SFHB v Minister for Immigration
[2004] FMCA 317
•17 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SFHB v MINISTER FOR IMMIGRATION | [2004] FMCA 317 |
| MIGRATION – Review of decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister refusing to grant a protection visa – no reviewable error disclosed – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Federal Magistrates Court Rules 2004, Part 21 Rule 21.10
Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v Minister for Immigration and Ethnic Affairs (1989) 169CLR 379 at 389, 398, 406 AND 429
SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964
Chen Chi Hai vs Minister for Immigration and Multicultural and Indigenous Affairs (2000) 201 CLR 293 at 307 to 308
Plaintiff S157 of 2002 vs Commonwealth of Australia (2003) 195 ALR 24 Minister for Immigration and Multicultural Affairs; Exparte applicant 134 of 2002 (2003) 195ALR 1
Craig vs South Australia (1995) 184 CLR 163 per McKugh, Gummow and Hain JJ at 179)
Minister for Immigration and Multicultural and Indigenous Affairs vs Yusef (2001) 180 ALR1 at 21
Minister for Immigration and Multicultural and Indigenous Affairs vs Wu Shan Liang (1996) 185 CLR259 at 272
| Applicant: | SFHB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ165 of 2002 |
| Delivered : | 17 August 2004 |
| Delivered at: | Adelaide |
| Hearing dates: | 22 August 2002, 3 July 2003 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Australia, Inc |
| Counsel for the Respondent: | Ms Marharaj |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed with the applicant to pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ165 of 2002
| SFHB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal (“the tribunal”) which affirmed the primary decision of a delegate of the respondent refusing, under section 65 of the Migration Act 1958 (Cth) (“The Act”), to grant the application of the applicant for a protection visa on the basis that the criteria for the grant of that visa was not met.
The application is brought pursuant to section 39B of the Judiciary Act 1903 (Cth) and seeks constitutional writs.
The applicant arrived in Australia in August 2001.
On 20th September 2001 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (“The Act”).
On 7th March 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 7th March 2002 the applicant applied for a review of that decision.
On 3rd May 2002 the tribunal handed down its decision affirming the delegate’s decision.
The basis of the applicant’s claim to the tribunal was that she had a well founded fear of persecution, such as to invoke Australia’s obligations under the Refugee’s Convention and the Refugees Protocol by virtue of her Tajik ethnicity, her imputed communist opinions and her membership of a particular social group namely unmarried Afghan women.
In a statement prepared in support of her application for a protection visa, the applicant claimed to be a 45 year old woman from Afghanistan who had never married. She claimed to be Tajic by ethnicity and a Sunni Moslem.
She claimed that she had cared for her parents from the age of 12 or 13 until they were killed when the Taliban entered Kabul when she was around 40 years of age. She claimed a rocket hit the family home and her parents and a number of other people were killed or injured.
She claimed that as a woman life was very hard for her in Afghanistan. She said that they could not go outside or go shopping and had to cover up to the extent that if their hands were exposed at all the Taliban would lash them. She said that women were unable to alight from a vehicle if they attended a ceremony.
She claimed that the Taliban treated Farsi speakers very badly. She claimed that her brother was an army officer during the ethnic war in Kabul approximately 10 years prior to her making her statement and that at the time he was fighting on the side of the Hazara Shi’as. She claimed he was captured by the Uzbeks, detained and that they had to pay money to get him out of prison and he then left for Mazar.
She claimed that the Taliban were after her brother-in-law, came and looked for him and went to his home and surrounded it. She claimed she had to hide at her house to avoid them and his mother told him not go to work because the Taliban were after him. She said she was scared that the Taliban would come to their house and hurt her and her sister as well as her brother-in-law. She said her brother-in-law’s life was in danger, he wanted to leave Afghanistan with her sister and because she would have no-one in Afghanistan to look after her she had to leave as well. She said that if she went back to Afghanistan her brother-in-law’s life would be in danger, her parents had already been killed and she was sure that if the Taliban took her brother-in-law they would also come after her and try to force her to marry one of them as well as probably sexually assaulting her. She said that if that happened there would be no reputation left for her as a woman and that in any event now she is old and men are not so interested.
She said that she was frightened that she would be harmed or mistreated by the Taliban if she went back to Afghanistan, and that was because they hate all Tajik’s and Farsi speakers.
She believed that the authorities in Afghanistan would not protect her if she returned because it was the authorities who were persecuting her.
In a subsequent letter in support of her application she referred to her first statement made on 20th September 2001 and said events that had occurred in Afghanistan since she arrived in Australia had been explained to her, in particular the overthrow of the Taliban government and the installation of a new government.
