FEDERAL COURT OF AUSTRALIA

SGNB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 885

MIGRATION – whether intimations from the Minister’s delegate as to her satisfaction of various matters meant that a visa had been issued – effect of various alleged failures of the delegate – whether any invalidity cured by Tribunal hearing – meaning of persecution – alleged inability of Kabul government to protect appellant from persecution by non-State actors for Convention reasons – inability due to lack of resources and control by interim government – alleged jurisdictional errors – no evidence to support conclusions of Tribunal – evidence completely inadequate to support conclusions reached by the Tribunal – conclusions of Tribunal – ‘Wednesbury unreasonable’

Migration Act 1958 (Cth) ss 47, 65, 91R, 501

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502

Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574

Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495

SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548

VMOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 188

VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 762

Calvin v Carr [1980] AC 574

SGNB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 532 of 2003

SELWAY J

22 AUGUST 2003

ADELAIDE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant to pay the respondent’s costs of the appeal to be taxed in the absence of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a Federal Magistrate.  There are two issues.  The first is whether the preliminary indications of a delegate of the Minister that she was satisfied that the appellant met certain criteria for the grant of a visa had the legal effect that a visa had been granted.  The second is whether the Refugee Review Tribunal (‘the Tribunal’) committed a jurisdictional error in finding that the government in Kabul would be able to protect the appellant from the risk of being killed by his family and others by reason of his political beliefs if he is returned to Afghanistan.  The Federal Magistrate answered ‘no’ in relation to both of these issues.  For the reasons given below I agree with the conclusions of the Federal Magistrate.  The appeal must be dismissed.

2                     The appellant is an Afghani from Kabul.  He arrived in Australia in 2001.  He was and is an ‘unlawful non-citizen’ for the purposes of the Migration Act 1958 (Cth) (‘the Act’).  He applied for a protection visa.

3                     The application was considered by a delegate of the Minister pursuant to the Act.  Section 47 and s 65(1) of the Act provide:

‘47       (1)        The Minister is to consider a valid application for a visa.

(2)        The requirement to consider an application for a visa continues until:

                        (a)        the application is withdrawn; or

                        (b)        the Minister grants or refuses to grant the visa; or

(c)                 the further consideration is prevented by section

39 (limiting number of visas) or 84 (suspension of consideration).

(3)       To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)       To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

65        (1)        After considering a valid application for a visa, the Minister:

                        (a)        if satisfied that:

(i)                 the health criteria for it (if any) have been satisfied; and

(ii)      the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

                                    is to grant the visa; or

                        (b)        if not so satisfied, is to refuse to grant the visa.’

4                     In the case of the appellant the matters about which the delegate needed to be satisfied included that the appellant was a non-citizen to whom Australia had protection obligations under the Refugee Convention as amended by the Refugee Protocol: see s 36(2) of the Act.  Australia would have such obligations if the appellant:

‘…owing to a well-founded fear of being persecuted for reason 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 his former habitual residence is unable or, owing to such fear, is unwilling to return to it.’

5                     The delegate also needed to be satisfied that there was nothing to indicate that the appellant would fail the ‘character test’: see s 501 of the Act and cl 4001 of Sch 4 of the Migration Regulations.  For present purposes it is sufficient to note that the person would not pass that test if the person had a substantial criminal record.

6                     The basis of the appellant’s original application was that he feared persecution from the Taliban government in Afghanistan by reason of his political opinion.  The appellant had spent some time studying and working in what was then the USSR and had been a member of a communist youth group.  He said that the Taliban considered him to be a communist.  He claimed to have suffered persecution from the Taliban government for this reason.

7                     On 5 December 2001, the Ministerial delegate sent an internal e-mail within the Department advising that the delegate was satisfied that the appellant had a well-founded fear for a Convention reason.  The delegate sought a Departmental approval to waive the requirement for a Belarusian penal certificate.  This certificate would have established whether the appellant had a substantial criminal record arising from the time he spent in the USSR.  The Departmental officers refused.  Further attempts were made to obtain the certificate. 

