SGSB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1612

FEDERAL COURT OF AUSTRALIA

SGSB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1612 Migration Act 1958 (Cth); ss 36(2), 65(1), 474(1) Judiciary Act 1903 (Cth), s 39B Migration Regulations; cl 866.221 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 – referred to NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 – discussed R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 – referred to Craig v South Australia (1995) 184 CLR 163 - discussed SGSB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 225 of 2002 MANSFIELD J 18 DECEMBER 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 225 OF 2002

BETWEEN: SGSB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 18 DECEMBER 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application. 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 225 OF 2002

BETWEEN: SGSB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 18 DECEMBER 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a young man from Afghanistan. He is of Hazara ethnicity and of Shi'a Muslim religion. He was born and brought up in the Jaghouri District of the Ghazni Province of Afghanistan and lived there all his life until he left Afghanistan at the end of May 2001. He arrived in Australia on 22 August 2001. 2 The applicant applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 29 September 2001. A delegate of the respondent refused that application on 18 June 2002. The Refugee Review Tribunal (the Tribunal) affirmed the decision of the delegate of the respondent on 16 September 2002. 3 This is an application under s 39B of the Judiciary Act 1903 (Cth) to have the decision of the Tribunal set aside. The Court may exercise that power only if it is persuaded that the Tribunal exceeded its jurisdiction in making the decision. 4 The application to the Court asserts that the Tribunal exceeded its jurisdiction In making its decision and also that it erred in law in arriving at its decision. Understandably, because the applicant appears to have completed the application in person, it does not specify in any detail the grounds on which those assertions are made. To see whether the Tribunal exceeded its jurisdiction as claimed it is necessary to look at the Tribunal's reasons. 5 When the application was first made the applicant claimed to fear persecution by reason of his Hazara ethnicity if he were to return to Afghanistan because of the activities of the Taliban. The Tribunal accepted that the applicant is an Afghani. It also accepted that, at the time he left Afghanistan, his personal fears about the Taliban were probably well-founded. 6 It was, however, necessary for the Tribunal to consider whether the applicant at the time of its decision had a well founded fear of persecution for a Convention reason: see s 36(2) of the Act and cl 866.221 of Sch 2 to the Migration Regulations. 7 The Tribunal found that, at the time of its decision, the applicant no longer had a well-founded fear of persecution from the Taliban because the Taliban had effectively been eliminated as a political or military force in Afghanistan and no longer governs or administers Afghanistan. It said: "The Tribunal does not accept that the Taliban retain effective power, or that they would now have an interest in seeking out the applicant, a person with no personal political involvement of any kind, to harm him. Against this background, the Tribunal finds that the applicant would not face a real chance of persecution from the Taliban if he were to return to the Jaghouri District in the reasonably foreseeable future." 8 The Tribunal had sought further submissions from the applicant in relation to the changed circumstances in Afghanistan. In addition to providing information on that topic, which the applicant claimed indicated an ongoing significant role of, and activities of, the Taliban in Afghanistan, the applicant claimed that he would face persecution from Hazara groups formerly associated with the Taliban because of his family connection with the Hezb e Wahdat. The applicant referred to a party called Nehzat, which he said still had members in positions of authority in Afghanistan from whom he feared persecution. He also claimed that because there are areas of Afghanistan not fully under the control of the new administration, he could not safely travel to his family region in the Jaghouri District of Afghanistan. 9 The Tribunal did not accept those claims. 10 It referred to independent evidence about Afghanistan showing that Hazaras no longer had reason to fear their capacity to safely return to the Jaghouri District. It referred also to independent evidence that the Nehzat party is a founding element of the Hezb e Wahdat, so it did not accept that the Nehzat party would continue to present a threat to the applicant. It was not satisfied that the applicant (as he claimed) had a cousin who was a commander in the Hezb e Wahdat by reason of which the applicant might now be targeted for persecution. 11 Hence, it concluded that the applicant would not be at risk of persecution in Jaghouri because of any association he had with the Hezb e Wahdat. It also noted the absence of any recent evidence of harassment of Hazaras in the Jaghouri district. Consequently, although it accepted that at the time the applicant left Afghanistan he had a well-founded fear of persecution by reason of being an Hazara, it was not satisfied that he has a well founded fear of persecution in Afghanistan for any Convention reason at the time of its decision. 12 The applicant did not therefore satisfy the criterion for the grant of the visa set out in s 36(2) of the Act. In that circumstance, s 65(1) of the Act directed the Tribunal to affirm the decision not to grant him a protection visa. 13 The applicant, as I have noted, did not specify in his application any detail of how he said the Tribunal exceeded its jurisdiction. He is clearly at a considerable disadvantage because of his background and circumstances in being able to do so effectively. I have carefully considered what he has said to see whether it might indicate jurisdictional error on the part of the Tribunal. I have also carefully considered the Tribunal's reasons myself to see whether they might indicate jurisdictional error on its part. 14 The main point which the applicant raised today is that he remained in danger of persecution from Hazaras allied with the Taliban if he were to return to Afghanistan, in particular those in the Nehzat party. He described the Tribunal's decision rejecting that claim as wrong and unjust. 15 However, the Tribunal made reference to the claims of the applicant in relation to that issue. It recorded the information the applicant provided to it in relation to that issue in its reasons for decision. It referred to other independent country information which points to a different conclusion. It accepted that other information. Consequently, it rejected the factual claim made by the applicant in that regard. It explained why it reached that conclusion. In my view, the decision the Tribunal has made on the issue is a finding of fact open to it as it had material available to it to support the finding. In addition, even if the Tribunal had made a wrong finding of fact, that does not of itself demonstrate jurisdictional error on its part: see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Kenny J at 257 [146]. 16 I have not, in my consideration of the Tribunal's reasons, discovered any other matter which might indicate jurisdictional error on its part. 17 In this matter the applicant faces an additional obstacle to having the Tribunal's decision set aside. Section 474(1) of the Act has been held to expand the jurisdiction of the Tribunal so that the identification of a wrong issue, the asking of a wrong question, the failure to have regard to relevant material, the having regard to irrelevant material, or the making of a wrong decision of fact without an error of law does not amount to jurisdictional error on the part of the Tribunal: see NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228: see per Black CJ at [4], [30], per Beaumont J at [113]-[119], [277], and per von Doussa J at [631]-[633], [638], [648]. Indeed, NAAV decides that it is within the Tribunal's jurisdiction to decide a case, even by making an error of law in making its decision. 18 The limits to the Tribunal's jurisdiction, as recognised in that case, notwithstanding the wide words of s 474(1) of the Act, are those discussed in the decision of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. None of the Hickman exceptions or qualifications appear to be relevant to the present application. 19 Consequently, even if I were satisfied that the Tribunal had erred in the way the applicant contended and accepted that such an error amounted to jurisdictional error as explained in Craig v South Australia (1995) 184 CLR 163 at 179 (Craig), the effect of s 474(1) of the Act is to extend the Tribunal's jurisdiction so that it would no longer amount to jurisdictional error so as to entitle the Court to set aside its decision. 20 As I have already said, however, in my view the Tribunal did not err in the way the applicant contended, or in any way going to its "jurisdiction" in the sense explained in Craig.