SBAY v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 378

FEDERAL COURT OF AUSTRALIA

SBAY v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 378

SBAY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.3 of 2002

MANSFIELD J
9 APRIL 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.3 OF 2002

BETWEEN:	SBAY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	9 APRIL 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay to the respondent costs of the application.

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	S.3 OF 2002

BETWEEN:	SBAY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	9 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan.  He is aged 31, and was born in Kabul.  He is married and has four children, all of whom are still in Afghanistan.  He lived in Kabul all his life until 1997.  In about January 1997, he moved to Adasahib, a town south of Jalalabad in the Nangarhar Province.  In March 2001 he returned to Jalalabad for a time, and it was partly as a result of events which then occurred which, he claimed, he fled Afghanistan.

2. The applicant arrived in Australia on 23 April 2001.  He applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 25 May 2001. On 30 August 2001 a delegate of the respondent refused his application for that visa. He sought review of that decision by the Refugee Review Tribunal (the Tribunal). On 12 December 2001, following a hearing on 4 December 2001, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa under the Act.

3. This application is made under s 39B of the Judiciary Act 1903 (Cth) for an order setting aside the Tribunal’s decision.

   THE APPLICANT’S CLAIMS

4. To have been eligible for the grant of the visa, it was necessary that the Tribunal be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention):  s 36(2).  In practical terms, in relation to this matter, that meant that the Tribunal needed to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely a person who:

   “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”

5. The applicant claimed that he has a well-founded fear of persecution by reason of his ethnicity and his actual or imputed political opinions.  He told the Tribunal that his father was a high ranking officer in the Afghan Army during the communist rule, who had been killed during artillery shelling in 1992, although he was not then involved in the fighting.  The applicant remained in Kabul thereafter until the end of 1996.  At about that time the Taliban took over Kabul.  The applicant gave inconsistent information as to whether he had had any problems during that time, although before the Tribunal he claimed that he had kept a low profile due to fear of Mujahadeen retribution because of his father’s activities.  He pointed out in particular that his father had fought against the Mujahadeen at Maidan.  He also feared revenge from the relatives of those who had been killed in fighting at Maidan.

6. The applicant next claimed that, shortly after the Taliban had taken over the Kabul area, the Taliban had come to his home looking for him.  He said they had left a notice requiring him to report to them, as he was not then at home.  It was as a result of that that he fled to Adasahib.  Later in his evidence he claimed that the notice was a conscription notice, but it was not so described by him when he first made his claim for the visa.  He then remained in Adasahib, occasionally visiting Jalalabad.  In March 2001 whilst in Jalalabad he accidentally came into contact with the director of the Taliban security forces in Jalalabad, who had been in Kabul when the applicant had fled.  He said that that person recognised him as an escapee from Kabul, fleeing to avoid complying with the Taliban notice requiring him to report to them.  At about that time that person also ascertained that the applicant was the son of a former army officer who had supported the communist regime.  He said he was also identified as a Tajik, and that the Taliban selectively persecute persons of that particular ethnicity.  His migration agent identified his claims as fearing persecution from the Taliban because of his ethnicity, and because of the activities of his father, on the basis that he would be attributed with his father’s political opinion or be treated as a member of a social group, namely the family of his father, against whom revenge would be sought.  The agent thus identified that his claims gave rise to a well-founded fear of persecution by reason of a political opinion actually held by him or imputed to him, and by his membership of a family group including that he feared persecution because of the fear of revenge as an associate of the Northern Alliance (because of his father’s activities) from the Taliban, and from those who had lost relatives due to his father’s activities because of his membership of his father’s family.

   THE TRIBUNAL’S REASONS

7. The applicant’s claim to have a well-founded fear of persecution from the Taliban because of his Tajik ethnicity was rejected by the Tribunal.  It accepted that the applicant, like many Afghanis, may be vulnerable to adverse dealings with the Taliban, and that the Taliban, whilst in control of Afghanistan were implicated in widespread human rights abuses.  However, it found on the basis of independent country information available to it, that the Taliban is no longer in a position to cause harm to the applicant by reason of his ethnicity or at all.  Accordingly, it was not satisfied that the applicant had a well-founded fear of persecution at the hands of the Taliban by reason of his ethnicity.

