SFLB v Minister for Immigration

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

1. Application dismissed.

2. 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

1. 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.

2. 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]. 

3. 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…