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MIGRATION - Review of decision of RRT - applicant ethnic Hazara from Afghanistan - decision of Tribunal that he had no well founded fear of persecution - applicant refuted indications of safety - no reviewable error found.

WAHZ v Minister for Immigration [2002] FMCA 264 (8 November 2002)

WAHZ v Minister for Immigration [2002] FMCA 264 (8 November 2002)
Last Updated: 11 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHZ v MINISTER FOR IMMIGRATION
[2002] FMCA 264



MIGRATION - Review of decision of RRT - applicant ethnic Hazara from Afghanistan - decision of Tribunal that he had no well founded fear of persecution - applicant refuted indications of safety - no reviewable error found.



Migration Act 1958 (Cth) s.474

Applicant:
WAHZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 179 of 2002



Delivered on:


8 November 2002



Delivered at:


Sydney



Hearing Date:


1 November 2002 via videolink to Perth



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr A A Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 179 OF 2002

WAHZ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan of Hazara ethnicity and Shi'a Muslim religion. He arrived in Australia on 22 August 2001. On 14 November 2001 he lodged an application for a Protection (Class XA) Visa which was considered by the delegate to the Minister for Immigration and Multicultural and Indigenous Affairs under the Migration Act. On 1 May 2002 the delegate refused to grant a protection visa and on 8 May 2002 the applicant applied for a review of that decision. The applicant is in detention in Baxter in Western Australia.

2. The Refugee Review Tribunal decided on 27 June 2002 to affirm the decision not to grant a protection visa. The applicant sought review of that decision first before the Federal Court. By Order of Justice Lee dated 19 August 2002 the matter was referred to this court.

3. In his application the applicant alleges he is aggrieved by the Tribunal's decision because:

"He is a Harara religion is Shi'a and from Afghanistan. The Tribunal's decision that he has no fear in Afghanistan and can live a life in. But still he has fear from Pashtuns and Politions [sic] groups."

4. The grounds of the application are:

"I am a forty-five year old man from Afghanistan. My ethnicity is Hazara and my religion is Shi'a. I know everything about my country religion customs. I have been persecuted by the Taliban and by Pashtuns that is right Taliban is no more in Afghanistan. But they are not removed not killed. Just they changed their name their groups and still the Pashtuns which I have fear they are in power and the rulers so I seek of protection from honourable members."

5. Although the usual orders for the filing of an amended application and grounds of review were made, they were not complied with.

6. The decision of the Tribunal sets out in some detail the claims made by the applicant of his fear about returning to Afghanistan. He lived in the Ghanzi province, which the Tribunal found to be an Hazara enclave. The applicant submitted that it was surrounded by Pashtuns. The applicant had claimed that his young brother of nineteen had been taken by the Taliban and that he was still in fear of them. He felt that it would be impossible to reach his home town because to do so he would have to travel through the Pashtun held areas. Even if he did arrive safely, life would be difficult for him surrounded by Pashtuns.

7. The Tribunal examined a considerable quantity of evidence concerning the situation as it was in June 2002 when the review was carried out. It came to the conclusion that the Taliban were no longer a cause for concern or fear within Afghanistan. The Tribunal also indicated that it accepted the country information that the governing body of that country was broad based and included Hazara representation. Whilst noting the existence of occasional disputes between Afghan people it did not accept that the applicant would be persecuted by reason of his ethnicity or religion.

8. When the matter came before me I explained to the applicant the limitations upon the ability of the court to review a decision of the Refugee Review Tribunal since the amendments which have been made to the Migration Act and in particular the inclusion of s 474. The applicant made submissions which fell into two classes. The first was a repeat of the matters which he had taken up with the Tribunal, being his fear of returning to his country because of the dangers he saw from the Pashtuns. These are matters which go to the merits of the applicant's claim and were dealt with by the Tribunal. It is not within the power of the court to interfere with decisions made on this basis.

9. The second set of representations made by the applicant appeared to be a new claim that if he returned to Afghanistan he would be imputed with a political affiliation with the Communist Party. This would be very dangerous for him and might result in him being persecuted. He said the identification documents which he had either brought with him or obtained and which are found at [CB 34 to 42] indicated that he had served in the army during the time of the Russian occupation and that this would be known upon his return.

10. The difficulty I have with this claim is that it does not appear to have been made before the Tribunal. The applicant said that it was clear from the document that he had been involved with the Communist Party but the clarity only came with his explanation of the effect of the words in the documents that indicated that he had undertaken military service at that time. The court is unable to review a decision based upon new evidence which was not before the Tribunal or upon an interpretation of evidence that was before the Tribunal although the Tribunal was not asked to interpret it in that matter.

11. I am unable to assist the applicant. There is nothing in the application or in his submissions to me which suggests the complaint against the Tribunal that might circumvent the privative clause contained in s 474. A reading of the Court Book indicates that the Tribunal made a decision about the ability of the applicant to return to Afghanistan based upon available material. Whilst it is not clear whether all this material was put directly to the applicant, it appears clear from the face of the record that he understood that he was obliged to argue against an indication that Afghanistan was now a place to which its exiled nationals could return in reasonable safety. The submissions he made to the Tribunal were intended to belie such a finding.

12. The applicant was represented by Immigration Agents before the Minister's delegate and they made submissions found at [CB 45 to 52] concerning the current position in that country. These submissions were before the Tribunal and were taken into account in coming to the conclusion that it did.

13. In all these circumstances I am unable to find any reviewable error on the part of the Tribunal. I dismiss the application. I order that the applicant pay the respondent's costs which I assess pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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