SZFCY v Minister for Immigration - [2005] FMCA 623

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCY v MINISTER FOR IMMIGRATION

[2005] FMCA 623

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Afghanistan – applicant previously held a protection visa – RRT found that when the applicant left Afghanistan he had a well founded fear of persecution – RRT found that conditions had changed since applicant's departure from Afghanistan – whether wrong test was applied – RRT had regard to Taliban's loss of power as a result of events in 2001 – applicant a member of the Hazara minority – whether wrong question was asked – whether an error going to jurisdiction.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 475A

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [27]
WAHK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 12 followed

Applicant:

SZFCY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3484 of 2004

Judgment of:

Scarlett FM

Hearing date:

28 April 2005

Date of Last Submission:

28 April 2005

Delivered at:

Sydney

Delivered on:

28 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr McAuley

Solicitors for the Applicant:

Michaela Byers

Counsel for the Respondent:

Ms Francois

Solicitors for the Respondent:

Phillips Fox

ORDERS

That a writ of prohibition issue restraining the Respondent from acting upon or giving effect to or proceeding further upon the decision of the Refugee Review Tribunal made on 12 October 2004.
That a writ of certiorari issue setting aside the decision of the Refugee Review Tribunal made on 12 October 2004.
That a writ of mandamus issue directed to the Refugee Review Tribunal requiring the Tribunal to determine the Applicant’s application according to law.
That the Respondent pay the Applicant’s costs fixed in the sum of $4,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3484 of 2004

SZFCY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal which was made on 12 October 2004 and handed down on

