SGBB v Minister for Immigration - [2002] FMCA 322

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SGBB v MINISTER FOR IMMIGRATION

[2002] FMCA 322

MIGRATION – Review of RRT decision – protection visa – whether applicant had a well-founded fear of persecution ‘for reasons of’ belonging to a particular social group – jurisdictional error – whether all relevant country material taken into consideration by the Tribunal – procedural fairness – whether there was a likelihood of future persecution if applicant returned to country of origin – no reviewable error found.

Migration Act 1958 (Cth), ss.418(3), 474

SBKK v Minister for Immigration [2002] FCA 265
Saleba v Minister for Education (1998) FCR 38
NAAG v Minister for Immigration [2002] FCA 713
NAAV v Minister for Immigration [2002] FCAFC 228
Muin v Refugee Review Tribunal (2002) 190 ALR 601
WAEM v Minister for Immigration [2002] FMCA 259
NADR v Minister for Immigration [2002] FCAFC 293
Minister for Immigration v Yusuf (2001) 180 ALR 1

Applicant:

SGBB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

AZ 203 of 2002

Delivered on:

12 December 2002

Delivered at:

Sydney

Hearing Date:

29 November 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr G Barrett QC

Counsel for the Respondent:

Mr K Tredrea

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 203 of 2002

SGBB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in these proceedings is a young man of Hazara ethnicity and Shi’ite Muslim religion. He is a citizen of Afghanistan, who before coming to Australia, lived in the Ghazni Province of that troubled country. His exact age is unclear. He may be only sixteen. At the oldest, he turned eighteen in December 2002. He is currently in the care of the Department of Human Services of the State of South Australia. He arrived in the country unaccompanied having fled from Afghanistan in March 2001 leaving behind his parents and a younger brother and sister.
On 2 November 2001 the applicant applied for a protection visa (Class XA) to the Minister for Immigration and Multicultural and Indigenous Affairs. On 11 June 2002 a delegate of the Minister declined to grant him protection and on 13 June 2002 he applied for review by the Refugee Review Tribunal. The Tribunal heard his application on 28 June 2002 and on 29 June 2002 published its decision and reasons to uphold the decision of the Delegate. The gravamen of the Tribunal’s decision was that the applicant no longer had a well founded fear of persecution for convention reasons if he was returned to Afghanistan because:
“The political circumstances in Afghanistan have changed substantially since the applicant left that country. I accept as [the] authoritative the reports above to the effect that the Taliban were effectively eliminated as a political and military force in Afghanistan.”
The Tribunal also accepted that Shi’ite Muslims were represented in the interim government which was committed to ending tribal and ethnic divisions among the Afghani people and:
“In addition I do not accept there is a real chance that the applicant will be persecuted by the Pashtuns, or members or supporters of the Taliban, in his local area or in any area of Ghazni Province.”
The applicant, who was represented pro bono by Mr Barrett QC, put forward a number of arguments to support his contention that the decision of the Tribunal was open to review.
The first matter argued by the applicant was that the Tribunal considered only whether he might be subject to persecution on account of his race or religion. No consideration was directed to whether he might be subject to persecution on account of his belonging to a particular social group, i.e. young people of Hazara ethnicity and Shi’ite religion. The Tribunal did not consider the greater likelihood of such a group to be the subject of persecution, particularly in travelling between Kabul (where he was most likely to arrive) and Ghazni. The applicant argued that by analogy to SBKK v Minister for Immigration [2002] FCA 265 the Tribunal had committed a fundamental error of principle in failing to address this central question of whether the applicant was a member of a particular group. The applicant says that his youth was a matter put in issue before the Tribunal in two letters found between [CB 122] and [CB 124] written on his behalf by the Department of Human Services of South Australia. The respondent argues that in the statement of submissions made on behalf of the applicant by his advisers and found between [CB 75–118] and in particular at [76] there is no identification of a separate social group.
I do have some difficulty with the applicant’s claims in this regard. Whilst I accept that if the facts found by the Tribunal give rise to an arguable claim that an applicant feared persecution for a particular convention reason the Tribunal will err if it fails to address that claim (Saleba v Minister for Education (1998) FCR 38 at 50. But this principle applies mainly in cases where the applicant is totally unrepresented and has difficulty in articulating his own case. Here, the applicant’s representative did not suggest to the Tribunal that because of the applicant’s youth he would have particular problems in returning, only that any person of his ethnicity and religion would have problems. I would be reluctant to find jurisdictional error on the part of the Tribunal for this reason, even if SBBK was binding upon me.
