SDAO & Anor v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCA 132 (4 March 2003)

Last Updated: 4 March 2003

FEDERAL COURT OF AUSTRALIA

SDAO & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 132

MIGRATION - appeals from Federal Magistrates Court - whether Federal Magistrates Court erred in finding that the Refugee Review Tribunal did not fall into jurisdictional error - whether the Refugee Review Tribunal failed to take into account relevant considerations - whether the elements or integers of the appellants' claims were considered.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth)

NAAV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 cited

R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 cited

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 cited

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 cited

Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 cited

Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 cited

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; 64 ALD 289 cited

SDAO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 181 of 2002

SDAD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 182 of 2002

von DOUSSA J

ADELAIDE

4 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 181 OF 2002

BETWEEN:	SDAO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	4 MARCH 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. Appeal dismissed with 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 182 OF 2002

BETWEEN:	SDAD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	4 MARCH 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. Appeal dismissed with 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

BETWEEN:	S 181 OF 2002 SDAO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
BETWEEN:	S 182 OF 2002 SDAD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	von DOUSSA J
DATE:	4 MARCH 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

BACKGROUND

1 These two appeals are from decisions of Federal Magistrate Raphael, delivered on 9 July 2002, which dismissed applications made under s 39B of the Judiciary Act 1903 (Cth) to review unfavourable decisions of the Refugee Review Tribunal (the Tribunal). The Tribunal had been differently constituted in each matter. The two applications for review were heard by the Federal Magistrate consecutively on the same day. The same counsel were involved in each matter. As common issues arose, the two matters were decided at the same time in reasons for judgment common to both. In this Court the two appeals have run in parallel and by consent have been heard together by a single Judge pursuant to a direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

2 Both SDAO and SDAD arrived illegally in Australia in January 2001 on separate boats. Each of them made application for a protection visa, their respective claims being that they were citizens of Afghanistan who met the definition of a refugee under Article 1A(2) of the Refugees Convention (as defined in s 5(1) of the Migration Act 1958 (Cth) (the Act)) as they held well founded fears of being persecuted for a Convention reason by the Taliban. Initially there was doubt in each case as to the claim that the appellant was a citizen of Afghanistan, but ultimately the Tribunal, in the decision the subject of the present appeals, held that each of them was a citizen of Afghanistan, and a Shi'a Muslim of Pashtun ethnicity from a village in the Paktia Province.

3 In the case of SDAO, his application for a protection visa was refused by a delegate of the respondent on 15 May 2001. That decision was affirmed on an application for review by the Tribunal on 30 August 2001. On 30 November 2001, the Federal Court set aside the Tribunal's decision and remitted the matter to the Tribunal to be determined according to law. A differently constituted Tribunal re-heard the application for review in January 2002, and delivered reasons for its decision on 11 March 2002 affirming the decision not to grant a protection visa.

4 The application for a protection visa by SDAD was refused by a delegate of the respondent on 15 May 2001. That decision was affirmed on an application for review by the Tribunal on 31 July 2001. SDAD sought review of the Tribunal's decision, and on 23 November 2001 the Federal Court ordered, by consent, that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for determination according to law. The review was heard by a differently constituted Tribunal on 3 January 2002. On 18 January 2002 the Tribunal affirmed the decision not to grant a protection visa.

5 At the time when the applications for review of these adverse Tribunal decisions came on for hearing before the Federal Magistrate, the matters of NAAV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449, although set down for hearing, had not been heard by the Full Court and there were conflicting single Judge decisions as to the construction and scope of s 474 of the Act. Written submissions to the Federal Magistrate contended that it was possible to infer from the reasons given in each case that the decision of the Tribunal was not a bona fide attempt to exercise its power. On this basis it was contended that in accordance with the so-called Hickman conditions (R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 615) the privative clause in s 474 of the Act would not operate. At the hearing before the Federal Magistrate, counsel for the appellants additionally advanced oral submissions that each of the decisions was infected by jurisdictional error on the part of the Tribunal of the kind discussed in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 and in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at 21-22 (Yusuf). It was contended that the Tribunal in each instance failed to ask itself the correct question which was a fundamental pre-requisite in considering whether the appellant was a refugee. In particular it was contended that the Tribunal decided the issue adverse to each appellant on the basis of general country information and not on the basis of the appellant as an individual. In consequence, it was argued, the Tribunal did not consider whether there was a real risk of persecution to the appellant as an individual in light of the evidence about those in charge of the province from which the appellant came, and the relationship between those in charge and the other authorities having power in the area.

