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MIGRATION - Application for review of Refugee Review Tribunal decision - no prior grant of visa - no denial of procedural fairness by Tribunal - no jurisdictional error.

SGNB v Minister for Immigration [2003] FMCA 38 (1 May 2003)

SGNB v Minister for Immigration [2003] FMCA 38 (1 May 2003)
Last Updated: 7 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SGNB v MINISTER FOR IMMIGRATION
[2003] FMCA 38



MIGRATION - Application for review of Refugee Review Tribunal decision - no prior grant of visa - no denial of procedural fairness by Tribunal - no jurisdictional error.



Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth)

Federal Magistrates Act 1999

VHAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1243

VJAB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1253

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD [2002] FCAFC 390

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498

Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj (2002) 76 ALJR 598

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496

Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19

Minister for Immigration and Multicultural Affairs v Prathaysan (1998) 156 ALR 672

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]

1 KB 223

Kianfar v Minister for Immigration & Multicultural Affairs [2002] FCA 1754 Htun v MIMA [2001] FCA 1802

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375

Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6

Schwart v MIMIA [2003] FCA 169

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

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

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant:
SGNB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ235 of 2002



Delivered on:


1 May 2003



Delivered at:


Sydney



Hearing Date:


13 December 2002 (subsequent written submissions)



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr P. Charman



Solicitors for the Applicant:


Refugee Advocacy Service of South Australia



Counsel for the Respondent:


Mr K. Tredrea



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) That the application be dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


AZ235 of 2002

SGNB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 12 August 2002 affirming a decision of a delegate of the respondent to refuse to grant a Protection Visa to the applicant.

2. The applicant applied to the Federal Court under section 39B of the Judiciary Act 1903 on 5 September 2002 seeking writs of certiorari, prohibition and mandamus. The matter was transferred to this Court by Mansfield J on 13 September 2002.

Background

3. The applicant is in his early 30s and claims to be a citizen of Afghanistan from Kabul. He is from the Tajik ethnic group and a Sunni Muslim. He lived in Afghanistan until 1989 when he travelled to the former Soviet Union (now Belarus) to study. He studied there for three years and remained and worked for a further three years. He returned to Afghanistan in 1995 and remained there until 1 May 2001. He arrived in Australia in June 2001 and applied for a protection visa on 4 November 2001.

4. In his protection visa application he claimed to have a well-founded fear of persecution from the Taliban in Afghanistan on the basis of his Tajik ethnicity and his Sunni Muslim religion and also a well-founded fear of persecution on the basis of an imputed political opinion, as a Communist, because of the six years he spent in the former Soviet Union and his prior involvement in a Communist youth organisation in Afghanistan. He claimed that when he returned to Kabul after studying in the former Soviet Union many of his relatives accused him of being a Communist and a non-believer and that he had been arrested on one occasion in March 2001 by the Taliban and locked up because of this background. He said that he was released after his father paid a bribe to the Taliban and remained in hiding until he could arrange to leave Afghanistan.

5. In an undated document headed "Protection (Class XA) Visa Decision Record" a delegate of the respondent refused to grant the applicant a Protection Visa. On 9 July 2002 the applicant sought review of this decision by the Tribunal. The Tribunal held a hearing on 5 August 2002. In a submission of the same date the solicitors for the applicant indicated that as a Dari-speaking Tajik the applicant feared persecution by Pashtuns generally because of different ethnicity and language. It was also claimed that he was and would be considered a Communist because of his residence in Belarus and that he had been held by the Taliban and accused of being a "Kafir" or non-believer.

6. In the Tribunal hearing the applicant indicated that he no longer feared he would be persecuted as a Tajik or as a Dari speaker if he were to return to Afghanistan but still feared he would be persecuted by reason of his imputed political opinion as a Communist. He claimed that his relatives and friends would want to kill him because they regarded him as a Communist and a non-believer. He also claimed to fear persecution by the current government and submitted that it was unable to protect him from the harm he feared from his relatives and friends.

The Tribunal decision

7. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. It considered in some detail the claims made and material relied upon by the applicant and also other independent country information. It noted that while there had been evidence that persons associated or perceived to have been associated with the Communist pre-Mujahideen regime in Afghanistan might be at risk of violence, harassment or discrimination if they were to return to Afghanistan, "more recent advice indicates that the level of risk to persons associated, or perceived to be associated, with the former Communist (Najibullah) regime depends on whether such persons can be regarded as higher profile or low profile... Former members of the Peoples' Democratic Party of Afghanistan ... were working in the interim administration, the security service and the military... The United Nations Assistance Mission in Afghanistan advised that it believed there would be no problems for low-profile former members of the PDPA returning to Afghanistan." This more recent information was put to the applicant who said that he agreed with this advice but reiterated that his relatives and friends wanted to kill him. On the basis of independent information available to it the Tribunal found that there was not a real chance that the applicant would be persecuted by the government of Afghanistan by reason of any political opinion or religious belief imputed to him by virtue of his involvement in a Communist youth organisation or his having lived and studied in the former Soviet Union between 1989 and 1995.

8. In relation to the claimed fear of his relatives and friends, the Tribunal noted "It is relevant in this context that there is nothing in the independent evidence available to me to suggest that the Transitional Administration would encourage or condone such attacks on persons associated with the former Communist regime or who have lived or studied in the former Soviet Union". Reference was made to the observation of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257-8 "Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution". The Tribunal referred to information provided by the applicant in relation to assassinations and the general level of crime in Kabul and also to information suggesting that the security situation in Kabul had improved significantly. The Tribunal concluded that "if the applicant returns to his home in Kabul now or in the reasonably foreseeable future, he will be accorded the same degree of protection as any other Afghan national and with a degree of protection sufficient to remove a real chance of his being persecuted by his relatives or friends by reason of any political opinion or religious belief imputed to him by virtue of his involvement in a Communist youth organisation or his having lived and studied in the former Soviet Union between 1989 and 1995." It was noted that the general level of lawlessness in Afghanistan raised humanitarian considerations but did not of itself bring the applicant within the definition of a refugee. The Tribunal suggested that available information indicated the applicant's home city of Kabul was presently considered the safest city in Afghanistan for returnees. The Tribunal did not accept that there was a real chance that the applicant would be persecuted for a Convention reason if he returned to Afghanistan now or in the reasonably foreseeable future.

