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MIGRATION - Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.

SFWB v Minister for Immigration [2002] FMCA 255 (1 November 2002)

SFWB v Minister for Immigration [2002] FMCA 255 (1 November 2002)
Last Updated: 31 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SFWB v MINISTER FOR IMMIGRATION
[2002] FMCA 255



MIGRATION - Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.



Migration Act 1958 (Cth)

Judiciary Act 1903

Migration Legislation Amendment (Judicial Review) Act 2001

SDAV v MIMIA [2002] FCA 1022

Chan v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379

NAAV v MIMIA [2002] FCAFC 228

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

Zahid v MIMIA [2002] FCA 1108

R v MIMIA; Ex parte Durairajasingham (2000) 16 ALR 407

SAAE v MIMIA [2002] FCAFC 307

Craig v South Australia [1995] 184 CLR 163

MIMIA v Yusuf [2001] ALR 1

Minister for Immigration and Ethnic Affairs v Singh [1997] 72 FCR 228

R v Murray; Ex parte Proctor [1949] 77 CLR 387

NADR v MIMIA [2002] FCAFC 293

SCAA v MIMIA [2002] FCA 668

NABM v MIMIA [2002] FCAFC 294

Applicant:
SFWB of 2002



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ200 of 2002



Delivered on:


1 November 2002



Delivered at:


Sydney



Hearing Date:


22 October 2002



Judgment of:


Barnes FM


REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:
Nil




Counsel for the Respondent:
Mr Tredrea



Solicitors for the Respondent:
Sparke Helmore



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


AZ200 of 2002

SFWB of 2002


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) made on 19 June 2002 affirming a decision 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 27 June 2002. The matter was transferred to this Court by von Doussa J on 8 August 2002.

Background and Tribunal decision

3. The applicant, who was born in 1973, is a citizen of Afghanistan of Pashtun ethnicity from the district of Spin Bulak in Kandahar Province. He arrived in Australia in June 2001. On 31 July 2001 he lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 ("the Act"). On 26 March 2002 a delegate of the respondent refused to grant the protection visa and on 5 April 2002 the applicant applied to the Tribunal for a review of that decision.

4. The applicant's claims included the following:-

a) The applicant's original claim was in relation to fear of targeting and conscription by the Taliban. He maintained that not-withstanding the overthrow of the Taliban regime he would now be targeted by Taliban remnants including because he had been to and returned from a western country, Australia. He stated that the Taliban had taken his brother, Wazir, who did not return;

b) He feared ethnic reprisals against Pashtuns as "payback" for Taliban atrocities. He claimed to fear persecution due to his imputed political opinion, that of support for the Taliban due to his Pashtun ethnicity;

c) He stated that he feared persecution as a result of his religious identity as a Wahabi or Salafi. He claimed that he feared that he would be killed by the majority Hanafi-Sunni Muslim Pashtuns in Kandahar.

5. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. In relation to the applicant's claimed fear of being targeted by the Taliban the Tribunal did not accept that the Taliban retain effective power or that there is a real chance of them returning to power in the foreseeable future. It was aware of no evidence that Taliban or former Taliban were targeting or persecuting ordinary persons because they were perceived to have opposed the Taliban in the past. It did not accept that the applicant on return would face a real chance of persecution for this reason. Nor, (in the absence of any reports of persons returning to Afghanistan from western countries such as Australia facing serious harm simply because they returned from non-Muslim or "infidel" countries), was the Tribunal satisfied that the applicant would face a real chance of persecution from the Taliban or others associated with them on return to Afghanistan.

6. In relation to the applicant's "payback" argument the Tribunal found that there was nothing in the independent evidence to suggest that in Pashtun dominated provinces such as Kandahar (from where the applicant came) Pashtuns were being targeted for their ethnicity or religion. The Tribunal did not accept that the applicant's stated concern in this regard was well-founded. Nor did it accept that he would be perceived by the present authorities as having been a Taliban supporter, given his claims that he had criticised the Taliban in his village. There was no evidence tendered to suggest that the Governor of the province was persecuting villagers from different Pashtun clans and the Tribunal was not satisfied that the applicant faced a real chance of persecution for that reason. Nor was there any independent country information to support the applicant's allegations about the targeting and murder of Salafi or Wahabi by the present Governor of Kandahar or that they face a real chance of now being persecuted by him.