6 The Federal Magistrate held that the allegation that the Tribunal acted with a lack of good faith was without substance, and further found that in each case the Tribunal had not committed the jurisdictional error alleged. Having found that the matters which were the subject of the appellants' respective claims had been taken into account by the Tribunal, the Federal Magistrate observed in par 15 of his reasons:

"The claims made on behalf of these applicants seem to me to have the hallmarks of a request to substitute my reading of the evidence for that of the Tribunals. This, the courts have said time and time again they cannot do ..."

7 Before this Court, counsel argued that the Federal Magistrate erred in characterising the appellants' arguments as a "request to substitute [his] reading of the evidence for that of the Tribunal ...". Counsel said that the argument put was that set out above in [5] and this Court has been invited to hold that the Federal Magistrate erred in not finding that there was, for that reason, a jurisdictional error which empowered this Court to set aside the decisions of the Tribunals, notwithstanding s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.

THE CLAIMS AND THE TRIBUNALS' REASONS

8 It is necessary to briefly summarise the claims which were made by each of the appellants in support of their applications for a protection visa, before turning to the reasons for the decisions which rejected the applications.

SDAO

9 SDAO is in his late twenties. He is illiterate, and in Afghanistan worked in the firewood business, collecting wood for sale. The Tribunal accepted that he came from a small village in the province of Paktia near the border with Pakistan, and that he is a member of the dominant Pashtun ethnic group. The Tribunal also accepted that he is a Shi'a Muslim, whose number were not in the majority in the small village. The appellant said that after the Taliban took control of the village they did not permit Shi'a Muslims to perform their prayers in the Shi'a Muslim manner. As a result he ceased to attend the mosque, partly for that reason and partly because he feared the Taliban would forcibly take him for fighting. Although he feared persecution by the Taliban, no actual harm came to him before he left Afghanistan. His principal claim in support of his recognition of refugee status was that he had a well founded fear of persecution at the hands of the Taliban.

10 Before the hearing by the Tribunal in January 2002 of the appellant's application for review, major changes had occurred in Afghanistan. The Tribunal put to SDAO in the course of hearing his evidence that the Taliban had been defeated and were no longer a force from whom he could fear persecution. The appellant contended that whilst life in his village prior to the Taliban was benign so far as problems between Sunni and Shi'a Muslims were concerned, things changed under the Taliban rule. He said he believed that things had not really changed after the defeat of the Taliban. He said that the Taliban had only "removed their turbans and cut their beards. They are the same people and there is no difference." He also expressed concern that he had been recognised in the village as unreligious before he left because he did not attend the Mosque, and he feared that he would be harmed by people in his village for this reason if he returned. He said that his previous non-attendance at the Mosque would be compounded by his attempt to seek asylum in a western country.

11 In its reasons for decision the Tribunal referred to country information reports available from various sources published between November 2001 and 31 January 2002. These reports discussed extensive military offensives between the Northern Alliance and the Taliban Forces, and military action taken by the United States of America following the events which occurred in New York on 11 September 2001. The Tribunal noted that Afghanistan is now under the control of a broad based interim administration installed with the assistance of the United Nations and headed by the Pashtun leader, Hamid Karzai. The Tribunal noted that the thirty member Interim Cabinet included two Hazaras who are Shi'a Muslims and a further three members identified as Shi'a Muslims. The reports also refer to the deployment of a multinational peace keeping force. These reports, by and large, were, as counsel for the appellant contends, of a general nature, dealing with the situation in Afghanistan. However, the Tribunal did not terminate its discussion of the reports at that level of generality. The Tribunal specifically referred to information from the reports relating to the Paktia Province.

