SCAX v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1483

FEDERAL COURT OF AUSTRALIA

SCAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1483

No question of principle

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

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 followed
Puhlhofer v Hillingdon London Borough Council [1986] AC 484 applied

SCAX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO S 71 OF 2002

O’LOUGHLIN J
28 NOVEMBER 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 71 OF 2002

BETWEEN:	SCAX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	28 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1         The application be dismissed.

2.The applicant pay the respondent’s costs which costs are to be taxed in default of agreement.

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 71 OF 2002

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

JUDGE:	O’LOUGHLIN J
DATE:	28 NOVEMBER 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant, a citizen of Afghanistan, arrived by boat in Australia in May 2001. He is a young boy, about thirteen years of age, who is presently in the care and custody of the South Australian Department of Family and Youth Service; he is living in foster care. On 25 July 2001, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs, but on 27 November 2001, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, (“the Minister”) refused his application. He sought review by the Refugee Review Tribunal (“the Tribunal”) but was, again, unsuccessful. On 18 February 2002, the Tribunal refused his application. The present proceedings have come before the Court in the form of an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Tribunal.

2. The applicant claimed, when he was questioned in the Tribunal, that he would be persecuted by the Taliban if he were returned to Afghanistan because of his Shia Muslim religion and his Hazara ethnicity.  He said that his brother had been taken by the Taliban about two or three years before and had not been heard of since.  He submitted that the Taliban were very cruel and that, if he were returned to Afghanistan, they would question him about his reasons for leaving his country and going to a foreign Western country.  He feared that they would make him fight for them and that they would make him pray according to the Sunni rite, as that was the rite that was followed by the Taliban; he feared that they would treat him as a traitor and as an infidel.

3. The applicant, who said that his mother had died when he was small, had lived with his father and his five siblings in a village in the district of Sang-e-Masha in the province of Ghazni.  He said that his father was frightened that he (the applicant) would be taken away by the Taliban when he was older and made to fight for them; it was for that reason that his father decided to send him away.

4. The Tribunal accepted that the applicant is an Afghan national of Hazara ethnicity and that he was a resident in Afghanistan under the Taliban rule; it also accepted that under the Taliban, Hazaras, in general, “faced at least some degree of risk of arbitrary adverse attention by the Taliban by reason of their ethnicity and religion (as Hazaras and Shias)”.  The Tribunal also accepted the applicant’s fears based on his brother’s disappearance and on a real chance of persecution by the Taliban authorities when they were in power.  However, as the Tribunal said:

   “… the question remains whether the applicant on return to Afghanistan in present circumstances has a well-founded fear of persecution, with a real chance of persecution for a Convention reason now or in the reasonably foreseeable future.”

5. After reviewing the events of recent times in Afghanistan that are centred upon the collapse of the Taliban and the presence of United Nations mandated security forces in the country, the Tribunal concluded that it was satisfied that:

   “…the Taliban has been effectively eliminated as a political and military force in Afghanistan and no longer governs or administers Afghanistan… The continuing economic, political, military and humanitarian commitment of the international community provides a very significant underpinning to the changes in Afghanistan.”

6. There has been, in Afghanistan, what the Tribunal called “a fundamental change in circumstances.”  The Tribunal made that statement after reviewing numerous reports from a variety of sources; it was a conclusion that was reasonably open to the Tribunal on the material that was before it.  The Tribunal therefore concluded that the applicant did not have a well-founded fear of persecution for a convention reason if he were to return to Afghanistan.

7. On 7 March 2002, the applicant filed an application in this Court, in which he sought to challenge the decision of the Tribunal.  As the Tribunal’s decision was a privative clause decision within the meaning of s 474 of the Migration Act 1958 (Cth) (“the Act”), the scope for judicial review by this Court of the Tribunal’s decision is subject to the constraints that are to be found in that section. However, in the particular circumstances of this case, I do not consider that it is necessary to have regard to those constraints. The matter can be decided by reviewing the Tribunal’s decision for, in my opinion, it is free from fault.

8. It was submitted on behalf of the applicant that the Tribunal had accepted that the applicant had a genuine subjective fear of persecution that made him unwilling to return to Afghanistan.  Even though that submission might be accurate, it does not help the applicant because the Tribunal did not accept the objective fact:  it did not accept that there was a real chance that the applicant would be persecuted were he to be returned to Afghanistan now or in the reasonably foreseeable future.

9. Although the applicant conceded that the Taliban is “no longer an effective political and military force in the country of Afghanistan”, it was nevertheless submitted that neither a finding in those terms nor the material before the Tribunal supported a conclusion that “the situation in Afghanistan has thereby changed so fundamentally that the applicant cannot now have a well-founded fear of persecution by reason of his religion or ethnicity at the hands of remnants of the Taliban or other groups, including the Tajiks and the Pashtuns”.  That submission, in my opinion, constitutes an invitation to this court to undertake a review of the Tribunal’s reasons on the merits – and that is a task which is not open to this Court.

10. The Federal Court, sitting on a judicial review of a decision of the Tribunal, cannot undertake a merits review of the Tribunal’s decision; it can only interfere in limited circumstances when there has been an error of law in the Tribunal’s decision:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J; Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518. As counsel for the Minister submitted, the findings of the Tribunal were open to it on the evidence; the weight that is to be attributed to aspects of the evidence, including documentary evidence, is a matter for the Tribunal. There are no errors of law evident in the Tribunal’s approach. In these circumstances, the Court is left with no alternative. The application must be dismissed with costs.

11. In view of this conclusion, little purpose would be achieved in making an examination of the privative clause provisions of the Act, save to say that it seems apparent to me that the provisions of s 474 of the Act would deny this Court a right to review the decision of the Tribunal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin .

Associate:

Dated:             28 November 2002

Counsel for the Applicant:	Mr F DiFazio (pro bono counsel)
Solicitor for the Applicant	Refugee Advocacy Service of South Australia Inc
Counsel for the Respondent:	Ms SJ Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 September 2002
Date of Judgment:	28 November 2002