2 November that year. In that decision the Tribunal affirmed a decision of the Delegate of the Minister not to grant a further Protection Visa to the applicant.
In this matter the applicant has filed an amended application seeking certain orders. The background of this matter is that the applicant is a citizen of Afghanistan. He arrived in Australia on 15 January 2001 by boat and he arrived without any travel documents or verifiable identity documents.
On 21 February 2001, whilst in detention in Woomera, the applicant lodged an application for a temporary Protection Visa. On 22 March 2001 he was granted a subclass 785 temporary Protection Visa on the grounds that he had a real chance of Convention based persecution if he returned to Afghanistan and that his fear of persecution for Convention reasons was consequently well founded. He was thereupon released from detention.
The visa which he received allowed the applicant to remain in Australia and work but not to re-enter Australia for a period of three years or until any application that he made for a permanent visa was fully determined.
On 8 December 2003 the applicant lodged an application for a further protection class XA visa. On 26 September of that year the Department had advised the applicant that the applicant held a subclass 785 temporary Protection Visa and could not be granted a subclass 866 Protection Visa unless the applicant had held a temporary visa for a continuous period of 30 months or a shorter period specified in writing by the Minister. The applicant lodged his application on 8 December.
On 22 April 2004 the applicant was invited to attend an interview with an officer of the Department to discuss his claims and for the applicant to provide any new information relating to his application. He attended the interview and the discussion took place.
On 28 June 2004, however, a Delegate of the Minister refused his application. On 1 July 2004 the applicant lodged an application for review of the Refugee Review Tribunal. The applicant attended a hearing of the Refugee Review Tribunal and gave evidence and made submissions.
On 12 October 2004 the Tribunal made its decision affirming the decision of the Minister's Delegate not to grant the applicant a further visa.
The applicant has filed an amended application seeking a writ of prohibition and a writ of certiorari and an order in the nature of mandamus requiring the Refugee Review Tribunal to determine the applicant's application for a Protection Visa according to law. The applicant provided a number of particulars as to why he said that the Tribunal had exceeded its jurisdiction and had erred in law in doing so.
At the hearing the applicant did not press grounds 2(a), (b), (c), (d), (e), and (f) of his application. He pressed the other ground and said the Tribunal exceeded its jurisdiction in making the decision to affirm the respondent's decision not to grant him a further Protection Visa and that it had erred in law in arriving at the decision to affirm the decision of the Delegate of the Minister not to grant him a permanent Protection Visa.
He pressed Ground 2(g) which says that:
The Refugee Review Tribunal failed to consider or satisfy itself whether inter alia owing to well founded fear of being persecuted for reasons of religion, membership of a social group or political opinion, the applicant was outside his country of nationality or owing to any such fear was unwilling to avail himself of the protection of that country.
Ground (h) was that:
The Refugee Review Tribunal failed to consider or satisfy itself that the circumstances in connection with which the applicant had previously been recognised as a refugee had ceased to exist.
Ground (i) was that:
The Tribunal had failed to consider or satisfy itself whether the applicant was able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of his country of nationality.
Ground (j) was that:
The Tribunal wrongly understood s-sub 36(3) of the Migration Act as requiring the applicant to take all possible steps to avail himself of the right to enter and remain in Afghanistan.
Ground (k) was that:
The Tribunal failed to consider whether the changes in Afghanistan were substantial, effective and durable or profound and endurable. That is, whether the circumstances in connection with which the applicant had previously been recognised as a refugee had ceased to exist.
Ground (l) was that:
The Tribunal's finding that the issue before it was whether the applicant had demonstrated that he had a background, profile or an association in Afghanistan that indicated that he was at risk of being persecuted should he return to his country of nationality involved application of a non-statutory test.
In the written submissions presented on behalf of the applicant, it was put that the applicant relates the failure of the Tribunal to apply the statutory criteria specifically addressing the issues required to be addressed both by the Migration Act and by the Refugees Convention.
Counsel for the applicant submitted that the Tribunal was required to consider whether the applicant could no longer because of the circumstances in connection with which he had been recognised as a refugee had ceased to exist, continued to refuse to avail himself of the protection of his country of nationality.