9. At the conclusion of the reasons for decision the Tribunal member referred to the history of the Department's processing of the applicant's application as revealed by the Departmental file which had been released to the applicant's representatives under the Freedom of Information Act. The Tribunal member suggested that it was apparent that the officer of the Department who had the initial carriage of the applicant's case had formed a view that the applicant satisfied the definition of refugee in Article 1A(2) of the Refugees Convention and remained of that view even after the Taliban regime had lost power in Afghanistan. While the Tribunal member indicated that he did not share that view he added that "the applicant was in effect deprived of the benefit of a decision in his favour". If he was not a refugee he could have been informed of that fact immediately instead of being made to wait months whilst his representatives were sent on "an ultimately fruitless quest" for a penal clearance from Belarus. The Tribunal member stated that what had occurred was "regrettable" and suggested that the course events had taken and the fact that the applicant had remained in detention awaiting the Departmental decision raised humanitarian considerations. He drew the case to the attention of the Department, noting the discretion of the Minister under section 417 of the Migration Act 1958 (Cth) (the Act) to substitute a more favourable decision for the decision of the Tribunal.

Contentions

10. The applicant submitted:

The applicant was granted a Protection Visa either on 5 December 2001, 11 March 2002 or 25 March 2002. Hence there was no valid appeal in front of the Tribunal and the Tribunal should have refused to hear the matter as it had no jurisdiction as there was no reviewable decision as required by section 411 of the Migration Act. The decision of the Tribunal was said to be void ab initio and accordingly there was no valid decision for the applicant to appeal against. The applicant sought a declaration from the Court that there was a valid grant of visa on one of these dates.

If the Tribunal did have jurisdiction it was contended that it failed to exercise it

(i) In a manner which constituted a bona fide attempt; and/or

(ii) In accordance with section 65 of the Act which was said to be an inviolable limitation on the actions of the decision maker.

11. The respondent submitted that no decision had been made by a delegate of the Minister to grant a visa to the applicant prior to the refusal that was the subject of the application to the Tribunal, that it had not been established that the Tribunal had not made a bona fide attempt to exercise its power and that section 65 of the Migration Act 1958 (Cth) (the Act) had not been contravened and, in any event, that it was not an inviolable limitation.

12. The parties were given the opportunity to make further submissions in light of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. The applicant submitted that the Tribunal had made a jurisdictional error in the sense enunciated by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for Immigration and Multicultural Affairs [2001] HCA 30 in that it failed to take into account relevant material and took into account irrelevant material (in relation to safety in Afghanistan and the applicant's circumstances) and that it failed to ask itself the correct question at law in relation to the existence of a well founded present and future fear. These grounds were said to be sufficient in isolation but also their cumulative effect was said to be that in failing to make findings on a fundamental issue the Minister could not have been satisfied as required in s.65 before he could refuse the visa. It was further submitted that the decision was so unreasonable that no reasonable person could have come to it.

13. The applicant also submitted that there has been a denial of natural justice and procedural fairness such that there has been a failure to comply with a condition of the exercise of decision making power constituting a jurisdictional error in that: (a) it was claimed that the applicant was twice granted a visa subject to a penal clearance, that the requirement for that clearance was dispensed with in accordance with the respondent's protocol so the respondent was satisfied in accordance with s.65 and the grant of the visa came into effect as a record had been made under s.67; and (b) the delay by the Respondent in processing the applicant's matter was said to be a result of a general suspension of processing the applications of refugees from Afghanistan. As such suspension had not been done in accordance with s.84 it was said to be breach of procedural fairness.

14. The respondent submitted that the Tribunal did not fall into an error of law which caused it to ignore relevant material or rely on irrelevant material or fail to ask the correct question at law; that any `errors' claimed were not made out but if they were then concerned decision-making tasks undertaken by the Tribunal on matters within jurisdiction and were not reviewable; and that the denial of procedural fairness grounds must fail as a ground of challenge against the decision of the Tribunal.

Was the applicant granted a Protection Visa?

15. If the applicant is correct in the contention that he was granted a visa by a delegate of the respondent then it will not be necessary to consider the alternative argument that there is a reviewable error. I note as a preliminary point that the applicant seeks a declaration that he has been granted a visa. On this basis he would be a lawful non-citizen and would presumably seek consequential incidental orders. This is not an application for interlocutory orders seeking the release of the applicant on a temporary basis pending a final hearing of the substantive application. In this respect the situation differs from that considered in VJAB v MIMIA [2002] FCA 1253, VFAD of 2002 v MIMIA [2002] FCA 1062 and the subsequent decision of the Full Court in MIMIA v VFAD of 2002 [2002] FCAFC 390 and VHAF v MIMIA [2002] FCA 1243. These cases considered whether the Federal Court has the power to and should make interlocutory orders for release of an applicant who claimed to have been granted a visa by a delegate of the Minister pending a hearing and determination of the application for a declaration to that effect.

16. In order to consider the claim of the applicant it is necessary to set out at some length the facts in relation to the processing of his application for a Protection Visa.

17. The applicant arrived in Australia in June 2001. He applied for a Protection Visa on 4 November 2001 while detained in the Woomera Immigration Reception and Processing Centre. It appears that he had been taken into detention as an unlawful non-citizen. At the time of completion of his Protection Visa application he also provided personal particulars for character assessment. He disclosed in this document and in his application that he had lived in the former Soviet Union from January 1989 to January 1995.

18. On 2 December 2001 a case manager in the Department of Immigration and Multicultural and Indigenous Affairs prepared a memorandum which, from the bundle of relevant documents provided to the Court, appears to have been sent as an e-mail on 5 December 2001 to the Prior Protection and Nationality section of the Department with copies to two named officers. It is as follows (the name of the applicant has been deleted having regard to s91X of the Act):

Subject: Effective Protection - Nationality/Re-entry Residence - Review

PLEASE NOTE: Applicant WAH094 (WMA1690) has PIC4001 check outstanding, pending response from Character section.

