SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1389 (15 November 2002)

Last Updated: 19 November 2002

FEDERAL COURT OF AUSTRALIA

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1389

MIGRATION - application for review of decision of Refugee Review Tribunal ("Tribunal") which affirmed delegate's decision not to grant protection visa - applicant is a citizen of Afghanistan - applicant claimed fear of persecution on grounds of religion and ethnicity - Tribunal accepted that applicant had a fear of persecution by the Taliban when he departed Afghanistan - Tribunal considered that applicant no longer has a fear of persecution for a Convention reason after defeat of Taliban in Afghanistan - argument by applicant that there was an obligation on Tribunal to assess applicant's claims as at the time he departed Afghanistan and proceeded to assess impact of change of circumstances in Afghanistan - whether Tribunal made a finding as to whether applicant had a well-founded fear of persecution when he departed Afghanistan - whether Tribunal erred in not adopting a staged approach by first determining whether applicant had a well-founded fear of persecution at time of departure and then deciding whether any such well-founded fear had been displaced by change in circumstances

Migration Act 1958 (Cth) s 474

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 discussed

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to

Re Minister of Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238 referred to

SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 discussed

Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496 followed

Geelong Harbour Trust Commissioners v Gibbs Bright & Co [1970] HCA 16; (1970) 122 CLR 504 cited

Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 cited

Beadle v Director-General of Social Security (1985) 7 ALD 670 cited

Boscolo v Secretary, Department Social Security [1999] FCA 106; (1999) 90 FCR 531 cited

Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596 cited

Hosokawa Micron International Inc v Fortune (1990) 26 FCR 393 cited

In the Marriage of Hogue and Haines (Formerly Hogue) (1977) 29 FLR 186 cited

SFGB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 128 OF 2002

TAMBERLIN J

ADELAIDE (Heard by video conference)

15 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 128 OF 2002

BETWEEN:	SFGB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	15 NOVEMBER 2002
WHERE MADE:	ADELAIDE (Heard by video conference)

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 128 OF 2002

BETWEEN:	SFGB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 NOVEMBER 2002
PLACE:	ADELAIDE (Heard by video conference)

REASONS FOR JUDGMENT

1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 8 May 2002 which affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") rejecting an application for protection visa. The applicant claims to be a refugee within the well-known definition of the Convention relating to the Status of refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention") on the grounds of his religion and ethnicity. He is of Shi'a Muslim belief and of Hazara ethnicity. The applicant is a national of Afghanistan and he claims that he would be persecuted on the basis of his religious beliefs and Hazara ethnicity if returned to Afghanistan.

2 The applicant is a young man aged twenty-two who lived in a village within a province in Afghanistan. His father, step-mother, two sisters and three step-brothers presently live in Afghanistan. His mother is deceased, having died during child birth when the applicant was three years old. The applicant has undertaken five years of schooling and from the age of twelve worked on the family farm helping to grow and tend livestock. He also worked as a tailor for a year. He left Afghanistan in April 2001 after his father sold land owned by the family to finance his departure. After leaving Afghanistan, the applicant travelled using a passport with a false name which the smuggler gave to him and took back prior to his arrival in Australia. He arrived in Australia on 2 August 2001 and lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act") on 29 October 2001. Before his application was decided, the Ministerial delegate put to the applicant recent country information about the changed circumstances in Afghanistan as a result of the defeat of the Taliban by the Northern Alliance and the international coalition in pursuit of Al Qaeda following the attacks in the United States on the World Trade Centre and the Pentagon on 11 September 2001. In response to that information, the applicant claimed that he would be persecuted on the same grounds by Pashtuns and Tajiks, because those groups surrounded the area where he and his family resided in Afghanistan, and by former Taliban members and supporters who were in conflict with those of Hazara ethnicity.

3 Before the Tribunal, the applicant claimed that when the Taliban came to his area they executed a military leader and went to his home to demand that weapons be handed over. The applicant recounted that his father explained to the Taliban that they did not have any weapons but the Taliban beat him and the applicant and took a quantity of money instead of weapons. The applicant stated that the Taliban wanted to take him to fight in the front-line but because he had been injured they did not take him at that time. He referred to notices circulated by the Taliban instructing young men to present themselves for fighting but the applicant did not abide by those demands and chose to depart Afghanistan. He stated that since the Taliban came into power in Afghanistan some of his uncles and cousins have disappeared presumed killed by the Taliban. He stated that notwithstanding the defeat of the Taliban, those of Hazara ethnicity have suffered discrimination in Afghanistan for centuries and gave some historical examples. He said that the land occupied by Hazaras is surrounded by Pashtuns and Tajiks and he fears an adverse reaction by the two tribal groups.