8                     At the end of 2001, the Taliban government collapsed as a result of the intervention of the various international governments.  In February, 2002 the appellant made a statutory declaration claiming that he would still be subject to persecution for a Convention reason if he were returned to Afghanistan, notwithstanding the defeat of the Taliban.  It is clear from that declaration that his claims to persecution were now based, in part at least, upon his fear of persecution by members of his family and by others in Kabul ‘because I will be associated with communism and with the Russians.’

9                     In March 2002, the delegate again seemed to reach the conclusion that the appellant had a well-founded fear of persecution for a Convention reason, but that she was still awaiting the relevant penal certificate.  On 17 April 2002, the delegate again sought the waiver of the requirement of the penal certificate.  This was again refused.  Instead in July 2002, a different delegate determined that the appellant’s claim should be rejected on the basis that the delegate was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

10                  During the hearing of the appeal I expressed concern that the Department had given no explanation as to how and why a different delegate came to make the relevant decision.  If it was established in a particular case that a particular delegate was replaced so as to ensure a particular result in that case, then there would be an obvious case of real or perceived bias.  A change in the delegate having responsibility for the matter where the previous delegate had already expressed some preliminary views favourable to the applicant could result (as it did in this case) in the applicant feeling understandably aggrieved by the process of deciding his application.  It could also potentially result in a lack of public confidence in the process.  I note that the Tribunal drew attention to this issue in its reasons.  The Federal Magistrate also mentioned it.  Following those concerns the respondent filed an affidavit with the Court which reveals that the decision to change the delegate was made for what appears to be proper administrative reasons.  Apparently the first delegate was temporarily performing the relevant duties for a fixed period which was not extended for budgetary reasons.  This meant that another delegate finalised the matter.

11                  Following the decision of the delegate the appellant applied to have the matter reviewed by the Tribunal. 

12                  I note that the Tribunal did not accept some evidence given by the appellant as to the reasons why he had had difficulties with the Taliban government in Afghanistan.  However, in all other matters there is no suggestion in the reasoning or findings of the Tribunal that it found the appellant to be other than honest and credible in the evidence that he gave.

13                   It would appear that the case put by the appellant before the Tribunal rested on two bases.  He claimed that he would be killed either by the new government or by his family and other non-State agents.  As to the first basis, the appellant said that the Mujahideen government, which was in control in Kabul, would persecute him because he was thought to be a communist.  As to this first basis the Tribunal found:

‘However, as I put to the Applicant in the course of the hearing before me, more recent advice indicates that the level of risk to persons associated, or perceived to be associated, with the former Communist (Najibullah) regime depends on whether such persons can be regarded as higher profile or low-profile. As I put to the Applicant, a Danish Fact Finding Mission was advised in May 2002 that former members of the People’s Democratic Party of Afghanistan regime were working in the interim administration, the security service and the military. The United Nations Assistance Mission in Afghanistan advised that it believed there would be no problems for low-profile former members of the PDPA returning to Afghanistan (UK Home Office, Immigration and Nationality Directorate, Country Information and Policy Unit, Afghanistan Bulletin 3/2002, dated 11 July 2002, CX65932, paragraph 33). The Applicant said that he agreed with this advice but he reiterated that his relatives and friends wanted to kill him. Having regard to the independent evidence available to me referred to above (US State Department, Bureau of Democracy, Human Rights and Labor, Afghanistan - Profile of Asylum Claims and Country Conditions, May 1998, CX32614, Section E.2, Former Members of the Najibullah and Predecessor Communist Governments; UK Home Office, Immigration and Nationality Directorate, Country Information and Policy Unit, Afghanistan Bulletin 3/2002, dated 11 July 2002, CX65932, paragraph 33), I do not accept that there is a real chance that the Applicant will be persecuted by the Government of Afghanistan by reason of any political opinion or religious belief imputed to him by virtue of his involvement in a Communist youth organization or his having lived and studied in the former Soviet Union between 1989 and 1995.’

The Tribunal also noted that there is ‘nothing in the independent evidence available to me to suggest that the Transitional Administration would encourage or condone…attacks on persons associated with the former Communist regime or who have lived or studied in the former Soviet Union.’

14                   Second, he said that his family and others would persecute him because he was thought to be a communist.  The Tribunal referred to this claim in the quotation set out above.  It is implicit in the reasons of the Tribunal that the Tribunal accepted that the appellant honestly feared that he was at risk of being killed by his family for a Convention reason.  Indeed, it is implicit in its reasons that the Tribunal accepted that this was a real possibility unless the appellant would be protected by the government in Kabul.  There was material before the Tribunal that could have led the Tribunal to doubt the truth of the appellant’s claims in this regard.  For example, the appellant had lived in Kabul with his family for 5 years after living in the USSR, apparently without being at risk from them.  His explanation for this was that ‘no-one had known that he had studied in Russia or that he had been in Russia.’  This was a surprising explanation in relation to his own family.  And other members of his family had had associations with the USSR.  Members of his family also assisted him in his escape from Afghanistan.  However, findings of creditability are ultimately within the jurisdiction of the Tribunal.  It seems clear that the Tribunal believed the appellant in relation to these matters. 

15                  Having accepted that there was a real risk that the appellant might be persecuted by his family and other private persons, the Tribunal correctly perceived that this second claim related ultimately on the capacity of the government then in control of that part of Afghanistan to which he might return to protect the appellant from ‘private persecution’ by his family and others for a Convention reason.  This necessarily raised the issue of what the practical capacity and authority of the government was.  There was some evidence before the Tribunal relating to this.  Some of the material to which the Tribunal referred made express mention of the breakdown of law and order generally in Afghanistan at that time.  This extended to Kabul, although the Tribunal correctly noted that some of the material to which it referred did suggest that the situation in Kabul was improving.  For example, the UK Home Office Bulletin referred to by the Tribunal pointed to the role of the International Security Assistance Force in improving security and reducing the crime rate in Kabul.  The Bulletin also provided:

‘ISAF is not specifically mandated to assist the Afghan police in Kabul, but is mandated to provide a stable and secure environment for the political process in support of the Interim and Transitional administrations.  Within Kabul some districts are safer than others, criminality in some areas is notorious.  Mines and structurally unsafe buildings also cause safety concerns.  The ISAF is not responsible for the protection of individuals or minority groups, and have no official authority to investigate complaints or take action. Complaints could be taken to the police, but they have a limited capacity to react in the face of a high level of crime and the domination of warlords. A judicial and legal system exists but with limited function. A Danish fact finding mission to Kabul in May 2002 reported that the security situation in Kabul was generally good although in certain areas. (particularly districts 5,6 and 7) civilian safety was poor. Crime in these areas was mainly directed against the wealthy. Some politically motivated crime was also reported, but thought to be in connection with the selection process for the Loya Jirga still underway at the time of the visit. The director of the Danish Committee for Aid to Refugees (DACAAR) did not consider that there was any ethnically motivated violence in Kabul.  The Deputy Chief of Police in Kabul stated that there are no security problems in Kabul.  He attributed the limited crime rate to economic problems.’

16                  There was other material before the Tribunal, and on which the Tribunal relied, which also dealt with the security of private individuals in Kabul.  For example, the Australian Department of Foreign Affairs and Trade (DFAT) Country Information Report No. 83/02 provided:

‘A.I CONTACTS WORKING IN UNAMA, KABUL (UNITED NATIONS ASSISTANCE MISSION IN AFGHANISTAN) HAVE REPORTED THAT, AS A GENERAL RULE, AFGHANS FROM THE VARIOUS ETHNIC GROUPS (PASHTUN, TAJIK, HAZARA, UZBEK, QIZILBASH ETC) WOULD NOT FACE SPECIFIC PROBLEMS IN RESETTLING IN AREAS WHERE THEY FORM AN ETHNIC MAJORITY. KABUL, CURRENTLY PATROLLED BY TROOPS FROM THE INTERNATIONAL SECURITY ASSISTANCE FORCE (ISAF), IS AT PRESENT CONSIDERED THE SAFEST CITY IN AFGHANISTAN FOR RETURNEES. HOWEVER, GIVEN THE HIGH LEVEL OF POLITICAL INSTABILITY AND UNCERTAINTY WITHIN AFGHANISTAN, IT IS NOT POSSIBLE TO MAKE PREDICTIONS ABOUT KABUL’S FUTURE STABILITY/SECURITY. AFGHANS FROM THE VARIOUS ETHNIC GROUPS CAN GENERALLY TRAVERSE AREAS WHERE OTHER GROUPS ARE IN THE MAJORITY. MANY PARTS OF AFGHANISTAN ARE INSECURE - BUT THE LEVEL OF LAWLESSNESS APPLIES GENERALLY RATHER THAN TO ANY ETHNIC MINORITY TRAVERSING THE TERRITORY.’ 

