FEDERAL COURT OF AUSTRALIA SCAX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 86 SCAX (AN INFANT) BY HIS NEXT FRIEND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S287 of 2002 WEINBERG, STONE & JACOBSON JJ 9 MAY 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S287 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SCAX (AN INFANT) BY HIS NEXT FRIEND APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: WEINBERG, STONE & JACOBSON JJ DATE OF ORDER: 9 MAY 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no order as to 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 S287 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SCAX (AN INFANT) BY HIS NEXT FRIEND APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: WEINBERG, STONE & JACOBSON JJ DATE: 9 MAY 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of O'Loughlin J, given on 28 November 2002, in which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 18 February 2002. By that decision, the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse the appellant a protection visa. Background 2 The appellant, a citizen of Afghanistan, is a Shia Muslim, of Hazaran ethnicity. He is about thirteen years of age, and brings this appeal by his next friend. His mother died when he was very young. He lived with his father and five other brothers and sisters in a village in the district of Sang-e-Masha, in the province of Ghazni. He arrived by boat in Australia, as an unlawful non-citizen, in May 2001. 3 On 25 July 2001, the appellant lodged an application for a Protection (Class XA) visa with the then Department of Immigration and Multicultural Affairs. On 27 November 2001, a delegate of the Minister refused that application. On 6 December 2001, the appellant applied to the Tribunal for a review of that decision. As noted above, that application was rejected on 18 February 2002. 4 The appellant is presently in the care and custody of the South Australian Department of Family and Youth Services. He has been living with a foster care family. The appellant's claims 5 In his initial interview with an Immigration Officer on 18 June 2001, and in his application for a protection visa lodged on 25 July 2001, the appellant based his claim solely upon the treatment which he said he would receive at the hands of the Taliban if required to return to Afghanistan. His claim rested upon his being a Shia Muslim, and his Hazaran ethnicity. 6 The appellant said that the Taliban, who were of course Sunni Muslim, forced the people in his province to abandon their Shia traditions, and adopt Sunni prayer rituals. He claimed that the Taliban had kidnapped his brother three years earlier. The brother had not been seen since. As a result of that incident, his father, fearing for the appellant's safety, arranged for him to be smuggled out of the country. 7 The appellant claimed that if he were required to return to Afghanistan the Taliban would force him to fight on their behalf. He also claimed that they would regard him as a traitor, and as an infidel. The Tribunal's findings 8 The Tribunal accepted that the appellant was an Afghan national, of Hazaran ethnicity. It also accepted that, prior to his arrival in this country, he had resided in a province of Afghanistan that was subject to Taliban rule. It found that those of Hazaran ethnicity "faced at least some degree of risk of arbitrary adverse attention by the Taliban by reason of their ethnicity and religion …". It accepted that the appellant genuinely feared persecution at the hands of the Taliban, and that this fear would have been well-founded had that regime still been in control of Afghanistan. 9 The Tribunal concluded, however, that: " … the Taliban has been effectively eliminated as a political and military force in Afghanistan and no longer governs or administers Afghanistan … The continuing economic, political, military and humanitarian commitment of the international community provides a very significant underpinning to the changes in Afghanistan." 10 The Tribunal, therefore, concluded that the appellant did not have a well-founded fear of persecution for a Convention reason. The primary judge's reasons 11 The primary judge refused the application upon the basis that the appellant's submissions constituted an "invitation to [the] court to undertake a review of the Tribunal's reasons on the merits". 12 His Honour referred to s 474 of the Migration Act 1958 (Cth) ("the Act") but found that, even without invoking that section, no error was evident in the reasons of the Tribunal. His Honour said at [7]: "… in the particular circumstances of this case, I do not consider that it is necessary to have regard to those constraints. The matter can be decided by reviewing the Tribunal's decision for, in my opinion, it is free from fault." 13 He concluded at [10]: "… the findings of the Tribunal were open to it on the evidence; the weight that is to be attributed to aspects of the evidence, including documentary evidence, is a matter for the Tribunal. There are no errors of law evident in the Tribunal's approach." The appellant's submissions 14 The appellant's written submissions, filed shortly before the hearing of the appeal, departed significantly from the manner in which his case had been presented at first instance. They focussed upon the way in which the Tribunal had dealt with what was said to be an important aspect of his claim, namely his fear that notwithstanding the overthrow of the Taliban regime, he still faced persecution, in the medium to long term, from the Sunni Pashtun groups which now exercised a measure of control over parts of Afghanistan. 