SFLB v Minister for Immigration - [2002] FMCA 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SFLB & ANOR v MINISTER FOR IMMIGRATION

[2002] FMCA 196

MIGRATION – Application for review of decision of the Refugee Review Tribunal – change of situation in Afghanistan – no continuing well-founded fear of persecution – consideration of Hathaway three-stage test in determining refugee status – allegation of jurisdictional error – jurisdictional error not an available ground for review.

Migration Act 1958 (Cth) ss. 36, 65, 474

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997-98) 151 ALR 685
SCAM v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 964
SBBK v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 565
NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

Applicant:

SFLB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

AZ 166 of 2002

Delivered on:

5 September 2002

Delivered at:

Sydney

Hearing Date:

14 August 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr S Ower appearing pro bono

Solicitors for the Applicant:

Refugee Advocacy Service of South Australia

Counsel for the Respondent:

Mr M Roder

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant pay the respondent’s costs in the sum of $3,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 166 of 2002

SFLB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicants are husband and wife. They arrived in Australia by vessel in August 2001 and were placed in immigration detention. On 20 September 2001 they lodged an application for protection (class XA) visas with the Department. The applicants claim to be Afghani citizens and their claims were assessed by the delegate of the Minister on 7 March 2002 on the situation pertaining at that time (Chan v MIEA (1989) 169 CLR 379). The applicants applied for a review of the decision of the delegate which was made by the Tribunal on 3 May 2002 and notified to the applicants on 6 May 2002.
In his helpful submissions to the court Mr Ower of counsel summarised the applicants claims of well-founded fears of persecution for Convention reasons as follows:
“1. The husband fears persecution if returned to Afghanistan for reason of:
1.1 his Tajik ethnicity;
1.2 his imputed pro-Communist opinions; and
1.3 his membership of his family;
2. The wife fears persecution if returned to Afghanistan for reason of:
2.1 her Tajik ethnicity;
2.2 her gender;
2.3 her imputed pro-Communist opinions; and
2.4 her membership of the family.”
See [CB 116-119].
Although the Tribunal found that at the time of the applicant’s departure from Afghanistan the wife possessed a well-founded fear of persecution for reasons of membership of a particular social group, namely women in Afghanistan [CB 129], it affirmed the decision not to grant the protection visas on the basis that any previously held “well-founded fear of persecution” was no longer valid because the situation in Afghanistan had changed significantly since the applicants left that country in or about July 2001 [CB 123-124 and 131-133].
It is the applicant’s submission that the change of circumstances which occurred in Afghanistan requires the Minister in considering whether or not the criteria for a visa has been satisfied under s.65(1)(ii) of the Migration Act 1958 (Cth) to apply the criteria set out in s.36(2)(a), namely the Refugees Convention as amended by the Refugees Protocol. The applicant asserts that s.36(2) incorporates the whole of Article 1 of the Convention, not just Article 1A(2). All the clauses of Article 1 (being 1A, 1B, 1C, 1D, 1E, 1F) are to be treated as component parts of the overall definition of “refugee” (per von Doussa J in MIMA v Thiyagarajah (1997-98) 151 ALR 685 at 695).
The applicant claims that the three stage test propounded by Hathaway (“The Law of Refugee Status” 1991 at p.200) which is applicable to Article 1C(5) is relevant to the existence of a well-founded fear of persecution on initial determination as well as to any later decision to bring refugee status to an end. He cites as authority to this footnote 37 on page 86 of Goodwin-Gill, “The Refugee in International Law” (2^nd ed) 1996.
The applicant then submits that by failing to apply this test to the consideration of whether Australia had protection obligations to these applicants there was a constructive failure to exercise jurisdiction, which means that the decision is invalid.
In order to understand the context of the applicant’s submissions it is necessary to set out Part A and Part C of Article 1 noting that the amending protocol in 1967 has removed the words “occurring before 1 January 1951” from Article 1A(2).
“A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2) As a result of events occurring before 1 January 1951 and 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; or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or, owing to such fear, is unwilling to return to it.
…
C. This Convention shall cease to apply to any person falling under the terms of Section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it, or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.