17                  The Tribunal dealt with the second claim in this way:

‘In considering whether the Government of an applicant’s country of nationality is powerless to protect an applicant from private persecution, the test is not whether the country of nationality is unable to ‘guarantee’ protection against persecution. Rather, the question is whether the Government of the country of nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals and whether it will provide the applicant with a level of protection sufficient to remove a real chance of persecution in the country in question by the private group concerned: see Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 681 per Lindgren J (with whom Burchett and Whitlam JJ agreed).

The Applicant referred in this context to the assassination of the Civil Aviation Minister and Minister for Tourism in the Interim Administration, Abdul Rahman, in February 2002, and the assassination of Haji Abdul Qadir, one of the three Vice-Presidents and the Minister for Building and Public Works in the Transitional Administration, in July 2002. He also referred to the general level of crime in Kabul. However, as I put to him, the Australian Department of Foreign Affairs and Trade has said that Kabul, currently patrolled by troops from the International Security Assistance Force, is at present considered the safest city in Afghanistan for returnees (DFAT Country Information Report No. 83/02, dated 2 April 2002, CX63521). The International Security Assistance Force reported in late April 2002 that the security situation in Kabul had improved significantly since its arrival and that crime rates across the city had decreased by as much as 70 per cent (UK Home Office, Immigration and Nationality, Directorate, Country Information and Policy Unit, Afghanistan Bulletin 3/2002, dated 11July 2002, CX65932, paragraph 13).’

18                  The Tribunal concluded:

‘Having regard to the evidence available to me, referred to above (DFAT Country Information Report No. 83/02, dated 2 April 2002, CX63521; UK Home Office, Immigration and Nationality Directorate, Country Information and Policy Unit, Afghanistan Bulletin 3/2002, dated 11 July 2002, CX65932, paragraph 13), I consider that, if the Applicant returns to his home in Kabul now or in the reasonably foreseeable future, he will be accorded the same degree of protection as any other Afghan national and with a degree of protection sufficient to remove a real chance of his being persecuted by his relatives or friends by reason of any political opinion or religious belief imputed to him by virtue of his involvement in a Communist youth organisation or his having lived and studied in the former Soviet Union between 1989 and 1995.’

19                  On the face of it this would seem to involve a conclusion by the Tribunal that the interim government in Kabul, at least with the assistance of ISAF, was capable of protecting the appellant if he returned there.  This does not mean that there were not problems, as the Tribunal clearly realised:

‘In their submission dated 5 August 2002 the Applicant’s representatives referred to renewed factional fighting in parts of Afghanistan and to cautions expressed by Amnesty International in particular with regard to the return of Afghan asylum seekers to Afghanistan. I accept that there is a lack of security in Afghanistan and a level of lawlessness in the country (see DFAT Country Information Report No. 83/02, dated 2 April 2002, CX63521). However, the fact that there is a lack of security in a country will not in itself make a person from the country in question a refugee. The question which must be addressed is whether the person has a well-founded fear of being persecuted for one or more of the five Convention reasons if the person returns to the countryin question: see Haji Ibrahim, referred to above. For reasons given above I do not accept that there is a real chance that the Applicant will be persecuted for a Convention reason if he returns to Afghanistan now or in the reasonably foreseeable future. The general level of lawlessness raises humanitarian considerations but, in the absence of a real chance that the Applicant will be persecuted for a Convention reason if he returns to Afghanistan, the general level of lawlessness in Afghanistan does not in itself bring the Applicant within the definition of a refugee. Moreover, as referred to above, the Australian Department of Foreign Affairs and Trade has said that the Applicant’s home city of Kabul, currently patrolled by troops from the International Security Assistance Force, is at present considered the safest city in Afghanistan for returnees (DFAT Country Information Report No. 83/02, dated 2 April 2002, CX63521).’