12 Against the background of the country information so identified, the Tribunal then expressed its findings and reasons, including findings under the specific heading "Assessment of the Applicant's Claims". The assessment of the claims includes the following findings:

"I accept that in the past the applicant, like many Afghanis, suffered difficulties in the practice of his religion arising from the enforcement of the Taliban's strict religious code. I also accept that the Taliban, while in control of Afghanistan, forcibly took men into their ranks to fight. However, the totality of the independent evidence indicates that in Afghanistan generally the Taliban have effectively been defeated and no longer have the same ability to inflict harm as they did in the past when they controlled the country. The Taliban regime has been dispersed and its leadership eliminated from positions of power or influence in much of Afghanistan generally including in Paktia province and in the Interim Authority specifically.

The independent information set out above indicates that whilst Taliban fighters remain in Paktia, the Taliban does not rule or have control over tracts of Paktia. It is clear from the independent information that in Paktia the Taliban forces have effectively been removed from power although military offensives are continuing against pockets of Taliban and al-Qaeda fighters. The Taliban is no longer in a position to harm the applicant as it was before his departure from Afghanistan when it controlled Afghanistan.

The applicant asserts that the Taliban is active in Paktia province and recent independent evidence indicates that to a certain extent this is true as military offensives by the United States and their Afghan allies continue towards Taliban and al-Qaeda fighters. However, the independent evidence does not suggest that the Taliban are a force in Paktia province with a capacity to harm, affect or control the population as they once did. There is no evidence before me to support the applicant's assertion that elements of the Taliban remain viable in Paktia province, or that such elements are in positions of power or influence such that they are capable of forcibly conscripting fighters as they did in the past. I accept there is fighting between Taliban and the US and Afghani forces. However, in my view the Taliban are so consumed by the military offensives towards them they do not have a capacity to make residents fight for them. I find that the applicant's fears of Convention persecution on this basis are not well-founded.

The applicant contends that the Taliban have removed their turbans and cut their beards. His adviser submits that the Taliban could re-emerge and therefore pose a danger to the applicant. I do not accept either of these propositions. In my view considerable efforts have been taken by the international community and other groups within Afghanistan in order to overthrow the Taliban. I find the chance of the Taliban re-emerging in such a way that they would pose a threat to the applicant to be remote.

For the same reasons I do not accept that the applicant has a well-founded fear of harm from the Taliban based on his conduct in fleeing Afghanistan and applying for asylum in the west.

...

There is no independent evidence before me which supports the assertion that flight to a western country was viewed adversely by either Pashtun Tribal leaders or the interim authorities in Afghanistan as distinct from the Taliban. Moreover, I do not accept that those who live in the applicant's village will attribute any adverse significance to his conduct in fleeing to the West or applying for protection. In my view these attitudes were confined to the Taliban. I find that whilst adverse attitudes to the West may have existed under the Taliban, there is nothing before me to support the view that this is the case now. Accordingly I find that that the applicant's fear of harm on this basis is not well-founded.

...

As I understand other aspects of this claim he contends that as a Shia he fears mistreatment within his own community. He asserts that he will be seen as an unbeliever or Kaffir because he did not attend the mosque and because he is a Shia. He also claimed that as a Shia he would have a lot of problems if he returned to Afghanistan. However, the applicant does not specify what the nature of those problems might be.

In my view the applicant's evidence about the difficulties he claimed to have experienced in practising his religion prior to the Taliban are not reliable. I do not accept his assertion that he was prevented from practising his religion in the way that he wanted. This claim was not advanced by the applicant until evidence given at the second hearing held in January 2002. Indeed his claims to that point had been to the effect that prior to Taliban he had no difficulties in practising his religion or owing to his religion ."

SDAD

13 SDAD is aged in his early twenties and has received no schooling. He is illiterate. In Afghanistan he earned his living for the two years before he left cutting wood and selling it. He asserted a well founded fear of persecution arising from his membership of the Shi'ite minority which had been persecuted by the Taliban in the small village in which he lived. He feared that he may have been conscripted into the army and placed on dangerous duties which he said were reserved for Shi'a Muslims, not the majority Sunni Muslims. He expressed fear that if he were to return to Afghanistan, the Taliban would kill him because he had escaped from the country.