4 At the hearing the Tribunal member informed the applicant that she accepted for the purpose of determining his application for review that he was a Shi'a Hazara and that he had left Afghanistan because he feared further persecution by the Taliban because of his race, religion and imputed political opinion in support of a dissident group. The member then records in the reasons for decision that she discussed with the applicant the independent information concerning the current situation in Afghanistan. Because of the applicant's difficulties during the hearing, the Tribunal member gave the applicant's adviser a further ten days to provide additional submissions in relation to the legal issues and independent information relevant to the applicant's claims. These were provided to the Tribunal on 29 April 2002. The primary point made in the written submissions was that because of ethnicity and religion, a person such as the applicant remains at risk of persecution by other ethnic and religious groupings, primarily the Pashtun Sunnis. The Tribunal member having referred to the claims, the evidence and the written submissions, proceeded to consider in detail a substantial amount of country information relating to the ethnic and religious claims and also the circumstances concerning the repatriation and return of displaced Afghans.

5 The Tribunal accepted that the applicant feared persecution by the Taliban by reason of ethnicity and religion and that such experiences and fears were consistent with information about the Taliban regime. The member then proceeded to state:

"However, I accept the independent information set out above that the Taliban is no longer a force in Afghanistan. It is clear from the independent information that the Taliban forces have been defeated, the Taliban regime has been dispersed and its leadership eliminated form positions of power or influence in Afghanistan generally and in the Interim Authority specifically. The Taliban is no longer in a position to harm the applicant as it was before the applicant's departure from Afghanistan when it controlled Afghanistan."

6 The member was satisfied that the applicant's fear of harm by the Taliban whether by reason of imputed political opinion, ethnicity, religion or any other Convention reason was not well-founded. Similar findings were made as to the claims concerning the applicant's fear in relation to Pashtuns and Tajiks, and in relation to the Interim Authority. In particular, the Tribunal did not accept any of the grounds advanced by the applicant based on political opinion.

7 The Tribunal member concluded that the defeat and elimination of the Taliban constituted for persons in the situation of the applicant, who were targeted enemies of the Taliban, such a fundamental change in circumstances that the applicant did not have a well-founded fear of persecution for a Convention reason. There was then discussion of "humanitarian" concerns in the course of which the member recorded that there is an unstable security situation in Afghanistan which was compounded by a long drought and an oncoming winter and that the applicant's return to Afghanistan could raise legitimate humanitarian concerns. The Tribunal took the view that in the applicant's case, these circumstances were exacerbated by his fragile, emotional and psychological state which increases vulnerability and reduces his capacity to easily resettle in the country of nationality when that country is unstable, impoverished and dangerous and when several members of his family who might otherwise provide support are missing or dead. However, the member went on to note that she had no general discretion based on humanitarian grounds to make a determination that the applicant remain in Australia if he was not at risk of persecution for a Convention reason upon return. These important observations of the member might be considered to afford strong grounds which could be taken into account by the Minister to substitute a more favourable decision than that of the Tribunal if an application is brought pursuant to s 417 of the Act.

8 The contentions of law advanced on behalf of the applicant are summarised as follows:

"[1] The RRT committed two jurisdictional errors in that it failed to consider two essential criteria for the granting of a protection visa (class XA), namely

[a] the subjective element of the applicant's continuing fear of persecution since circumstances had changed in Afghanistan notwithstanding that the current circumstances might not engender a well founded fear in others

[MIMA exparte Miah per Gaudron J [2002] HCA paras 67-70]; such a failure constitutes a constructive failure to exercize [sic] jurisdiction [2002] HCA paras 80-81 per Gaudron J and

[b] whether he is unable or his fear is such that he is unwilling to avail himself of the protection offered by his native country [MIMA exparte Miah per Gaudron J [2002] HCA paras 64-65]

[2] The failure of the RRT to make findings on such critical issues constitute [sic] a reviewable error. [Minister v Khawar [2002] HCA paras 14, 36, 88, 101-2]"

REASONING ON APPLICATION

9 The first question to be considered is whether the Tribunal in fact made any finding in respect of the question whether the applicant had a well-founded fear of persecution at the time he departed from Afghanistan.

10 In her reasons, the member accepts that the applicant feared persecution by the Taliban by reason of his ethnicity and religion and that those fears were consistent with independent information about the Taliban regime, which was known to be merciless to perceived enemies and to have been implicated in widespread human abuses. The member went on to add:

"However, I accept the independent information set out above that the Taliban is no longer a force in Afghanistan."

