SGMB v Minister for Immigration
[2004] FMCA 514
•19 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SGMB v MINISTER FOR IMMIGRATION | [2004] FMCA 514 |
| MIGRATION – Review of decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister refusing to grant a protection visa – no reviewable error disclosed – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Plaintiff S157 of 2002 vs Commonwealth of Australia (2003) 195 ALR 24
Minister for Immigration and Multicultural Affairs ex parte applicant 134 of 2002 (2003) 195 ALR 1
Craig vs South Australia (1995) ‘84 CLR 163 (per McHugh, Gummow and Hayne JJ at 179)
Minister for Immigration and Multicultural and Indigenous Affairs vs Yusef (2001) 180 ALR (1 at 21)
Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 74 ALJR 405
| Applicant: | SGMB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ234 of 2002 |
| Delivered on: | 19 August 2004 |
| Further submissions: | 30 June 2003 |
| Delivered at: | Adelaide |
| Hearing dates: | 19 November 2002 & 30 June 2003 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application do stand dismissed.
That the applicant pay the respondent’s costs assessed in the sum of FOUR THOUSAND DOLLARS ($4,000) pursuant to Part 21 Rule 21.02 (2) (a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ234 of 2002
| SGMB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a review of a decision by the Refugee Review Tribunal (The Tribunal) which affirmed the primary decision of a Delegate of the respondent refusing under Section 65 of the Migration Act 1958 (Commonwealth) (“the Act”) to grant the application of the applicants for a protection visa on the basis that the criteria for the grant of that visa was not met.
The application was brought to the Court pursuant to Section 39B of the Judiciary Act 1993.
The applicants arrived in Australia on 12th December 2000. They claimed to be citizens of Afghanistan.
On 24th January 2001 they lodged an application for a Protection (Class XA) Visas for the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act).
On 20th June 2002 a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant protection (Class XA) Visas and on 26th June 2002 the applicants applied for a review of that decision.
On 20th August 2002 the Tribunal handed down its decision affirming the Delegate’s decision.
In a statement prepared in support of his application for a Protection Visa, the applicant claimed to have been born in Afghanistan, to be 21 years old and married with his wife being with him in Australia. He said he was Hazara and a Shia Muslim.
He said that the Taliban had come to his village a year before and announced that all young people should come and join the Taliban Army to fight against the enemies. He said the Taliban said that if they did not go they would take them and when he did not go out the Taliban came to his house, grabbed him, took him in a car and took him to Kabul.
He said he was put in prison and burned with cigarettes on his arms and beaten and asked why he would not fight.
He said that his father and a local Talib came to Kabul to negotiate on his behalf and he was released after having been detained for 6 months. He said his father paid an amount of money and when he returned home to his village he got married.
He said his father told him he had to leave because the next time the Taliban caught him his father could not help. His father arranged for a smuggler to take the applicant and his wife out of Afghanistan.
He said that he and his wife left Afghanistan with a smuggler and further that if he went back to his country he would be killed or sent to fight and if he did not go he would be harmed and his wife would be at risk.
He said the Taliban would harm or mistreat him if he went back to Afghanistan and they would do so because he would not fight against Hazara.
He said also he would be harmed because he was Hazara and Shia. He said no-one would be able to protect him if he returned to Afghanistan.
Initially queries were raised by a language analyst as to the possibility of the applicant having lived in Iran for sometime but the Tribunal in due course accepted that the applicants originate from the Hazarajat region of Afghanistan.
On 31st January 2002 the applicant’s wife lodged a separate claim for refugee status and completed a statement in support of that claim. She said that she was forced to flee Afghanistan because her husband’s life was in danger because he was Hazara and Muslim Shia and she too was Hazara and Muslim Shia.
She feared that if she returned to Afghanistan she would be mistreated because she was Hazara, Shia and a woman. She feared she and her husband would be killed and that the same people that were going to recruit her husband to the front line would probably still be where they had lived. She said the Pashtun people were still there and they would not give up because they thought the Hazara were against them.
