SGXB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2003-01-31|Before: Mansfield J

introduction 1 The applicant seeks an order under s 39B of the Judiciary Act 1903 (Cth) setting aside a decision of the Refugee Review Tribunal (the Tribunal) given on 16 October 2002. The Tribunal affirmed a decision of a delegate of the respondent given on 28 June 2001 not to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 4 May 2001, shortly after his arrival in Australia on 11 April 2001. The delegate's decision had previously been affirmed by the Tribunal on 1 October 2001, but that decision had been set aside by the Court: SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547. The present application is therefore to review the subsequent decision of the Tribunal. 2 The hearing of the present application took place on 23 January 2003. Section 474(1) of the Act, the privative clause provision, has the effect of restricting or limiting the grounds or circumstances in which the Tribunal can be found by the Court to have exceeded its jurisdiction so as to entitle the Court to make an order under s 39B of the Judiciary Act. That is because s 474(1) of the Act extends the jurisdiction of the Tribunal so that it does not exceed its jurisdiction simply by failing to accord procedural fairness, or generally speaking by failing to comply with a procedural prescription contained in the Act, or by legal error. See NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, (2002) 69 ALD 1. For practical purposes in the present matter, the Tribunal could be found to have exceeded its jurisdiction only if one of the exceptions to the Hickman principles (R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598 at 616-617) is established. 3 The High Court on 3 and 4 September 2002 heard argument in two matters concerning applicants for protection visas under the Act and which involve consideration of the validity and scope of operation of s 474 of the Act and its manner of operation: Ex parte Applicant S.134/2002; Re Minister for Immigration & Multicultural & Indigenous Affairs; and Plaintiff SY157 of 2002 v The Commonwealth of Australia. Judgment was reserved. I am informed by counsel for the respondent that judgment is to be delivered on 4 February 2003. Of course I do not presume to anticipate what that decision may be. However, having regard to the matters argued in those two matters, I propose also to consider the present application on the basis that s 474 is of no effect, so that jurisdictional error of the type discussed by the High Court in Craig v South Australia (1995) 184 CLR 163 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 would be sufficient, if established, to warrant the grant of relief by the Court under s 39B of the Judiciary Act. I stress that, in adopting that course, I do not intend in any way to anticipate what the decision of the High Court may be.

the claims and the tribunal's reasons 4 The Tribunal accepted that the applicant is a young single man born in Gurdon, Udqol, Jaghouri district in the Ghazni province of Afghanistan. It accepted that he is of Hazara ethnicity and is a Shi'a Muslim. The Tribunal also accepted the applicant's claims that he lived in Afghanistan under the Taliban, that one of his brothers was killed by the Taliban, and that two other brothers were arrested by the Taliban but escaped. It also accepted that the applicant fled Afghanistan because the Taliban had told his father that they would come and take another of his sons. Consequently, were the Taliban still in power, it appears that the Tribunal would have been satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (the Convention) so as to satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act. 5 However, the Tribunal was satisfied that the Taliban has been effectively eliminated as a political and military force in Afghanistan, and that it no longer governs or administers Afghanistan, even though there are still some skirmishes taking place between US led forces and Taliban and Al Qaeda remnants in a few provinces. It found that there is no real chance that the applicant would be persecuted by the Taliban now if he were to return to Afghanistan. Consequently, he would not be a person to whom Australia has protection obligations under the Convention in respect of the fear of persecution by the Taliban by reason of his ethnicity and his religion which he first expressed in his application for the visa. 6 Following the setting aside of the initial decision of the Tribunal, the applicant's claims of a fear of persecution were extended. Through his migration agent, he also said that he feared persecution due to his ethnicity, his religion, and his imputed political opinion as a supporter of Gulbuddin Hekmatyar. He claimed that his family had provided financial support to Hekmatyar to obtain protection, once the Taliban had moved into his province, and that his and his family's support as a collaborator with Hekmatyar's party, the Hizb-i-Islami which supported the Taliban, meant that Hazaras in general and the Hezb-e-Wahdat now in power in the Ghazni province of Afghanistan might persecute him. That claim was expanded upon by a statutory declaration from the applicant, and by his evidence at a hearing before the Tribunal on 1 October 2002. It was explained that Hekmatyar ran the Hizb-i-Islami party, which took control of his district after the Taliban moved into his area and that the Hezb-e-Wahdat party now in power would now seek revenge against those who gave financial support to Hizb-i-Islami. He also explained that in the area surrounding his region the community is largely comprised of Pashtuns, and that Pashtuns used to fight with the Hazaras, so that if he returned to Afghanistan he would be vulnerable to persecution by the Pashtuns (who he said comprised the Taliban to a large extent) in any event. 7 Following its finding that the applicant no longer has a well-founded fear of being persecuted by the Taliban if he were to return to Afghanistan, the Tribunal addressed the further claims of the applicant. It noted that the present government of Afghanistan has the support of key political and ethnic groups including the Hazara party Hezb-e-Wahdat, and that certain of the ministers in the governing transitional authority are Hazaras. On the basis of independent information, it was therefore satisfied that there is not a real chance that the applicant would be persecuted by the current government of Afghanistan by reason of his race or his religion if he were to return to Afghanistan. 8 It accepted that the applicant's home district of Jaghouri is under control of a particular faction of Hezb-e-Wahdat. It accurately noted the applicant's claim to fear persecution by Hezb-e-Wahdat if he returns to Jaghouri because he and his family gave financial support to Hekmatyar's Hizb-i-Islami party after the Taliban took control of the area. It referred extensively to independent information about the role and activities of Hekmatyar and the Hizb-i-Islami party. Following its reference to that material, it concluded that Hekmatyar was not an ally of the Taliban, although it accepted that the Hizb-i-Islami party is an Islamic fundamentalist group comprised overwhelmingly of Pashtuns who are Sunni Muslims. It also accepted that members of Hekmatyar's forces may have defected to the Taliban if they believed it was in their interest to do so. However, it also noted that there is no independent information which it had found which supported the applicant's claim that Hizb-i-Islami was active as an identifiable entity in Taliban controlled areas of Afghanistan, either in that researched directly by the Tribunal or in that provided by the applicant's migration agent. It did not accept that the Hizb-i-Islami party could have operated under the banner of the Taliban in the way the applicant claimed, and it did not accept that the Hizb-i-Islami forces helped the Taliban in the applicant's area. The applicant's claims to have observed that were, it found, not consistent with independent country information. 9 As to the applicant's claim to have collaborated with the Taliban in some way, the Tribunal concluded: "Having considered the information submitted by the adviser and the applicant's statutory declaration of 10 October 2002, the Tribunal does not accept that Hizb-i-Islami was active in Jaghouri district when it was under Taliban control, and does not accept the applicant's claim that he joined the Hizb-i-Islami party. The Tribunal finds that the applicant has recently fabricated this claim in an attempt to give himself a political profile which would strengthen his claim for refugee status in respect of the changed situation in Afghanistan following the demise of the Taliban. The Tribunal finds that the applicant and his family were not supporters of Hizb-i-Islami after the Taliban came to power, and if he were to return to Afghanistan he would not be harmed by Hezb-e-Wahdat because of an imputed political opinion supportive of Hizb-i-Islami. The Tribunal accepts that the applicant showed distress at the possibility of returning to Afghanistan, but based on the information discussed above and the findings it has made, the Tribunal does not accept that fear of being persecuted by Hezb-e-Wahdat is the reason for his distress." 10 The Tribunal also rejected the applicant's claim of having a well-founded fear of persecution from Pashtuns in areas nearby to his district. It accepted evidence that Pashtuns had mistreated Hazaras in the past, but concluded again on the basis of independent country information that, in the circumstances now prevailing in Afghanistan, there is not a real chance that the applicant would be persecuted by Pashtuns if he were to return to Afghanistan. 11 It also concluded that the applicant could safely pass through Pashtun areas of Afghanistan to the Ghazni province so that it was safe for the applicant to return to Afghanistan and to his district. That conclusion too was based upon its consideration of independent country information. 12 Consequently, the Tribunal concluded that there is no real chance that the applicant will be persecuted for any Convention reason if he were now to return to Afghanistan, and that his fears of persecution are not well-founded. Consequently, he did not satisfy the criteria for the grant of a protection visa specified in s 46(2) of the Act, and as directed by s 65(1) of the Act in those circumstances, the Tribunal affirmed the decision of the delegate.