11 It was submitted for the Minister that this was in fact a determination that at the time when he left Afghanistan the applicant had a well-founded fear of persecution but that the position had changed.

12 Although the statement is not clear, I am of the view that on a fair reading of the member's reasons in context, having regard to the whole of the decision, that it was a finding to the effect that at the time of departing Afghanistan, the applicant had a well-founded fear of persecution: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. The reference to "consistently with country information" and the qualifying expression "However" supports this conclusion.

13 However, because there is not a clear and specific finding on this point, I will consider the submissions made for the applicant on the basis that there was no specific determination as to whether he had a well-founded fear of persecution at the time of departure.

14 The principal submission advanced for the applicant is that there was an obligation on the Tribunal to make a finding as to whether at the time of departure from Afghanistan, the applicant had a well-founded fear of persecution and that it did not do so. It is submitted that without such a finding it is not possible to properly assess the weight or significance of the subsequent change in circumstances because these must depend on a finding as to the nature and extent of any such change and whether the change is sufficient to destroy or substantially modify the well-founded fear of persecution which existed. Failure to perform this task, it is said, is a constructive failure to exercise jurisdiction, not protected by the privative clause provisions in s 474 of the Act.

15 Support for the above proposition it was submitted, can be found in the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 412-415.

16 The judgment on which the applicant relies is that of Gaudron J, and in particular where her Honour stated, at 415, that:

"The definition of `refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression `once bitten, twice shy,' that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be `well-founded fear' at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.

If an applicant relies on his past experience it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-found of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status, would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution. ..." (Emphasis added)

17 In terms this language does not necessarily require a two stage determination or approach in assessing the applicant's claims. However, it is submitted that the above paragraph is supported by statements by Mason CJ at 387 and by Dawson J at 399. I do not agree that any such support is to be found in those judgments on a fair reading of the reasons of their Honours.

18 In the subsequent High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, Gummow J, at 658, expressed the opinion that the above statement of Gaudron J concerning the acceptance of a continuing fear and the allaying of such fear did not represent the view of the Court in Chan.

19 In Re Minister of Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238, Gaudron J, at 254, acknowledged that her views, as quoted above, expressed in Chan did not represent the views of the majority, but she affirmed her adherence to the correctness of her earlier views.

20 The above line of authority was considered by von Doussa J in SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 where his Honour said at [26]-[27]:

"26. ... that the real chance of persecution necessary to meet the objective element of the definition of refugee must be present at the time when the claim for refugee status is determined. I consider it follows that where the threat of persecution that caused an asylum seeker to hold a well-founded fear at the time of departure from the country of nationality has in the meantime evaporated, and the circumstances pertaining in the country have so changed that there is no longer a real chance that the asylum seeker would risk persecution for a Convention reason if he or she were to return, any persisting fear of persecution held by that asylum seeker does not have the objective quality of being well-founded.

27. I am unable to reconcile this interpretation with the view of Gaudron J in Chan and Miah referred to above. I consider that I am bound to follow the majority view expressed in Chan and to decline to follow the view of Gaudron J." (Emphasis added)

21 The question whether it is essential to embark on a two stage process in the determination of an application for refugee status was considered by the Full Court in Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496. In that case the Court expressly rejected the suggestion that it was necessary to approach the determination of refugee status in a case where there had been a submission that circumstances had changed since departure, by way of a staged process. At [27] their Honours said, after referring to the observations of Mason CJ, Dawson and Toohey JJ in Chan:

"27 The observations of their Honours in Chan do not, in our view, warrant the application of a `negate or qualify' approach in relation to the 1993 events. To adopt such a formulation is to place a gloss on the words of the Convention, which call for a determination, as at the date of the RRT decision, as to whether a person then satisfies the requirements of refugee status. The primary Judge concluded that, in his opinion, the other findings made by the RRT did not negate or qualify the earlier findings as to the December 1993 incident, and that therefore the law had been incorrectly applied. In our view, the application of this incorrect approach resulted in the primary Judge making an evaluation which was within the sole province of the RRT. The very expression `negate or qualify" itself indicates that the assessment being undertaken is one of fact and degree."

22 The Court went on to state, at [30] and [35] that:

30. Put another way, we think it was incorrect for the primary Judge to treat the 1993 incident as creating some kind of presumption which, unless negated or qualified, must produce a finding of objectively based fear at the time of the RRT's decision.

...

