SGSB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 85 (6 May 2003)

Last Updated: 9 May 2003

FEDERAL COURT OF AUSTRALIA

SGSB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 85

SGSB v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

S1 of 2003

WEINBERG, STONE & JACOBSON JJ

6 MAY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 1 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SGSB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WEINBERG, STONE & JACOBSON JJ
DATE:	6 MAY 2003
WHERE MADE:	SYDNEY

CORRIGENDUM

Amendment is to be made to the above judgment delivered on 6 May 2003 as follows:-

Registry noted as "New South Wales District Registry" in the heading of the Orders and the Judgment to be changed to "South Australia District Registry".

Associate to Justice Jacobson

9 May 2003

FEDERAL COURT OF AUSTRALIA

SGSB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 85

SGSB v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

S1 of 2003

WEINBERG, STONE & JACOBSON JJ

6 MAY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	S 1 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SGSB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES	WEINBERG, STONE & JACOBSON JJ
DATE OF ORDER:	6 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	S1 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SGSB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES	WEINBERG, STONE & JACOBSON JJ
DATE:	6 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of Mansfield J dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal ("the RRT") given on 16 September 2002. The RRT affirmed a decision of a delegate of the Minister dated 18 June 2002 refusing to grant the appellant a protection visa.

2 The salient parts of the RRT's decision are sufficiently described in the decision of the primary judge. As his Honour noted at [1], the appellant is a young man from Afghanistan of Hazara ethnicity and Shi'a Muslim religion. He lived in the Jaghouri District of a province of Afghanistan.

3 The RRT accepted that, when the appellant left Afghanistan, he had personal fears of persecution by the Taliban which were "probably well-founded"; see at [5] of the judgment of the primary judge.

4 However, in considering whether the appellant had a well-founded fear of persecution at the time of the RRT's decision, the RRT came to the view that the appellant's fears were no longer well-founded because the Taliban had by then been eliminated effectively as a political and military force. The primary judge set out the relevant passage of the RRT's decision at [7].

5 The RRT sought submissions from the appellant as to the changed circumstances in Afghanistan following the fall of the Taliban and these were referred to by the primary judge at [8]. The appellant's principal submission was that he would face persecution from Hazara groups formerly associated with the Taliban because his family was connected with a group known as the Hezb e Wahdat. He referred in particular to a party called Nehzat which he said had members in positions of authority from whom he feared persecution. He also claimed that he could not safely travel to the region where he had lived in the Jaghouri District.

6 The RRT rejected these claims and his Honour referred to the RRT's reasons at [10] - [11]. It referred to independent country evidence which was inconsistent with the appellant's claims. It did not accept his evidence that he had a cousin who was a commander of the Hezb e Wahdat. An examination of the RRT's reasons also indicates that the RRT was satisfied on the basis of independent evidence that the Hezb e Wahdat was in control of the Jaghouri District.

7 The primary judge observed at [13] that the appellant, who appeared in person, was at a disadvantage in being able to address the question of whether the RRT had committed jurisdictional error. Accordingly, his Honour was at pains to carefully consider whether there was anything which might indicate such error on the part of the RRT.

8 His Honour found at [15] and [20] that there was no jurisdictional error under the principle stated in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 because the RRT's decision consisted of factual findings which were open to it.

9 The learned primary judge also considered at [17] that the appellant faced a further obstacle to success of his application because the decision of the RRT was a privative clause decision as to which his Honour considered the jurisdiction of the RRT to be expanded under the principles stated by the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 ("NAAV").

10 The notice of appeal is drawn in very general terms. In substance it seeks to challenge the merits of the RRT's decision and states that the primary judge erred in law by coming to the wrong decision.

11 The appellant addressed us orally. Apart from challenging the merits of the RRT's decision, he made two further points.

12 First, he submitted that there had been a delay in the processing of his application by the RRT. This apparently came about because the RRT originally had doubts about the appellant's accent and thought that he may not have been an Afghani. Once those doubts were resolved in the appellant's favour, the application was dealt with but by then the Taliban had fallen from power.

13 Second, he said that two other similar cases had been decided by the RRT favourably to other applicants.

14 It was of course not open to the primary judge to review the merits of the RRT's decision; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. Nor is it open to us to do so on appeal.

15 In our opinion, his Honour was plainly correct in coming to the view that there was no jurisdictional error. It is clear, as his Honour said, that the decision of the RRT was based on findings of fact and we can see nothing to suggest that these findings were not open to it.

16 Even if the RRT made wrong findings of fact, this would not, as his Honour noted, demonstrate jurisdictional error; see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73] - [74] per McHugh, Gummow and Hayne JJ.

17 Any delay on the part of the RRT would not of itself constitute a ground of appeal. It is not to the point that the factual situation changed during that period. The RRT was required to determine the application on the facts as they existed at the time of its decision.

18 Nor is it open to the appellant to rely upon what are said to be contrary decisions of the RRT which is not bound by its previous decisions. Each application must be determined on its own facts.

19 Finally, although his Honour's views as to the effect of NAAV must now be reconsidered in light of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24, it is unnecessary to do so in this case.

20 Accordingly, the appeal must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Weinberg, Stone & Jacobson.

Associate:

Date: 6 May 2003

	The appellant appeared in person.
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 May 2003
Date of Judgment:	6 May 2003