She claimed that she would still be at risk of harm and injury if she returned to Afghanistan because the people who were now in power were the very people who for a long time had been the enemies of her people and had killed many of her people. She said if she returned she would be subject to the same problems as before, albeit with different authorities.
The applicant said that the people who were now in power in Afghanistan used to say that her family had been supporters of the Communist government and were communists. She said that situation arose because of her brother’s membership of the Najibullah Army at the time of the Russian control. She said she also believed she would suffer at the hands of the new leaders because she was Tajik and Tajik’s were believed to be opposed to the Uzbeks. She said that her brother-in-law’s cousins worked for General Fahim at the time of the rule of the Mujahadin but there was a split between her brother-in-law and his cousins and the General confiscated land to which her brother-in-law was entitled because her brother-in-law was thought to be opposed to the General. She claimed her brother-in-law had worked for the Najibullah Government at the time of the Russian control.
She said that as a woman from Afghanistan she was still concerned for her safety if she returned having recently heard news that women in Afghanistan are still required to cover up and not allowed to go outside. She had also heard that many women had been kidnapped and had been raped or disappeared which showed to her that the situation was not yet safe in Afghanistan.
She said people who were formerly Taliban and who had long beards had now shaved their beards but still had the same power, that if she returned she would be recognised by the same group of former Mujahadin and Taliban, and that there is no safety for a woman, particularly a single woman in Afghanistan.
In the application filed on 17th May 2002, the applicant sought a review in the Federal Court of Australia pursuant to section 39(b) of the Judiciary Act 1903 (Cth). Application was also made for constitutional writs.
In paragraph 3 of the affidavit filed with the application, such affidavit having been sworn by one Elizabeth Boxall, acting as agent for the solicitors for the applicant, it was stated that the applicant sought relief under section 39(b) of the Judiciary Act 1903 (Cth) on the grounds that the Refugee Review Tribunal had exceeded its jurisdiction in making its decision to affirm the respondent’s decision and constructively failed to exercise its jurisdiction in arriving at its decision.
When the matter came on for a directions hearing before Justice von Doussa on 5th July 2002, he ordered that the applicant file and serve further particulars of the application by 8th August 2002. That order was not complied with and at the time of the hearing no further particulars had been filed or served. The only particularity in relation to the application was contained in paragraphs 15 and 18 of the applicant’s Outline of Submissions filed on 19th August 2002.
In paragraph 15 it was stated “the Tribunal found that, due to the change of circumstances in Afghanistan, the applicant’s fear of persecution for a convention reason if she were to be returned to Afghanistan was not well founded”. In paragraph 18 it was stated “it is submitted that the Tribunal’s failure to consider whether there had been an “significant, effective, durable or substantial” change of circumstances in Afghanistan amounts to a breach of an imperative duty in that any decision made by it is void”. The applicant relied on an interpretation of the convention pursuant to the Vienna Convention on the law of treaties Article 31 and the case of Applicant A and the Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ and at 251 to 256 per McHugh J. The applicant also relied on the publications by Hathaway the “Law of Refugee Status (1991)” at pages 200 to 205 and “The Refugee in International Law” Second Edition (1996) pages 84 – 87.
It was submitted in paragraph 17 of the Outline of Submissions that such interpretations were consistent with the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 406 and 429 and SCAM v MIMIA [2002] FCA 964. It was argued that such an interpretation supported the broad humanitarian purposes of the Refugees Convention with reference to Chen Chi Hai vs MIMIA (2000) 201 CLR 293 at 307 to 308. It was submitted that while the issue of significant change of circumstances is a question of fact or evidential weight, the effect of Sections 36(2) 65 and 415(4) of the Migration Act is to make a decision which fails to consider the issue (where relevant) a decision not authorised under the act. No point was taken by the respondent’s counsel as to the failure on the part of the applicant to file and serve further particulars and the hearing proceeded on the basis of matters set out in the applicant’s Outline of Submissions.
The respondent filed an Outline of Submissions on 22nd August 2002 and in the conclusion thereto stated as follows – “it is respectfully submitted that no error has been made by the tribunal that is beyond the protection of the Privative Clause and that the application must be dismissed with costs”. “The respondent will seek permission to supplement these submissions upon considering the applicant’s submissions”.
Prior to the hearing of the matter and Judgment being delivered, the High Court considered the issues relating to privative clauses in Plaintiff S157 of 2002 vs Commonwealth of Australia (2003) 195 ALR 24 and Minister for Immigration and Multicultural Affairs; Exparte applicant 134 of 2002 (2003) 195ALR 1.