Effective Protection - Nationality/Re-entry Residence (EFP), UNHCR and/or UNWRA check(s) - Review

Mr [name of applicant] WAH094 WMA1690 is an applicant for a temporary Protection visa (XA785).

His claimed nationality is Afghanistan.

His country of claimed persecution is Afghanistan.

Effective Protection - Nationality/Re-entry Residence, UNHCR and/or UNWRA check(s) have been initiated for the following countries (other than the country the applicant fears persecution from) in which it is suspected that the applicant may have temporarily or permanently resided in:

Nationality/ID Fraud - Belarus - CIS Request No: 4050 - Date check initiated with PDSS: 20/11/01

Re-entry/Residence - Belarus - CIS Request No: 4134 - Date check initiated with PDSS: 20/11/01

As per the recommendation in the policy advice of 9 March 2001 on `Revision of Fraud and Effective Protection Checking Procedures', I request permission to finalise this case without having received the result of the above Effective Protection - Nationality/Re-entry Residence, UNHCR and/or UNWRA check(s). However, I request that the checks be continued and the results be considered in any future decision making for this applicant.

I have determined that the above-named applicant meets the 1A assessment.

The above Effective Protection - Nationality/Re-entry Residence, UNHCR and/or UNWRA check(s) remain as an outstanding check/s for this applicant.

It has been 4 weeks since date of application.

It has been 2 weeks since the check was requested.

There is little likelihood of obtaining the results of these Effective Protection - Nationality/Re-entry Residence and/or UNHCR checks within a reasonable time (as per Minute dated 9 March 2001).

The results of these checks are not crucial to making my decision on this case.

I confirm that the applicant has signed the Effective Protection statutory declaration and this declaration is on file number ............., folio number .................

OR if applicant has signed the applicant's declaration in Part C/D of the revised Form 866 (released 9 July 2001).

I confirm that the applicant has signed the applicant's declaration at Part C/D of the Form 866 and this declaration is on file number c/f2001/56951, folio number 27...

Language Analysis

Has Language Analysis been initiated? Yes Date initiated: 07/08/01

If so, what was the result? Applicant speaks Dari with a typical accent from Kabul in Afghanistan.

Does the Language Analysis confirm the client's claimed nationality? Yes

I confirm that the results on language analysis tests, if initiated, have been received and considered.

Any intelligence information received has been considered.

I will not finalise this case until I have completed the review of the need for the check with the Director of PDSS.

(Name of officer)

02/12/01

19. I note that while this document stated that the Departmental Officer was satisfied that the applicant met the 1A Assessment (which I take to be a reference to Article 1A of the Refugees Convention) it also contained a request for permission to finalise the case without the results of specified checks and concluded with a statement (in bold type) that the officer would not finalise the case until the review of the need for the check was completed.

20. The next document that appears in the bundle of relevant documents

(I have not been provided with the complete Departmental file but there has been no suggestion that relevant documents have been withheld) is a facsimile to the applicant's solicitor dated 23 January 2002 from the Departmental case manager whose name appears on the e-mail of 5 December 2001 commencing:

I refer to the penal clearance requirement of the applicant in relation to his residence in Belarus.

This letter pointed out that the applicant was required to provide a penal clearance certificate from Belarus and contained information as to how to obtain such a police clearance. Included in this advice was the suggestion that the Russian Embassy in Canberra could advise on the location of the closest Belarusian Embassy. The applicant's solicitor was asked to give this matter his "preferential attention".

21. On 11 March 2002 the applicant's solicitor replied to the Department noting that the facsimile of 23 January 2002 had requested a penal clearance certificate from Belarus, that they had contacted the Russian Embassy in Canberra in relation to this request and had been advised to contact the Russian Consulate in Sydney. A penal clearance application form had been faxed to them by the Russian Consulate however it was in Russian and it was only after the applicant had completed the form that it was realised that it was in fact a Russian penal clearance certificate form. The solicitors had been advised to contact a Belarusian Embassy in another country and they had taken steps to do so (copy e-mails were provided) but had not received a response. In view of these circumstances the solicitors requested that the Department waive the requirement for a Belarusian penal clearance certificate.

22. On 21 March 2002 the applicant's solicitors again wrote to the Departmental case officer confirming their efforts in obtaining a penal clearance certificate from Belarus, indicating that they had not received a response from any of the various Belarusian posts they had contacted and again requesting waiver of the requirement. The applicant's solicitors asked if there were any further efforts they were required to make to obtain a penal clearance certificate from Belarus. A further letter of the same date provided details of organisations approached by the solicitors and confirmation that they had mistakenly completed an application for a Russian penal clearance certificate rather than a Belarusian penal clearance certificate. It was again requested that a penal certificate waiver be granted.

23. The next item in the bundle of relevant documents provided to the Court is a document which appears to be a facsimile sent by the Russian Consulate on 1 March 2002. It may be that this is the application for a Russian penal certificate referred to in the correspondence. As the document is not in English and is not translated it is not possible for the Court to make such a determination. Nor is it possible for the Court to be satisfied that this untranslated document is a Belarusian penal certificate.

24. On 25 March 2002 the same Departmental case manager sent a further facsimile to the Prior Protection and Nationality section of the Department with copies to three officers in almost identical terms to the facsimile of 5 December 2001 which is set out above. It stated that the applicant had PIC4002 check outstanding (rather than PIC4001) and repeated the request for permission to finalise the case without having received the result of the Effective Protection checks. It stated, as does the earlier document, that the officer had determined that the applicant met the 1A assessment, that the Nationality/ID Fraud and Re-entry/Residence remained outstanding and detailed the time since the date of application and since the check was requested. It concluded with the same statement (in bold) that the officer "will not finalise this case until I have completed the review of the need for the check with the Director of PDSS".

25. On 6 May 2002, following a series of internal Departmental e-mails, the Department case manager sent a further facsimile message to the applicant's solicitors referring to their letter of 11 March 2002, noting that the Character section had not agreed to a waiver but required evidence of any attempt to obtain the necessary certificate, an indication of the response as well as any other information that would "help to seek a waiver".