35. The third ground is that, in the event that this Court decides that the primary Judge erred in finding the RRT had made findings of past persecution, the respondent contends that any failure by the RRT to make such findings constituted an error of law. This submission assumes that the RRT is required to proceed by way of a staged process and to make an intermediate finding as to whether Mr Gui was being persecuted for a Convention reason in 1993. There is no such requirement. The RRT must address the question whether the applicant was a refugee as at the date of its decision having regard to all the circumstances placed before it up to that date. There is in our view no error of law disclosed in the decision of the RRT. Moreover, the RRT made findings as to what had occurred in 1993 but clearly considered that because Mr Gui had been able to take part in an active gay community, and had not been arrested or detained on any other occasion since then, he was not at risk of persecution on that ground as at 1998." (Emphasis added)

23 In cases where the language of a statute is clear and unambiguous, the authorities consistently caution against the danger of adding judicial gloss to statutory language and against construing judicial pronouncements as if they were themselves legislative instruments to be interpreted as such: see Geelong Harbour Trust Commissioners v Gibbs Bright & Co [1970] HCA 16; (1970) 122 CLR 504 at 513; Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 at 554; Beadle v Director-General of Social Security (1985) 7 ALD 670 at 674; Boscolo v Secretary, Department Social Security [1999] FCA 106; (1999) 90 FCR 531; Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596; Hosokawa Micron International Inc v Fortune (1990) 26 FCR 393 at 408 and In the Marriage of Hogue and Haines (Formerly Hogue) (1977) 29 FLR 186 at 189.

24 The applicant's submission comes to this, namely, that in cases where there has been a material change in circumstances since the date of departure of a claimant for refugee status from the relevant country, it is necessary to first determine whether at that time of departure there was a well-founded fear of persecution and then to decide whether circumstances had changed since that date to such an extent as to negate the well-founded fear of persecution. No basis has been shown in the language used in the Convention or the Act for the imposition of such an obligation on the decision-maker. There is no obligation to staged findings and then to consider whether a well-founded fear at any such stage has been displaced by a change in circumstances of an applicant's history. The task imposed by the legislation is to make a finding as at the date of the Tribunal decision. The Tribunal is only required to make a finding at one point in time. If, in fact, a finding is made by the decision-maker that there was a well-founded fear of persecution at the time of departure, then it may be appropriate to embark on a close examination of subsequent history to see whether the change in circumstances is such as to have changed the position at the earlier time to a sufficient extent as to remove the foundations for such fears. The Act, however, imposes no requirement to take such an approach and, in my view, it is erroneous to imply into the legislation such a binding obligation and then to assert that failure to comply with it is a constructive failure to exercise jurisdiction. This requires an elaborate gloss on the language of the Act of a fundamental nature. In my view, the imposition of such a requirement is neither appropriate nor warranted in any way by the language of the Act. Accordingly, I reject the submission that there has been, in this case, a failure to exercise jurisdiction by reason of not making a finding as to the applicant's fear of persecution as at the date of departure.

25 The consequence of requiring staged findings as to persecution at particular times is that in the course of an applicant's history, a multi-tiered process of determination would be necessary. The only obligation of a decision-maker imposed by the Act is to examine all the material up to the date of the decision and to make a single determination at that point in time. If, as a method of carrying out this task, it is considered convenient by a decision-maker to make findings in respect of earlier stages, that may be a legitimate course to adopt to assist in the determination of the question. Nevertheless, whether this approach is appropriate is a question for determination in the circumstances of each case and is not a mandatory task, which if not performed, will invalidate the decision.

26 The observations of their Honours in Gui, referred to above, are contrary to the principal submission for the applicant in the present case because they support the conclusion that there is no basis for holding that there is an obligation to make a finding as at the date of departure as to whether there was a well-founded fear of persecution at that time. It is neither incumbent nor desirable for the Tribunal to address a subset of questions and to make mandatory findings concerning whether fears were well-founded at earlier stages of an applicant's history prior to the Tribunal decision since that is not the function conferred on the Tribunal under the Act.

27 For these reasons, I am of the view that the ground raised by the applicant has not been made out.

28 I also add that it is apparent from a reading of the reasons for decision of the Tribunal that regard was had to the relevant circumstances concerning the applicant and his treatment up to the date of the Tribunal decision. It cannot be suggested that the Tribunal had failed to take this information into account, having regard to the detailed analysis and reasoning and the specific findings of the Tribunal in this matter. Accordingly, even if, contrary to my view, there was no finding made by the Tribunal as to whether the applicant had a well-founded fear at the date of departure, there has been no error of law shown in the present case. There is no need to consider the effect of s 474 of the Act since no error on the part of the Tribunal has been shown to exist.

29 Accordingly, the application should be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 15 November 2002

Counsel for the Applicant:	C Charles
Solicitor for the Applicant:	Refugee Advocacy Service of South Australia
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 October 2002
Date of Judgment:	15 November 2002