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MIGRATION - Application for review of decision of the Refugee Review Tribunal - Applicant claiming well founded fear of persecution - durability of change in Afghanistan - allegation of jurisdictional error - no error found.

SFTB v Minister for Immigration [2002] FMCA 222 (11 October 2002)

SFTB v Minister for Immigration [2002] FMCA 222 (11 October 2002)
Last Updated: 15 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SFTB v MINISTER FOR IMMIGRATION
[2002] FMCA 222



MIGRATION - Application for review of decision of the Refugee Review Tribunal - Applicant claiming well founded fear of persecution - durability of change in Afghanistan - allegation of jurisdictional error - no error found.

Migration Act 1958, ss.36(2), 65(1)

Judiciary Act 1903 (Commonwealth), s.39B

R V Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598

Chan v Minister for Immigration and Ethnic Affairs [1990] 169 CLR 379

MIMA v Haji Ibrahim (2000) 204 CLR 1

Craig v South Australia (1995) 184 CLR 163

MIMA v Yusef (2001) 180 ALR 1

NAAV v MIMIA [2002] FCAFC 228

NAIN v MIMIA [2002] FMCA 177



Applicant:
SFTB



Respondent:


Minister for Immigration and Multicultural and Indigenous Affairs



File No:


AZ161 of 2002



Delivered on:


11th October 2002



Delivered at:


DARWIN



Hearing Date:


23rd August 2002



Judgment of:


Brown FM



REPRESENTATION

Counsel for the Applicant:


Mr Ower



Solicitors for the Applicant:


Regugee Advocacy Service of South Australia Inc



Counsel for the Respondent:


Mr Tredrea



Solicitors for the Respondent:


Sparke Helmore Solicitors


ORDERS

(1) The application is dismissed.

(2) The applicant pay the respondent's costs in the amount of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ161 of 2002

SFTB


Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. The applicant in these proceedings is not to be identified pursuant to the provisions of section 91X of the Migration Act 1958. He is a 15 year old boy, who was found by the Refugee Review Tribunal to be an Hazara and Shi'a muslim from the Ghazni Province of Afghanistan. Accordingly, he is a citizen of Afghanistan.

2. He arrived in Australia in August 2001 without a passport or any other documentary evidence in respect of his country of nationality. On the 20th of September 2001, he lodged an application for a protection (class XA) visa under the Migration Act 1958 ("the Act") with the Department of Immigration and Multicultural and Indigenous Affairs. On the 11th of January 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the applicant such a protection visa.

3. As a result, the applicant sought a review of this decision in the Refugee Review Tribunal ("the RRT") pursuant to section 411(1) of the Act. On the 13th of May 2002 the RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant.

4. On the 29th of May, 2002 the applicant filed an application for review of the Tribunal's decision with the Federal Court of Australia, South Australia District Registry. By order of von Doussa J. made on 5 July 2002, these proceedings were transferred to the Federal Magistrate's Court. The hearing took place before me in Adelaide on the 23rd of August, 2002. Both the applicant and the respondent were represented by counsel.

5. In this application, the applicant claims the following relief:

1. An order that a writ of centiorari be directed to the Refugee Review Tribunal to quash its decision of 13 May 2002.

2. An order that a writ of prohibition be directed to the respondent prohibiting him from acting upon, giving effect to or proceeding further upon the decision of 13 May 2002.

3. An order that a writ of mandamus be directed to the Refugee Review Tribunal to re-determine the applicant's visa application according to law.

4. An order that the respondent pay the costs of the applicant.

6. The applicant's solicitor swore and filed an affidavit in support of the application in which the grounds on which the applicant sought this relief was set out as follows:

"The applicant seeks relief under section 39B of the Judiciary Act 1903 (Commonwealth) on the ground that the Refugee Review Tribunal -

a) exceeded its jurisdiction in making its decision to affirm the respondents decision;

b) constructively failed to exercise its jurisdiction in arriving at its decision."

7. The applicant relied upon an outline of submissions filed on the 20th of August, 2002 and the Court Book filed on the 28th of June, 2002. The respondent also relied on the Court Book and submissions filed on the 20th of August, 2002.

8. The respondent seeks that the application should be dismissed with costs.

Background

9. There was no dispute between the parties in regards to most of the findings of the RRT in respect of the applicant. Although the Minister's delegate found differently, the RRT found that the applicant was born in 1987 in the Qara Bagh District of Ghazni Province in Afghanistan. The RRT found that he was of Hazari ethnicity and a Shi'a muslim. He departed Afghanistan in June of 2001.

