SFBB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCAFC 342

FEDERAL COURT OF AUSTRALIA

SFBB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 342

APPELLANT SFBB OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S121 of 2002

HILL, BRANSON & STONE JJ
7 NOVEMBER 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S121 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT SFBB OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL, BRANSON & STONE JJ
DATE OF ORDER:	7 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant 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	S121 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT SFBB OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL, BRANSON & STONE JJ
DATE:	7 NOVEMBER 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1. On 15 March 2002, a judge of this Court dismissed the appellant’s application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed the decision of the respondent’s delegate not to grant the appellant a protection visa pursuant to the Migration Act1958 (Cth) (“the Act”).

2. The appellant claimed to be a national of Afghanistan who feared persecution from the Taliban for reasons of his Hazara ethnicity and his Shi’a Muslim religious beliefs. In his application for a protection visa, dated 22 January 2001, the appellant claimed to be an uneducated farmer who was born in a village in Afghanistan where he had lived all his life. He claimed to fear death at the hands of the Taliban if he was returned to Afghanistan. According to the appellant, the Taliban had taken two men from his village and it was rumoured that they had been killed. He also claimed that the Taliban had demanded that his cousin serve in the military and amputated his leg above the ankle when he refused.  The appellant claimed that his father had told him to leave his village because it was rumoured that the Taliban were coming back.  A friend of his father assisted him to leave by taking him to the Pakistan border to a people smuggler.  

3. The Tribunal accepted that the appellant is a Hazara and a Shi’a Muslim.  It also accepted that Hazaras and Shi’a Muslims are persecuted in Afghanistan. It was not satisfied however, that the appellant is a national of Afghanistan and made no positive finding as to his nationality. 

4. The Primary Judge carefully and accurately summarised the Tribunal’s reasons for these conclusions.  We gratefully adopt that summary which it is not necessary to repeat here. 

5. An application for an order of review of the Tribunal’s decision was filed on 20 July 2001.  As this was before the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) on 2 October 2001, the grounds of review available to the appellant were those to be found in s 476(1) of the Act as it stood prior to 2 October 2001.

6. The application simply sought to reassert the appellant’s claims before the Tribunal and did not identify any ground of review as set out in s 476(1) of the Act. In his reasons for decision the Primary Judge noted that the matters raised by the appellant (who was unrepresented) demonstrated a wish to revisit the merits of the Tribunal’s decision and pointed out that the Court is not entitled to do this. His Honour found that no error that was in any way reviewable under s 476(1) of the Act had been demonstrated.

7. His Honour also considered the appellant’s criticisms of a linguistic analysis that had been commissioned by the Department of Immigration and Multicultural Affairs. The analyst had concluded that the appellant’s “language background probably is to be found in Afghanistan, but he has most probably lived for a long time in big cities in Pakistan.”  Although his Honour expressed some scepticism about this conclusion he noted, correctly in our view, that the Tribunal had not used it adversely to the appellant in reaching its conclusion and therefore concern about its quality did not provide any basis for a ground of review of the Tribunal’s decision.

8. The Primary Judge also rejected the appellant’s contention that the Tribunal was obliged to determine the appellant’s claims on the basis that he was a person without nationality but whose country of habitual residence was Afghanistan, on the basis that, as a separate issue, this claim was not before the Tribunal. In his original application for a visa the appellant claimed he was both a national and a habitual resident of Afghanistan. Once the Tribunal had concluded that it was not satisfied as to the claims made by the appellant there was nothing left to his application for refugee status. His Honour held that the Tribunal had not committed an error of law that was reviewable under s 476(1) of the Act and, accordingly, dismissed the appeal.

9. The appellant was unrepresented on the appeal. The notice of appeal does not point to any error made by the Primary Judge. At the hearing of the appeal the appellant again attempted to address the merits of his claim.  Like the Primary Judge, this Court has no jurisdiction to reconsider issues going to the merits of his claim.  Like the Primary Judge we have not discerned any reviewable error in the decision of the Tribunal. We agree with his Honour’s reasons and, for those reasons, the appeal must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            13 November 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	S Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 November 2002
Date of Judgment:	7 November 2002