The Tribunal was required to consider whether the applicant was able to invoke compelling reasons arising out of previous persecution refusing to avail himself of the protection of his country of nationality. The Tribunal referred to page 158 of the Court Book, the unfortunate state of affairs that had led to complex social, political and economic crises in Afghanistan characterised by gross human rights abuses and a general situation of insecurity in the country. The Tribunal was required to consider whether the circumstances in connection with which the applicant had been recognised as a refugee had ceased to exist.
Though the Tribunal had referred to this issue at page 161 of the Court Book, it had then proceeded to a discussion of the evidence without specifically addressing this issue. Nevertheless, the Tribunal had accepted that the Hazari people of which the applicant is a member were subject to gross human rights abuses and violations. This was at paragraph 166.
He submitted that whilst the Tribunal said on that page that the issue before it was whether the applicant had demonstrated that he had a background profile or association in Afghanistan which indicated that he was at risk of being persecuted should he return to the country. Strictly, that was not the issue.
The issue is whether the circumstances in connection with which the applicant had been recognised as a refugee had ceased to exist and the point, and to my mind the major point, of the applicant's claim was that the Tribunal had failed to answer that question specifically. The Tribunal ought to have addressed quite specifically the statutory criteria, namely, whether the changes in Afghanistan were substantial, effective and durable or profound and endurable. That is, whether the circumstances in connection with which the applicant had previously been recognised as a refugee had ceased to exist.
For the respondent, Ms Francois of counsel noted that the Delegate of the Minister had refused the applicant's application for a further visa on grounds that:
a)the applicant did not fit the profile of persons who might be at risk of violence, harassment or discrimination, as set out by the United Nations High Commission of Refugees;
b)that the city of Kabul was now in control of the Transitional Islamic State of Afghanistan and there was no more than a remote chance that the Taliban would regain control of Kabul in the foreseeable future;
c)that the UNHCR reported that Hazaris are safe in Kabul;
d)that there was no real chance that the applicant would be persecuted by the Taliban upon return to Afghanistan;
e)with respect to the applicant's fears that he would be targeted by his brother's enemies to seek revenge, the Delegate considered this claim to be implausible because of the time that had elapsed from the death of the applicant's brother.
Counsel for the respondent pointed out that the determination by the Refugee Review Tribunal that the applicant did not have a well founded fear of persecution in Afghanistan was for three main reasons:
a)the change in government in Afghanistan removing the Taliban from power was fundamental, stable and for all practical purposes durable (references to page 163 of the Court Book);
b)the Tribunal did not accept as credible the applicant's claim that he would be persecuted because he had travelled and lived in a western country (also page 163 of the Court Book);
c)the Tribunal did not consider the applicant's claims relating to his brother as plausible or believable and found that even if it accepted those claims, which the Tribunal did not, the applicant would not face a real chance of persecution because he had managed to live in Afghanistan after the death of his brother during civil war without an incident or threats from the Khalili faction and the applicant's relatives have also been able to live in Afghanistan since then.
The Refugee Review Tribunal, having looked at the evidence as a whole, considered that the applicant's claims both separately and cumulatively did not support a finding that his fear of Convention based persecution was well founded. The Tribunal does not consider that there is a real chance that the applicant would be harmed by other Taliban remnants or any other ethnic group for any convenient reason on his return to Afghanistan.
The application was the subject of a great deal of very helpful argument. In my consideration of the matter I am persuaded that the submissions by counsel for the respondent in respect of the applicant's claim that he would be persecuted upon return to Afghanistan because he had travelled and lived in a western country was properly and appropriately rejected by the Refugee Review Tribunal which was purely a factual question and no jurisdictional error arises out of the Tribunal's consideration of that matter based upon the factual evidence.
I am also persuaded by the submissions of counsel for the respondent that the Tribunal's rejection of the applicant's claims relating to his late brother and the likelihood that the applicant would face a real chance of persecution because he had, by means of enemies of his late brother, was not the subject of any jurisdictional error. Again this seems to me to be purely a question of fact and a consideration of the evidence.