But SBBK has itself been the subject of criticism from Allsop J in NAAGv Minister for Immigration [2002] FCA 713. That case was approved by the majority in NAAV v Minister for Immigration [2002] FCAFC 228. At [639] von Doussa J said:
“I share the difficulty expressed by Allsop J in NAAG v Minister for Immigration at [59] to [60] about Tamberlin J’s conclusion that an error of law in failing to identify the right question to be addressed in the applicant’s claim constitutes a failure to comply with a condition that is essential to the exercise of the jurisdiction of the RRT.”
Although SBBK is itself the subject of an appeal that has yet to be determined it would seem unlikely that it will constitute authority that any jurisdictional error arising out of the failure to consider the particular social group would take the case out of the reach of s.474 of the Migration Act 1958 (“Migration Act”). It would certainly not appear to do so at present, and I am bound by the decision in NAAV as the majority in this regard accepted Von Doussa J’s judgment.
The second point raised by the applicant was that it was not known whether the country material taken into account by the delegate had been given to the RRT pursuant to s.418(3) of the Migration Act. Letters of inquiry had been sent to the RRT concerning this matter but no response in relation to this applicant had been received. The applicant sought to bring this case within the dicta of the High Court in Muin v RRT (2002) 190 ALR 601. I dealt with a similar matter in WAEM v Minister for Immigration [2002] FMCA 259 where I made reference to the decision of the Full Bench of the Federal Court in NADR v Minister for Immigration [2002] FCAFC 293 whereat [22] to [24] Keifel J explained the importance of the agreed facts in Muin. There were no agreed facts in this case. More importantly however, her Honour also said at [29]:
“Muin was not a case decided in connection with a privative clause. It is not in dispute that the decision here is a privative clause decision to which s 474(1) of the Migration Act 1958 (Cth) applies. NAAV holds that, provided the conditions referred to in Hickman are observed, s 474(1) operates, in effect, to validate the jurisdictional errors, including a breach of the rules of natural justice… The terms were specific. The effect is to exclude the rules of procedural fairness (648).”
I note that there is no evidence provided in this case as to what the applicant would have done if he had been aware that any particular documents had not been delivered to the Tribunal. In the absence of this evidence and any real evidence about what was delivered to the Tribunal I do not think that I could follow Muin in these proceedings even if there was any utility in doing so.
The final point raised by the applicant was the RRT acknowledged receipt of the country information material put before it on behalf of the applicant but, without analysing it, preferred its own sources, which indicated that there would be no real chance that the applicant would face persecution on his return to Afghanistan. The Tribunal implicitly rejected the evidence of the applicant and his caseworker (found at page 13 of the transcript) as to the likelihood of persecution. He claimed the RRT did this without analysing that evidence. It is submitted that this failure constitutes a Yusuf (Minister for Immigration v Yusuf (2001) 180 ALR 1) type error.
I am not satisfied that the Tribunal did not consider these matters. There is specific reference to them at [CB 140]. The Tribunal also considered the country information provided by the applicant but preferred its own information. The country information provided by the applicant falls into two classes. There is a section about Hazaras particularly, which gives a graphic account of the difficulties historically suffered by those people. But this account ends with the Taliban. The up to date “post Taliban” material is much more general in nature and does not specify particular danger to Hazaras returning to the Ghazni area. On the other hand, the material upon which the Tribunal relied does deal with the situation of Hazaras under the western imposed government of national unity. The court is not able to substitute its views on the situation for those of the Tribunal. Once the court can identify the existence of material upon which the Tribunal could rely and the existence of a contest of facts, then absent any other obvious jurisdictional error, the Tribunal would appear to have carried out the very task for which it was constituted. I am satisfied that that is what occurred in this case.
For the reasons given above I am unable to find any jurisdictional error in the actions of the Tribunal and I must dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
The applicant was represented in this matter pro bono by Mr Barrett QC. The court acknowledges with gratitude the assistance of practitioners who give of their time and expertise in this manner.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: