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

[2002] FCAFC 335

FEDERAL COURT OF AUSTRALIA

SFYB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 335

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

S160 of 2002

HILL, BRANSON AND STONE JJ
 5 NOVEMBER 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S160 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT SFYB OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND  INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL,  BRANSON AND STONE JJ
DATE OF ORDER:	5 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1The appeal be dismissed

2The appellant pay the respondent’s costs of the appeal

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	S160 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGE:	HILL,  BRANSON AND STONE JJ
DATE:	5  NOVEMBER 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of a judge of this Court dismissing an 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 Act 1958 (Cth) (the “Act”).

2. As the application for an order of review of the Tribunal’s decision was filed on 27 August 2001, the grounds of review available to the appellant were those specified in the Act as it stood prior to the amendments to it effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which commenced on 2 October 2001. The available grounds of review were therefore those specified in s 476(1) of the Act as it stood prior to 2 October 2001.

3. The Tribunal accepted that the appellant is a national of Afghanistan and of Tajik ethnicity.  The appellant’s application for a protection visa was made on the basis that he had a well-founded fear of persecution in Afghanistan because of his Tajik ethnicity and Shi’a Muslim religious beliefs.  The appellant claimed to fear death at the hands of the Taliban because of his ethnicity and religious beliefs if he were returned to Afghanistan. 

4. The Tribunal gave lengthy, detailed and careful consideration to the appellant’s claims.  The Tribunal’s findings are accurately summarised by the learned primary judge and we gratefully adopt that summary.  The Tribunal rejected the appellant’s claims and held that he did not face a real chance of persecution for a Convention reason if he were to return to Afghanistan and found that his fear of such persecution was not well-founded.  In part the Tribunal based its decision on the appellant’s lack of credibility, and in part on its assessment of the position in Afghanistan as derived from independent country information.

5. The primary judge observed that in the proceeding before him the appellant, who was not represented, did not identify any available ground of review.  His submissions were an attempt to re-argue the merits of the case.  In the circumstances, his Honour himself scrutinised the Tribunal’s reasons to see if he was able to discern any reviewable error.  He was not able to find any such error.  In addition, his Honour considered additional evidence in the form of a letter, said be from some members of the appellant’s community and said to confirm the appellant’s claims as to his nationality and the fate that he might expect if he was to be returned to Afghanistan.

6. At the hearing of this appeal the appellant was again unrepresented. He appeared by video-link from the Woomera Detention Centre where he is presently detained.  The appellant had been scheduled to attend the Court personally but was prevented from doing so by a motor accident on the way to Court.   Fortunately there were no injuries, but the car in which the appellant and others were travelling to the Court was not able to continue the journey and the passengers had to return to the Detention Centre. The appellant was given an opportunity to request an adjournment but elected to continue with the hearing of his appeal as scheduled.

7. The appellant made lengthy submissions in support of his appeal. He placed some emphasis on the letter mentioned in [5] above. This letter did not assist the primary judge. Nor did it assist us.  The primary judge gave detailed reasons for refusing the application for review and did not find any reviewable error in the reasons of the Tribunal.  We agree with the primary judge and would dismiss this appeal for those same reasons.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            7 November 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 November 2002
Date of Judgment:	5 November 2002