THE GROUNDS OF REVIEW 13 The application to the Court appears to have been prepared at the direction of the applicant personally, rather than through any migration agent or solicitor. He was unrepresented at the hearing. In those circumstances, it is not surprising that the application does not, except in a general assertive way, identify any grounds from which it is said that the Tribunal exceeded its jurisdiction or failed to exercise its jurisdiction. At the hearing, the applicant's contentions amounted essentially to a re-assertion of those matters which he had put to, and which had been rejected by, the Tribunal as to his fear of persecution from Pashtuns near his area, and by reason of his collaboration and the collaboration of his family with the supporters of Hekmatyar and the Hizb-i-Islami party. He said that it was the fear of retribution from such groups which stops him from returning to Afghanistan even though he has heard nothing from his family since his arrival in Australia and he would like to be with them. As the applicant was not represented, I have also carefully reviewed the Tribunal's reasons with a view to determining whether they demonstrate jurisdictional error on its part or a failure to exercise jurisdiction on its part, either in the light of s 474 of the Act as explained in NAAV, or upon the alternative assumption discussed above that s 474 of the Act is not in operation. 14 In my judgment, no jurisdictional error is shown on the part of the Tribunal whether approaching the matter in the more confined way dictated by s 474 of the Act or on the assumption that it is not in force. 15 As to the former, I see no basis upon which it might be said that the Tribunal did not make a bona fide attempt to exercise its power to review the decision of the delegate, or that its decision does not relate to the subject matter of the Act, or that its decision is not reasonably capable of reference to the power given to it under the Act. Consequently, as the Tribunal is empowered by the Act having regard to s 474 to make a decision which, so long as it meets those three requirements, is not beyond the jurisdiction of the Tribunal, in my view it has not committed jurisdictional error and the application must be dismissed. 16 In Yusuf the judgment of McHugh, Gummow and Hayne JJ at 21 [82] quoted with approval a passage from Craig at 179 as indicating the nature of "jurisdictional error" in this context. It is not an exhaustive list. Their Honours adopted with approval the expression that the Tribunal exceeds its jurisdiction if it: "… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 17 In my judgment, no such jurisdictional error is demonstrated on the part of the Tribunal in this matter. It has identified the correct issue, and it had regard to the nature of the claims which the applicant presented. It has asked the correct questions in relation to the issues raised. It has addressed each of the applicant's claims. In doing so, it has had regard to material relevant to those claims, and has made decisions as to which of that material it places the greater weight upon. It has not simply ignored the applicant's claims or the material advanced by him or on his behalf. In reaching its decision, it has not relied on irrelevant material in any way which affects the exercise of its powers. In my view, the applicant's complaints merely seek to have the Court revisit the findings of fact which the Tribunal made, upon material available to it and for reasons which it expressed, so as to have the Court substitute its view as to those facts in lieu of the view of the Tribunal. That is not the function of the Court upon the present application. I do not think the applicant's contentions go beyond the rearguing of issues of fact decided adversely to him by the Tribunal. 18 I have also considered whether the Tribunal's reasons indicate any reviewable error in terms of any of the grounds of review available under s 476 of the Act, prior to the introduction of s 474 of the Act in its current form, as part of the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) in force from 2 October 2001. In my view, even if s 476 were the provision which specified the grounds upon which the Court might set aside the Tribunal's decision, no such ground of review has been made out in this instance. 19 Accordingly, I consider that the application must fail. It is dismissed. I see no reason why the normal rule as to costs should not apply. I order that the applicant pay to the respondent costs of the application to be taxed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant: The applicant appeared in person.

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

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