SWNB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1606

FEDERAL COURT OF AUSTRALIA

SWNB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1606 SWNB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 156 of 2004 SELWAY J 16 NOVEMBER 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 156 OF 2004

BETWEEN: SWNB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 16 NOVEMBER 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the costs of the respondent. 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 SAD 156 OF 2004

BETWEEN: SWNB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 16 NOVEMBER 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 In this matter the applicant seeks orders for the grant of writs of certiorari, prohibition and mandamus relating to the decision of the Refugee Review Tribunal ('the Tribunal') dated 18 June 2004. 2 The applicant is a citizen of Afghanistan. He is of Hazara ethnicity and from Oruzgan Province. He is of the Shi'a Muslim faith. He arrived in Australia on 30 January 2001. He applied for a temporary protection visa (subclass 785). Indeed, he was not entitled to apply for a permanent visa because he had not obtained 'immigration clearance'. In order to be granted that temporary visa, the Respondent ('the Minister') had to be satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugee Convention: see s 36(2)(a) of the Migration Act 1958 (Cth) ('the Act'). In general terms, the Minister had to be satisfied that the applicant was a person who: '… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or who, not having a nationality and being outside the country of former habitual residence is unable or, owing to such fear, is unwilling to return to it.' 3 On 2 April 2001, the applicant was granted a temporary protection visa. On 10 January 2002 the applicant applied for a permanent protection visa. In order to obtain such a visa, the Minister had to be satisfied that Australia owed protection obligations to the applicant. This is plain from the terms of 866.22 of sch 2 of the Migration Regulations, if not from section 36(2) of the Act. 4 The application for a permanent visa was refused by a delegate of the Minister on 31 December 2003. On 16 January 2004 the applicant applied to the Tribunal for a review of that decision. The applicant's claims can be summarised as involving a fear of persecution from the Taliban or from persons associated with the Taliban by reason of the applicant's Hazara ethnicity and his Shi'a religion. The Tribunal approached its task on the basis that the applicant had already been found to be a refugee in relation to his application for a temporary protection visa. As the Tribunal said: 'The applicant was recognised by Australia as a refugee in April 2001on the basis of circumstances then prevailing in Afghanistan. Therefore, for the purposes of the Convention, he remains a refugee in relation to those circumstances unless one of the cessation clauses in Article 1C applies. The provision that is relevant to the facts of this case is Article 1C(5). The Tribunal has therefore considered whether, in accordance with Article 1C(5) of the Convention, the applicant can no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee have ceased to exist.' 5 The Tribunal then proceeded to consider whether the circumstances in Afghanistan had changed, such that article 1C(5) of the Convention applied. That article provides: '(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.' 6 The Tribunal looked at various 'country' information and concluded that the situation had changed. The Tribunal said: 'The targets of the attacks described above have principally been government and international agencies and foreign troops supporting the government. Although there have been civilian casualties, there has been no widespread or organised targeting of ethnic and religious groups as occurred during the period when the Taliban were in power. The attacks have occurred mainly in the southern and eastern border regions. Despite the instability they have created, there is no evidence before me which indicates that the remnants of the Taliban and their allies have the capacity to regain control of Afghanistan. I have considered the submission from the applicant's adviser suggesting that even though the Taliban may not pose a direct threat to the applicant today but may do so in the future, however on the basis of the independent information before me I am satisfied that the commitment of the international community to the political processes agreed in Bonn in December 2001, and the progress which has been made so far in establishing a new form of government for Afghanistan, is such that there is not a real chance of the Taliban regaining power in Afghanistan in the reasonably foreseeable future. I therefore find that the circumstances in connexion with which the applicant was recognised as a refugee have ceased to exist, and accordingly he can no longer continue to refuse to avail himself of the protection of his country of nationality for reason of these circumstances. Therefore, Article 1C(5) of the Convention applies to the applicant.' The Tribunal also found that section 36(3) of the Act was applicable. That section provides: 'Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.' As to that section, the Tribunal said: 'Even if I was wrong in my conclusion about the application of Article 1C(5), I find that the applicant is not a person to whom Australia has protection obligations in relation to the circumstances in connection with which he was recognised as a refugee, because of the operation of s.36(3) of the Act. As explained above, if a previously recognised refugee no longer has a well-founded fear of being persecuted in his or her country of nationality for one or more of the Convention reasons, and has not taken all possible steps to avail himself or herself of a right to enter and reside in that country, s.36(3) will apply, irrespective of the operation of the cessation clauses. I find that, as a national, the applicant is able to avail himself of a right to enter and reside in Afghanistan and that, having regard to the changed circumstances since he was recognised as a refugee, he no longer has a well-founded fear of being persecuted in that country because of the circumstances in connection with which he was so recognised. It follows that s.36(3) applies in relation to those circumstances.' 7 Finally, the Tribunal separately considered the applicant's claims to be a refugee. For that purpose, it applied article 1A(2) of the Convention. It considered in some detail the particulars of persecutory treatment alleged by the applicant. It did not accept the applicant's credibility. It found that he was not a witness of truth. More generally, the Tribunal concluded: 'The applicant comes from a majority Hazara populated district in the north of Oruzgan which is part of the Hazarajat. Although I accept that there may still be some elements of discrimination against Hazaras and Shi'as in Afghanistan today I find that this discrimination is not of the nature that would amount to serious harm for the purposes of the Convention. I therefore find if he were to return to Afghanistan today or in the reasonably foreseeable future there is no real chance that the applicant would be subject to persecution for his Hazara ethnicity or his Shi'a religion, especially in the applicant's own district to which I find that he would return to if he were to return to Afghanistan. The applicant claims that he would be at risk in Afghanistan because of the fear he would be persecuted by religious fundamentalists because he was a returnee from a western country who would be perceived as having been influenced by infidels in the west. However as was put to the applicant at the hearing the Australian Department of Foreign Affairs and Trade has advised strongly that "Western returnees" are not at risk in Afghanistan and that returnees are not targeted merely for having resided in the west (DFAT Country Information Report No. 127/03, dated 30 September 2003, CX86321). I therefore find that there is no real chance that the applicant would be persecuted as a western returnee if he were to return to Afghanistan today or in the reasonable foreseeable future. I note for the sake of completeness that there is no evidence of which I am aware to suggest that the applicant would face any harm in travelling to his own area in the Daikundi district of Oruzgan province if he were to return to Afghanistan today or in the reasonably foreseeable future and further note that no such claim has been made by the applicant. I find that the applicant's fears are not well founded.' 8 In the result, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. 9 The applicant says that the decision is invalid. The applicant submits that the Tribunal has made one or more jurisdictional errors. 10 The applicant says that the Tribunal has misunderstood the interrelationship of cl 1C(5) of the Convention and ss 36(2) and (3) of the Act. The applicant argues that the Tribunal is obliged to find that an applicant for a permanent visa, who has already been determined to be a refugee in relation to a temporary visa, continues to meet the requirements of s 36(2) of the Act, unless article 1C(5) of the Convention applies. 11 The applicant then argues that the Tribunal misapplied article 1C(5) of the Convention. The applicant says that that paragraph requires that a change in circumstances be 'substantial, effective and durable'. The applicant says that the Tribunal did not apply that test. 12 These issues were considered by Emmett J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373. His Honour's analysis seems to me to be plainly right and I adopt and apply it. His Honour reached the following conclusions: 1. Where the Tribunal is considering the grant of a fresh visa, including a permanent protection visa, the Tribunal is required to determine at the time of its decision whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Article 1C(5) does not necessarily have any role in that decision. I note that Dowsett J reached a similar conclusion in the case of QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448. 2. In making that decision, the tribunal may start with a position that the Refugees Convention applied to the applicant as at the date he was granted a temporary protection visa and then ascertain whether the circumstances in connection with which the applicant had been recognised as a refugee had ceased to exist. 3. Even if article 1C(5) of the Refugee Convention was applicable, it did not require that there be a 'sustainable, effective and durable' change; merely that there had been a change such that the applicant no longer had a well-founded fear of persecution if he was returned to his country of origin. 4. Section 36(3) of the Act should be interpreted in its usual and ordinary meaning. So interpreted, it adds little to the terms of section 36(2) of the Act where the issue involves the return of the applicant to his country of nationality.' 13 There are two matters I would wish to add to that analysis. The first is that a person having been previously found to be a refugee would in my view have a legitimate expectation that that status would remain. I say this notwithstanding the fact that status is no longer itself a criterion for eligibility under s 36(2) of the Act. Consequently, the person should be given the opportunity to comment specifically on any issues that may cause the decision‑maker to reach a different conclusion. It should also be specifically addressed by the decision‑maker in his or her reasons. Of course these obligations for a fair hearing may need to be complied with in any event, even apart from whatever extra obligations that might arise from the legitimate expectation based upon a previous finding that the person was a refugee. 14 In any event, as the applicant accepts, the obligation to afford him a fair hearing was met in this case. 15 Secondly, in my view the obligation to consider whether Australia has protection obligations at the time of the grant of a permanent visa flows from par 866.22 of Sch 2 of the Migration Regulations. For my part, I would leave open the question whether s 36(2) of the act itself requires a result that every decision in relation to a protection visa must be a decision de novo. It seems to me to be at least arguable that a regulation could be made adopting a criterion by which previous decisions made under s 36(2) can be applied without the Minister needing to be satisfied ab initio. Indeed, it would seem from the reasons of Emmett J that he accepted that that was a possibility. 16 In my view, the reasons of Emmett J are a complete answer to the issues raised by the applicant in relation to the interrelationship of the various provisions. They have the effect that the decision of the Tribunal on any of the three bases adopted by it was sufficient to justify the decision reached. In particular, those reasons mean that the de novo analysis by the Tribunal of whether Australia had protection obligations to the applicant at the time of its decision was a sufficient basis for its decision. 17 The applicant also complains that the decision of the Tribunal was illogical or unreasonable. I assume that this is an allegation of Wednesbury unreasonableness; that is, that the Tribunal reached a decision that no rational Tribunal could have reached. The applicant argues that the Tribunal failed to take adequate account of the information available to it and misunderstood that information. Alternatively, the applicant says that the Tribunal failed to deal with an integer of the claim that had been made. 18 As is clear and was conceded by the applicant, decisions of fact, even erroneous decisions, are within the jurisdiction of the Tribunal. However, in this case the applicant says that the Tribunal only considered the question whether there was a real risk of persecution from the Taliban if it was returned to government. The applicant says that no consideration was given to the claim he actually made, which was that the Taliban or persons associated with the Taliban were still effective at or near the place where the applicant lived, and that the inadequacy of state protection was such that the applicant had a well-founded fear of persecution for a convention reason. In my view, the Tribunal did not fall into this error. As the Tribunal said in its reasons: 'In light of this information, I find that the Taliban no longer governs or administers Afghanistan or has the capacity to act as a de facto government in any way. Nevertheless, although they have been removed from government, former Taliban and their allies continue to cause serious security problems for the Karzai administration and coalition forces in some parts of Afghanistan.' 19 However, the Tribunal went on to hold that those security problems were principally directed against government and international agencies and foreign troops and that there was no widespread or organised targeting of ethnic and religious groups, although there had been civilian casualties. It is sufficient to say that the decision does not seem to me to be Wednesbury unreasonable and that the Tribunal did consider the claim before it. Whether or not I would have come to the same conclusion is not to the point. Any error was within the jurisdiction of the Tribunal. 20 Finally, the applicant says that the Tribunal failed to apply the correct test of 'persecution' to the facts. The applicant accepts the Tribunal stated the test correctly. The applicant says that the Tribunal found that Hazaras and Shiites were suffering 'discrimination', but not 'serious harm'. The applicant said that on the material before the Tribunal the relevant discrimination against Hazaras and Shiites included acts of murder, rape, forced removal of children and other serious human rights abuses. The applicant says that these clearly fell within 'serious harm'. 21 It is obvious that if the Tribunal fell into error as alleged, there would be a jurisdictional error. But the alleged error can only be established by inference from the material that was before the Tribunal. In this case that material did suggest that the people of Afghanistan, including Hazaras and Shiites were subject to risks of murder, rape and so on. However, the material before the Tribunal did not lead to the inevitable conclusion that the dangers being faced by the citizens of Afghanistan were being faced by them for 'convention reasons'. That in fact would seem to be what the Tribunal found, that whilst Hazaras and Shiites still faced discrimination it did not amount to serious harm by reason of their race and religion. Again, if there was any error in this analysis, it was not a jurisdictional error. 22 For these reasons the application must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.