The three stage test put forward by Hathaway is in the following form:
“1. First, the change must be of substantial political significance;
2. Secondly there must be reason to believe that the substantial political change is truly effective;
3. Thirdly the change in circumstances must be shown to be durable.”
In Chan (supra) Mason J said at 386-7:
“For the reasons given by McHugh J, the question whether or not a person has a status of “refugee” within the meaning of Art. 1A(2) of the Convention relating to the Status of Refugees (the Convention) is one for determination upon the facts as they exist when the person concerned seeks recognition as a refugee. … In making such a determination under the Convention, a logical starting point in the examination of an application for refugee status would generally be the reasons which the applicant gave for leaving his country of nationality. Those reasons will necessarily relate to an earlier time, since when circumstances may have changed. But that does not deny the relevance of the facts as they existed at the time of departure to the determination of the question whether an applicant has a “fear of persecution” and whether that fear is “well-founded”.”
At 391 His Honour said:
“The Full Court placed insufficient weight upon the circumstances as they existed at the time of departure which grounded Mr Chan’s fear of persecution. In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear has dissipated.
…
I have already mentioned that there was no material which justified the Full Court’s reference to “substantial changes” having taken place in China.”
In his discussion of the time for determining refugee status in Chan at 432, McHugh J notes the temporal difference between recognition as a refugee and the change in circumstances:
“It seems natural to construe the words of Art 1C(5) as meaning recognition as a refugee by the State party which has given him protection as a refugee. This gives rise to the inference that the Convention applies to a person when a State party recognizes him as a refugee and ceases to apply to him when the circumstances which gave rise to that recognition cease to exist. This view is supported by the use of the present tense in Art. 1A(2).”
If there are two distinct assessments to be made about refugee status then the suggestion that a test applied to one of those situations ought to be applied to another lacks intellectual rigour. It is perfectly reasonable to ask a Convention country to apply the Hathaway three stage procedure to a decision to deprive someone of a status which has been recognised by that Convention country. But why should those tests be applied when the situation is being looked at originally? Chan is authority for the proposition that although a Tribunal will look at the situation on the day the application is made that it will have regard to the situation when the applicant left his country of domicile. If there has been a change in situation the High Court requires firm proof of it. Why is it necessary to import a test that comes out of the different type of procedure, namely the procedure for the removal of refugee status pursuant to Article 1C(5)? The obligations that the Minister has to satisfy himself of the “well-founded fear of persecution” must include a comprehensive assessment of the country conditions at the time the decision is made and in all probability that consideration will include the matters referred to by Hathaway in his three-stage test. But the test itself should not be mandated (see also the discussion of Hathaway in SCAM v MIMIA [2002] FCA 964).
I cannot accept the applicant’s contentions as to the requirement to satisfy the Hathaway test, applicable to the removal of refugee status, to an applicant for refugee status. The applicant submitted that if the Tribunal failed to apply the appropriate test then it had made a jurisdictional error of the type found in SBBK v MIMIA [2002] FCA 565 at [44] – [47]. Since this application was heard before me a Full Bench of the Federal Court has determined in NAAV v MIMIA [2002] FCAFC 228 not to approve the decision in SBBK (see von Doussa J at [639] with who Black CJ and Beaumont J (in this regard) agreed). It follows that even if I was to have accepted the applicant’s submissions the Tribunal’s decision would not be open to review as being one which was contained within the privative clause found in s.474 of the Migration Act.
I dismiss the application. I order that the applicant pay the respondent’s costs in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.
I note in this matter that the applicant was represented pro bono. It is appropriate that the court should recognise the contribution of members of the legal profession to the efficient administration of justice and the protection of human rights by appearing in these matters on this basis.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: