FEDERAL COURT OF AUSTRALIA SFXB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 182 Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 SFXB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No S 283 of 2002 SELWAY J ADELAIDE 12 MARCH 2003 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 283 OF 2002 BETWEEN: SFXB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 12 MARCH 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The respondent have its costs of and in respect of the appeal. 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 283 OF 2002 BETWEEN: SFXB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE: 12 MARCH 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The appellant arrived in Australia in June 2002. On 31 July 2002, he lodged an application for a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth). On 26 March 2002, a delegate of the Minister refused that application and on 5 April 2002, the appellant applied to the Refugee Review Tribunal for a review of that decision. On 19 June 2002, the Tribunal determined that it was: "… not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s. 36(2) of the Act for a protection visa. The Tribunal affirms the decision not to grant a protection visa." 2 On 27 June 2002, the appellant applied under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Tribunal. On 8 August 2002, the application was referred to the Federal Magistrates Court by order of von Doussa J. On 28 November 2002, the learned Federal Magistrate dismissed the application with costs. The appellant has appealed that decision. The Chief Justice has determined that the appeal should be heard by a single Judge. 3 The learned Federal Magistrate correctly and accurately analysed the issues before the Tribunal and how the Tribunal dealt with those issues. I adopt his analysis: "The applicant, who was born in 1975, is a citizen of Afghanistan of Pashtun ethnicity from the district of Spin Bulak in Kandahar province. The applicant's claims were put on a number of bases. In a letter to the Tribunal dated 12 June 2002 the applicant's migration agent contended that the applicant's claims for protection rested on three issues:- i) That having had sex with the daughter of the village elder who had the power to order his death he feared persecution on the ground of 'belonging to a different tribe to the village elder'. It was submitted that a death sentence for unproved sexual assault would be excessive and totally disproportionate and "commensurate with persecution" against which the government would be unable to offer effective protection. ii) A 'sur place' claim that because he had been to a western country and applied for refugee status he would be considered a traitor by the local Pashtun community in his village on the basis that there was a high probability that many local Pashtuns were either Taliban members or supported them and that the Taliban remained strong and active in Kandahar. It was submitted that the applicant would be seen as a traitor to the Taliban cause and persecuted for holding an anti-Taliban political opinion. iii) A well-founded fear of persecution from the Taliban. This had been the initial basis for his claim. After the change in circumstances in Afghanistan the applicant argued that there was still a current threat from the Taliban especially in the south and southeastern provinces and that they may gain control of Afghanistan again province by province. It was submitted this also raised the question of effective protection by the interim government. In addition to these three grounds the applicant also raised concerns that in the year before he came to Australia three family members were taken by the Taliban (his father and two brothers), that one brother had been killed by the Taliban and the whereabouts of his other brother and father were unknown. The applicant also claimed that there was a threat of ethnic reprisals against Pashtuns (as 'payback' for Taliban atrocities) from Tajiks and Hazaras. He claimed to fear persecution due to an imputed political opinion of support for the Taliban because of his Pashtun ethnicity. At the Tribunal hearing the applicant made a further claim that his father had been detained by the Taliban because of his previous political affiliations with the Communist party in Afghanistan and that he himself would therefore be in danger for the same reason, as the present government was also antagonistic to the Communist Party. The Tribunal considered each of the grounds raised by the applicant and also noted humanitarian considerations. It was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal accepted that the applicant is a national of Afghanistan. The main basis for the Tribunal's decision, particularly in relation to his claimed fear of being targeted and conscripted by the Taliban and now by Taliban remnants or the Taliban generally if it returned to power in the reasonably foreseeable future, was the finding that as a result of the significantly changed circumstances in Afghanistan - being the demise of the Taliban regime - the applicant did not have a well-founded fear of being persecuted for a Convention reason if he returned to Afghanistan. Detailed reasons were given by the Tribunal for the conclusion that it did not accept that the Taliban retain effective power or that there is a real chance of them returning to power in the foreseeable future: 'The Tribunal is aware of no evidence that the Taliban or former Taliban in Kandahar or elsewhere, are now targeting or persecuting ordinary persons because they were perceived to have opposed the Taliban in the past and does not accept that the applicant on return would face a real chance of persecution for this reason.' As to the claim based on his father's political associations, the Tribunal noted that the applicant had advised that his father had been a driver for a member of the Communist Party but had not been a member himself or otherwise involved and that there were no claims of anything adverse happening to the applicant's father or his family until the particular difficulties under the Taliban. The Tribunal noted that if this was as serious a problem as finally represented by the applicant it was difficult to understand why it emerged in the way it did and at the very end of the review process. The Tribunal did not accept that the applicant would be targeted or face serious harm or persecution now (a decade later) because of his father's employment prior to 1992 or that it would be the essential and significant reason for any difficulties faced by him on return to Afghanistan. The Tribunal also considered the "sur place" claim. It noted that it had not been able to find any current reports of persons returning to Afghanistan from western countries such as Australia being attacked or facing serious harm or death simply because they had returned from non-Muslim countries or were perceived to be associated with countries providing contributions to the international forces in Afghanistan. An incident cited by the applicant relating to a person returning to Afghanistan from Russia (which had previously been involved in the military occupation of Afghanistan) which occurred under the former Taliban regime did not satisfy the Tribunal that the applicant would face a real chance of persecution from the Taliban or others associated with them on return to Afghanistan. The Tribunal also provided reasons and references to independent country information in support of its rejection of the claim that Pashtuns in Pashtun dominated provinces such as Kandahar were being targeted for their ethnicity or religion. The Tribunal did not accept that the applicant's stated concern in this regard was well founded. The Tribunal gave consideration to the applicant's claim in relation to having sex with the unmarried teenage virgin daughter of his village elder at her instigation and in response to threats of blackmail by her. The Tribunal indicated that it had serious difficulties in relation to the likelihood of a married man and an unmarried teenage girl being alone in her home in a traditional Pashtun village under the Taliban, in circumstances where sexual relations could occur and be aggressively initiated by the girl as was claimed by the applicant. Nonetheless the Tribunal accepted that an incident had occurred involving the applicant and the local chief's daughter in circumstances which may lead the chief to believe that a sexual offence had occurred. It accepted that the village elder may well be intent on harming or killing the applicant in revenge but did not accept that this was because the applicant was a Pashtun of a different clan. It was satisfied that the elder would have been greatly angered by what had happened or what he believed to have happened regardless of the clan membership of the perceived culprit. Further: 'the fact that the potential consequences or punishment, judicially or extra judicially, may be disproportionate, does not of itself supply a Convention reason. In the circumstances the Tribunal is also satisfied that any lack of authority or protection against such consequences by the interim government does not supply a Convention reason. Nor does the Tribunal accept that the essential or significant reason for any intended harm would be one or more of the Convention reasons (including ethnicity or clan membership) although clan animosity may conceivably have sharpened the local chief's anger'. Finally the Tribunal indicated that insecurity or lack of governmental authority do not of themselves give rise to a well-founded fear of persecution for a Convention reason and that while the Tribunal accepted that the applicant may be at a real risk of personal harm either judicially or extrajudicially arising from his relations with the daughter this did not amount to persecution for a Convention reason." 4 The decision of the Tribunal in this matter was a "privative clause decision" for the purposes of s 474 of the Act. The powers of this Court on any review are limited in a number of ways. This includes the limitations within s 39B of the Judiciary Act 1903 (Cth) (including whatever limitations are contained within s 75(v) of the Commonwealth Constitution). It also includes the provisions of s 474 of the Act in relation to "privative decisions". The learned Federal Magistrate noted the limitations upon the jurisdiction to afford judicial review by reason of s 474 of the Act. However, he did not have the benefit of the High Court decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ("S134") and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ("S157"). The learned Federal Magistrate described the effect of s 474 of the Act in terms of the decision of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 ("NAAV"). 5 Section 474 provides: "474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; …" In light of the High Court decisions in S134 and S157 the jurisdiction of this Court in judicial review proceedings is probably broader than as described by the Full Court in NAAV. It is clear from those decisions that the Court's jurisdiction is limited to "jurisdictional errors" (S157 at [76]). In determining whether or not a particular error is a "jurisdictional error" or not it is necessary to have regard to the whole of the Act, including s 474. (See S157 at [77]‑[78]). 6 Although the Federal Magistrate was perfectly correct to apply the NAAV test at the time he did so, with hindsight the application of that test was in error. 7 The appeal notice does not provide any assistance as to what jurisdictional error the Tribunal may have made. Nor was the appellant able to do so in oral submissions. The appellant asked the Court to provide him with legal representation and said that without legal representation he was not able to make submissions. It is not the function of the Court to provide representation. Nor in this case do I think it would have assisted him in the result. 8 I have given careful consideration to the reasons and decision of the Tribunal. There is nothing there that I can identify as a jurisdictional error. 9 Consequently, although the Federal Magistrate's Court applied the wrong test, it nevertheless reached the correct result. The appeal will be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway . Associate: Dated: 12 March 2003 Counsel for the Appellant Appellant appeared in person Counsel for the Respondent: Elizabeth Reed Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12 March 2003 Date of Judgment: 12 March 2003