: SCAM v MIMIA [2002] FCA 964."

23. Also see MIMA v Gui [1999] FCA 1496 and MIMA v Singh (1997)

72 FCR 288.

24. In this case I am satisfied that the Tribunal had regard to all of the circumstances before it up to the date of its determination and properly considered whether, given the changed circumstances in Afghanistan, the applicant had a continuing and current well-founded fear of persecution.

25. The Tribunal had appropriate regard to country information all of which overwhelmingly supported the conclusion reached by the Tribunal that there was and is no real chance that the applicant would be persecuted by the Taliban, the local Pashtuns or by reason of any imputed political opinion of support for the Taliban. Insofar as the applicant claimed to be fleeing generalised violence or internal turmoil this does not amount to a risk of suffering persecution for a Convention reason (MIMA v Haji Ibrahim [2000] HCA 55 at [141]). The applicant seeks impermissible merits review of the Tribunal findings in relation to the current situation in Afghanistan. His claim that the Tribunal failed to take into account relevant considerations has not been established on the material before the Court. In any event if there were such a jurisdictional error the decision would be validated by s.474.

26. The issue of the credibility of the applicant in relation to the fresh claims about his father and in relation to the incident with the chief's daughter was a matter for the Tribunal to determine (Re The Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 467 at [67]). The conclusions of the Tribunal were open on the evidence before it. It set out its findings on material questions of fact and its reasons for rejecting the applicant's claims. Its conclusion that any harm to the applicant arising from his relations with the daughter of the local village chief did not amount to persecution for a Convention reason is in accordance with the authority of Applicant A v MIMIA (1997) 190 CLR 225 at 258 per McHugh J. The Tribunal did not accept that the essential or significant reason for any intended harm would be one or more of the Convention reasons including the claimed reason of ethnicity or clan membership. Accordingly the issue was not whether the applicant was a member of a particular social group but rather whether any intended harm would be by reason of such membership. In any event any error on the part of the Tribunal in its consideration of whether the applicant belonged to a particular social group or any failure to address an element of his claim would be a jurisdictional error of the kind identified in Craig v South Australia (1995) 184 CLR 163 and as such would not now provide a ground for review in light of section 474(1) of the Act (see NAAV v MIMIA at [650] and SDAV v MIMIA [2002] FCA 1022 at [24]).

27. As no reviewable error is apparent from the material before the Court the applicant cannot succeed. In these circumstances the applicant's claim for relief must be dismissed.

28. I therefore dismiss the application. As the applicant has been wholly unsuccessful in these proceedings it is appropriate that he meet the respondent's costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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