SFKB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant arrived in Australia on 8 August 2001. He was, and is, an "unlawful non-citizen" for the purposes of the Migration Act 1958 (Cth) ("the Act"). He was taken into detention and has been in detention ever since. 2 On 23 August 2001, the appellant applied for a protection visa. In order to obtain such a visa the respondent had to be satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. In general terms the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") had to be satisfied that the appellant was a "refugee" as defined in the Convention being a person who: "…owing to a well-founded fear of being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it." 3 It is unnecessary to set out the detail of the claim initially made by the appellant. It sufficies to say that he claimed to be an Afghan citizen of Hazara ethnicity and Shia Muslim religion. He claimed to have a well-founded fear of persecution by the Taliban on account of his ethnicity and religion. 4 It is clear under the Act that the factual analysis of a claim is to be done as at the date of the determination. This is important in this case in that, by the time that the application came to be considered, the Taliban had been removed from government in Afghanistan. In order for the appellant to obtain a protection visa the Minister had to be satisfied that the relevant well founded fear of persecution was applicable notwithstanding the political changes in Afghanistan. 5 The claim was first considered by a delegate of the Minister who refused the application on 7 March 2002. Relying upon the reports of "linguistic experts" provided by the Department, the delegate was not even satisfied that the appellant was an Afghani citizen and consequently was not satisfied that he had a well-founded fear of persecution no matter who was in government in Afghanistan. 6 The appellant appealed to the Refugee Review Tribunal ("the Tribunal"). The Tribunal, comprising Mr Short, delivered its reasons on 6 May 2002. They are, if I might say so, very careful and logical reasons. The Tribunal, relying upon further linguistic evidence supplied by the appellant, accepted that the appellant was an Afghani citizen. The Tribunal then closely analysed the then current position in Afghanistan based largely on official reports of various governments. As a result of that analysis the Tribunal rejected the submissions and evidence of the appellant that he would have a well-founded fear of persecution if he returned to Afghanistan. In doing so the Tribunal made findings against the credit of the appellant in various respects. Having heard his evidence it was, of course, open to the Tribunal to make such findings. 7 The Tribunal affirmed the decision not to grant a protection visa. The Tribunal concluded: "For reasons given above, I do not accept that there is a real chance that, if the Applicant returns to Afghanistan now or in the reasonably foreseeable future, he will be persecuted by the Taliban, remnants of the Taliban or al‑Qaeda, persons or groups formerly associated with the Taliban who remain in power in Afghanistan, factions within the current interim government, various warlords or governors in positions of power in Afghanistan or Pashtuns or other ethnic groups, whether by reason of his race (Hazara), his religion (Shia Muslim) or his real or imputed political opinion (opposition to the Taliban or to those previously aligned with the Taliban or support for the Hezb-i-Wahdat). I accept that, as referred to by the Applicant's representatives, the UNHCR has cautioned against the deportation of Afghans due to the precarious security situation in many parts of the country and the fact that the economy and the agricultural sectors are in a shambles. However, as referred to above, these factors in themselves do not bring the Applicant within the terms of the definition of a refugee in the Refugees Convention. As Gummow J noted in Haji Ibrahim, referred to above at paragraph [141], that definition does not encompass 'those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war or other armed conf1icts, military occupation, natural disasters and bad economic conditions are outside the Convention'. I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Afghanistan. Itfollows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa." 8 On 9 May 2002, the appellant instituted judicial review proceedings in this Court pursuant to s 39(2) of the Judiciary Act 1903 (Cth). Those proceedings were transferred to the Federal Magistrates Court. That Court heard the appeal on 29 November 2002 and delivered its reasons on 4 December 2002. 9 The decision of the Tribunal in this matter was a "privative clause decision" for the purposes of s 474 of the Act. Section 474 of the Act provides: "474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: 'privative clause decision' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; …" 10 In this matter the learned Federal Magistrate noted the limitations upon the jurisdiction to afford judicial review by reason of s 474 of the Act. However, he did not have the benefit of the High Court decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ("S134") and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ("S157"). It is clear from the High Court decisions that the Court's jurisdiction is limited to "jurisdictional errors" (S157 at [76]). In determining whether or not a particular error is a "jurisdictional error" or not it is necessary to have regard to the whole of the Act, including s 474. (See S157 at [77]-[78]). 11 It is plain from his reasons that the Federal Magistrate assumed that the effect of s 474 of the Act was as described in the decision of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 ("NAAV"). In light of the decisions in S134 and S157 the jurisdiction of this Court in judicial review proceedings is probably broader than as described by the Full Court in NAAV. If the learned Federal Magistrate had merely applied the NAAV test then he would have been in error, at least with the benefit of hindsight. However, the Federal Magistrate did not stop there. Out of an abundance of caution, he also analysed the Tribunal's reasoning to determine if there was a "jurisdictional error": "Mr Nicholson, who appeared on behalf of the applicant, submitted to me that the tribunal had erred in the manner in which it considered the applicant's claims and that those errors constituted jurisdictional error because they fell within that class of errors defined by the High Court in Craig v State of South Australia(1995) 184 CLR 163 and in particular at page 179. The passage has been repeated so often that it does not bear further iteration. Mr Nicholson does accept that since the imposition into the Migration Act of section 474, and the decision of the full bench of the Federal Court in NAAV v Minister for Immigration[2002] FCAFC 228, these are not matters upon which I can find cause for review, but he wishes to protect the position of his client in the event that the High Court, who are seized of the constitutional validity of s 474, come to the view that the section is invalid. I appreciate that there are authorities to the effect that it is not appropriate for me to make any findings about the matters raised by Mr Nicholson on the basis that I should adopt the current law on the matter and close off any further debate. However, I am satisfied that it is in the interests of justice to give some consideration to them so that in the event that there is an appeal against this decision and s 474 is no longer effective, the matters raised by the applicant can constitute a justiciable question." 12 After analysing the reasoning of the Tribunal the Federal Magistrate's concluded that there was no "justiciable error": "I am satisfied that this tribunal did not, as submitted, make an unjustified leap from the United Nations map to a finding of a general lack of persecution. The tribunal did consider the situation in its historical context and put its concerns to the applicant, who was represented. It seems to me that the tribunal did ask the relevant questions. I accept that the tribunal does not deal at length with all the contrary evidence put to it and referred to by Mr Nicholson, but that is not required (Paul v Minister for Immigration 64 ALD 289 at 312). There is a sufficient exposition in the reasons for decision to satisfy a justice reviewing the decision that relevant matters have been taken into account. In these circumstances I would not be prepared to find any jurisdictional error of the type described in Craig which would grant me the power to review the matter under section 39B of the Judiciary Act, absent s 474. I must therefore dismiss the application, which I do." 13 In my view the Federal Magistrate's Court was plainly correct. There was no jurisdictional error by the Tribunal. The appellant (who was unrepresented before me) was unable to identify any such error. The appellant complained that he was unrepresented that he was unable to understand the Australian judicial process and even that he could not recall taking part in the proceedings in the Federal Magistrates Court. This may highlight the futility of the process engaged in, but does not avoid this Court's responsibility to deal with the appeal in accordance with law. 14 The appeal is dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.