It is plain that the Tribunal reached the conclusion that the security situation in Kabul was sufficiently stable and controlled such that the appellant would be protected by the authorities.

20                  In the result the Tribunal was not satisfied that the criteria for the grant of a visa had been satisfied and affirmed the decision of the delegate.

21                  The appellant instituted proceedings in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking certiorari and mandamus in relation to the orders of the Tribunal and prohibition against the respondent.  As appears to be usual in these matters neither the application nor the accompanying affidavit give any hint as to the grounds upon which these orders were sought.  The application was referred to the Federal Magistrates Court.  The reasons of the Federal Magistrate are reported at [2003] FMCA 38.  As is apparent from those reasons two arguments were pursued before the Federal Magistrate.  The first was that the determinations of the first delegate on two occasions that he was satisfied as to the criteria for the grant of a visa, save only for the penal clearance, had the effect that a valid visa had already been granted with the consequence that the Tribunal had no jurisdiction and its orders should be quashed. 

22                  The second argument was that the Tribunal had made a jurisdictional error in making a finding that the government in Kabul could protect the appellant.  The basis of the alleged jurisdictional error would seem to have been put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution, or if it did then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonable’.  The appellant apparently accepted that the finding by the Tribunal that the appellant did not face a ‘real risk’ of persecution by the Kabul government itself could not be challenged.  The appellant was correct to do so.  That finding was supported by factual findings which, in the face of it, do not reveal any jurisdictional error.  Instead, the second argument put by the appellant to the Federal Magistrate rested squarely upon the basis that the government in Kabul would be unable to protect the appellant from the risk of harm by non-State agents.

23                  The appellant has appealed from the decision of the learned Federal Magistrate.  Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice has determined that the appeal should be heard by a single Judge.

24                  On the appeal the appellant has repeated the same arguments that were made before the Federal Magistrate.  I consider them in turn.

WAS A VISA GRANTED?

25                  Several possible problems can be identified in relation to the decision of the delegate not to grant a visa.  The possibility of bias has already been averted to.  The appellant points to two others potential problems.  The appellant says that the delay in processing the application constituted a ‘suspension’ of that process which, given that it did not comply with the procedures set out in s 84 of the Act, was in error.  The second error that the appellant identifies is that the delay in dealing with the application meant that the Departmental officer failed to comply with a relevant Departmental protocol that where a penal clearance has not been obtained within six weeks the requirement for such a clearance shall be dispensed with.  (The validity or authority of such a protocol, assuming it exists, was not argued before me.  Nothing in these reasons should be taken as expressing any view on that question.)

26                  The facts before the Federal Magistrate were not sufficient to establish that any of these possible problems occurred in this case.  But even if they did it would not assist the appellant.  The effect of any of these errors, if they were established, would not be that the appellant had been, or should be, granted a visa.  The effect, put at its highest, would be that the decision of the second delegate to refuse a visa was invalid and subject to being set aside on judicial review proceedings.  However the potential invalidity of the decision of the delegate, if that were established, would not mean that the decision was completely ineffective for all purposes.  Clearly enough the decision, even if invalid, would still be sufficient to enable the appellant to seek a review of that decision by the Tribunal.  Further, a proper hearing de novo by the Tribunal would cure the identified deficiencies in the hearing by the delegate assuming that they had occurred: see Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; Calvin v Carr [1980] AC 574. 