10. The applicant received some education at his local mosque in the form of religious instruction. He left Afghanistan as a result of persecution by members of the Taliban regime because he was both an Hazari and Shi'a muslim. Prior to his departure, the applicant was beaten on two occasions at his local mosque by members of the Taliban. About fifteen days prior to his departure from Afghanistan, the Taliban went to the applicant's home and accused his father of transporting weapons in his truck. They assaulted the applicant and his grandmother, who later died that day from injuries she sustained. The Taliban took away the applicant's father. Two days later the Taliban returned and took away his older brother. The Taliban tortured the applicant's father, releasing him the day before the applicant left Afghanistan. The applicant's eldest brother did not return home before the applicant left Afghanistan.

11. In his initial application for a protection visa, the applicant indicated that as a Shi'a and Hazari he feared that if he returned to Afghanistan the Taliban would kill him. The Taliban are Sunni muslims and many are of Pushtun ethnicity.

12. As is well known, in the wake of the September 11, 2001 terrorist attacks on New York and Washington, there has been a considerable change in the political administration of Afghanistan. The Taliban have been removed from control in Kabul and a number of other key cities in Afghanistan as a result of military successes by the United States of America backed Northern Alliance. In particular, as a result of United Nations sponsored talks on the 5th of December 2001 a broad based interim authority has been installed to govern Afghanistan from the 22nd of December 2001. Further, the United Nations Security Council has been requested to deploy a UN mandated security force to maintain security in Kabul and its surrounding areas and, potentially, in other areas of Afghanistan.

13. In order to be granted a protection visa, the applicant had to satisfy the criteria set out in section 36(2) of the Act, namely that he was a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. Article 1A(2) of the convention defines a refugee as any person who:

"...owing to a 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, is unable or, owing to such fear, is unwilling to return to it."

14. It was the question of whether or not there had been a substantial change in circumstances in Afghanistan, since the time of the applicant's departure from there, that was central to the deliberations of the RRT. In particular, whether due to the change in political circumstances in Afghanistan, there had been change to such a degree that the applicant could not longer have a "well founded fear" of persecution in Afghanistan.

The RRT decision

15. In order to satisfy the RRT that he was entitled to a protection visa, the applicant had to satisfy the decision maker that the prescribed criteria for the visa had been satisfied (see section 65(1) of the Act). As has already been indicated the relevant criteria are set out in section 36(2) of the Act.

16. The RRT accepted that the applicant had indeed been persecuted by the Taliban in Afghanistan prior to his departure from that country. In its decision of the 13th of May 2002 the RRT said as follows:

"Accordingly, I accept the Taliban beat the applicant on three occasions because he was an Hazari and Shi'a muslim. I also accept the Taliban tortured his father, took away his brother and caused the death of his grandmother for those reasons. In the circumstances, it is understandable that he would continue to fear being persecuted by the Taliban, remnants of the Taliban or Pushtuns upon returning to Ghazni Province." (Court Book page 100).

17. However, the Tribunal had also to consider whether, at the time of its decision, the applicant could reasonably continue to have a "well founded" fear of persecution in Afghanistan. As a result, it was necessary for the Tribunal to consider "the extent and impact of recent political changes in Afghanistan and the circumstances prevailing in his (the applicant's) home Province of Ghazni." (Court Book page 101).

18. In informing itself in respect of political circumstances applicable in Afghanistan at the time of its decision, the RRT had access to a variety of information. This is characterised as "country information" and is set out at pages 93 to 99 of the Court Book. In reaching its decision the Tribunal had access to and considered the following documents:

i) International Freedom Report for Afghanistan dated 26 October 2001;

ii) Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions;

iii) Taliban's reign in Afghanistan ends after surrender of Kandahar, Xinhua News Agency 7 December 2001;

iv) Reuters News Service, "Afghan Hazara leader Khalili backs Bonn accord" 15 December 2001;

v) Reuters Business Briefing "Hazara minority supports new Afghan government" 27 December 2001;

vi) UN Security Council "Second report on the activities of the International Security Assistance Force in Afghanistan" 24 April 2002;

vii) Country Information Service, Country Information Report No 83/02 - Feasibility of return to Afghanistan 2 April 2002;

viii) Reuters Business Briefing "Pashtuns complain of harassment by other Afghan tribes" 30 March 2002;

19. The RRT accepted that the Taliban had lost control in Afghanistan. It also accepted that there was a high level of international commitment to rebuilding Afghanistan and to the establishment of a representative and effective government there. Of particular importance was the Tribunal's acceptance of the Country Information Report dated the 2nd of April, 2002 which reported that, in general, Hazaras would not face "specific problems" in returning to areas of Afghanistan where they are the ethnic majority. Indeed, the Tribunal accepted that Hazaras had been mistreating Pashtuns in Ghazni Province since the demise of the Taliban.