26. On 17 May 2002 the applicant's solicitors provided further information as to their inquiries to a different Departmental officer. They indicated that they had been unsuccessful in obtaining a police clearance and once again sought a police clearance waiver. Copies of correspondence from the applicant's solicitors to various Belarusian overseas organisations were provided. On 12 June 2002 the applicant's solicitors again wrote to this second Departmental officer confirming that the officer had agreed to follow up on outstanding requirements in this matter and requesting a written update indicating further information required and also "an estimated time in which you expect to make a decision". A further letter dated 25 June 2002 confirms that the original Departmental officer was shortly to make a decision.

27. Another document that appears in the bundle of relevant documents is a signed but undated document headed "PROTECTION (CLASS XA) VISA DECISION RECORD". This document set out the details of the applicant, the legal framework, the evidence before the officer (who is not either of the officers named on earlier correspondence or on the documents dated 5 December 2001 and 25 March 2002), and an assessment of specific claims of the applicant by reference to the criteria in Schedule 2 of the Migration Regulations, Parts 866 and 785. The document quoted extensively from country information and concluded that the applicant did not currently have a well-founded fear of persecution on return to Afghanistan due to his imputed political opinion. It concluded with a heading "Part D: Decision on Protection (Class XA) Visa Application". It stated that because the applicant did not satisfy the prescribed criteria "I refuse to grant him a Protection (Class XA) visa." It is this document which is the "decision" in relation to which the applicant sought review by the Refugee Review Tribunal. The Tribunal decision indicates that the applicant was notified of this decision on 4 July 2002. An undated letter from the original Departmental case officer to the applicant advised him that he had been refused a Protection visa.

28. It is not clear from the documents before the Court why the "decision" which formed the basis of the review application to the Tribunal was prepared by an officer other than the original case officer.

29. On 9 July 2002 the applicant applied to the Refugee Review Tribunal for review of the decision to refuse to grant him a Protection visa. The Tribunal held a hearing on 5 August 2002. It received a submission from the applicant's solicitors of that date supporting the applicant's claim to be a refugee. The submission from the applicant's solicitors does not claim that the applicant was in fact granted a visa prior to the refusal under consideration by the Tribunal as is now submitted but proceeds on the basis that review was sought of the refusal decision notified on 4 July 2002.

30. In written contentions of fact and law the applicant's legal representative argues that the internal e-mail from the department dated 5 December 2001 "indicates that the applicant was granted a visa subject to a penal clearance from Belarus". In oral submissions Mr Charman, Counsel for the applicant, indicated that this submission was based on the statement in the facsimile memorandum that "I have determined that the abovenamed applicant meets the 1A assessment". It is said that this is an assessment as to whether the applicant is a refugee and amounts to the granting of a visa, although it was conceded that this was subject to penal clearance from Belarus.

31. In the alternative it is submitted for the applicant that the almost identical facsimile of 25 March 2002 again grants the applicant a visa subject to a penal clearance from Belarus. The submission recognises that there was some confusion as to the status of the penal clearance. It is also submitted that the applicant's solicitor in fact supplied the necessary clearance on 11 March 2002 and that this is confirmed by the letter dated 21 March 2002 from the solicitors to the Department. It is suggested that this was accepted as the case by the Tribunal in its reasons for decision insofar as it is stated that the officer of the Department who had interviewed the applicant in November 2001 and again in February 2002 "had not once but twice (on 5 December 2001 and 25 March 2002) reached a decision that the applicant satisfied the definition of a refugee in Article 1A(2) of the Refugees Convention".

32. However the Tribunal reasons for decision continue: "A decision was repeatedly delayed pending the receipt of a penal clearance from Belarus. In May 2002 a senior officer of the Department demanded that the case officer go back to the applicant's representatives to ask them for further evidence of the efforts they had made to obtain such a clearance although such evidence had been provided by facsimile on 11 March, confirmed by letter on 21 March 2002 .... When the Applicant's application was eventually refused it was on the basis that the Applicant's `claimed fear of persecution on return to Afghanistan is not well founded'. The decision was signed by a delegate of the Minister other than the officer who had interviewed the applicant in November 2001 and February 2002 although that officer signed the covering letter transmitting the decision to the applicant ...". I have set out this extract from the Tribunal reasons for decision because it does not, contrary to the submission of the applicant, accept that a visa was granted on either of the dates suggested by the applicant or that the applicant's solicitors supplied the necessary penal clearance certificate on 11 March 2002. Rather it confirms that, while the Departmental officer was satisfied on each of these occasions that the applicant met the definition of a refugee in Article 1A, the penal check was outstanding and no waiver of the requirement had been granted.

33. The issue for determination in this case is whether the applicant was granted a visa on any occasion prior to the decision notified on 4 July 2002 to refuse to grant him a visa. Section 5 of the Migration Act defines "visa" as having the meaning given by section 29. This section provides that the Minister may grant a non-citizen "permission, to be known as a visa" to travel to and enter Australia or to remain in Australia. Section 31 provides for prescribed classes of visas. Subsection 31(3) provides:

Regulation 2.03(1) provides that for the purposes of subsection 31(3) the prescribed criteria for the grant to a person of a particular visa class are the primary (or if relevant, secondary) criteria set out in a relevant part of Schedule 2.

34. The only visa class relevant in this case, is Class XA, the "Protection" visa. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Parts 785 or 866 of Schedule 2 to the Migration Regulations. Subsection 36(2) provides that "a criterion" for a Protection visa is that the applicant is 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. This is the criterion that the Departmental officer considered was met by the applicant in both December 2001 and March 2002. However it is important to note that while this is one criterion it is not the only one.

