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MIGRATION - claim to be refugee from Afghanistan dismissed by Tribunal mainly upon basis of linguistic report - appeal from Tribunal to single judge of Federal Court dismissed upon ground of absence of Tribunal error - appeal to Full Court dismissed upon basis of absence of ground of appeal propounded - unnecessary to consider implications of statutory privative clause - implications of delay in hearing by Full Court where no ground of appeal propounded in notice of appeal.

SBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

SBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 21 (20 February 2003)
Last Updated: 27 February 2003


FEDERAL COURT OF AUSTRALIA
SBAZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 21


MIGRATION - claim to be refugee from Afghanistan dismissed by Tribunal mainly upon basis of linguistic report - appeal from Tribunal to single judge of Federal Court dismissed upon ground of absence of Tribunal error - appeal to Full Court dismissed upon basis of absence of ground of appeal propounded - unnecessary to consider implications of statutory privative clause - implications of delay in hearing by Full Court where no ground of appeal propounded in notice of appeal.

Migration Act 1958 (Cth) s 424A

S157/2002 v The Commonwealth (2003) HCA 2 cited.

SBAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 276 OF 2002

MADGWICK, GYLES & CONTI JJ

20 FEBRUARY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 276 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SBAZ

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
MADGWICK, GYLES & CONTI JJ


DATE OF ORDER:
20 FEBRUARY 2003


WHERE MADE:
ADELAIDE




THE COURT ORDERS THAT:

1. Appeal be dismissed.

2. Appellant to pay the Respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA REGISTRY
S 276 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SBAZ

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
MADGWICK, GYLES & CONTI JJ


DATE:
20 FEBRUARY 2003


PLACE:
ADELAIDE





REASONS FOR JUDGMENT

Madgwick J

1 I agree with the reasons for decision of Conti J. I might add that, because there is a new legal regime by which the decisions of the Refugee Review Tribunal may be tested, subsequently to the decision of the primary judge, arising out of the decision of the High Court in Plaintiff S157/2002 v The Commonwealth (2003) HCA 2, given on 4 February 2003, I have, in light of the appellant being unrepresented, examined the material anxiously to see whether any jurisdictional error might be found. I can, however, see no sign of it.

2 The order of the court therefore will be that the appeal is dismissed. The appellant is to pay the respondent's costs accordingly.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.




Associate:

Dated: 25 February 2003

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 276 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SBAZ

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
MADGWICK, GYLES & CONTI JJ


DATE:
20 FEBRUARY 2003


PLACE:
ADELAIDE





REASONS FOR JUDGMENT

Gyles J

3 I also agree with the reasons for decision of Conti J. I add two things. Firstly, this is yet another case where months have elapsed since the primary decision, purely on the basis of a notice of appeal which discloses no ground of appeal, and when we come to the hearing no argument is addressed as to any legal error or any error committed by the primary judge. In my opinion, delays of this sort are assisting to bring the system into disrepute. Secondly, there is an air of great unreality about this case. The appellant sought protection on the basis that he feared consequences from the Taliban at a time when the regime in Afghanistan was quite different to that existing now.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.




Associate:

Dated: 25 February 2003

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 276 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SBAZ

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
MADGWICK, GYLES & CONTI JJ


DATE:
20 FEBRUARY 2003


PLACE:
ADELAIDE





REASONS FOR JUDGMENT

Conti J

4 This is an appeal from the judgment of Mansfield J delivered on 25 October 2002, pursuant to which his Honour dismissed the appellant's application for review of the decision of the Refugee Review Tribunal ("RRT"), made on 13 December 2001, to refuse to grant to the appellant a protection visa.

5 The appellant appeared in person on the appeal, though he was represented by counsel before the primary judge. The sole ground of appeal set out in the appellant's handwritten notice of appeal of 23 November 2002 is in the following terms:

"The learned judge failed to see that the Refugee Review Tribunal did not act in good faith in my case."
6 The appellant was born in 1961 and claimed to have lived all his life in the Ghazni province of Afghanistan. The primary judge found that the appellant is of Hazara ethnicity and is a Shi'a Muslim. The appellant further claimed to have worked as a farm labourer in Afghanistan from the time he was a young man until he departed from Afghanistan. He left behind his wife, his six children and his mother, and has no knowledge of their present whereabouts. He arrived in Australia illegally by boat, without a passport or other identity documents, having travelled through Pakistan and Indonesia. He claimed to have a well-founded fear of being returned to Afghanistan by reason of the activities of the Taliban, and of his ethnicity, his religion and his perceived political opinion.

7 The RRT had significant doubt about the reliability of the appellant's claims, first, because they were not made to any specific extent when he was initially interviewed after his arrival in Australia, and secondly, because in a number of instances, his subsequent account of aspects of his claims varied over time. The RRT also gave little weight to the evidence of a witness for the appellant, who claimed to have known the appellant whilst the appellant was living in Afghanistan.

8 The appellant also contended that the RRT had failed to comply with s 424A of the Migration Act 1958 (Cth) ("the Act") by not inviting the appellant to comment upon a piece of information to which it had paid regard, namely the tape recording of the interview conducted by the Minister's delegate on 29 July 2001, which described the appellant's relationship with a certain relative of his in a different way from that which he had described in his written statement in support of his application for a protection visa, and subsequently during the RRT hearing.

9 The appellant further contended that the RRT had failed to exercise good faith, and to make a bona fide attempt to exercise its power to review the delegate's earlier decision which had been also adverse to the appellant, relying in large measure in that regard upon the RRT's consideration of the language analysis report dated 26 September 2001 by a linguist employed by Eqvator of Stockholm, which had concluded that the appellant's dialect and language originated from the Quatta region of Pakistan, that being "very different from that of Hazaras from Hazarajat in Afghanistan". For the reasons furnished by the primary judge, I think that the RRT was correct in concluding first, that the RRT's failure to deal with certain submissions concerning that report did not indicate that it did not attempt in good faith to address the weight to be attributed to that linguistic analysis report, and secondly, that the RRT's approach to its assessment of the reliability of the appellant's evidence did not indicate a lack of good faith on its part, and thirdly therefore, that the grounds of review presented by the appellant to the RRT had not been made out.

10 The primary judge also reviewed the implications of s 474 of the Act which had been raised by the Minister for consideration, in the event that his Honour was to reach conclusions different to those which I have already set out. It is unnecessary for that material to be examined, in the light of the conclusion I have reached on the appeal.

11 In summary, the appellant sought to rehearse before the Full Court essentially the same submissions as were made by counsel on his behalf before the primary judge, in support of his claim to be a citizen of Afghanistan. Nothing said by the appellant to the Full Court has persuaded me that his Honour's conclusions were erroneous in any respect, and in particular his Honour's ultimate conclusion that the RRT had not erred in concluding that the appellant was not a citizen of Afghanistan. That suffices to justify in my opinion the dismissal of the appeal with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.




Associate:

Dated: 25 February 2003

Appellant appeared in person







Counsel for the respondent:
Ms S Maharaj






Solicitor for the respondent:
Sparke Helmore






Date of Hearing:
20 February 2003






Date of Judgment:
20 February 2003


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