On 3rd July 2003 the Court ordered that the applicant file and serve any further submissions on which she wished to rely following upon those decisions with such written submissions to be filed and served on or before 18th July 2003 and the respondent to file and serve any submissions in response on or before 1st August 2003. No further submissions were filed on behalf of the applicant but further submissions were filed on behalf of the respondent on 2nd July 2003. The further submissions on the part of the respondent referred to the High Court decisions in the above two matters and concluded “it is respectfully submitted that as submitted by the respondent in his initial written submissions the Tribunal made no legal error let alone a jurisdictional error within the meaning of S157 and S134. Hence, the application ought to be dismissed with costs”.
The Tribunal considered the applicant’s claims and found [CB119] that “if the applicant were to return to Afghanistan now or in the reasonably foreseeable future, there is no real chance that she would be persecuted for reason of her race, a political opinion imputed to her, her membership to a particular social group or for any convention reason. The Tribunal finds that the applicant’s fears are not well founded.” The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention (as amended by the Refugees Protocol). The Tribunal affirmed the delegates decision not to grant a Protection Visa.
The Tribunal’s findings and reasonings were set out from pages 109 to 119 inclusive of the Court Book. The Tribunal:-
a)Accepted that applicant came from Afghanistan, that she was an ethnic Tajik and that she was resident in Kabul before coming to Australia [CB109];
b)Did not accept that the applicant’s brother-in-law and sister left Afghanistan for the reasons claimed [CB110];
c)Accepted that the applicant as an unmarried woman with no other family members to support her would have had great difficulty surviving if in Afghanistan on her own under the Taliban and that in order to avoid prosecution she had to leave with her brother-in-law and sister [CB110] and accepted that the applicant left Afghanistan because she had a well founded fear of being persecuted by the Taliban for reason of her membership of a particular social group, Unmarried Women in Afghanistan [CB110];
d)Was satisfied at the time of the Tribunal hearing that the Taliban had been effectively eliminated as a political and military force in Afghanistan [CB111];
e)Did not accept at the time of the hearing persons affiliated with the Taliban held positions of power in Afghanistan [CB111];
f)Was satisfied at the time of the hearing that the Taliban no longer governed or administered Afghanistan [CB111];
g)Found that there was not a real chance that the applicant would be persecuted by the Taliban if she were to return to Afghanistan [CB111];
h)Considered the applicant’s fears about returning to Afghanistan even in circumstances where the Taliban had gone because of her Tajik ethnicity and because her family were known as being Communists, and her fears that she would be persecuted by elements of the new government who had been part of the Mujahadin regime and her belief that she would continue to face a real chance of being persecuted for reasons of her gender if she returned to Afghanistan [CB111];
i)Accepted the applicant appeared to be genuinely fearful of returning to Afghanistan based on experiences of living under the control of the Mujahadin between 1992 and 1996 [CB111];
j)Accepted the applicant’s claims as to her parents being killed in a rocket attack but found that they were killed during a period of civil war when opposing Mujahadin factions were fighting for control of Kabul, and killed not for a convention reason but rather in wide spread fighting [CB112];
k)Considered her claims that her family were imputed with pro-Communist political opinion, but found that the willingness of the Mujahadin to release her brother on payment of a bribe and allow him to leave Kabul indicated that he was not a person who was of concern to them either for reasons of his ethnicity or a political opinion imputed to him [CB112];
l)Found in the absence of any detail of harm the applicant had experienced at the hands of the Mujahadin that she was not persecuted by them in the past for reason of her ethnicity, a political opinion imputed to her or for reason of her family membership [CB112];
m)Accepted there was a high incidence of violence against women during the period of the Mujahadin control of Kabul [CB113];
n)Was not satisfied that there was sustained and systemic persecution of women for reason of their gender during that period as occurred under the Taliban and found that the applicant was not persecuted by the Mujahadin for reasons of her gender [CB113];
o)Accepted that the applicant is genuinely fearful of returning to Afghanistan in which some elements of the Mujahadin form part of government because of the violence and destruction she observed when the Mujahadin were previously in power [CB113];
p)Found that the applicant was not persecuted by the Mujahadin for a convention reason in the past [CB113];
q)Was not satisfied that there is a real chance that the applicant would be persecuted for a convention reason if she were to return to Afghanistan now or in the reasonably foreseeable future [CB113];
r)In respect of her claim to fear persecution because of her ethnicity, noted country information indicating Tajik’s are well represented in the current interim authority and hold key positions [CB113];
s)Noted intense scrutiny by the international media since the fall of the Taliban and the lack of reports or suggestions that there had been any persecution of Tajik’s in Kabul or elsewhere in Afghanistan by other ethnic groups [CB113];
t)Found that there was not a real chance the applicant would be persecuted for reason of her ethnicity if she were return to Afghanistan now or in the reasonably foreseeable future [CB113];