8. The Tribunal did not accept the applicant’s claim that he had been arrested in March 2001 in Jalalabad and detained because of his father’s involvement in military offensives during the communist regime, or that the applicant has a well-founded fear of future harm from those who seek revenge against him arising out of his father’s participation in past military activities.  It accordingly rejected his claim to have a well-founded fear of persecution at all arising out of his father’s previous activities.  Its reasons indicate that, in substance, it did not accept the applicant’s evidence that he had been arrested and detained at all by the Taliban in March 2001.  It gave a number of reasons for that conclusion.  Firstly, it did not accept the applicant’s claim that the notice given by the Taliban in late 1996 requiring him to report to it was indicative of any interest in him because of his father’s past military activities or indeed because of any activities on his part.  Nor was such a notice necessarily a notice requiring him to attend for military service, as he later claimed.  Such notices were not uncommon.  The Tribunal did not regard the issue of the notice as indicating any attitude of the Taliban towards him for a Convention reason.  Secondly, the Tribunal regarded the applicant’s claim as to the circumstances of his arrest and detention in March 2001 to be “inherently implausible”, partly due to the long period of time since his father’s death and partly because of independent evidence as to the Taliban’s attitude or treatment of communists or those associated with the communist backed military forces.  Thirdly, the Tribunal was not impressed with the applicant as a reliable witness because of the manner of his presentation.  It observed that certain aspects of his evidence had been refined by details not given at an earlier time, and by variations in his evidence from time to time, and that elements of his evidence were “far fetched”, in particular the coincidental meeting and identification of him in March 2001 and the manner in which he managed to escape from detention without in fact paying money for the bribe.

9. Nor did the Tribunal accept that the applicant’s fear of revenge at the hands of the Mujahadeen or of relatives of those killed in military offensives was well-founded.  It had regard to the period of time he had been able to live in Kabul until the Taliban’s arrival in late 1996 without harm, and that at one point in his evidence to the Tribunal the applicant had indicated that since the Mujahadeen had earned the alliance of most of the Afghan army officers he was not subject to any pressure from them and lived a normal life during that period of four years.  It also had regard to the fact that his wife and children now remain in Maidan, where the particular adverse conduct of his father was said to have taken place, and that they would not be likely to have done so if there was any real fear of revenge because of family connection to the applicant’s father and his activities in Maidan.  The Tribunal concluded:

   “I do not accept that in the years following the end of military clashes between the Mujahadeen and the Afghan army that the applicant was at any risk of revenge from those associated with the Mujahadeen, or from the relatives of those killed because of his father’s role in military offensives whilst an officer in the Afghan army in Maidan or indeed anywhere else in Afghanistan.  I find that the risk, some 9 years later that the applicant faces at the hands of the Northern Alliance, or indeed anyone else, arising from revenge for his father’s actions to be remote.  I find that his fears on this basis are not well-founded.”

10. Consequently, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.  He did not therefore satisfy the criterion set out in s 36(2) of the Act for a protection visa, and the Tribunal was therefore by virtue of s 65(1) of the Act obliged to affirm the decision of the delegate of the respondent.

    THE GROUNDS OF REVIEW

11. The applicant appeared in person on this application.  His application and his statement in support of the application under the heading “affidavit” largely repeat claims made to the Tribunal, and complain that the Tribunal simply did not recognise the validity of those claims.  The applicant filed two further documents, namely a statement sent to the Court on 3 January 2002 and a further submission sent to the Court on 15 March 2002, and he made oral submissions at the hearing.  In large measure, those documents and his submissions again sought to re-argue matters of fact about which the Tribunal had made findings.  There were certain new matters of fact asserted by him, and in one respect, so far as I could discern, what amounted to a discrete allegation of bias on the part of the Tribunal.