14 In the course of the hearing in January 2002 the Tribunal drew the appellant's attention to the changes which had occurred in Afghanistan. He was asked what he feared would happen to him if he were to return to Afghanistan now. He said he would face death. He had a lot of enemies in Afghanistan. One group of these were the Sunni people because the Taliban had made a lot of propaganda against "us", and the Sunni people might think that he had converted to Christianity. Further, if at any time fighting started in Afghanistan he feared he would be sent to the front line because he was young, capable of fighting, and he was a Shi'ite. He too said that the Taliban "had merely shaved off their beards and removed their turbans and they were among the people. One day they might emerge again."

15 The Tribunal which heard SDAD's application also made reference to country information reports published from various sources between late November 2001 and early January 2002 which identified the political and social changes which had occurred in Afghanistan since 11 September 2001. In this instance the summary of the country information did not include a section specific to the Paktia Province as occurred in the case of the reasons for decision in SDAO. Nevertheless, it is apparent from the lengthy findings and reasons which then followed in the reasons for decision that this Tribunal was alive to the need to identify the changes which had occurred in the Paktia Province from which the appellant came, not just changes which had occurred generally in Afghanistan. The following specific findings were made in that section of the reasons for decision which appear under the heading "The merits of the Applicant's application":

"The Applicant said that the Taliban had merely shaved off their beards and had removed their turbans and one day they might emerge again. However, as I put to the Applicant, the international community has invested a lot of effort in overthrowing the Taliban and I consider that it will not want to see that effort go to waste. I consider that there is only a very remote chance of the Taliban re-emerging. I do not accept that there is a real chance that, if the Applicant returns to Afghanistan nor or in the reasonably foreseeable future, he will be killed by the Taliban or forcibly conscripted by the Taliban or that the Taliban will be in a position to interfere with his practice of his religion.

The Applicant said that if fighting started again in Afghanistan he would be sent to the front line because he was young, capable of fighting and he was Shia. He also suggested that he would be killed because he was a Shia Muslim. In their submission dated 4 January 2002 the Applicant's representatives argued that it was too soon to expect the Applicant to return to Afghanistan because the interim administration was threatened by `age old tribal rivalries'.

...

However, as I noted in the course of the hearing before me, the Applicant's evidence does not suggest that the Sunni Muslims in his village held a deep-seated hatred for Shia Muslims. To the contrary, his evidence suggests that the Shia Muslims in his village did not have problems prior to the emergence of the Taliban. Indeed, as he confirmed in the course of the hearing before me, his evidence is that they did not have any problems even during the first three years of Taliban rule. Although there has been fighting in Afghanistan for many years the Applicant's evidence is that the young Shia Muslim men in his village were not threatened with being forcibly conscripted until the last two years before he left Afghanistan. Likewise he has suggested that it was only during this period that the Taliban interfered with Shia religious practices. I do not accept that there is a real chance that the Applicant will be forcibly conscripted because he is young and capable of fighting, or because he is a Shia Muslim, if he returns to Afghanistan now or in the reasonably foreseeable future.

The Applicant suggested that he would have problems as a Shia Muslim because the Taliban had made a lot of propaganda against Shia people. He said that the Sunni people therefore regarded the Shia Muslims as infidels.

...

There is nothing in the independent evidence available to me to suggest that Sunni Muslims sought to kill Shia Muslims in Afghanistan by reason of their religion before the advent of the Taliban. I do not accept that, if the Applicant returns to Afghanistan now or in the reasonably foreseeable future, there is a real chance that he will be restricted in practising his religion or otherwise persecuted by reason of his religion.

At the hearing before me the Applicant said that if he were to return to Afghanistan now the people in his village would think that he had converted to Christianity and that he had returned to preach Christianity. I consider that the Applicant's suggestion in this regard is quite fanciful. There is nothing in the independent evidence available to me to suggest that people going back to Afghanistan from Western countries have been regarded as having come back to Afghanistan to preach Christianity. The Applicant suggested that the villagers would accuse him of this because he was a Shia Muslim but I regard this suggestion as equally far-fetched. I note once again the Applicant's own evidence that the Shia Muslims in his village did not have problems until the last two years before he left Afghanistan.

..

I accept that the situation in Afghanistan remains unsettled and that, in particular, the USA is still carrying out air raids which have resulted in the loss of civilian lives. However the danger to the Applicant in these circumstances is no more and no less than that faced by any other civilian in Afghanistan."