20. As a result the Tribunal reached the following conclusion in respect of the applicant's application for review and in particular whether he had a well founded fear of persecution in the event of his return to Afghanistan:

"The political circumstances in Afghanistan have changed substantially since the applicant left that country. I accept that the Taliban have been effectively eliminated as a political and military force in Afghanistan.... In addition, I do not accept that there is a real chance that the applicant will be persecuted by the Taliban or Pashtuns in his local area or any area of Ghazni Province. ...accordingly, I find that the applicant does not have a well founded fear of being persecuted by the Taliban or Pashtuns in Ghazni Province for reasons of his Hazara ethnicity, his adherence to the Shi'a muslim religion, his membership of a particular social group, or any other convention reason."

21. As a result, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol. He did not therefore satisfy the criteria set out in section 36(2) of the Act for a protection visa.

Jurisdiction

22. The jurisdiction of the Federal Magistrates Court is set out in section 483(A) of the Migration Act 1958 (Commonwealth).

23. The errors identified by the applicant in the decision of the RRT must be such as to attract relief under section 39B of the Judiciary Act 1903 (Commonwealth). The inquiry required of the Court is whether the approach adopted by the Tribunal was such as to render its decision invalid. The jurisdiction that the Court exercises is subject to section 474 of the Migration Act 1958 (Commonwealth), which is found in Part 8 of the Act which deals with judicial review. The current Part 8 of the Migration Act is enacted as a result of the provisions of the Migration Legislation Amendment (Judicial Review) Act 2001. It severely restricts the capacity of the Court to review decisions of the RRT. Section 474 is the section which places into the Act a privative clause in the following form:

474 Decisions under Act are final

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

24. Part 8 applies in respect of judicial review of any decision made under the Migration Act 1958 (Commonwealth) where the application for review was not lodged before the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act. The application before me was lodged after the commencement of the Schedule and is therefore subject to the new regime and in particular the privative clause set out above.

25. Such a clause was interpreted by the High Court in R V Hickman;

Ex Parte Fox and Clinton (1945) 70 CLR 598. In Hickman, Dixon J. at 616 set out the grounds on which a Court such as this one may nonetheless review a decision of an administrative nature that is subject to such a privative clause. In his judgment to that case, Dixon J. stated the three pre-conditions to the valid exercise of decision making powers to which such a clause applies as follows:

a) The decision maker is required to have made "a bona fide attempt to exercise its power";

b) The decision "relates to the subject matter of the legislation";

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

Thus, a decision makers decision is protected by a privative clause for only so long as the decision maker does not exceed his or her jurisdiction in breach of one of the Hickman conditions.

The applicant's submissions

26. The applicant accepted that this was a decision to which the privative clause created by section 474(1) of the Act applied. However, it was asserted that the RRT had fallen into a jurisdictional error by failing to take into account an essential requirement of the Migration Act in reaching its decision and as such the decision was rendered void. In particular, it was asserted, that the RRT had failed to properly consider the requirements set out in section 36(2) of the Act in respect of Australia's obligations under the Refugees Convention. It was argued that the RRT had failed to properly consider whether the change of circumstances in Afghanistan, since the departure of the applicant, was such that the applicant could no longer properly have a "well founded" fear of persecution in that country. In essence, it was argued that the RRT had misconceived the criterion specified under section 36(2) in respect of this matter and as such had breached what was categorised as an "inviolable limitation" on its jurisdiction.