35. For a Protection visa to be granted the applicant must either meet the criteria for subclass 785 or for subclass 866 contained in Part 785 or Part 866 of Schedule 2 to the Migration Regulations. Part 785 contains primary criteria to be satisfied at the time of application (clause 785.21) and at the time of decision (785.22). There are nine criteria to be satisfied at the time of decision. These include subclause 785.221 which provides that "The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention" and subclause 785.226 "The applicant satisfies public interest criteria 4001, 4002 and 4003". This is a reference to criteria detailed in Schedule 4 to the Migration Regulations. By Regulation 2.03(2) if a criterion in Schedule 2 refers to a criterion in Schedule 4 by number (such as the reference in subclause 785.226 to 4001, 4002 and 4003): "A criterion so referred to must be satisfied by an applicant as if it were set out at length in the Schedule 2 criterion." In other words the criteria in clauses 4001, 4002 and 4003 of Schedule 4 form part of the criteria for a subclass 785 visa and must be satisfied at the time of the Departmental decision to grant a visa. Clause 4001 provides:

Either:

(a) the applicant satisfies the Minister that the applicant passes the character test (2); or

(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or

(c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or

(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

36. It is also relevant to note that section 46 of the Act sets out the criteria to be met in order for a visa application to be valid and section 47 requires the Minister to consider a valid application. Section 65 is of importance. It deals with the decision to grant or refuse a visa and relevantly provides:

(1)After considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

37. Section 66 requires the Minister (and I note that the Minister's powers under the Act may be delegated under section 496) when he grants or refuses to grant a visa, to notify the applicant of the decision in the prescribed way. However failure to give notification of a decision does not affect the validity of the decision (section 66(4)). Section 67 provides "A visa is to be granted by the Minister causing a record of it to be made". Section 68 relevantly, deals with when a visa is in effect as follows:

(1) Subject to subsection (2), a visa has effect as soon as it is granted.

(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:

(a) specified in the visa; or

(b) when an event, specified in the visa, happens.

(3) A visa can only be in effect during the visa period for the visa.

38. Section 70 provides that, subject to the regulations, if a non-citizen is granted a visa, the officer is to give to the non-citizen "evidence of the visa" and section 71 provides that evidence of a visa is to be given in the manner prescribed by the regulations.

39. The effect of these provisions has been summarised by the Full Court of the Federal Court in VFAD at [35] as follows:

Sections 65 to 71 make clear a number of matters. A visa is, as s29 provides, simply the grant to a non-citizen of permission to travel to and enter Australia, or remain in Australia. Section 65 provides that upon reaching the requisite state of satisfaction in relation to the criteria required to be satisfied, the Minister or his delegate must grant the relevant visa. Sections 66 and 67 provide for notification of the Minister's decision and the way in which a visa is to be granted. It seems that a visa may be granted orally but s67 makes it clear that, once granted, a record of it is to be made. Section 68 provides that a visa has effect "as soon as it is granted". Sections 70 and 71 provide for evidence of visas.

40. The applicant seeks to establish that either of the facsimiles prepared by a Departmental officer on 5 December 2001 and 25 March 2002 constitutes the grant to him of a visa as at those dates or on 11 March 2002 when, it is claimed, the necessary penal clearance was provided. In VHAF v MIMIA [2002] FCA 1243, where an applicant sought to establish that a document on the Departmental records constituted the grant to him of a visa, Gray J took the view that the Federal Court had jurisdiction to deal with an application for a declaration under section 39B(1A)(c) of the Judiciary Act 1903 (Cth) despite the provisions in Part VIII of the Migration Act. No issue was raised in this case as to whether this Court has jurisdiction in relation to the application for a declaration (and see s.16, Federal Magistrates Act 1999) in proceedings in which the application seeks review of a Tribunal decision. The applicant claims that there was no valid appeal to the Tribunal and that the Tribunal should have refused to hear the matter as it had no jurisdiction, there being no reviewable decision as required by s.411. As explained below I am not satisfied that there was the grant of a visa to the applicant. Hence it has not been established that the applicant has been illegally detained in contravention of section 196(1)(c) of the Act and it is accordingly unnecessary to determine the extent of this Court's powers on this application. A similar issue arises in relation to the argument that there was a denial of procedural fairness based on the conduct of Departmental officers as discussed at [47].

No grant of a visa

41. It has not been disputed that the officer who prepared the e-mails of

5 December 2001 and 25 March 2002 was at the relevant time a delegate of the Minister appointed under section 496 of the Migration Act. Such a delegate has a duty pursuant to section 47(1) to consider a valid application for a visa. There is no suggestion that the applicant's application is not a valid application for a visa and I have proceeded on this basis. The duty to consider a valid application for a visa continues until one of the events referred to in section 47(2) occurs. In this case the applicant contends that the duty was exercised by the delegate when he made a record of his finding that the applicant met "the 1A assessment".

42. On this argument the decision to grant a visa was made in December 2001 or March 2002 subject to provision of a penal certificate which it was suggested occurred in March 2002. Hence, it is argued, the subsequent decision to refuse the applicant a visa is said to be of no effect.

43. There are, however, a number of difficulties with this submission and I am not persuaded that the Department made a decision, either to grant or refuse a visa, prior to the decision notified to the applicant on 4 July 2002. It is conceded for the applicant that as at December 2001 he had not provided a Belarus penal clearance certificate. The evidence does not, contrary to the submissions of the applicant, establish that he (or his solicitors) did so at any time. The letter of 11 March 2002 from the applicant's solicitor to the Department does not provide such a certificate. Rather it explains the unsuccessful attempts to obtain a certificate and seeks a waiver of the requirement. Nowhere in either of the e-mails of 5 December 2001 or 25 March 2002 is there any indication that the criteria in clauses 4001 and 4002 of Schedule 4 are met. Both e-mails state that the Departmental officer requests permission to finalise the case without the results of checks but also that the officer will not finalise the case until the review of the need for the checks is completed. In other words, whilst this officer was satisfied that the applicant met one of the criteria for the class of visa applied for (the so called "1A assessment" required by s.6(2) and also subclause 785.221) there is nothing to establish that he was satisfied that all the criteria prescribed by the Act or Regulations for the grant of a visa were satisfied as required by s.65. Hence the prerequisites for the grant of the visa were not met. Satisfaction as to the 1A assessment meets but one criterion for the class of visa sought. This does not suffice. I do not accept that the applicant was granted a visa `subject to' a penal clearance from Belarus. Section 65 requires satisfaction that the health criteria and "the other criteria prescribed" by the Act or Regulations have been satisfied. It is clear that neither of the documents of 5 December 2001 or 25 March 2002 show a state of satisfaction in relation to any of the prescribed criteria other than the so-called "1A assessment".

