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MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding applicant's fear of persecution was not well founded.

SDAD v Minister for Immigration [2002] FMCA 132 (9 July 2002)

SDAD v Minister for Immigration [2002] FMCA 132 (9 July 2002)
Last Updated: 30 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SDAD v MINISTER FOR IMMIGRATION

SDAO v MINISTER FOR IMMIGRATION
[2002] FMCA 132

[2002] FMCA 133



MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding applicant's fear of persecution was not well founded.



Migration Act 1958 (Cth) s.474

Judiciary Act 1903 (Cth) s.39B

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

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Applicant:
SDAD



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ 124 of 2002



Applicant:
SDAO



Respondent:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:
AZ 125 of 2002



Delivered on:
9 July 2002



Delivered at:


Adelaide



Hearing Date:


26 June 2002



Judgment of:


Raphael FM


REPRESENTATION

Counsel for the Applicant:


Mr M Evans appearing pro bono



Solicitors for the Applicant:


Refugee Advocacy Service of South Australia



Counsel for the Respondent:


Mr M Roder



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Applications dismissed.

(2) Applicants pay the respondent's costs in the sum of $1,750 per applicant.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ 124 of 2002

SDAD


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent

AZ 125 of 2002

SDAO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent


REASONS FOR JUDGMENT

1. These two applications were heard together by consent; they related to two young men from Afghanistan who were seeking refugee status in Australia. Both young men had had applications rejected by the delegate of the Minister and both had applied for review of those decisions. The reviews were carried out by the Tribunal differently constituted in each case. Both Tribunals affirmed the decision of the delegate that the applicant was not a person to whom this country owed protection obligations.

Summary of the claims of SDAD

2. The applicant SDAD is a young man in his early twenties. He claims to be a Shia Muslim of Pashtun ethnicity from a village in Paktia. He has had no schooling and is illiterate. He earned his living before he left Afghanistan in cutting and selling wood. His well-founded fear of persecution arose out of his position as a member of the Shiite minority which, he claimed, had been persecuted by the Taliban. He may have been conscripted into the Army and placed on dangerous duties which were reserved for Shiite Muslims and not the majority Sunni Muslims.

3. By the time the matter came to be considered by the Tribunal the Taliban had been overthrown in Afghanistan and the matter was considered on this basis. The Tribunal considered the claims made by the applicant that the situation was still unsafe for Shia Muslims in his area. It considered a claim made by the applicant that the Taliban had merely shaved off their beards and removed their Turbans and one day they might emerge again. It considered the applicant's concern that if fighting commenced again he would be sent to the front line because he was a Shiite. The Tribunal considered whether it was too soon to expect the applicant to return to Afghanistan because interim administration was threatened by "age old tribal rivalry". It considered the suggestion that the elected government which would take power after the interim administration might not have the will or the ability to protect Shia Muslims.

4. The Tribunal came to the view that in relation to these concerns and to the concern that the villagers might consider that the applicant had converted to Christianity if he was returned to Afghanistan and that would place him in danger, were not well-founded.

5. The applicant made a number of challenges to the findings of the Tribunal and the method by which they were reached. The main thrust of the applicant's argument was that the Tribunal had failed to take into account that if the Taliban had been in control of the applicant's village for a period of approximately five years the views held by the majority Sunni Pashtuns to their Shiite minority neighbours might well have gone through a change from the benign situation which existed prior to the Taliban coming into power. The applicant argued that by failing to address this issue the Tribunal fell into the error illustrated in Craig v The State of South Australia (1995) 184 CLR 163 at 179 and in MIMA v Yusuf (2001) 180 ALR 1 at [82-86] and in particular at [84].

6. The applicant argues that the evidence relied on by the Tribunal and found at for example, CB [235, 237] is shown at CB [238] to be really more confirmatory of the fears alleged by the applicant.

7. The applicant argued in respect of the structure of the decision that the objective evidence did not support the Tribunal's reasons for not accepting the evidence of the applicant. It was argued that the Tribunal had not looked at the position of the applicant living in a remote village which had been under Taliban control for five years and therefore did not ask the right questions, or asked the wrong one.

Summary of the claims of SDAO

8. Applicant SDAO is also a young man in his twenties, a Shiite Muslim of the Pashtun tribe, illiterate and working in the firewood business prior to leaving Afghanistan.

9. The applicant submitted that the situation in his village prior to Taliban taking over control of the country was benign so far as problems between Sunni's and Shiite's was concerned. Things had changed under Taliban rule. This applicant believed that things had not really changed after the defeat of the Taliban. He said that the Taliban had only "removed their turbans and cut their beards. They are the same people and there is no difference." [CB 153].

10. In his case he had an additional concern because he was unreligious before he left and feared that he would be harmed by the people in his village if he returned. His previous non-attendance at the Mosque would be compounded by his attempt to seek asylum in a western country.

11. On behalf of this applicant it was also submitted that the Tribunal failed to take into account the effect upon the residents of the village of several years of Taliban control. He submitted that there were two major areas. These were:

i) There was no consideration given to the change of Sunni attitudes as a result of Taliban control; and

ii) There was no basis in the finding that in the Paktia province where the applicant originated there was no reason to fear the Taliban.

Consideration of the applications

12. I agreed with Counsel representing the applicants and the respondent that I should examine the submissions made and written submissions provided and if I came to the view that a "Craig" or "Yusuf" argument was sustainable I would refrain from issuing a decision in the matter until after the Full Bench of the Federal Court constituted by five judges had had an opportunity to consider the effect of the privative clause s.474 Migration Act 1958 (Cth) upon these cases. On the other hand, if I felt that the grounds for such a claim could not be made out I would proceed to judgment.

13. In some written submissions received from the applicant on 2 July 2002 I was advised that the applicant also relied on the decision of SAAG v MIMIA [2002] FCA 547 at [8-9, 12-13, 33-36]. SAAG was a case which His Honour found that the very considerable hurdles to the making of a finding of lack of bona fides had been overcome. The paragraphs referred to in the applicant's submissions were those which indicated the areas of concern which cumulatively led His Honour to believe that the Tribunal had acted with a lack of good faith in relation to that applicant. I cannot see any real similarity between the manner in which the decision in SAAG was reached by the Tribunal and the manner in which the respective Tribunals reached the decisions before me. Mansfield J made it clear that the SAAG case was an exception and it is one into which I do not believe these two cases fall.

14. I am also of the view that the Tribunal did not fall into the errors illustrated in Craig or Yusuf and did in fact address the issues raised by both applicants. On the critical issue of Sunni/Shia relations during the Taliban rule in SDAD the Tribunal made a specific (if short) reference to this at CB [225] and in the case of SDAO at [151], [159] and [161]. The other matters were not considered to be as important as this but in any event I am satisfied that they were taken into account.

15. The claims made on behalf of these applicants seem to me to have the hallmarks of a request to substitute my reading of the evidence for that of the Tribunals. This, the courts have said time and time again they cannot do (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 at 506; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341, 356; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6).

16. In all the circumstances I am unable to find that there are any matters which would admit of review under s.39B of the Judiciary Act 1903 (Cth) in either of these two cases. I must therefore dismiss the applications and order that the applicants pay the respondent's costs which I assess pursuant to Part 21 rule 21.02(2)(a) Federal Magistrates Court Rules as $1,750.00 per applicant.

17. I note in this matter that the applicant was represented pro bono. It is appropriate that the court should recognise the contribution of members of the legal profession to the efficient administration of justice and the protection of human rights by appearing in these matters on this basis.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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