FEDERAL COURT OF AUSTRALIA SCAY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 766 Migration Act 1958 (Cth) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Judiciary Act 1903 (Cth) s39B SCAY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No S 72 of 2002 O'LOUGHLIN J ADELAIDE 17 JUNE 2002 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 72 OF 2002 BETWEEN: SCAY APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 17 JUNE 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs which costs are to be taxed in default of agreement. 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 72 OF 2002 BETWEEN: SCAY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 17 JUNE 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant, who is a Pashtun from Afghanistan, and a Shi'a Muslim, arrived in Australia on 30 January 2001. Within a short time of his arrival he lodged an application for a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). That application was unsuccessful. On 9 May 2001, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant him the visa that he had sought. The applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal") but on 30 July 2001 the Tribunal published its reasons for affirming the decision of the delegate. The applicant was successful in applying to the Federal Court for an order of review of the Tribunal's decision. On 23 November 2001, the Court ordered, by consent, that the Tribunal's decision be set aside and that the matter be remitted back to the Tribunal for reconsideration. The Tribunal, differently constituted, reconsidered the applicant's application for a protection visa but, once more, the applicant was unsuccessful. On 17 January 2002 the Tribunal handed down its reasons for affirming the decision of the delegate not to grant the protection visa. Once more the applicant seeks the intervention of this Court. However, in the meantime, the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the 2001 Amendments") came into effect on 2 October 2001. Hence the current application before the Court is in the form of an application made under s 39B of the Judiciary Act 1903 (Cth). In that application the applicant seeks the following orders: "(a) An order that a writ of certiorari be directed to the Tribunal to quash its decision; (b) An order that a writ of prohibition be directed to the Minister prohibiting the Minister from acting upon or giving effect to or proceeding further upon the decision; (c) An order that a writ of mandamus be directed to the Tribunal compelling it to re‑determine the application for a protection visa according to law; and (d) An order that the Tribunal and the Minister pay the costs of the applicant." 2 The grounds upon which the applicant seeks relief are that the Tribunal: "(a) exceeded jurisdiction in making the decision to affirm [the delegate's] decision not to grant the applicant a protection visa; and (b) erred in law in arriving at the decision to affirm [the delegate's] decision not to grant the applicant a protection visa." No particulars were supplied either in the application or subsequently to support the grounds of relief and the applicant, being unrepresented, was unable to identify the manner or means by which there was an alleged excess in jurisdiction or some error in law. In his oral and written submissions he did no more than plead the merits of his case. 3 The history of the applicant has been set out in detail in the reasons of the Tribunal and has been adequately summarised in the written submissions that were filed on behalf of the Minister. In view of the applicant's inability to identify any jurisdictional error which might permit this Court to intervene, it will be sufficient to identify, briefly, the personal circumstances of the applicant. He claimed that he would be persecuted if he were returned to Afghanistan for the following reasons: · As a Shi'a Muslim and a Pashtun he would attract adverse attention from the Taliban and others. · The Taliban hate Shi'a Muslims and want to force them over to the Sunni Muslim sect. · The Taliban would forcibly conscript him. · The occupants of his village would kill him because they would be of the view that he had come from a Christian country in order to preach Christianity in Afghanistan. · He would be persecuted by reason of his imputed political opinion because he may be identified by one rival faction as a supporter of another rival faction. · That as military actions were continuing in Afghanistan by troops of the United States and other countries, and because of the consequent danger in Afghanistan, he ought to be allowed to remain in Australia. 4 The Tribunal found that the applicant did not have a well founded fear of persecution in respect of any of the above claims if he were returned to Afghanistan for the following reasons: · There was independent information before the Tribunal which indicated that the Taliban was, for all relevant purposes, a spent force in the political landscape of Afghanistan. · There was not a real chance that the Taliban or any other authority would interfere with the applicant because he was a Pashtun, a Shi'a, or because of any of the other matters that had been raised by him. · The applicant had given evidence that, prior to the emergence of the Taliban, he and his family had lived with a good relationship with the Sunni in his village. · Prior to the rise of the Taliban, he had not had any problem of the sort now described by him, regarding his religion, his Pashtun ethnicity or his imputed political opinions. 5 These findings of facts were within the exclusive province of the Tribunal. It is not for this Court to interfere except in exceptional circumstances, and none are apparent in this case. Sixteen months have elapsed since the applicant arrived in Australia and much has happened in Afghanistan in that period of time. The fears which the applicant might have had about the Taliban at the time of his arrival in Australia cannot, with all due respect, now be maintained. The Tribunal was correct in concluding that Australia did not have any obligation to receive the applicant as a refugee. His application must be dismissed with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 17 June 2002 The Applicant appeared in person Counsel for the Respondent: Ms SJ Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 May 2002 Date of Judgment: 17 June 2002