44. The e-mails of 5 December 2001 and 25 March 2002 are quite different in form and content from the document notified on 4 July 2002 and from the documents considered by the Federal Court in VHAF, VJAB and by the Full Court in VFAD. Those documents were each headed "Protection Visa Decision Record" and were in the form of a decision. In each case specific reference was made to the need for a state of satisfaction in relation to the applicant satisfying all listed Schedule 2, Part 785 criteria (including public interest criteria 4001 to 4003 (clause 785.226)). In those cases while there was a document in the form of a decision record, no decision had been communicated to the applicant. In such circumstances it was held that the Court had power to order the release of the applicant pending hearing and a determination of whether the decision form constituted the grant of a Protection visa to the applicant. In VHAF the Departmental file also contained an internal e-mailed document in similar form to the e-mails of 5 December 2001 and 25 March 2002 in which a Departmental officer requested permission to finalise the case without having received the result of specified checks relating to Schedule 4 criteria. There was no suggestion in that case that such a request constituted a decision record or the grant of a visa.

45. I am satisfied that neither the e-mail of 5 December 2001 or that of 25 March 2002 constituted the grant of a visa. This is made abundantly clear by the wording of each of the e-mails. They each constitute requests by the Departmental case officer to the Prior Protection and Nationality section of the Department for permission to finalise the case without having received the result of specified checks. A finding that the applicant meets one of the specified criteria (the `1A' assessment) does not constitute a finding that all the prescribed criteria are satisfied as required by s.65. Hence there was no valid grant of a visa on 5 December 2001. Nor has it been established that a penal certificate was provided on 11 March 2002. On the contrary: there were continued requests by the applicant's solicitor for waiver of the penal certificate requirement indicating that the certificate had not been provided. Hence it is not necessary to determine whether the Minister granted a visa on that date. For the same reasons as apply to the e-mail of 5 December 2001 it has not been established that the e-mail of

25 March 2002 constituted a decision to grant a visa. It is clear from each and every one of the documents considered (with the exception of the foreign language document which does not assist) that the penal check was outstanding and that no waiver of the requirement had been granted.

46. As I am not satisfied that there was a prior decision to grant a visa to the applicant, the decision to refuse a visa notified on 4 July 2002 is a valid operative decision. The refusal provides a proper basis for review by the Tribunal (section 411(i)(c)).

Procedural fairness

47. The conclusion that neither of the documents relied upon constitutes the grant of a visa makes it necessary to consider the submission that there was a denial of procedural fairness on the basis that the respondent has a protocol that where a penal clearance has not been obtained within a set period of time (six weeks) the requirement is dispensed with and thus that the visa should be regarded as having been granted. However, there is no evidence before the Court as to the existence or effect of any such protocol. The claim has not been established. Further, as I have already indicated, the application before the Court is for review of the Tribunal decision. This claim relates to the conduct of the Minister and Departmental officers. It has not been claimed and there is nothing to suggest that there was any denial of procedural fairness by the Tribunal.

48. The other procedural fairness claim raised in the further contentions of the applicant was to the effect that the delay by the Department in processing the applicant's matter was a result of an illegal suspension of processing of visa applications. Again this contention is is based on the alleged conduct of the Minister and Departmental officers. This was not a ground raised in the application, which sought review of the Tribunal decision. As grounds of challenge to the decision of the Tribunal both claims must fail as it has not been established that there was any denial of procedural fairness in the Tribunal procedures or decision. The claims have nothing to do with the Tribunal and its actions. It cannot be said that the Tribunal decision was flawed for reason of failure by the Tribunal to comply with the principles of natural justice.

Was there any jurisdictional error?

49. Accordingly it is necessary to consider the applicant's other arguments in relation to the Tribunal decision. The initial submissions of the applicant in this respect were based on the law as it stood at the time of the hearing. Since that time the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 has been handed down in relation to the validity and effect of s.474 of the Act, and the decision in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 has considered, inter alia, the scope and nature of s65 of the Act. Later submissions have reframed the applicant's claim based on jurisdictional error by the Tribunal and, as discussed above, denial procedural fairness by the respondent.

50. Section 474(1) provides that:

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.

51. The majority judgment in Plaintiff S157/2002 considered the principles applicable to privative clauses generally. It concluded that the so-called "Hickman principle" (from R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498 at [614]-[616] is simply a rule of construction allowing for reconciliation of apparently conflicting statutory provisions consisting of a privative clause provision (such as s.474 of the Act) and other provisions in the same legislation pursuant to which some action has been taken or some decision made.

52. The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in S157 indicates that as a matter of construction, the expression "decision made under this Act (in section 474(2)) which confines `privative clause decision'" to decisions "made, proposed to be made, or required to be made...under this Act `must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act" [76]. If there has been such a jurisdictional error the decision in question is not a privative clause decision as defined in s.474(2) and (3) of the Act. To determine whether or not a particular errors are jurisdictional error it is necessary to have regard to the whole of the Act including s.474 and to attempt to achieve a reconciliation between s.474 and the rest of the legislation (at [76] - [78] and see Gleeson CJ at [19], [26] and [33]). The alleged jurisdictional error in issue in S157 was said to be a denial of natural justice and the Court held that s.474 on its true construction does not protect a decision `flawed for reasons of a failure to comply with the principles of natural justice'[83]. In Schwart v MIMIA [2003] FCA 169 Selway J suggested that errors that may be characterised as `jurisdictional errors' include errors of law in the sense considered in Craig v South Australia (1995) 184 CLR 163. In Craig it was said that 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 powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it." (at [179])

53. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated:

"What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.""(at [74])

54. The other recent High Court decision of relevance is S134/2002 in which the majority of the High Court (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) rejected a submission that s.65 of the Migration Act required the Minister (and hence the Tribunal) to reach a state of satisfaction (or otherwise) respecting criteria which the prosecutors did not advance (in that case as to an entitlement to a visa based on membership of a family unit of a person already granted a temporary protection visa). The Court concluded (at [32]) that there was no misapplication of the relevant criteria by the Tribunal and no jurisdictional error. The majority judgment did not discuss whether s.65 was in fact an `inviolable provision' as there had been no misapplication of the relevant criteria. The possibility was, however, left open. Gaudron and Kirby JJ, in the minority, concluded that:

In the light of the detailed specification in the Regulations of the criteria for the grant of various classes of visa, it is impossible to treat the consideration by the decision-maker of the relevant criteria and his or her satisfaction or lack of satisfaction in that regard as other than conditions precedent to a valid decision to grant or refuse a visa under s65(1) of the Act. (at [83]).

