SBAX v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 582

FEDERAL COURT OF AUSTRALIA

SBAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 582

MIGRATION – application for review of RRT decision – whether RRT erred in finding that there was not a real chance of persecution in view of the change in political situation in Afghanistan

Migration Act 1958 (Cth)

SBAX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S2 OF 2002

TAMBERLIN J
SYDNEY (HEARD IN ADELAIDE)
10 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S2 OF 2002

BETWEEN:	SBAX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 MAY 2002
WHERE MADE:	SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs.

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 DISTRICT REGISTRY	S2 OF 2002

BETWEEN:	SBAX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 MAY 2002
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

1. The applicant who is a citizen of Afghanistan arrived in Australia on 13 July 2001.  On 9 August 2001 he lodged an application for a protection visa and this was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) on 18 October 2001.  He then applied for a review of that decision to the Refugee Review Tribunal (“the RRT”) pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act’).

2. The RRT affirmed the decision not to grant a protection visa on 7 December 2001 and an application was then made to this Court for review of that decision.

   BACKGROUND

3. The facts in this case are substantially similar to those in case of Applicant SBBI, in respect of which I gave judgment today (see [2002] FCA 552). The same reasons apply substantially to the determination made in this case.

4. In this case the RRT formed the view that the political conditions which motivated the applicant to leave Afghanistan did not continue as at the date of the RRT’s decision on 7 December 2001 due to changes in circumstances within Afghanistan.  The RRT relied on country information in forming this view together with media reports.  In particular it noted information that the Taliban had been defeated and the regime no longer had authority or power to inflict harm on opponents as it was able to do when it controlled the country.  It noted that in the applicant’s home town of Logar, Pashtun leaders had reclaimed positions of authority and therefore it was decided that the applicant’s fear was not well-founded.

5. The RRT considered the other principal claim that the applicant would be harmed by Taliban opponents such as the Northern Alliance/United Front because he is a Pashtun.  However, having regard again to country information it reached the view that there was no real chance of persecution on the basis of his Pashtun ethnicity.

6. A submission was made to the RRT that Afghanistan was in an uncertain situation and was on the verge of descending into more fighting and civil unrest and that given this uncertain and dangerous situation the applicant should be granted a temporary protection visa while his future remained unsettled because the uncertainty in the situation gave rise to a real chance that if returned he would be persecuted for Convention reasons.  The RRT decided as a question of fact that the applicant was not at risk of suffering persecution in Afghanistan for a Convention reason and expressed the view that it did not have jurisdiction to make a decision as to the continuance of the applicant’s stay in Australia pending further clarification of the situation in Afghanistan.  Accordingly, the application was dismissed.

   THE PRESENT APPLICATION

7. On the application before me virtually identical contentions were raised as were raised in the matter of Applicant SBBI, including the Conventions and the age of the applicant and for the same reasons as I delivered in that matter I have reached the conclusion that the decision of the RRT does not disclose or reflect any error of principle or law such as would provide a basis for granting relief.  I therefore dismiss the application with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             10 May 2002

Counsel for the Applicant:	Mr Grant Niemann
Solicitor for the Applicant:	Jeremy Moore & Associates
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 April 2002
Date of Judgment:	10 May 2002