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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant Afghani citizen of the Hazara ethnicity - applicant claimed well-founded fear of persecution on the grounds of the known persecution of the Hazara minority by the Taliban - change of situation in Afghanistan - no continuing well-founded fear of persecution - no grounds for review found.

SFJB v Minister for Immigration [2002] FMCA 188 (30 August 2002)

SFJB v Minister for Immigration [2002] FMCA 188 (30 August 2002)
Last Updated: 4 September 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SFJB v MINISTER FOR IMMIGRATION
[2002] FMCA 188



MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant Afghani citizen of the Hazara ethnicity - applicant claimed well-founded fear of persecution on the grounds of the known persecution of the Hazara minority by the Taliban - change of situation in Afghanistan - no continuing well-founded fear of persecution - no grounds for review found.



Migration Act 1958 (Cth) s.474

Judiciary Act 1903 (Cth) s.39B

Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288

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

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

Craig v The State of South Australia (1985) 184 CLR 163

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

R v Murray; Ex parte Proctor (1949) 77 CLR 387

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

Minister for Immigration & Multicultural Affairs v Ibrahim [2000] HCA 55

Applicant:
SFJB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ 167 of 2002



Delivered on:


30 August 2002



Delivered at:


Sydney



Hearing Date:


14 August 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr K Tredrea



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ 167 of 2002

SFJB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Afghani citizen of the Hazara ethnicity. He lived in the Maidan area of the Wardak Province of Afghanistan. He was a shepherd of no education. He arrived in Australia by boat on 1 August 2001 and has been detained in Woomera Detention Centre ever since. In his initial interview the applicant claimed a well-founded fear of persecution for Convention reasons on the grounds of the known persecution of the Hazara minority by the Taliban. In his case this was compounded by the fact that the Taliban had seized his brother and in all probability had killed him or he had died whilst under their control. The applicant had avoided the same fate by hiding away in the mountains.

2. The applicant applied for a protection visa (class XA) on 23 October 2001 but by the time that application was decided by the Minister's delegate on 3 April 2002 the situation in Afghanistan had changed. The Minister's delegate, supported by a language analysis test did not accept that the applicant was a citizen of Afghanistan but stated that even if he was, he did not have a well-founded fear of persecution if he returned to his former home.

3. On 4 April 2002 an application for review of the delegate's decision was made on behalf of the applicant by his solicitors. The hearing was carried out on 29 April 2002 in the presence of the applicant's solicitors. Following the hearing, the applicant's solicitors made a "post-hearing submission" [CB 124]. The Tribunal in a lengthy and well-reasoned decision [CB 142-168] disregarded the delegate's findings based upon the language analysis and accepted that the applicant was as he claimed to be, a citizen of Afghanistan. However, the Tribunal came to the view that as at the date of its decision the situation in Afghanistan and in particular in the area in which the applicant claimed to have lived was no longer such as to engender a well-founded fear of persecution for Convention reasons. In coming to that conclusion the Tribunal had the benefit of a significant amount of country information and assessed that information in accordance with the authorities. The Tribunal specifically referred to Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 noting the references of the Full Court to the dicta of various judges of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 387, 399, 406 and 414-5 and Minister for Immigration and Multicultural Affairs v Guo Ping Gui [1999] FCA 1496 at [35].

4. In conducting its procedures the Tribunal put to the applicant those pieces of country information upon which it relied (see [CB 151-154]).

5. The applicant, through his representative, submitted to the Tribunal that matters were not as they appeared from the country information. He submitted that the Taliban had not been driven out. He submitted that the people who were previously persecuting Hazaras as Taliban officials had merely shaved their beards. They were still Pashtuns by ethnicity and still hated and persecuted Hazaras. He had particular concern about the activities of a particular warlord in his region. He stated that this warlord was a Hazara that had changed sides to the Taliban and was responsible for the persecution of him and his family during the Taliban regime. That warlord was still in command of the area and would persecute him and possibly kill him if he were to return home.

6. There is no indication on the face of the reasons for decision that the Tribunal did not take into account all the matters raised by the applicant and give them sympathetic consideration. The applicant was not in Afghanistan when the regime changed and is obviously at a disadvantage in giving first hand evidence about the situation in his village or region. The Tribunal appears to have adopted the course of considering all of the relevant information, putting that which might influence its decision to the applicant and weighing it and his responses against the information provided by the applicant's advisers.