12. The applicant’s documents filed with or subsequent to his application provide further, and sometimes slightly different, detail about the nature of his claims.  He made it plain that the notice which he had received from the Taliban was a call to him to undertake military service.  He also gave details of how he was able to escape the Taliban prison in March 2001 without actually paying money for the bribe, and he claimed that the Taliban remained a significant threat to him if he were to return to Afghanistan.  He further claimed that he had been working against the interests of the Mujahadeen in military barracks whilst in Kabul.

13. In my judgment, none of the matters of fact raised by the applicant give rise to a ground upon which the Court might intervene in the Tribunal’s decision pursuant to s 39B of the Judiciary Act. The Tribunal has addressed the applicant’s various claims. It has made findings of fact concerning them, and the applicant had an adequate opportunity to present that which he wished to present to the Tribunal on those matters. Apart from his interview on 12 May 2001 and the statement of 20 May 2001 which he submitted with his application for the protection visa, he had the assistance of a migration agent who made a detailed submission on his behalf on 3 December 2001 as well as attending with him during the hearing before the Tribunal on 4 December 2001. The fact that the Tribunal has made findings of fact adverse to the applicant’s claims does not indicate error on its part, nor in particular does it indicate that the Tribunal has committed any error of such a nature as to warrant the Court’s intervention under s 39B of the Judiciary Act. To the extent to which the claims now made to the Court involve the assertion of new material, there is nothing presented to the Court to indicate that the Tribunal did not give the applicant the opportunity to present that material to it during the course of the hearing. The fact that such material is now presented does not demonstrate error on the part of the Tribunal in reaching the decisions of fact which it reached. There is nothing to indicate that the Tribunal did not comply with the requirements of s 424A of the Act requiring it to provide in writing notice to the applicant of particulars of certain information to which, in fairness, he ought to be given the opportunity to respond.

14. One matter raised by the applicant in the course of his contentions was the adequacy of the interpreting of his interview with an officer of the respondent upon arrival in Australia on 12 May 2001.  As that is a new concern, not previously raised before the Tribunal, it is a matter which cannot demonstrate reviewable error on the part of the Tribunal.  Moreover, the making of that assertion is not sufficient to establish the fact that that interpretation was inadequate.  I do not consider that it would be useful to further explore that assertion, as I do not think that it can impinge upon the propriety of the Tribunal’s decision.  The Tribunal referred to the decision of the delegate of the respondent only briefly in the course of reciting the course of the applicant’s claim for the visa.  The adequacy of that interpretation was not being raised before it, either by the applicant or by his migration agent.  Its decision was based essentially upon the hearing which it conducted and the material which was available to it.  To the extent to which it had regard to the initial interview, it put to the applicant matters arising from that initial interview for his comment.  At no point did the applicant apparently complain that he did not say that which had been ascribed to him.  There was therefore no reason for the Tribunal to question the adequacy of that interview, and there is nothing to indicate that, even if that initial interview was inadequately interpreted, that it affected the Tribunal’s decision in any way.

15. Finally, the applicant in the course of his oral submissions, submitted that the Tribunal in various ways had not taken his claims seriously. The respondent accepts that notwithstanding the wide terms of s 474(1) of the Act, a decision made by the Tribunal if not made bona fide might be the subject of review under s 39B of the Judiciary Act: see R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 per Dixon J at 616. Actual bias on the part of the Tribunal may indicate that the Tribunal did not endeavour bona fide to exercise its functions and powers to review the applicant’s application. However, in my view, there is nothing in the Tribunal’s reasons to indicate that it did not attempt bona fide to exercise its power and to fulfil its obligation to review the Tribunal’s decision. It has carefully reviewed the material available to it. It has considered the submissions of the applicant’s migration agent, and its conduct of the hearing indicates that it endeavoured to explore with the applicant the full nature of his claims and, where it was concerned with an aspect of them, to raise those concerns with him so as to give him an opportunity to respond to those concerns.

16. In my judgment the Tribunal has not been shown to have fallen into any error which might enliven the Court’s power to intervene under s 39B of the Judiciary Act. Accordingly, I consider that the application should be dismissed. I see no reason why the ordinary rule as to costs should not apply. I order that the applicant pay to the respondent costs of the application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:            2 April 2002

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Ms K Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	25 March 2002
Date of Judgment:	9 April 2002