Their Honours considered that s.474 did not operate to relieve a decision-maker from the obligation of giving effect to the applicable criteria. In effect s.65 was regarded by Gaudron and Kirby JJ as an `inviolable limitation' and on this basis a failure to meet the duties imposed by the combined operation of ss.65, 414 and 415 to consider the application and to consider the matters prescribed by s.65(1)(a)(i) to (iv) including the criteria for a protection visa prescribed by s.36 and the Regulations would be a jurisdictional error. Gaudron and Kirby JJ differed from the majority in finding that there was a jurisdictional error in the decision-maker's failure to consider the criterion relating to membership of a family unit.

55. It was argued by the applicant that the Tribunal erred by failing to take into account relevant material and by taking into account irrelevant material relating to the particular circumstances of the applicant and the situation in Afghanistan generally and in failing to ask the correct question in relation to the existence of a present well-founded fear of persecution and to ask itself the question relating to a well-founded future fear. It was submitted that these grounds were sufficient to constitute jurisdictional error and that their cumulative effect was that the decision-maker could not be satisfied as required by s.65 of the Act as there was a failure to make findings on a fundamental issue. It is claimed that consideration by a Tribunal member of the relevant criteria and his satisfaction or lack of satisfaction in that regard is a condition precedent to a valid decision to grant or refuse a visa under s.65(1). On this basis the Tribunal had a duty to consider whether the applicant (being a person who claimed to be owed obligations under the Refugee Convention as amended by the Protocol relating to the status of Refugees) was a refugee as defined in Article 1A(2) of the Convention and to consider the test in Article 1A(2) of whether he had a well-founded fear of persecution for a Convention reason. It was submitted that if the Tribunal member failed to give effect to the Convention, for example because he misunderstood the nature of persecution such a failure would constitute jurisdictional error and a failure to satisfy a condition precedent to the discharge of the obligation imposed by s.65. This is consistent with the views of the minority in S134 that: "This is because a decision-maker who has not given effect to the Convention cannot be said either to have been satisfied or not to have been satisfied that the person concerned is a person to whom Australia owes protection obligations. And his or her satisfaction or lack of satisfaction in that regard is a condition precedent to the grant or refusal of a protection visa" (at [76] and also see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 and Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 at [41] per Gaudron, Gummow and Hayne JJ).

56. In relation to the circumstances of the applicant, it was submitted that the Tribunal failed to take into account country information (in particular Document CX65932 at paragraph [32]) which stated that serious problems could continue to be faced by those associated with or perceived to have been associated with pre-1992 Communist regimes and that the level of risk would depend on the area from which the individuals came and whether family relationships could provide them with protection. It was also claimed that the Tribunal had not taken into account the evidence that the applicant would not get protection from his family who considered him to be a non-believer and a Communist. However the Tribunal canvassed these issues and concerns. It noted that the applicant had returned to Afghanistan in 1995 and that there was nothing in the independent evidence to suggest that the Transitional Administration would encourage or condone attacks. As McHugh J observed in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257-8:

`The Convention' is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution".

57. The Tribunal correctly applied the test of whether the government of Afghanistan would extend the same degree of protection as that accorded to any of its nationals and whether it would provide the applicant with a level of protection sufficient to remove a real chance of persecution by, in this case, the relatives and friends of the applicant (see Minister for Immigration and Multicultural Affairs v Prathaysan (1998) 156 ALR 672 at 681 per Lindgren J). In applying this test the Tribunal took into account evidence in relation to assassination of senior Ministers and the general level of crime in Kabul relied on by the applicant. It also took into account evidence to the contrary, the substance of which was put to the applicant in the hearing. The Tribunal did not fail to take into account the applicant's individual circumstances. Rather it considered his individual circumstances concluding that having regard to the independent evidence, in particular the distinction drawn between high and low profile Communist associates, it was not satisfied that he would be persecuted by the government by reason of any political opinion or religious belief imputed to him by virtue of his involvement in a Communist youth organisation or his having lived and studied in the former Soviet Union between 1989 and 1995.

58. Nor has it been established that the Tribunal failed to take into account relevant material or took into account irrelevant material or evidenced a mind closed to the circumstances in Afghanistan generally (i.e. in that it is the official position that Afghanistan is safe and the Tribunal only gave weight to evidence that supported that view). On the contrary the Tribunal canvassed the evidence to the contrary, referred to in submissions. In particular it accepted that there was a lack of security in Afghanistan and a level of lawlessness in the country. It also noted advice from the Australian Department of Foreign Affairs and Trade to the effect that given the high level of political instability and uncertainty within Afghanistan, it was not possible to make predictions about Kabul's future stability/security (CX63521). The Tribunal correctly pointed out that could only make its decisions on the best evidence available to it with regard to the situation in Kabul now or in the reasonably foreseeable future, and preferred, as was open to it, evidence supporting the conclusion that if the applicant returned to his home in Kabul "now or in the reasonably foreseeable future", he would be accorded the same degree of protection as any Afghan national and would be afforded a degree of protection sufficient to remove a real chance of his being persecuted by his relatives and friends by reason of any political opinion or religious belief imputed to him.

59. Further, as McHugh, Gummow and Hayne JJ stated in Yusef at [74] this ground of review is "concerned essentially with whether the decision-maker has properly applied the law". The Tribunal considered the applicant's claims that he would face persecution because he would be associated with Communism and with the Russians and his claims to fear harm from the current government and from friends and relatives. This is not a case where the Tribunal misunderstood or failed to deal with a relevant aspect or essential element of a claimed fear of persecution (cf Kianfar v Minister for Immigration & Multicultural Affairs [2002] FCA 1754 and Htun v MIMA [2001] FCA 1802). As was indicated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, the ground of failure to take into account relevant considerations can only be made out if a decision-maker failes to take into account a consideration which he bound to take into account in making that decision. The factors a decision-maker is bound to consider in making the decision are determined by construction of the statute conferring the discretion (see McHugh, Gummow and Hayne JJ in Yusef at [73]). As Mason J stated "If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act." Where a discretion is conferred in very general terms, it is normally a matter for the decision-maker to decide what is relevant and what is not and the weight to be accorded to matters he regards as relevant (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375). It has not been established that the Tribunal erred as submitted.