7. This is what the Tribunal was set up to do. The decisions of the Tribunal can only be impugned if an applicant can show clearly that the Tribunal either did not proceed in this way or that in so doing it brought itself within the reach of s.39B of the Judiciary Act 1903 (Cth) as a result of the manner in which it performed the task. An example of the failure by a Tribunal to appropriately perform its task is found in the much quoted passage of Craig v The State of South Australia (1985) 184 CLR 163.

8. The ability of a court to review the decision of a Refugee Review Tribunal has been further limited by the implementation of s.474 of the Migration Act 1958 (Cth) (the privative clause). That clause must be read subject to the restrictions set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and R v Murray; Ex parte Proctor (1949) 77 CLR 387 the scope of which was considered by a Full Bench of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. The extent of the Tribunal's power was discussed by Black CJ at [37]:

"there are some fundamentals in the way the Act operates, to which s.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-maker's power is greatly expanded by s.474(1)."

9. The Tribunal in its decision also made reference to MIMA v Ibrahim [2000] HCA 55 at [141] where Gummow J observed:

"Fifthly, nevertheless it is generally accepted that the Convention definition, based on individual persecution, limits the humanitarian scope of the Convention. The definition does not encompass those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention. For example, it appears that in 1986 the number of civilians fleeing their countries of origin by reason of internal armed conflict exceeded the number of Convention refugees. In Applicant A v Minister for Immigration and Ethnic Affairs, Dawson J observed [35]:

"No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention ...

It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them."

10. The Tribunal came to the conclusion at [CB 168]:

"...many parts of Afghanistan are insecure but the level of lawlessness applies generally rather than to any particular ethnic minority traversing the territory. I accept that, as referred to by the Applicant's representatives, the UNHCR has cautioned against the deportation of Afghans due to the precarious security situation in many parts of the country and the fact that the economy and the agricultural sectors are in a shambles. However, as referred to above, these factors in themselves do not bring the Applicant within the terms of the definition of a refugee in the Refugees Convention."

11. It is against this background that I considered the applicant's case. He was not represented although he had the assistance of an interpreter. It must be very hard for an illiterate shepherd who speaks no English to understand the concept of judicial review of administrative decisions. It is impossible to do justice to such people by refusing to hear submissions which are based on the merits of the decision rather than upon the manner in which that decision was reached. It is the responsibility of any civilised court to listen with patience to such submissions to see whether or not they do in some way articulate a possibly reviewable error.

12. I noted the submissions of the applicant. He repeated the history of persecution in his local area. He dealt with the persecution which he believed he would suffer from the local warlord if he returned and the dangers which he would encounter in attempting to reach his home. He reminded me that the current situation in Afghanistan is precarious and dangerous even for those living in Kabul and being in positions of power. He explained that these persons needed constant protection and that most of them had sent their families to other countries for safety. How, he asked could the situation be safe for one such as him? He pointed out that on almost every mountain top there were bandits who worked for regional warlords. He stated that journalists did not give the full story and that people were disappearing all of the time. The only information which was coming out of Afghanistan was that provided by the regime itself.

13. These matters clearly do not sound in criticism of the manner in which the Tribunal reached its decision. They are an iteration of the submissions made and thoroughly considered by the Tribunal. This court is not empowered to substitute its views on the merits for those of the Tribunal.

14. The Tribunal's decision was that the applicant no longer had a well-founded fear of persecution for Convention reasons. It came to that view from the information available to it as to the current situation in Afghanistan and bearing in mind the dicta of Gaudron J in Chan (supra) at [415]:

"The definition of "refugee" looks to the mental and emotional state of the applicant as well as to the objective facts. It is common place, encapsulated in the expression "once bitten, twice shy" that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be a "well-founded fear" at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well founded or otherwise without due regard to be had to the applicant's own past experiences."

15. The Tribunal did not, and this court would not, suggest that the applicant's fears for his safety are not genuine. But the Tribunal came to its conclusion in a manner which was entirely appropriate and permissible. I can see nothing in the decision or in the consideration of the country information and other attachments which are found in the court book to suggest any failure of jurisdiction or other matter which might enliven s.39B of the Judiciary Act whether or not that section is limited by s.474 of the Migration Act.

16. I dismiss the application. I order that the applicant pay the respondents costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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