27                  What the appellant seeks to argue is first that, properly understood, the decisions made by the first delegate were, in fact, decisions to grant a visa.  The short answer to this submission is that the relevant decisions plainly were not decisions to grant a visa.  (Contrast the situation discussed by Gray J on an interlocutory application in VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 at [60]-[85]).  As the Federal Magistrate correctly pointed out, at the very best they were records that, at the particular time, the first delegate was satisfied as to some of the relevant criteria for the grant of a visa.  But it is clear on the face of the documents that the first delegate was not satisfied in relation to all of the criteria.  It is clear that the process envisaged by the Act is that the Minister (including, for this purpose, his delegate) will ‘consider’ the application for a visa under s 47 of the Act until such time as the Minister has made such inquiries as the Minister thinks are sufficient having regard to the statutory framework and requirements.  When that point is reached then, if the Minister is then satisfied that all of the relevant criteria that must be satisfied at that time are met, the visa should be issued under s 65(1)(a).  If not so satisfied then the visa should be refused.  So understood it is clear that the intimations of the first delegate that he was satisfied as to various matters could not be considered as a ‘final’ decision on anything.  Inquiries were still continuing at that stage. The point had not been reached where the relevant determination could be made under s 65(1) of the Act: see VMOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 188 at [23]-[27] per Heerey J; Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 762 at [31]-[33] per Madgwick J.  Notwithstanding the intimations that he had made the first delegate could still have changed his mind about the matters that he purported to be ‘satisfied’ about up until the time that he was satisfied as to all of the matters specified in s 65(1) of the Act.

28                  Mr Charman, who appeared pro bono for the appellant, almost went so far as to put that the visa should be taken to be granted by reason of some principle of ‘administrative estoppel’.  Even if such a principle existed there is no evidence in this case which would support its application.  In any event, I do not think that such a principle exists in Australian law, and certainly not in relation to the judicial supervision of the functions of Commonwealth officers: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 517-520 per McHugh and Gummow JJ and at 539 per Callinan J.

29                  For these reasons I am of the view that the learned Federal Magistrate was plainly correct in concluding that a visa had not been granted to the appellant.

WAS THERE A JURISDICTIONAL ERROR?

30                  The appellant repeated the argument put before the Federal Magistrate that the Tribunal had made a jurisdictional error in its consideration of the question whether the risk to the appellant from his family constituted a ‘real risk of persecution’ for the purposes of the Convention. 

31                  There are several steps in this argument.  The first is the factual foundation for it.  That is referred to above.  The Tribunal has apparently accepted that the appellant is at risk of being killed by his family or other private citizens by reason of his political views (or, at least, those that are imputed to him).    

32                  The second step involves the question of whether that risk does or could constitute ‘persecution’ for the purpose of the Convention.  Plainly enough the actions of private individuals, no matter how discriminatory and no matter how systematic, do not constitute ‘persecution’ for the purposes of the Convention.  But non-State acts may lay the foundation for a claim of persecution.  The High Court has considered this issue on a number of occasions, most recently in Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 (‘Khawar’).

33                  In that case all of the members of the Court accepted that official inaction to protect a person against non-State persecution for a Convention reason was capable, in some circumstances of constituting ‘persecution’ under the Convention and the Act.  There is a clear view in the Court that where official inaction is based on ‘tolerance or condonation’ of the non-State persecution for a Convention reason or where it is ‘selective and discriminatory’ then this is sufficient to constitute ‘persecution’ under the Convention.  (See Gleeson CJ at [29]-[31], McHugh and Gummow JJ at [84], Kirby J at [115]).  However, the position of the Court is not so clear in circumstances where the inaction is the result of a lack of capacity in the government to provide adequate resources or a lack of capacity to provide effective government.  So, for example, Gleeson CJ at [26] remarked that a failure of the police to protect a person through ‘maladministration, incompetence or ineptitude’ would not be sufficient.  On the other hand, his Honour would seem to accept that official ‘inability to do anything about it’ could constitute persecution in a context where there was a duty upon the officials to provide the relevant protection.  In their joint judgment McHugh and Gummow JJ distinguish between ‘selective and discriminatory treatment’ by authorities and inaction that was the result of the ‘shortage of resources by law enforcement authorities’ (see at [84]).  They drew attention to the differing theories adopted in foreign jurisdictions as to the possible meanings of ‘persecution’ (see at [73]-[74]) and concluded that it was unnecessary in that case to decide between them (at [75]).  Kirby J may adopt the widest view of whether State inaction can constitute ‘inaction’.  His Honour accepted that the failure of the State to protect its citizens was ‘persecution’ unless it could be established that there had been a ‘complete breakdown of the agencies of the State.’ (at [115]).  Callinan J did not need to deal with the issue, although in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 395 his Honour joined with Gummow J in approving the distinctions drawn by Gleeson CJ and by McHugh and Gummow JJ in Khawar. 