15 The appellant submitted that it was understandable that he had emphasised the dangers which he feared at the hands of the Taliban at the time that he lodged his application for a protection visa. After all, the Taliban regime was firmly in control of most of Afghanistan at that stage. No one could have anticipated the events of 11 September 2001, or their aftermath. 16 By the time the matter came before the Tribunal, the situation in Afghanistan had altered radically. The Taliban had been overthrown, and there was little chance of their being returned to power. 17 Given these developments, it was understandable that the Tribunal had invited the appellant, by letter dated 21 December 2001, to direct his attention: "… to the significance for your claims of changed circumstances in Afghanistan and in particular the removal of the Taliban and the participation of Hazara representatives in the new government …". 18 It had been necessary, therefore, for the appellant to reformulate his case. This he did, through submissions made on his behalf by his Migration Agent. These submissions were contained in two letters, one dated 25 January 2002, and the second 13 February 2002. 19 The appellant acknowledged that the claim which he ultimately advanced, as set out in those letters, differed significantly from his original claim. The new claim, broadly speaking, was that the Taliban regime had merely given a more virulent and focussed expression to long standing ethnic and religious antagonisms on the part of Sunni Pashtuns towards Shia Hazaras. These antagonisms were of such intensity as to give rise to a well-founded fear, on his part, of Convention based persecution. 20 The appellant submitted that although the new interim government in Afghanistan had been carefully constituted to reflect the ethnic diversity in that country, and no doubt sought to pursue a policy of tolerance amongst various ethnic and religious groups, that government was likely to be ineffectual outside of the major cities. In particular, the new government lacked power in Ghazni, the appellant's own province. It was submitted that little had changed, at a grass roots level, since the overthrow of the Taliban. The various warlords, and others, who had exercised power over many years at a local level continued to do so. 21 The appellant submitted that the Tribunal had failed to give any consideration to that aspect of his claim, as varied, which focused upon the risk that he might face persecution from Pashtun groups, perhaps not in the short term, but certainly in the medium to long term. The Tribunal's failure to consider that aspect of his claim amounted to a constructive failure to exercise jurisdiction. This constituted a jurisdictional error which not only entitled the appellant to relief, but also removed any protection that might otherwise have been accorded to the Tribunal's decision by s 474 of the Act. The respondent's submissions 22 The respondent accepted that the appellant had, as his counsel submitted, varied his initial claim, and that he had submitted to the Tribunal that he faced persecution at the hands of the Pashtuns, in the medium to long term. That claim, as varied, had been fully considered, but rejected. 23 The respondent noted the appellant's claim, as varied, relied upon the submission that the overthrow of the Taliban had not resulted in stability in Afghanistan. The respondent further noted the appellant claimed that it was not safe for him to return to that country and supported that claim by referring to a report prepared by the U.S. Committee for Refugees (USCR) dated 23 December 2001. That report recommended that there should not be, as at that time, any wholesale refusal to consider asylum claims from persons fleeing Afghanistan. It also emphasised the entrenched culture of human rights abuses concerning Hazaras. The appellant also relied upon other reports which suggested that, even by mid-January 2002, the Taliban were still in control of parts of the country, and that persons of Hazaran ethnicity continued to be persecuted. 24 The respondent noted that during the course of the hearing the Tribunal had raised with the appellant the significance of the overthrow of the Taliban. It had invited comment regarding the fact that the new interim government included Harazan representatives. The appellant had responded by implying that the Pashtuns were no different from the Taliban. The Tribunal in turn noted that the Pashtuns formed only one quarter of the members of the new interim government. 25 The Tribunal, in its reasons for decision, stated that: "… the question remains whether the Applicant on return to Afghanistan in present circumstances has a well founded fear of persecution, with a real chance of persecution for a Convention reason now or in the reasonably foreseeable future. The Tribunal has given very careful consideration to this question." 26 The Tribunal then observed that the nature and extent of recent changes in Afghanistan was a "matter of public record". It noted that the appellant had made general references to Pashtun hostility towards Hazaras, and asserted that the Pashtuns and Taliban were "the same", but had not claimed that he (or his family) had personally experienced any particular persecution, other than the disappearance of his brother, which had been brought about by the Taliban. 