She said that the Hazara’s had been mistreated by other ethnicities for a long time and even with the Taliban apparently gone there would not be peace soon.
She said that in the area where she lived there were many Sunni Pashtun people, many were with the Taliban and that there were more Pashtun than Hazara where she lived.
She said that the Pashtun were very aggressive and fight with the Hazara who they think are their enemies and they have a different religion.
She said that because she was a woman she was not allowed to go to school and her only education was religious lessons in the Koran taught to her by a woman at her house.
She said that she was not free in Afghanistan, she had to stay inside all of the time and wear a large veil and coverings if she wanted to go outside.
She said when she would go outside men would say bad things about her and that if she did not wear the full large veil the Taliban would have beaten her up like they did to many other women.
She said that if there was a new government in Kabul it might have some effect there but it would not help security in her area.
By letter dated 29th May 2002, the applicant was advised of substantial changes in the political station in Afghanistan since his departure. The changes were set out in that letter and he was advised that if he wished to respond to that information he had three working days from the receipt of the letter to send his written comments. He was advised that he could get an extension of time in relation to any response.
The applicant responded to that letter in a facsimile to DIMIA dated 30th May 2002, and by letter dated 4th June 2002 to DIMIA, the applicant’s solicitor provided a response from the applicant about matters raised in that letter. In addition he provided country information relating to the Taliban presence in Afghanistan, the Northern Alliance, the Hazaras in Afghanistan, persecution of Shia Muslims, instability in Afghanistan and the inability of the government to protect citizens, as well as information about relocation.
After the Delegates Decision was handed down, an application was made for review of that decision to the Refugee Review Tribunal and the Tribunal Hearing was on 1st August 2002.
Prior to the hearing further written submissions in support of the application were forwarded to the Tribunal by the applicant’s solicitor. The applicants gave oral evidence to the Tribunal on 1st August 2002.
On 20th August 2002 the Tribunal affirmed the decision not to grant the Protection Visas.
The Application for Review was filed in the Federal Court of Australia, South Australian District Registry on 5th September 2002 wherein the applicant sought a Review in the Federal Court of Australia pursuant to Section 39B of the Judiciary Act 1903 (Commonwealth). The application sought the order of constitutional writs.
The application was supported by an affidavit of the applicant and in paragraph 3 the applicant stated that he sought relief under Section 39B of the Judiciary Act 1903 (Commonwealth) on the grounds that the Refugee Tribunal exceeded its jurisdiction in making its decision to affirm the respondent’s decision and constructively failed to exercise its jurisdiction in arriving at its decision.
On 13th September 2002 His Honour Justice Mansfield ordered that the applicant was to file and serve further particulars of the application by 21st October 2002 and file and serve contentions of fact and law by 21st October 2002. His Honour transferred the matter to the Federal Magistrates Court for hearing.
The applicant did not file and serve any further particulars of the application at any time but appeared personally at the hearing of the review.
Notwithstanding the lack of particularity in the application, counsel for the respondent made no application for the application to be struck out summarily and the Court afforded the applicant an opportunity to make submissions as to the basis of his review application.
The Court was assisted by written submissions on behalf of the respondent and counsel for the respondent, Mr Tredrea, made oral submissions to the Court prior to the applicant to afford the applicant an opportunity to respond to those submissions.
Mr Tredrea submitted that there were five principal claims of the applicant and his wife, namely,
a)A fear of the Taliban;
b)A fear of the Pashtuns;
c)A fear of the Tajiks;
d)A fear of returning to Afghanistan; and
e)A claim from the applicant wife that she risked persecution if she returned to Afghanistan by reason of being a woman in Afghanistan.
Mr Tredrea submitted that the Tribunal was aware of all of the claims, that it made findings and gave reasons for its decision.