To my mind the Tribunal considered the applicant's claim and on the evidence before the Tribunal it was open to the Tribunal to form the opinion that those claims were implausible and even difficult, if not impossible, to believe.
To my mind the issue upon which the applicant's claim rises or falls relates to the change in situation in Afghanistan relating to the fall of the Taliban from power as a result of the United States led intervention in 2001.
I have had the benefit of being referred to the decision of the Full Court of the Federal Court of Australia in WAHK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 12. R.D. Nicholson J was in the minority in that decision and the majority decision was that of Lee and Tamberlin JJ.
Counsel for the applicant, Mr McAuley, submitted that this was a decision which was very much on point. It is, of course, a decision of the Full Court of the Federal Court and unless it can be distinguished it is quite clearly binding on the Federal Magistrates Court. It is a decision which on the facts there is a considerable similarity to the case before me.
In WAHK, which was an appeal from a decision of one of my learned colleagues who had dismissed an application for judicial review of a decision by the Refugee Review Tribunal upholding a refusal by a Delegate of the Minister to grant the appellant a further Protection Visa, the case for the appellant was that if he were to return to Afghanistan there was a real chance that he would be persecuted for a Convention reason because he is an ethnic Hazara and a Shi'ite Muslim in a predominantly Sudi country. The persecution that he feared was from the Taliban or from members of the Pashtun ethnic group.
The finding of the Refugee Review Tribunal turned on whether there was a real chance of persecution. The RRT was not satisfied that on the available evidence before it ethnic Hazaris in the district of Ghazni which is the province, in which the appellant had lived, were generally at risk of persecution in the foreseeable future from the Taliban, the Pashtuns or any other group.
It can be seen that there is a considerable similarity in the facts situation as the applicant before me is in fact a member of the Hazara ethnic group, I understand he is a Shi'ite Muslim and a citizen of Afghanistan. Like the appellant in WAHK, the applicant in this case had arrived in Australia in 2001 and lodged an application for a Protection Visa and had obtained a Protection Visa. The appellant in WAHK and the applicant in this case before me had reapplied for a further visa claiming a fear of further persecution on return to Afghanistan.
As in the case before me, the RRT in WAHK considered that since the departure of WAHK from Afghanistan conditions had materially changed and by the time of the decision the risk to the appellant no longer existed. It was a situation where the RRT in WAHK noted the effect of the actions in 2001 by the United States led forces which were involved in the removal of the Taliban from government in Afghanistan. That is certainly the situation before me.
In WAHK the majority found that the Refugee Review Tribunal had asked the wrong questions and applied the wrong test, namely, whether the Taliban or the Pashtun controlled the government which was indicated in the reasons of the RRT by the emphasis that was placed on the question of government control, and that showed an error going to jurisdiction.
The RRT in WAHK had accepted that the Hazara had been subject regularly to acts of segregation, discrimination and victimisation by other ethnic groups, in particular the Pashtun. The real question that the RRT had to ask and answer was whether the interim government in Afghanistan was willing and able to protect the appellant in his province from such acts, whether those acts were committed by remnants of the Taliban or the Pashtun or other ethnic groups. And their Honours referred to SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at paragraph 27.
To my mind, with the greatest of respect, the following statement by their Honours is significant:
In stating that it was not aware of any reports of mistreatment of Hazaras by the northern alliance or Pashtun in the few months since the overthrow of the Taliban government, the RRT could not be taken to have made a finding that there was no real risk of persecution being suffered by the appellant in the future.
In other words, the RRT had asked the wrong question and applied the wrong test. If circumstances that applied in WAHK are similar and on all fours with those in the case before me, then clearly I am bound to follow the decision of their Honours.
In a case such of this nature as was discussed with counsel during the hearing, there is a risk that such an examination of the evidence could lead the Court to fall into error by making a decision on the subject matter of the evidence which is normally the function of the Refugee Review Tribunal. In endeavouring to avoid falling into that error, I note that the Tribunal at page 161 classified the fourth claim of the applicant as that as a Hazara he stands a chance of persecution at the hands of the Wahabists and the Sudis.
At page 163 of the Court Book the Tribunal looked at a report by the United Kingdom Home Office which said:
In May2002 several sources confirmed that there are no problems for Hazaras in Kabul where they can move around freely and many are employed in administration in Kabul. There are also no security based problems related to their return to a Bamian province. The Director of ICG also confirmed that since the fall of the Taliban there is no longer an open war against Shi'ite Muslims although they remain a religious minority in the country.
The Tribunal went on to find that on the basis of available information and changes in Afghanistan insofar as they related to persecution at the hands of the Taliban and their ability to pursue Hazaras because of their ethnicity or their Shi'ite religion were fundamental, stable and for all practical purposes durable. The Tribunal found that on the basis of available information the circumstances in connection with which the applicant was recognised as a refugee had ceased to exist. Again, that's at paragraph 163.
It can be seen that there is a difference in the nature of the evidence considered by the Tribunal in the case before me and the evidence considered by the Tribunal in WAHK. The Full Court held at paragraph 18:
It is settled law that it is not necessary for the threat of persecution to come from the government or authorities in the relevant country. To require an appellant to show that the well founded fear arose from the government or official action alone would be to apply a test that is too restrictive. It is sufficient that there is no protection provided by the authorities or the authorities are unable to provide protection to the person who faces a real risk of persecution for a Convention reason from other groups in the community.