27 The Tribunal concluded that the Taliban had been effectively eliminated as a political and military force, and no longer governed or administered Afghanistan. That was notwithstanding ongoing mopping-up operations against fugitive remnants and indeed reports that anti-Taliban actions were continuing in a number of provinces (including Ghazni). Western peacekeepers had been deployed in Ghazni since 13 January 2002. The Tribunal did not accept the appellant's contention that the Pashtuns controlled the interim government. Pashtuns had about eight (or barely a quarter) of the Ministerial positions while Hazaras held five portfolios in the new government. 28 The Tribunal recognised that Hazaras had been marginalised in Afghanistan, particularly in the late 19th and early 20th centuries. There had been subsequent friction, and even conflict, with other ethnic groups. However, that did not, of itself, mean that an individual Hazara now faced a real chance of persecution for a convention reason. 29 Importantly, for present purposes, the Tribunal stated: "There is nothing in the current material which persuades the Tribunal that Pashtuns and the Taliban are interchangeable terms or that Pashtuns generally are engaged in ongoing persecution of Hazaras." (emphasis added) 30 Also importantly, the Tribunal observed: "There is now active in Afghanistan, unconstrained by the Taliban authorities, a formidable Hazara militia … and as early as the beginning of December 2001 the powerful militia of the (Hazara) Harekat-e-Islami party was reported as a significant force in Ghanzi province, accepting Taliban surrenders there …" 31 The Tribunal concluded: "The Tribunal is not satisfied that the Applicant would face a real chance of persecution from the Taliban or others on return to Afghanistan." (emphasis added) 32 The respondent submitted that these passages in the Tribunal's reasons for decision showed that it had fully considered the appellant's claim, as varied. It had rejected that claim for reasons that were entirely cogent. There was no substance in the appellant's contention that it had ignored that aspect of his claim that related to the threat of Pashtun persecution in the medium to long term. Interestingly, counsel for the respondent appeared to accept that if, contrary to her principal submission, the Tribunal had failed to consider the appellant's claim, s 474 of the Act could not operate to protect its decision. Conclusions 33 The primary judge dismissed the application upon the basis that it invited merits review and disclosed no jurisdictional error. It is not open to this Court to engage in merits review, and insofar as the application rested upon a challenge to the Tribunal's findings regarding Taliban persecution, his Honour was correct in rejecting that invitation. 34 The argument that the Tribunal failed to deal with the appellant's claim that he feared Pashtun persecution in the medium to long term, and not just Taliban persecution, was not raised before the primary judge. Nonetheless, we have considered that argument and are not persuaded by it. It is clear to us that the Tribunal was acutely conscious of the impact upon the appellant's claim of the overthrow of the Taliban. The appellant was invited to address that issue, and did so, in considerable detail. The Tribunal made it clear, in its reasons for decision, that it rejected the amended claim for a number of reasons. These included the fact that neither the appellant, nor his family, had experienced hostility by Pashtuns in the past, the fact that Pashtuns generally were not engaged in ongoing persecution of Hazaras, and the fact that a powerful Hazara militia was now a significant force in Ghazni province. These were all matters open to the Tribunal to take into account in a manner adverse to the appellant's claim, and it plainly did so. 35 Nothing submitted to this Court, and nothing that appears in the Tribunal's reasons, suggests that the primary judge erred in concluding that the application must fail. We can discern no legal error in the Tribunal's reasons for decision, still less any error that can conceivably be described as "jurisdictional". The appeal must therefore be dismissed. 36 An issue that arose at the commencement of the appeal related to the absence of a next friend, or tutor, to bring this proceeding on behalf of the appellant. The issue was resolved by giving leave to amend the notice of appeal so that a next friend would be appointed, upon an undertaking by the respondent that no costs would be sought against the next friend, or indeed the appellant, in the event that the appeal was unsuccessful. We note also that an undertaking was given by the respondent that the order for costs made below would not be pursued, and that there would be no adverse consequences whatsoever to the appellant from any failure on his part to meet that order for costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 9 May 2003 Counsel for the Appellant: Mr B. O'Brien Solicitor for the Appellant: Refugee Advisory Service Counsel for the Respondent: Ms S.J. Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 7 May 2003 Date of Judgment: 9 May 2003