7. As to the claims based on the applicant's fear of persecution or execution as a result of his religious identity, the Tribunal noted that this claim had emerged at the very end of the review process despite being potentially a significant issue and despite a number of interviews in which such issue could have been raised. In the circumstances it did not accept that the claim was the main reason why the applicant could not return to Afghanistan or even a reason of any significance or weight at all. The Tribunal was satisfied that the applicant had elaborated these claims not because they represented his genuine experience or fears but simply for the purpose of establishing a Convention claim. The Tribunal also noted some discrepancies and inaccuracies in the applicant's claims and the absence of any material suggesting that either the Mujahadin or the Taliban have condemned the Wahabi/Salafi as non-believers or launched a pogrom against them. Nor did the Tribunal accept that the applicant criticised a local commander for having defected to the Taliban and left Afghanistan for that reason rather than the reason set out in detail in his earlier statement and at his first interview with a delegate of the Department. Nor was there any country information to suggest that Afghans who are Wahabi Muslims are now the subject of persecution in post-Taliban Afghanistan. The Tribunal did not accept that the applicant had experienced or faced a real chance of serious harm or persecution in Afghanistan now because he is a Salafi/Wahabi.

Contentions

8. The applicant did not file and serve contentions of fact and law as ordered by von Doussa J on 8 August 2002. The matter was originally listed for hearing before a Federal Magistrate on 16 September 2002. On that date it was adjourned to enable the applicant to seek legal advice and/or representation. However he was not represented at the hearing on 22 October 2002. His original application alleged that the Tribunal exceeded its jurisdiction in making its decision and constructively failed to exercise its jurisdiction in arriving at its decision. No further particulars or grounds for review were provided. The applicant indicated generally that he would like a visa and freedom and that he did not think that the suggestion that he should go back now that there was peace in Afghanistan was correct.

9. The respondent submitted that there was no jurisdictional error by the Tribunal. In particular the respondent submitted that the matter was essentially a case of changed circumstances, that the Tribunal reasons for decision set out the applicant's original and subsequent claims, that it had regard to country information and that it correctly addressed the relevant issues. It was submitted that in accordance with Chan v Minister Immigration and Ethnic Affairs (1989) 169 CLR 379 the Tribunal had correctly assessed whether the applicant had a well-founded fear of persecution as at the date of determination of the application. It was said that the Tribunal also had appropriate regard to country information. It was also submitted that an unwillingness to return to Afghanistan based on an historic fear was not sufficient. There must be a current well-founded fear (SDAV v MIMIA [2002] FCA 1022 at [23] per von Doussa J). As to the Tribunal findings in relation to the applicant's claims based on his religion as a Wahabi/Salafi, it was said that there were no grounds to set aside the findings of the Tribunal in relation to credibility. In any event should there have been an error by the Tribunal in how it went about its task in assessing the applicant's credibility or in any other way such an error would no longer be susceptible to challenge because of section 474 of the Act. It was pointed out that the question of lack of good faith had not been raised in this case and that if such a ground was put it must be distinctly made and proved. It was finally submitted that there was no error within the Hickman principles.

Application of the Law

10. The Tribunal decision is a privative clause decision within the meaning of section 474(2) of the Act and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review Act) 2001 as applicable to all applications made to the Court on and from 2 October 2001.

11. The proper construction of section 474 has been subject of detailed consideration by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. Each member of the Court delivered a separate judgment in relation to each of five appeals being considered. All agreed that section 474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid.

12. There was broad agreement that section 474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dixon J observed at 615:

"Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."

13. There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what is variously described as an "inviolable limitation or restraint" (Black CJ at [12]) a `final limitation upon the powers, duties and functions of the decision maker" (von Doussa J at [619]) or a "structural" element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision maker's powers.

14. The Tribunal's rejection of the applicant's claims based on his religion as a Wahabi/Salafi was based on its conclusion that he had elaborated these claims and also on some difficulties with his evidence at and after the Tribunal hearing. In its reasons for decision the Tribunal refers to the fact that such claims were not mentioned in response to open-ended questions and opportunities at two Departmental interviews or in any other way prior to the Tribunal hearing. In part this conclusion turned on the question of the applicant's credibility. Findings as to credibility are findings of fact. The issue of credibility is a matter for the Tribunal to determine (R v MIMIA; Ex parte Durairajasingham (2000) 16 ALR 407 at [67]). In this case the Tribunal set out its findings on material questions of fact and its reasons for rejecting the applicant's claims. Its reasoning process and the supporting evidence was disclosed and clear findings made in direct and explicit terms (see SAAE v MIMIA [2002] FCAFC 307). I am not satisfied that there was any error in the Tribunal's approach.