u)Did not accept if the applicant were to return to Afghanistan she would be persecuted because she was believed to be Communist [CB113];
v)Found that the applicant was not persecuted in the past because of an adverse political opinion imputed to her because her family were believed to be Communists [CB113];
w)Found that with the passage of time the chance of her being persecuted for that reason had become even more remote and that there was not a real chance that she would be harmed for that reason [CB113];
x)Rejected her concern that her sister and herself might be persecuted because of the political opinion imputed to her brother-in-law and because his cousins were seeking to harm him [CB114];
y)Accepted that at the time the applicant left Afghanistan her fears that she would be persecuted if she returned to Afghanistan because she is a woman were well founded because women faced a real chance of persecution by the Taliban for reasons of their membership of a particular social group defined by their gender [CB114];
z)Considered reports as to the role of women in the reconstruction of Afghanistan and under the interim authority [CB114-117];
aa)On that information was satisfied that the applicant would not be persecuted if she were to return to Afghanistan because she is a member of a particular social group, Unmarried Women in Afghanistan [CB117];
bb)Considered relevant country information as to changes in Afghanistan since the fall of the Taliban, the possibility of an Afghan returnee living elsewhere other than their usual place of habitual residence and country information concerning the situation in Kabul being the applicant’s place of residence [CB117-119];
cc)Accepted that there had been many incidences of lawlessness in Kabul and that the security situation required careful monitoring [CB119];
dd)Was satisfied that if the applicant was to return to Kabul there was no real chance that she would be persecuted for a convention reason in the foreseeable future [CB119];
ee)Found taking all of those matters into account that if the applicant were to return to Afghanistan now or in the reasonably foreseeable future there is not a real chance she would be persecuted for reason of her race, a political opinion imputed to her, her membership of a particular social group or for any other convention reason, and accordingly that the applicant’s fears are not well founded [CB119];
The tribunal clearly analysed the applicant’s claims in detail between pages 109 and 119 inclusive of the Court Book. The claims were considered against the background of all of the material referred to herein.
Following the High Court decision in Plaintiff S157 of 2002 vs Commonwealth of Australia [2003] 195 ALR 24, I must determine whether was an error on the part of the Tribunal which would enliven the entitlement to an order under section 39B of the Judiciary Act 1903 (Commonwealth) notwithstanding section 474 of the Migration Act.
In that Case the High Court determined that the privative clause as defined in section 474 (1) of the Migration Act, properly constructed, is a valid enactment. It also found however that if there is a jurisdictional error or a failure to comply with the principles of natural justice the decision cannot property be described as a decision made under the Act and is thus not a privative clause decision.
In Craig vs South Australia 184 CLR163 (per McHugh, Gummow and Hayne JJ at 179) the Court found “an Administrative Tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies upon irrelevant material or in some circumstance, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power”.
In Minister for Immigration and Multicultural and Indigenous Affairs vs Yusef 180ALR (1 at 21), the Court found that such a list of jurisdictional error was not exhaustive and that those kinds of error may well overlap.
The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretions that are conferred by the act to consider a valid visa application made by the applicant and in doing so to have regard for all information required to be taken into account under the code of procedure in Part 2 Division 3, Subdivision AB of the Act.
The applicant contended that the Tribunal’s failure to consider whether there had been a “significant, effective, durable or substantial change of circumstances in Afghanistan” amounted to a breach of imperative duty and that any decision made by it was void.
There was nothing in either the applicant’s written submissions or in submissions of counsel on behalf of the applicant as to what constituted the alleged failure on the part of the Tribunal to properly consider the extent of the change of circumstances in Afghanistan. Nor was there any factual material in the application and the affidavit itself to support such an assertion.
The Tribunal came to its conclusion concerning the safety of returnees in such circumstances as the applicant to Afghanistan on the basis of factual findings as to the applicant’s own evidence and findings arising from documentary evidence relating to country information.
The Court cannot review the merits of the Tribunal’s decision. The weight to be given to material before a decision maker is reserved to that person so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review; (MIMIA vs Wu Shan Liang (1996) 185 CLR 259 at 272).
I find the Tribunal to have considered all matters central to its task being a proper assessment of the applicant’s case.
In all of the circumstances I am unable to find any grounds upon which the applicant can support a claim that this decision should be the subject of judicial review.
I do not find that there has been any jurisdictional error.
I therefore dismiss the application and order that the applicant pay the respondent’s costs assessed in the sum of FOUR THOUSAND DOLLARS ($4,000) pursuant to Part 21 Rule 21.02 (2) (a) of the Federal Magistrates Court Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Mead FM
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