27. In determining whether the applicant's fear of persecution in his country of origin was "well founded" it was argued that it was incumbent and essential on the part of the RRT to consider whether any subsequent change of circumstances in that country was "significant, effective, durable and substantial". A failure by the RRT to properly consider each of these matters in respect of the applicant's country of origin, Afghanistan and his Province of origin, Ghazni would necessarily involve an error of the jurisdiction imposed by section 36(2) and consequentially section 65 of the Act. It was said that it was an essential requirement of the RRT's jurisdiction to consider in its decision making capacity the durability of any political change in Afghanistan before reaching any conclusion as to whether or not the applicant had a "well founded" fear of persecution in Afghanistan in the event of his return to that country.

28. The applicant's case is that the RRT had failed to properly consider this issue in respect of Ghazni Province and in particular, whether the change of circumstances in that Province was "significant, effective, durable and substantial" since the demise of the Taliban Regime. In failing to consider this specific issue in respect of the applicant's case, it was argued that the RRT was in breach of an express statutory limitation imposed by section 36(2) of the Migration Act and the necessary interpretation of the Refugee Convention to which it referred, and as such, the decision was subject to review not withstanding the provisions of section 474 of the Act.

29. In support of his contention that the RRT had misconceived its obligation under the Refugee Convention and had failed to consider properly whether or not the applicant's fear of persecution was well founded because it had not had evidence before it regarding the durability of any peace in Afghanistan, the applicant relied on two monographs by Professor Hathaway and Professor Goodwin-Gill.[1] Both authors speak of the "durability" of any shift in the political landscape as a pre-requisite to the consideration of any change of circumstances for the purposes of interpretation of the Refugees Convention. Essentially, the applicant argues that the RRT did not consider the durability of the chain of circumstances in Ghazni Province because of the overthrow of the Taliban, and as a result whether Australia continued to have an obligation pursuant to the Refugee Convention and section 36(2) of the Migration Act to offer protection to the applicant. Therefore it fell into reviewable error.

The Respondent's submissions

30. It is the respondent's position that the RRT did properly consider whether or not there had been a change of circumstances in Afghanistan in general, and in Ghazni Province in particular, at the time of the hearing and as a result, at that time whether or not the applicant could be said to have a well founded fear of persecution. The respondent argued that the RRT had considered this issue in both a subjective and objective basis as required by the law, and had done so in a sympathetic and comprehensive manner.

31. In regards to the subjective elements of the test, the RRT concluded that given the applicant's previous dealings with the Taliban it is "understandable that he (the applicant) would continue to fear being persecuted by the Taliban, remnants of the Taliban or Pushtuns upon returning to Ghazni Province." (Court Book page 100).

32. The respondent also referred to the fact that the RRT had referred correctly to the decision in Chan v The Minister for Immigration and Ethnic Affairs [1990] 169 CLR 379 in respect of whether or not in an objective sense, the applicant's fear of persecution in the event that he returned both to Afghanistan and Ghazni Province could be said to be "well founded". By well founded that there was a "real chance" of him being persecuted on his return to either Afghanistan or Ghazni Province.

33. The respondent argued that the RRT had considered this question in the light of relevant evidence that had been laid before it and had reached the conclusion that there was not in an objective sense a real chance of such persecution because of the change of circumstances in Afghanistan.

34. Accordingly, the respondent submitted that it could not be said that there had been an error of the kinds necessary to attract relief under section 39B of the Judiciary Act, as effected by Part 8 of the Migration Act.

35. The respondent conceded that it was possible that there might be civil strife or general unrest in both Afghanistan and Ghazni Province in the aftermath of the overthrow of the Taliban. However, the respondent submitted that the scope of the Refugee Convention did not encompass those fleeing generalised violence or internal turmoil. In this regard, the respondent made reference to MIMA v Haji Ibrahim (2000) 204 CLR 1 and the comments of Gummow, J at [141].

Discussion

36. In this case, I accept the submissions of the respondent. In my view, the RRT's decision was open to it on the evidence and material that had been placed before it. It was open to the RRT to conclude that due to the change of regime in Afghanistan that in an objective sense there was no basis for the applicant to have a "well founded" fear of persecution. The applicant is critical that the RRT did not turn its mind in particular to the circumstances in Ghazni Province. I do not accept this to be the case. The RRT had before it material in respect of Ghazni Province and in particular the members of the Hazari ethnic group and adherents of the Shi'a muslim religion. The RRT considered this evidence and concluded that the applicant did not satisfy the criterion set out in section 36(2) of the Migration Act for a protection visa.

37. It is not the function of this Court to substitute its judgment of the merits of the application for those of the RRT.