60. The applicant also submitted that the Tribunal failed to ask itself the correct question at law in relation to the existence of a present well-founded fear and also failed to ask itself at all the question relating to whether there was a well-founded future fear. However the Court not only stated correctly the test in relation to the existence of a well-founded fear it also applied the test correctly. The Tribunal noted that the notion of well-founded fear of persecution contains both a subjective and an objective requirement (see Dawson J in Chan Yie Qin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396 per Dawson J) and also that a fear will be `well-founded' if there is a `real chance' that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality (Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429). As the Tribunal also stated, a fear may be well-founded even though the possibility of persecution occurring is well below fifty percent but it is not well-founded if it is merely assumed or if it is mere speculation (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). The Tribunal made findings about the past, considered relevant information, put what could influence its decision to the applicant and weighed it and his responses against the information provided by his advisers. It did place more weight upon information which indicated that Afghanistan was at the time under the control of a transitional administration, that there was nothing to suggest that Tajik or Dari speakers were being persecuted in Kabul under the transitional administration and concluded that it did not accept that there was a real chance that the applicant would be persecuted by reason of his race or his language if he returned to his home in Kabul now or in the reasonably foreseeable future. As to the claims by the applicant that he fears being persecuted by reason of imputed political opinion as a Communist, the Tribunal considered his claims in relation to the present government and his relatives and friends and the information submitted by his representatives in relation to the treatment of former Communists under the Taliban and the attitudes of factions of the Northern Alliance. The Tribunal also, as it had put to the applicant in the course of the hearing, considered and gave weight to independent country information in relation to the present time that most rank and file members of the Afghan communist party were at lower risk of mistreatment by the Taliban or anti-Taliban factions. The Tribunal considered the other information submitted by the applicant in relation to the views of members of the current government and accepted that they may well hold the view that the Afghan people had engaged in a war of liberation or independence against the former Soviet Union but concluded that this did not mean that the current government was persecuting people like the applicant who were involved in the PDPA or its youth organisations or who had studied in the former Soviet Union. Again it referred to independent country information in relation to the sorts of people who might be at risk of violence, harassment or discrimination if they were to return to Afghanistan indicating that this depended on whether such persons could be regarded as high profile or low profile. The Tribunal also considered the applicant claims and the independent country information in relation to its conclusion that there was nothing to suggest that the transitional administration would encourage or condone attacks on persons associated with the former Communist regime or who had lived and studied in the former Soviet Union. I am satisfied that in addition to considering relevant information and making findings about the past the Tribunal also considered independent information and information submitted by the applicant in relation to the present situation in Afghanistan, in particular, renewed factional fighting and cautions expressed by Amnesty International with regard to the return of Afghan asylum seekers to Afghanistan. It accepted that there was a lack of security in Afghanistan and a level of lawlessness that indicated that the general level of lawlessness did not in itself bring the applicant within the definition of a refugee that furthermore independent information indicated that Kabul was presently considered the safest city in Afghanistan for returnees. On the basis of the information before it the Tribunal considered not only the present but also properly applied the test of whether there was a `real chance' that the applicant would be persecuted for a Convention reason in the reasonably foreseeable future. It did not err in assessing the level of fear required. Nor did it `dismiss' the applicant's fear as submitted. The Tribunal correctly considered whether the fear was well-founded not merely now or in the period shortly after any return to Afghanistan but also in the reasonably foreseeable future (see Minister for Immigration Multicultural Affairs v Gui [1999] FCA 1496. It has not been established that the Tribunal disregarded or failed to take into account relevant considerations or failed to apply the test of well-founded fear of persecution correctly.

61. Accordingly, it has not been established that the Tribunal member failed to consider and decide whether he was satisfied as to each of the criteria, and in particular each element of the definition of refugee (see Chan at 306 [40] per Gleeson CJ, Gaudron, Gummow and Hayne JJ). No misconstruction or misunderstanding of the Convention test or failure to give effect to the Convention has been established. The fact-finding task undertaken by the Tribunal addressed the relevant statutory criteria (see sections 36(2) and 65(1) and Parts 785 and 866 of Schedule 2 of the Migration Regulations 1994 and S134 at [32] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ). It cannot be said that the Tribunal failed to discharge the obligation imposed by s.65.

62. It was also submitted generally by the applicant that the decision was so unreasonable that no reasonable person could have come to it. This ground of review was considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. As Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 noted, the Court's role is not merits review. "It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account."(at [41]) However in some circumstances a court may set aside an administrative decision "which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance" (at [41]) on the ground that the decision is "manifestly unreasonable". His Honour suggested however that a Court "should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits" (at [42]).

63. The relevant findings of fact of the Tribunal related to claims concerning the Taliban, the political opinion imputed to the applicant and the changed country circumstances in Afghanistan. These findings and the matters taken into account by the Tribunal were within the Tribunal's jurisdiction. It has not been established that the weight placed by the Tribunal on particular aspects of the conflicting evidence discussed above was such that the decision was manifestly unreasonable. A challenge to the merits or the fact-finding process is not open to the applicant.

64. As none of the applicant's claims have been established it is not necessary to consider the effect of S157 and the arguments of the respondent in relation to the distinction between jurisdictional error and non-jurisdictional error (as to which see Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6).

65. The decision is a privative clause decision. The applicant had initially submitted that there was a failure to exercise jurisdiction in accordance with the Hickman requirement of a `bona fide attempt'. As I have found that it has not been established that the decision of the Tribunal was flawed in the manner submitted it follows that this ground has not been established.

66. The applicant does not contend, and there is nothing to suggest, that the Tribunal decision did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given to the Tribunal. Nor has it been suggested that any `inviolable' limitation other than s.65 was contravened or that there was a denial of natural justice by the Tribunal.

67. In these circumstances the applicant's claim for relief must be dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 1 May 2003
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