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MIGRATION - Review of RRT decision - fear of persecution - whether the Tribunal made a jurisdictional error - whether Tribunal properly considered the objective basis of the applicant's fear - no reviewable error.

SFKB v Minister for Immigration [2002] FMCA 317 (29 November 2002)

SFKB v Minister for Immigration [2002] FMCA 317 (29 November 2002)
Last Updated: 10 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SFKB v MINISTER FOR IMMIGRATION
[2002] FMCA 317



MIGRATION - Review of RRT decision - fear of persecution - whether the Tribunal made a jurisdictional error - whether Tribunal properly considered the objective basis of the applicant's fear - no reviewable error.



Migration Act 1958, (Cth) s.474

Judiciary Act 190, s.39B

Craig v State of South Australia (1995) 184 CLR 163

NAAV v Minister for Immigration [2002] FCA FC 228

Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379

Paul v Minister for Immigration 64 ALD 289

Applicant:
SFKB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ 164 of 2002



Delivered on:


29 November 2002



Delivered at:


Adelaide



Hearing Date:


29 November 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr Nicholson



Counsel for the Respondent:


Mr Michael Roder



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ 164 of 2002

SFKB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is an Afghani of Hazara ethnicity and Shiite Muslim religion. He arrived in Australia in August 2001 and applied for a protection (class XA) visa on 23 August 2001. The delegate of the minister refused his application for protection on

7 March 2002, and on 13 March 2002 the applicant lodged an application for review by the Refugee Review Tribunal. That review was carried out in May 2002 and a decision was given on 6 May. It is that decision which is the subject of these proceedings.

2. The applicant lived in a town in the Ghazni area of Afghanistan. It is an area, in which several Hazara people live, but is generally surrounded by persons of other ethnic types, particularly Pashtun. It is notorious that in the history of Afghanistan there has been strife between the various ethnic groups and that of the ethnic groups, which make up the country of Afghanistan, the Hazara people are on the bottom rung. The applicant accepts that his claim to have a well-founded fear of persecution for convention reasons must be judged as at the time his application was considered. This is May of 2002. But at the same time, the history of the applicant, or his people, must be considered by a tribunal properly seized of an application in order to make an appropriate finding about the well foundedness of the applicant's fear of persecution for Convention reasons.

3. In this particular case, the tribunal came to the conclusion that it did not accept that there was a real chance that if the applicant returned to Afghanistan now or in the reasonably foreseeable future he would be persecuted by:

"The Taliban, remnants of the Taliban or al-Qaeda, persons or groups formerly associated with the Taliban who remain in power in Afghanistan, factions within the current interim government, various warlords or governors in positions of power in Afghanistan, or Pashtuns or other ethnic groups, whether by reason of his race (Hazara), his religion (Shia Muslim) or his real or imputed political opinion (opposition to the Taliban or to those previously aligned with the Taliban or support for the Hezb-i-Wahdat)."

4. Mr Nicholson, who appeared on behalf of the applicant, submitted to me that the tribunal had erred in the manner in which it considered the applicant's claims and that those errors constituted jurisdictional error because they fell within that class of errors defined by the High Court in Craig v State of South Australia (1995) 184 CLR 163 and in particular at page 179. The passage has been repeated so often that it does not bear further iteration. Mr Nicholson does accept that since the imposition into the Migration Act of section 474, and the decision of the full bench of the Federal Court in NAAV v Minister for Immigration [2002] FCA FC 228, these are not matters upon which I can find cause for review, but he wishes to protect the position of his client in the event that the High Court, who are seized of the constitutional validity of s 474, come to the view that the section is invalid.

5. I appreciate that there are authorities to the effect that it is not appropriate for me to make any findings about the matters raised by Mr Nicholson on the basis that I should adopt the current law on the matter and close off any further debate. However, I am satisfied that it is in the interests of justice to give some consideration to them so that in the event that there is an appeal against this decision and s 474 is no longer effective, the matters raised by the applicant can constitute a justiciable question.

6. Mr Nicholson's major point is that the tribunal made no real analysis of the available evidence and it moved too quickly to a decision that there was no present or foreseeable risk of persecution. He pointed out that there was 110 years of ethnic strife in Afghanistan and that there was evidence before the tribunal to indicate that the Taliban were merely one wave in that sea of disturbance. He pointed to several passages found between pages [81 and 102] of the court book on the position of Hazaras, and the danger in which they had been and presently are, notwithstanding the existence of an interim Western-imposed government.

7. Mr Nicholson submitted that the tribunal had made a naive adaptation of the United Nations security report of safety between Kabul and Ghazni, and made no full analysis of the status of Hazaras in the area. He submitted that a "no real chance" finding could not be reached on the basis of an uncritical adoption of statements that there is a new regime which has Western backing. He would argue that there was no proper consideration of the objective basis of the applicant's fear.

8. I can accept that some tribunals may come to the conclusion that the available evidence supports a finding that, as at May 2002, there is a real chance of persecution for convention reasons to Hazaras required to return to Ghazni as that phrase is defined in Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379. Indeed, as indicated in the applicant's submissions, other tribunals have so found. But each tribunal is required to decide the individual cases before it on their merits and independently. Provided the findings are open to the tribunal on the evidence, there will be no reviewable error if one tribunal comes to a different conclusion to another.

9. I am satisfied that this tribunal did not, as submitted, make an unjustified leap from the United Nations map to a finding of a general lack of persecution. The tribunal did consider the situation in its historical context and put its concerns to the applicant, who was represented. It seems to me that the tribunal did ask the relevant questions. I accept that the tribunal does not deal at length with all the contrary evidence put to it and referred to by Mr Nicholson, but that is not required (Paul v Minister for Immigration 64 ALD 289 at 312). There is a sufficient exposition in the reasons for decision to satisfy a justice reviewing the decision that relevant matters have been taken into account. In these circumstances I would not be prepared to find any jurisdictional error of the type described in Craig which would grant me the power to review the matter under section 39B of the Judiciary Act, absent s.474. I must therefore dismiss the application, which I do.

10. I order that the applicant pay the respondent's costs which I assess in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

11. I should just note that Mr Nicholson has appeared in this matter pro bono and that the court wishes to express its appreciation to him and other members of the legal profession for giving their time and expertise for the assistance of applicants in these matters. It assists both the court and the administration of justice generally.


I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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