In the present case the principal risk is from the Taliban. Their Honours went on to say in paragraph 19:
Considered in context, the reasoning of the RRT in this matter is premised on the basis that the government has changed in Afghanistan as a consequence of the power shift which eliminated the Taliban as a governmental force and led to the inclusion of Pashtuns and Hazaras in the government. Therefore, it was considered that any risk of the appellant being persecuted for Convention reasons has been eliminated.
Their Honours went on to point out that the emphasis on the appellant in WAHK being harmed by other people as a governmental authority is a wrong emphasis. They referred to fighting between various factions in Afghanistan and went on to say in paragraph 22:
The position as at 29 May 2002 on the country information appears to be that the circumstances in Afghanistan were generally unpredictable, unstable and insecure, that historical ethnic enmities remained latent and that any violent manifestation thereof would be beyond the control of the interim government. As a consequence it could not be said categorically that a real risk of persecution for a Convention reason no longer existed.
Is there now, or was there now evidence that the RRT could consider that would allow it to form the positive view that it did? True it is that the United Kingdom Home Office report which I referred to earlier referred to no problems for Hazaras in Kabul, which is an area where the applicant in this case had lived. There is now some positive evidence that in certain parts of Afghanistan it would be open to the Tribunal to accept that there had been a change as a result of the fall of the Taliban. But in looking at page 166 there appears to me to be a leap from certain accepted findings by the Tribunal to a position which it was not open to the Tribunal to find.
Their Honours said at page 166 of the Court Book:
It is irrefutable that Afghanistan has gone through a very tumultuous period. It is all irrefutable that during the time of the Taliban the Hazara people were subject to gross human rights abuses and violations. This much is well documented and is common knowledge. It is also accepted by the Tribunal that the applicant may well have left Afghanistan because of his fears of the Taliban and that such fears at the time may have been well founded given the nature of the Taliban rule. But the issue before the Tribunal is not whether Afghanistan has gone through a tumultuous period or whether indeed there is factional fighting rampant in the country. Indeed, the Tribunal takes the view that there is sufficient evidence based on independent country information that suggests clearly that the country has gone through such a tumultuous period and that interfactional fighting has unfortunately become the future of everyday life in Afghanistan.
It may well be that this last statement has been a result of a typographical error. It is possible that what the Tribunal meant to say was that interfactional fighting has become a feature of everyday life in Afghanistan. There is no corrigendum issued with the decision and I could speculate that is what the Tribunal meant to say, although I doubt that that would be of a great deal of assistance in this case.
What I must do is consider the material before me as it stands and whilst there was evidence which the Tribunal considered, the Tribunal has said and come to the conclusion on considering the evidence that the Tribunal takes the view that there is sufficient evidence based on independent country information that suggests clearly that the country has gone through such a tumultuous period and that interfactional fighting has unfortunately become the future of everyday life in Afghanistan. The Tribunal has used that in the final paragraph of page 166 of the Court Book to find that the Tribunal does not consider that there is a real chance that the applicant would be harmed by other Taliban remnants or any ethnic group for any Convention reason on his return to Afghanistan.
It may well be that at the time of the hearing Kabul was relatively more peaceful than several parts of Afghanistan. But to my mind, on the basis of the Tribunal's finding, that is asking the wrong question. It is not open to the Tribunal on the basis of its findings to find that the circumstances in connection with which the applicant was recognised as a refugee had ceased to exist. It is not open, in my view, to find that the situation in Afghanistan, and again I am quoting from page 163, has led to changes which are fundamental, stable and for all practical purposes durable. That cannot sit with a view taken by the Tribunal at page 166 that interfactional fighting has unfortunately become the future of everyday life in Afghanistan.
There is no evidence, therefore, upon which the Tribunal could have found that the changes in Afghanistan were stable and for all practical purposes durable. They may have changed temporarily but the evidence does not allow for a finding of a permanent change or a finding that circumstances have ceased to exist, because that is a finding of permanence.
As such, in my view, the Tribunal asked itself the wrong question and it has fallen into jurisdictional error. And on that basis I am satisfied that there is a reviewable error and I propose to grant the application.
To my mind normally costs follow the event. The applicant has been successful and this seems to be a matter where costs should flow. It is the practise of this Court to fix costs wherever possible rather than requiring parties to tax costs or otherwise agree. I note that this is a matter where counsel has been briefed. I note that there has been an attendance today to take the Judgment. This was a matter where on each side it was appropriate for counsel to be briefed and I propose to fix costs in the sum of $ 4,750.00.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 11 May 2005