CONSIDERATION

16 It is implicit from the reasons of the Tribunal in each matter that the Tribunal, having accepted that the appellant before it came from a small village in the Paktia province in Afghanistan, also accepted that the appellant left Afghanistan with a well founded fear of persecution by the Taliban. However, the decision whether an applicant for a protection visa is a person to whom Australia owes protection obligations is a matter to be judged at the time when the decision is made by the relevant decision maker, in these cases in early 2002: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288. There is no principle that "once a refugee, always a refugee": Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at 355.

17 I think it is implicit in the reasoning of the Tribunal in each matter that the Tribunal not only accepted that the appellant before it had a well founded fear of persecution for a Convention reason when he left Afghanistan, but also that he continued to have a subjective fear that he would suffer persecution if he were to return. The question for the Tribunal was whether that subjective fear was well founded for a Convention reason having regard to the changes which had occurred in Afghanistan. In considering that question, it was incumbent upon the Tribunal to have regard to the several claims made by each appellant as to why his continuing fear was well founded.

18 The notices of appeal assert that the Tribunals fell into jurisdictional error in that each failed to ask itself the correct question, namely whether there was a real risk of persecution to the appellant as an individual in light of the information about the changes which had occurred in the Paktia Province. Alternatively, the argument could be considered as one that the Tribunals failed to take into account relevant considerations, namely, the claims of each appellant for which, counsel contended, there was a basis in the information justifying a well founded fear of persecution. In Yusuf at 21 [82], McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, said:

"`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig [Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179], is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material."

19 The considerations that are relevant to the Tribunal's task are to be identified primarily, if not entirely, by reference to the Act: Yusuf at 19 [73]-[74]. The Tribunal is required by s 414(1) of the Act to review the decision of the delegate, and in doing so the Tribunal is empowered to exercise all the powers and discretions that are conferred by the Act on the delegate who made the decision: s 415. Section 47(1) requires the delegate, exercising the powers of the Minister, to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Div 3, subdiv AB of the Act. Thus, in a case like the present, the Tribunal is required to consider the elements or integers of each of the claims made by an applicant: see Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; 64 ALD 289 per Allsop J (with whom Heerey J agreed) at [79].

20 In each of the present appeals I consider it is clear from the passages of the Tribunals' decisions set out above that the elements or integers of the claims made by each of the appellants were considered and determined by the Tribunals. Whilst each Tribunal commenced its consideration by reviewing country information, much of it general in nature, the Tribunal then proceeded from the general to the particular and addressed the position of the appellant in the changed circumstances revealed by the country information. Contrary to the submissions of the appellants, I think it is clear from the reasons of the Tribunals that in each instance it considered the relevant considerations applicable to the claims made by each appellant and did not fall into jurisdictional error.

21 Furthermore, I do not think that the Federal Magistrate fell into error by wrongly characterising the appellants' argument. The statement in par 15 of the reasons for decision that:

"The claims made on behalf of these applicants seem to me to have the hallmarks of a request to substitute my reading of the evidence for that of the Tribunals."

was made after the Federal Magistrate had expressed his conclusion that the Tribunal had not fallen into jurisdictional error by failing to address issues raised by the appellants. Once it is accepted that the Tribunal addressed those individual claims and made findings of fact adverse to the appellants, the complaints made by the appellants are in substance complaints that the Tribunal reached wrong conclusions on the facts. The observation by the Federal Magistrate is an understandable comment upon the way in which the matters were argued before him. The Federal Magistrate was taken at length to the country information reports from which each Tribunal drew conclusions about the present situation in Afghanistan, and submissions were made that the Tribunal should have inferred from these reports that there was a basis for a well founded fear of persecution by each appellant if he were to return to Paktia. Those submissions do have the hallmarks of a request to substitute different findings of fact to those made by the Tribunals.

22 For these reasons I consider each of the appeals must be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa .

Associate:

Dated: 4 March 2003

Counsel for the Applicant:	Mr M G Evans
Solicitor for the Applicant:	Refugee Advocacy Service of South Australia
Counsel for the Respondent:	Mr M J Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 February 2003
Date of Judgment:	4 March 2003