He referred to findings from pages 158 – 160 of the Court Book in respect of the applicant’s fear of the Taliban, findings on pages 160 – 164 of the Court Book in relation to the applicant’s fear of the Pashtuns, a finding on page 165 of the Court Book in respect of fear of the Tajiks and findings on pages 165 – 167 of the Court Book in respect of the applicant’s fears in relation to returning to Afghanistan.
He referred to the finding on page 167 of the Court Book in respect of the applicant wife’s fears of persecution in Afghanistan because of being a woman.
He submitted that it was apparent that all of the applicant’s claims had been considered, and made submissions in general terms in relation to the principles to be applied by the Court in accordance with the law as it stood at that time in respect of review applications pursuant to the Migration Act. He submitted that the applications for review did not allege any errors by the Refugee Review Tribunal which would found relief under the provisions of the Judiciary Act.
He submitted that there was no error reviewable or otherwise disclosed by the reasons and that the application should be dismissed with costs.
The applicant then made submissions to the Court and expressed his dismay at the processes in applying for Protection Visas.
He expressed a view that he was unable to understand why he had been refused a Protection Visa in the first instance and said he had also been rejected for a visa by the Refugee Review Tribunal because of its belief that there was no longer any danger in Afghanistan and he would be safe if he returned.
He said that he was telling the Court and had told the Refugee Review Tribunal that as Hazara if he went back he would be a refugee as there was no place to go. He said he couldn’t understand why other people from Afghanistan including Tajiks had got visas and why Hazara’s had been rejected and further that when those people had received their visas there had already been a new government established in Afghanistan. He said he didn't understand the laws in Australia although he respected them, but he did not think they were just.
He said that he and his wife had belonged to the first wave of boat people that had arrived in 2001, that most of those people had been granted visas and released into society and he didn’t know why he and his wife had not been released.
He said that if he returned to Afghanistan his life would be in danger and he didn’t know why they left to seek asylum if that was not the position.
He said that his house in Afghanistan was completely demolished, that there was no place to go and there was nothing left.
He said he asked the Court to consider he and his wife’s situation in respect of humanitarian feelings, particularly in light of his wife having lost a child whilst in detention and feeling unwell and going for surgery every few months.
He said he had a lot of difficulties in Afghanistan, that he had lost his family and only his wife was left and asked what his crime was that led him to be detained in Australia.
He referred to the psychological pressures on he and his wife and their frustrations at being detained and asked for the Court to do justice.
He said that in relation to the Afghan Government he didn’t accept them or their administration or whatever because the Afghan Government could not protect his security at all and that previous governments had also failed.
He said that the Hazara were the most minor tribe in Afghanistan and they have no powers or authorities in Afghanistan. He said there were no Hazara cabinet ministers.
He said no Hazaras have ever been president of Afghanistan and so far, whoever came to be in power in Afghanistan was not honest.
He said that if power was shared as it was supposed to be in Afghanistan, he wouldn’t have to go anywhere but no-one accepts Hazaras in Afghanistan and they had no power in the government.
Between the hearing of the matter and judgment being delivered, the High Court considered the issues relating to privative clauses in Plaintiff S157 of 2002 vs Commonwealth of Australia (2003) 195 ALR 24 and The Minister for Immigration and Multicultural Affairs ex parte applicant 134 of 2002 (2003) 195 ALR 1.
On 30th June 2003 further submissions were made by Mr Tredrea and the respondent.
Mr Tredrea reiterated his submissions to the effect that the Tribunal had not erred in any way in coming to its conclusion in that it had not considered any wrong issue, not failed to identify a correct issue, had not ignored relevant material, not asked itself the wrong questions and its decision had disclosed no error.
The applicants submissions again went to the issue of the well-being of himself and his wife, and the lack of security in Afghanistan such as to enable he and his wife to return.
The Tribunals findings and reasonings were set out from pages 158 – 168 inclusive of the Court Book.