38. As a result of the operation of the privative clause the grounds for review of the RRT's decision are small. It was not argued by the applicant that there was a lack of bona fides on the part of the RRT or that its decision did not relate to the subject matter of the legislation.

39. In this case, the applicant argues that there has been a breach of "an inviolable limitation" imposed by section 36(2) of the Migration Act by virtue of the RRT considering the wrong issue in respect of the durability of the situation currently prevailing in both Afghanistan and Ghazni Province. This has led to the RRT fundamentally misconceiving its jurisdiction and thus opening it up to review notwithstanding the provisions of section 474 of the Migration Act. I do not accept this argument.

40. The High Court considered the issue of jurisdictional error in Craig v South Australia (1995) 184 CLR 163 and MIMIA v Yusuf (2001) 180 ALR 1. In Craig (supra) at 179 Brennan, Deane, Toohey and McHugh JJ said:

"If an administrative Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."

In Yusuf (supra) McHugh, Gummow and Hayne JJ quoted the above passage from the decision of the High Court in Craig and went on at [82]:

" `Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law".

41. However, both these decisions must be viewed in the light of the decision of the Full Bench of the Federal Court in NAAV v MIMIA [2002] FCAFC 228, in which the phrase "inviolable limitation" is used by both Black, CJ and von Doussa, J.

42. In NAAV (supra) Black, CJ said at [15];

"It is difficult to formulate a precise principal for determining exactly when a provision in an Act containing a Hickman clause may be said to be outside the operation of such a clause and to have the character of an "inviolable limitation".

43. And further at [30] he said:

"I agree that the enactment of section 474 (1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a precondition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that section 474 (1) may be taken to provide the "contrary intent", which gives the administrative decision maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia (supra). For this reason, I take section 474 (1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister ( or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material."

44. And again further at [37] Black, CJ said as follows:

"There are some fundamentals in the way the Act operates, to which section 474 (1) has no application...I agree with von Doussa, J that these elements are few in number, and that once they are satisfied the decision makers power is greatly expanded by section 474 (1)."

45. In NAIN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 177 Driver, FM discussed NAAV (supra) in respect of its application to section 65 of the Migration Act as follows:

"Section 414 of the Migration Act does not require the RRT to achieve any particular level of satisfaction in reviewing a decision. However, in conducting a review of a decision to refuse to grant a visa the RRT stands in the shoes of the original decision maker and exercises decision making power pursuant to s.65. That section requires the decision maker to achieve satisfaction upon certain elements before making a decision to grant or refuse a visa. Consistently with the decision of the Full Federal Court in NAAV, in relation to appeal by Turcan, the satisfaction requirement in s.65 is an inviolable requirement of the Migration Act that is a condition precedent to a valid exercise of the decision making power. It follows that if a legal error is made in assessing the criteria for the grant of a visa preparatory to determining whether the requisite degree of satisfaction has been met, the decision may be reviewable notwithstanding the privative clause. However, it is not any legal error which will provide a foundation for such review. As was made clear by Black CJ in NAAV, regarding Turcan, the general jurisdictional questions identified in Craig are not sufficient. What is necessary is the identification of a legal error of the kind identified in Turcan. This may be, for example, the application of a part of the Migration Act or regulations which does not apply, or no longer applies, or a failure to apply a part of the legislative regime which must apply."

46. I respectfully adopt this analysis. In my view, the RRT in this case did not commit a legal error when it considered the applicant's case. In my view, pursuant to section 36 (2) and section 65 of the Migration Act there was no requirement for it to consider the durability of peace in either Afghanistan or Ghazni Province. The only issue before the RRT was whether the applicant had a "well founded fear" of persecution in Ghazni Province. The RRT considered this issue in the light of the evidence it had before it and pursuant to the objective test as outlined in Chan (supra). It concluded that the applicant did not have such a well founded fear. Accordingly, I am of the view, that the RRT did not transgress in the "inviolable limitation" in reaching its decision or otherwise fall into an error which would be reviewable notwithstanding section 474 of the Migration Act. Accordingly, it follows the application must be dismissed. The applicant must pay the respondent's costs which I assess in the amount of $3,750.00 pursuant to Part 21, Rule 21.02 (2) of the Federal Magistrates' Court Rules.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C M White

Date: 11th October 2002


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[1] Hathaway, The Law of Refugee Status (1991), pages 200-205; Goodwin-Gill, The Refugee in International Law, second edition, (1996), pages 84-87
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