15. In any event, if I am wrong in this conclusion and if the Tribunal had made a jurisdictional error in the sense annunciated by the High Court in Craig v South Australia [1995] 184 CLR 163 and MIMA and Yusuf [2001] 180 ALR 1 then such an error no longer provides a ground for review of the Tribunal decision. That is if a decision maker identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion then in accordance with the majority view in NAAV the decision would nonetheless be validated by section 474 (see Black CJ at [30], von Doussa J at [636] to [639] and Beaumont J at [277]).

16. In relation to the applicant's claims based on fear of targeting by the Taliban I note that the definition of "refugee" requires that there be a "well-founded fear" at the time of determination by the Tribunal (see Chan v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Singh [1997] 72 FCR 288 at 293). In this case the applicant relied on his past experiences. It was, as Gaudron J pointed out in Chan at page 415, "incumbent on the Tribunal to evaluate whether those past experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality". (Also see Toohey J at page 406 in Chan indicating that if circumstances had changed since the applicant left the country of nationality that was a relevant consideration and in an appropriate case the change may remove any basis for a well-founded fear of persecution).

17. In this case the Tribunal considered the applicant's original fears, noted the significant changes that had occurred in Afghanistan and the opportunities that had been given to the applicant to explain his current concerns. There was evidence before the Tribunal which it relied upon to assess the changed circumstances. As in SDAV v MIMIA [2002] FCA 1022 it was plain from the applicant's claims that he was unwilling to return to Afghanistan. The question was whether his unwillingness was due to a well-founded fear of persecution at the time of the Tribunal decision. As von Doussa J said in SDAV, unless the applicant's continuing fear which was the reason for unwillingness to return was "well-founded" at the time of the Tribunal decision, the applicant did not come within the scope of the definition of refugee. An unwillingness based on an historic fear is not sufficient. There must be a current well-founded fear.

18. In short, I am not satisfied that the material before the Court supports a conclusion that the Tribunal erred in its consideration of the applicant's claims in a way necessary to attract relief under section 39B of the Judiciary Act. Whilst it was not argued, I have considered the question of whether the so-called "Hickman conditions" necessary for a valid exercise of power are met. No failure to satisfy any of the conditions has been identified in the application or any error which could potentially affect the validity of the decision. The Tribunal was considering whether to grant a protection visa on an application for a protection visa. That being the relevant subject matter, the decision was reasonably capable of reference to the decision making power. There is nothing before the Court which suggests that the power was exercise otherwise than in good faith. I note in this respect that an allegation of a lack of good faith is a serious allegation and one not to be made lightly. Dixon J himself in R v Murray; Ex parte Proctor [1949] 77 CLR 387 at [400] made it clear that the phrase "bona fide attempt" involves an honest attempt to deal with the subject matter conferred by the executive. It is well-established that bad faith in this context "implies a lack of honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question". See Keifel J (with whom Spender J agreed) in NADR v MIMIA [2002] FCAFC 293 at [31], Beaumont J in NAAV at [107] and also the succinct discussion of actual bias by von Doussa J at [36]-[38] in SCAA v MIMIA [2002] FCA 668). In this case the applicant was allowed the opportunity to give oral evidence to the Tribunal. The Tribunal received and addressed lengthy written submissions in support of the application both before and after the hearing. There is nothing to suggest a lack of good faith. Nor are there any other matters which suggest any failure by the Tribunal to comply with any essential precondition to the exercise of power (in this respect I also note that the Full Court of the Federal Court in NABM v MIMIA [2002] FCAFC 294 stated at paragraph [25] that "the Tribunal's failure to address the correct question does not constitute an infringement of an inviolable condition, jurisdictional factor or structural element found in the Migration Act". The Court agreed with the analysis of NAAV by Sackville J in Zahid in this respect.

19. In these circumstances it follows that the applicant's claim for relief pursuant to section 39B(1) of the Judiciary Act must be dismissed.

20. I therefore dismiss the application and order that the applicant pay the respondent's costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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