SBBI v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 552

FEDERAL COURT OF AUSTRALIA

SBBI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 552

MIGRATION – application for review of RRT decision – whether RRT erred in concluding that there was no real chance of persecution if applicant is returned to Afghanistan in view of the change in political situation – whether RRT erred in deciding that it had no jurisdiction to determine whether applicant could remain in Australia while the political situation in Afghanistan improves – whether RRT erred in finding that the political situation in Afghanistan has improved – whether RRT ignored relevant material 

Migration Act 1958 (Cth) s 474
Judiciary Act 1903 (Cth) s 39B

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited

SBBI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S15 OF 2002

TAMBERLIN J
SYDNEY (HEARD IN ADELAIDE)
10 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S15 OF 2002

BETWEEN:	SBBI 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	S15 OF 2002

BETWEEN:	SBBI 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 is a citizen of Afghanistan who arrived in Australia on 30 June 2001.  At the time of arrival he was seventeen years of age having been born in 1984.  On 9 August 2001, he applied for a protection visa as a refugee and on 18 October 2001, the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) decided that the applicant did not meet the criteria for the grant of such a visa and refused the application.  The applicant then sought review of the decision by the Refugee Review Tribunal (“the RRT”) on 22 October 2001.  On 21 December 2001 the RRT found that the applicant was not a person to whom Australia has protection obligations. The applicant then sought review of the RRT’s decision from this Court.

2. The applicant claimed that he fears persecution from the Taliban in Afghanistan because he is a Pashtun and that as such, if he returned to Afghanistan, he would be forced to fight because of his ethnicity.  He said that he had to flee Afghanistan to escape conscription by the Taliban who were seeking him.  He also claimed that he would attract adverse attention from the opponents of the Taliban such as the Northern Alliance/United Front because he was a Pashtun.  He claimed that he would be singled out for adverse treatment on the basis that he had sought asylum in Australia.

3. The applicant claims that his father had been abducted and disappeared and that his uncle had been beaten and that his cousin was killed by the Taliban.  These claims were not accepted by the RRT.

   FINDINGS AND REASONS OF RRT

4. The RRT found that the applicant would not experience difficulties from the Hazara or other ethnic groups.  Nor did it accept that the applicant’s claims that those groups would identify Pashtuns with the Taliban. 

5. The RRT found that the Taliban had mistreated the applicant and that as at the time of his departure from Afghanistan he was at risk of serious harm from the Taliban.  However, the RRT rejected his claims for refugee status based on his previous fears, because, in its view, the relevant circumstances had changed in the country since he left Afghanistan.

6. It is common ground that the decision of the RRT to affirm the decision under review is a “privative clause decision” under s 474 of the Migration Act 1958 (Cth) (“the Act”). It is also common ground that the Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to consider and determine judicial review applications such as the present. The Minister submits that the present determination is protected by s 474 of the Act.

7. The RRT accepted that the applicant was personally mistreated by the Taliban as described by him and that his fear of conscription by the Taliban was genuine.  It accepted that during the period the Taliban was the de facto government of Afghanistan there were widespread human rights abuses by them against opponents.  At the time of the applicant’s departure in 2001 the RRT accepted that the applicant was at risk of serious harm by the Taliban because he had avoided conscription and because of earlier difficulties with the Taliban about his physical appearance.

8. The RRT, however, had regard to media reports and country information as to subsequent developments in Afghanistan and concluded that the Taliban no longer had authority or power to inflict harm on its opponents as it had been able to do when it was in control of the country.  It noted that in the applicant’s home region of Logar, Pashtun leaders had reclaimed positions of authority and it found that the applicant’s fear that he would be harmed due to imputed political opinion was not well-founded.

9. The RRT was not satisfied that the applicant would be at risk of harm from former members of the Taliban because of his refusal to be conscripted or because of his wish to resist strict controls in matters of dress and appearance or for any Convention reason.

10. The RRT reasons also consider the applicant’s other major claim that he would be harmed by the Taliban’s opponents because he is a Pashtun.  The RRT reasons refer to country information and conclude that the applicant is not an individual who either supports the Taliban or will be suspected of supporting the Taliban.  It points out that Pashtuns are the largest ethnic group in Afghanistan and are represented in the new interim government which is headed by a Pashtun.  It referred to the fact that he had not claimed to have experienced difficulties with ethnic groups in the past and it was not satisfied that his fears that he would be persecuted for reasons of ethnicity were well-founded.

11. The RRT concluded that it was satisfied that the applicant was not at risk of suffering persecution in Afghanistan for a Convention reason. 

