SBBN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 816

FEDERAL COURT OF AUSTRALIA

SBBN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 816 SBBN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 22 of 2002 MANSFIELD J ADELAIDE 3 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 22 OF 2002

BETWEEN: SBBN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 3 JULY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 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 22 OF 2002

BETWEEN: SBBN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 3 JULY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to have declared as invalid a decision of the Refugee Review Tribunal (the Tribunal) given on 11 January 2002. The Tribunal affirmed a decision of a delegate of the respondent of 13 August 2001 refusing to grant the applicant a protection visa for which he had applied on 27 May 2001 under the Migration Act 1958 (Cth) (the Act), following his arrival in Australia on 18 April 2001.

The claims and the Tribunal's reasons 2 The Tribunal appears to have accepted the applicant's claims about his background and his reasons for leaving Afghanistan. He is a young man born in 1983, in the village of Korga, in the Shahrestan District of the Oruzgan Province of Afghanistan. He is an ethnic Hazaran and his religion is Shi'a Muslim. He had some years of primary school education, but has not since been formally employed although he has assisted an aunt working on her farming property. 3 His father was a commander in the Hezb-e-Wahdat, and was killed fighting the Taliban in August 1998. His mother, three of his four brothers and his two sisters are missing. He does not know whether they are still alive. His remaining brother lives in Afghanistan. Due to fighting in his region following the Taliban's arrival in 1998, he left the Oruzgan Province for a time but then returned there. Upon his return, the Taliban was still forcibly conscripting young men, to force them to fight at the front, but for two years he managed to avoid being conscripted by the Taliban partly by bribery from relatives and partly by hiding when the Taliban came seeking young men. After a time, it became apparent that he would no longer be able to avoid their approaches. With the assistance and support of a maternal uncle, he fled Afghanistan, arriving in Australia on 18 April 2001. He fears returning to Afghanistan because the Taliban would impute to him the political opinion of a supporter of the opposition forces because of his father's role, and because of his ethnicity and religion. 4 The Tribunal accepted much of his claims. It found: "I accept that the applicant incurred the enmity of the Taliban by reason of an imputed political opinion against the Taliban because of his father's allegiances, and that he feared forcible conscription into the Taliban forces. I accept that the applicant feared persecution by the Taliban by reason of his ethnicity and his religion. Such experiences and fears are consistent with information about the Taliban regime which was known to have been merciless to perceived enemies and to have been implicated in widespread human rights abuses."