34                  The appellant submitted that the effect of Khawar, read with s 91R of the Act, was that where there was a real risk of serious harm to a person arising out of systematic and discriminatory conduct by non-State actors where the essential and significant reason for that conduct was a Convention reason, then the failure of the agencies of the State to protect that person constitutes ‘persecution’ for the purpose of the Convention and the Act.  In my view Khawar does not go so far.  On the other hand, I do not think Khawar stands for the proposition that the inability of a government through lack of resources or effective control to protect its citizens from non-State persecution is not ‘persecution’ for the purpose of the Act: contrast von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 at [6].  I think that the High Court has not finally resolved that issue.

35                  However, the appellant does not need to rely upon Khawar.  The Federal Magistrate and the Tribunal proceeded on the basis that if official State agencies could not ‘provide the appellant with a level of protection sufficient to remove a real chance of persecution in the country in question by the private group concerned’ there was ‘persecution’ for the purpose of the Convention and the Act.  In doing so both the Federal Magistrate and the Tribunal relied on the judgment of this Court in Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 (‘Prathapan’) at 681 per Lindgren J (see also at 678).  I think that some of the reasoning in that case may be inconsistent with at least some of the reasoning in Khawar.  Nevertheless, for present purposes it was sensible for both the Tribunal and the Federal Magistrate to proceed on the basis that the conclusion reached by Lindgren J in Prathapan still represents the law in this Court.  I propose to do the same. 

36                  Proceeding on that basis the first question is whether there was any evidence before the Tribunal which would enable it to reach the conclusion that the government in Kabul would or could protect the appellant if he returned there.  The appellant says no.  If the appellant is right in that it might well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357.  But the appellant is not correct in that.  There was evidence before the Tribunal to show that the security situation in Kabul was under some control.  Given the existence of that evidence and the general assumption (even if not a presumption) that governments, in fact, govern, then it was a matter for the Tribunal as what weight and significance it gave to that evidence and assumption.

37                  This general comment is subject to at least one relevant qualification.  If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20’) at 62, 67, 76, 90-91.  The appellant’s argument seemed to suggest that, even if there was some evidence upon which the Tribunal could reach the conclusion that the government in Kabul could protect the appellant, the evidence was so poor or inadequate that the Tribunal should not have relied upon it.  Presumably this was an argument that the Tribunal committed a jurisdictional error of the sort referred to in S20.  The short answer to it is that the conclusion reached by the Tribunal was open to it.  The Tribunal acknowledged that the Kabul government faced considerable difficulties in securing the safety of its citizens.  But the evidence before the Tribunal was sufficient for it to have the jurisdiction to reach the conclusion which it did reach, namely that the appellant ‘will be accorded the same degree of protection as any other Afghan national and with a degree of protection sufficient to remove a real chance of his being persecuted by his relatives or friends by reason of any political opinion or religious belief imputed to him by virtue of his involvement in a communist youth organisation or his having lived and studied in the former Soviet Union between 1989 and 1995.’  This is not to say that the Tribunal was correct in reaching that conclusion, or that this Court would have done so on the same information.  It is not the function of this Court to express any views on those questions.  It is merely to say that there was no jurisdictional error in the Tribunal reaching the conclusion that it did.   

38                  This is the result reached by the learned Federal Magistrate in relation to the second argument put to him.  In my view that result was correct.

39                  Consequently the appeal will be dismissed with costs.

Associate:

Dated:              22 August 2003