The Tribunal found:-
a)that the applicants are Hazarah;
b)Did not accept that the applicant was arrested and imprisoned by the Taliban in Kabul for 6 months due to his inability to provide details or describe aspects of that claim;
c)Accepted that when the Taliban were in control of the applicant’s area they had targeted Hazarahs and were responsible for a number of massacres of Hazarah people;
d)Accepted that at the time the applicant left Afghanistan he had a subjective fear of the Taliban and that based on the country information there was an objective basis for that fear;
e)Noted that the situation had changed significantly in Afghanistan since the applicant left in or about November 2000;
f)Was satisfied in light of developments in Afghanistan that the Taliban had been effectively eliminated as a political and military force in Afghanistan;
g)Did not accept that following upon those changes persons who were affiliated with the Taliban then held positions of power in Afghanistan;
h)Was satisfied that the Taliban no longer governed or administered Afghanistan;
i)Accepted that Oruzgun was one of the provinces where remnants of the Taliban (or Al Quaeda) were said to be located but found that they had no political power and were being pursued and targeted by the US Special Forces;
j)Found that even if the applicant was at risk from the Taliban at the time he left Afghanistan, due to the significant change in the situation in Afghanistan there was no real chance that the applicant would be persecuted in the reasonably foreseeable future by the Taliban if he was to return to Afghanistan and his fear for persecution for that reason was not well founded;
k)Accepted that Hazarahs had been persecuted in the past in Afghanistan;
l)Accepted that various sources indicated Hazarahs are a minority in Oruzgun province but was of the view that the applicant’s village of Dai Kundi is in a Hazarah area;
m)Accepted that there may have been sporadic incidents over the years by Pashtuns in relation to the applicant’s village;
n)Accepted that his families’ land may have been seized a long time ago by Pashtuns, but found that the family had other land they could farm;
o)Found that although the applicant’s cousins may have been killed in an incident, that incident appeared to be connected with the theft of sheep rather than an attack upon him because he was Hazarah;
p)Found that the applicant exaggerated the extent of attacks by Pashtuns in recent times and found that the applicant was not himself attacked by Pashtuns and nor was his brother;
q)Considered the issue of whether or not the applicant had a well-founded fear of persecution;
r)Found that there was no real chance that the applicant would be persecuted as a result of disputes between different Hazarah factions if he were to return to Afghanistan;
s)Found based on country information that the Pashtuns were no longer in a dominant position in Afghanistan;
t)Considered that the applicant’s claim that he feared persecution from the Tajeks;
u)Found no evidence that the Tajeks were dominant in the applicant’s area;
v)Found that there was no real chance that the applicant would be persecuted in the reasonably foreseeable future by Tajeks in Oruzgun province and that fear of persecution was not well founded;
w)Found that political circumstances in Afghanistan had changed substantially since the applicant left the country;
x)Was satisfied that the unprecedented economic, political, military and humanitarian commitment of the international community provided a very significant underpinning to the changes in Afghanistan and differentiated the current situation from past events;
y)Found that there was no real chance that the applicant would be persecuted in the reasonable foreseeable future by the Taliban or Pashtuns in the Die Kundi district of Oruzgun province for reasons of his Hazarah ethnicity or Shia’ Muslim religion based on findings that the applicant was not persecuted in the past on account of being a Hazarah Shia’ and that the country information had indicated that not only that Pashtuns are not playing a dominant role in Afghanistan but that there had been substantial change in the situation there;
z)Found that the applicant’s fear of persecution from Tajeks or other Hazarahs was not well founded;
aa)Found therefore that his fear of persecution was not well founded and he was not a refugee within the meaning of the convention;
bb)On the same basis was not satisfied that the applicant’s wife had a well founded fear of being persecuted in Afghanistan for reasons of being a Hazarah Shia;
cc)Did not accept that the applicant would have difficulty returning to his home area, particularly in light of the UNHCR repatriation programme which assisted people to return;
dd)Considered the applicant’s wife claim that she would be persecuted because she was a woman, because women have no freedom in Afghanistan, commented that the applicant’s wife did not provide detailed claims of having been persecuted because she was a woman;
ee)Accepted that under the Taliban regime women were systematically persecuted for reasons of being women;
ff)Found that the Taliban was no longer a political force in Afghanistan and no longer had the ability to impose its will on women;
gg)Commented that the applicant’s wife had not indicated what persecutory treatment she feared as a woman other than a lack of rights and freedom;
hh)Found on information before it that the applicant’s wife fear of persecution on account of being a woman was not well founded and that she was not a refugee for that reason.