12. The RRT also considered a claim that the applicant faced some chance of being targeted by the United States led bombardment and ground attack.  However, it rejected this claim on the basis that in effect this was a fortuitous risk and that he was at no greater risk than any other innocent civilian in the course of operations of war and it decided that therefore such risk was not a Convention related reason.

    SUBMISSIONS FOR THE APPLICANT

13. Counsel for the applicant first refers to some remarks made by the decision-maker to the effect that the responsibility for the applicant’s safe return to Afghanistan or any decisions which would allow him to remain in Australia while the political situation Afghanistan improves, rests with the Australian Government and was beyond the jurisdiction of the RRT.

14. The applicant submits that such a decision, allowing him to remain in Australia, is within the jurisdiction of the RRT and that it was a “jurisdictional error” for it to find that there was no such jurisdiction.  In my view, there is no substance in this submission because the remarks were simply collateral observations and were not pertinent to the finding or any operative element of the decision.  In any event, they were correct.  The jurisdiction of the RRT is limited.

15. The next submission made by the applicant is that the RRT had undisputed evidence that the Taliban had been allowed to realign themselves with opposition groups in the countryside and keep their weapons, and that chaos and not stability and security would result in the deserts and mountains of central and south-western Afghanistan so that there was a real risk of history repeating itself.

16. Any error in this respect is purely one of fact and does not form a ground of review.  In any event no error has been shown.

17. There is also a submission that there has been a misquote from some of the country material in relation to the fear of persecution in the applicant’s home province of Logar.  Again, this is purely a question of fact and does not give rise to reviewable error even if one has been shown.

18. The next submission is to challenge the decision of the RRT that, while the applicant had a well-founded fear of persecution when he left Afghanistan, circumstances have changed.  The submission is that in reality the future for Afghanistan is extremely volatile and a proper determination of what may arise in the future can only be achieved by an examination of incidents in the past and reference is made to the decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. In this case on a fair reading of the reasons for decision, the RRT has paid regard to circumstances in the past and considered the matter in the light of those claims and the material put before it. It cannot be said that in having regard to changed country circumstances, the RRT has failed to take into account past conduct.

19. It is further submitted that the RRT ignored material before it and if it had relied on the evidence it would have found that the applicant had a well-founded fear of persecution.  Once again this is an attempt to re-examine the factual matters canvassed before the RRT and does not give rise to any ground of review.

20. In my view, the reasons for decision of the RRT do not disclose any errors of law or fact.

21. The applicant has also made submissions in relation to the operation of the Convention Relating to the Status of Refugees Done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees Done at New York on 31 January 1967 (“the Refugee Convention”), together with the Convention on the Rights of the Child as adopted and ratified on 20 November 1989 (“the Rights of the Child Convention”) and the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977 (“the 1949 Conventions”).

22. Suffice it to say that these submissions do not have any bearing on the present question in my opinion because the applicant has not demonstrated that there has been any error in the approach or reasons given by the RRT for its decision in this matter.  These issues do not arise.

23. In relation to s 474 of the Act the submission is made that in the interpretation and operation of that provision regard should be had to Article 16 of the Refugee Convention which provides that:

    “Article 16

    Access to courts

    1A refugee shall have free access to the courts of law on the territory of all Contracting States.

    …”

    It is said that this provision provides support for the view that s 474 should be given a narrow construction.

24. In this case it is not necessary to consider the operation and effect of Article 16 because it has not been shown that there was any error made which would call for protection under s 474. In any event, the material before me was not sufficient to properly consider this submission and if it had been necessary to decide this question I would have required further detailed argument on a number of questions particularly as to what is meant by the expression “courts” and “free access”.

25. Counsel also referred to the Rights of the Child Convention which came into force on 2 September 1990 and which provides that in all actions concerning children by courts of law administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration: see Article 3.  It is said that the applicant is a child within the meaning of the Convention, which defines a child as a person under eighteen years of age, and that there was no due consideration of their protection under this Convention.

26. In this case this provision is not relevant because the RRT has taken into account that asserted needs for protection made by the applicant and decided that there would be no real chance of persecution if returned to Afghanistan.  No circumstances have been particularised in submissions as to any particular needs of the applicant by reason of age.  Accordingly, this Convention does not bear in any significant way on the present application.

27. In addition, during the hearing the applicant has referred to the 1949 Geneva Conventions.  However, shortly after the hearing the applicant stated that he did not wish to pursue this aspect.

28. Having regard to the above considerations I am not satisfied that any error of law or principle has been shown in the decision of the RRT and I therefore dismiss the application with costs.

I certify that the preceding twenty-eight (28) 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