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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 322
Decision Date: 12 December 2002

CaseChat Overview and Summary

The case involved SGBB, the applicant, and the Minister for Immigration, the respondent. The applicant sought judicial review of the respondent’s decision to cancel their visa on the grounds of health and character. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant argued that the decision was unreasonable and that the Minister had failed to consider relevant evidence, including their medical history and good character. The Minister maintained that the decision was lawful and based on sufficient evidence.

The court was required to determine whether the Minister’s decision was legally sound and whether the applicant had a valid basis for seeking judicial review. In particular, the court needed to consider whether the Minister had failed to consider relevant evidence and whether the decision was unreasonable in the Wednesbury sense. The court also needed to determine whether the applicant had standing to bring the proceedings and whether there were any other grounds for dismissing the application.

The court found that the Minister’s decision was lawful and that the applicant had failed to demonstrate that it was unreasonable. The court found that the Minister had considered all relevant evidence and that there was no basis for finding that the decision was flawed. The court also found that the applicant had standing to bring the proceedings and that there were no other grounds for dismissing the application. Accordingly, the court dismissed the application and ordered the applicant to pay the respondent’s costs in the sum of $4,000.00.

Orders

Orders of the court

Application dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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