The Tribunal accordingly was not satisfied having considered all of the evidence that the applicants were persons to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, and found therefore that the applicants did not satisfy the criterion set out in section 36(2) (a) of the Act for a protection visa.
The Tribunal commented that the applicant’s request for the Tribunal to consider their applications on humanitarian grounds was a matter solely within the Minister’s discretion.
The Tribunal clearly analysed the applicant’s claims in detail between pages 158 – 168 inclusive of the Court Book. The claims were considered against the background of all of the material referred to therein.
Following the High Court decision of S157 of 2002 vs Commonwealth of Australia (2003) HCA2, I must determine whether there was an error on behalf of the Tribunal which would enliven the entitlement to an order under Section 39B of the Judiciary Act 1903 (Cth) notwithstanding Section 474 of the Migration Act. In that case the High Court determined that the privative clause as defined in Section 474 (1) of the Migration Act, properly constructed, is a valid enactment. It also found however that if there is a jurisdictional error or a failure to comply with the principles of natural justice, the decision cannot properly be described as a decision made under the Migration Act and is thus not a privative clause decision.
In Craig vs South Australia (1995) 184CLR 163 (per McHugh, Gummow and Hayne JJ at 179) the Court found “an Administrative Tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies upon irrelevant material or in some circumstance, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power”.
In Minister for Immigration and Multicultural and Indigenous Affairs vs Yusef (2001) 180ALR (1 at 21), the Court found that such a list of jurisdictional error was not exhaustive and that those kinds of error may well overlap.
The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretions that are conferred by the Migration Act to consider a valid visa application made by the applicant and in doing so to have regard to all information required to be taken into account under the code of procedure, in Part 2 Division 3, Sub Division (ab) of the Migration Act.
As the applicant was self represented I considered whether the Tribunal’s reasons for decision and other material before me revealed any reviewable error. However, no such error is apparent. The applicant effectively took issue with the merits of the decision of the Tribunal. Such findings however are a matter for the Tribunal and are not open to challenge in this Court.
It is apparent from the Tribunal’s reasons for decision that the Tribunal considered all of the factors it was required to consider. There is no indication of bad faith or bias or anything to suggest that there was a lack of procedural fairness. The Tribunal applied the correct legislation and asked itself the right questions. It invited the applicant to comment on adverse information and in other respects afforded the applicant procedural fairness. The decision was open to the Tribunal on the evidence before it.
Insofar as the decision was based on the credibility of the applicant, this is a matter for the Tribunal par excellence (re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 74ALJR 405).
The Tribunal came to its conclusion concerning the safety of returnees to Afghanistan on the basis of factual findings as to the applicant’s own evidence and findings arising from documentary evidence relating to country information.
I find the Tribunal to have considered all matters central to its task, being a proper assessment of the applicant’s case.
In all of the circumstances I am unable to find any grounds upon which the applicant can support a claim that this decision should be the subject of judicial review. I do not find that there has been any jurisdictional error.
As there is no reviewable error apparent in the decision or proceedings of the tribunal, I dismiss the application and order that the applicant pay the respondent’s costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02 (2) (a) of the Federal Magistrates Court Rules.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Mead FM
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