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MIGRATION - Review of decision of Refugee Review Tribunal - no grounds for review shown.

WAGN v Minister for Immigration [2002] FMCA 138 (12 July 2002)

WAGN v Minister for Immigration [2002] FMCA 138 (12 July 2002)
Last Updated: 19 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGN v MINISTER FOR IMMIGRATION
[2002] FMCA 138



MIGRATION - Review of decision of Refugee Review Tribunal - no grounds for review shown.



R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 at 616

Boakye-Deanquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438

Kwan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 498

SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101

Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594


Migration Act 1958, ss. 475A, 476, 474

Applicant:
WAGN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 111 of 2002



Delivered on:


12 July 2002



Delivered at:


Perth



Hearing Date:


9 July 2002



Judgment of:


Phipps FM



REPRESENTATION

Solicitors for the Applicant:


In Person



Counsel for the Respondent:


Mr Allanson



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) THAT the application is dismissed.

(2) THAT the Applicant pay the Respondents costs fixed at $4,300.00

(3) THAT the court certifies that it was reasonable to employ an advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 111 of 2002

WAGN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. Application is made to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 16 April 2002 affirming the decision not to grant a protection visa to the applicant.

2. The applicant arrived in Australia in August 2001. His arrival was not authorised.

3. By application dated 2 March 2002 the applicant sought a protection visa on the basis of a well founded fear of persecution in Afghanistan. The applicant claimed:

a) To be a Shi'a Muslim and ethnically a Hazara;

b) To have left Afghanistan because of the persecution of the Hazara by the Taliban;

c) About three or four years ago to have been stabbed by a member of the Taliban.

4. The delegate of the minister refused that application and the applicant lodged an application with the Tribunal to review that decision.

5. The applicant was invited to attend the hearing of the Tribunal on 20 March 2002. By letter to the applicant's adviser dated 8 March 2002 the Tribunal drew attention to the changed circumstances in Afghanistan, and the affect of that change on the applicant's fear of persecution by the Taliban.

6. On 19 March 2002 the applicant's advisers lodged a written submission addressing in detail the change of circumstances together with a hand written statement on behalf of the applicant. Not withstanding the changed circumstances the applicant claimed to fear persecution on account of his religion and ethnicity on the basis;

a) the treatment of the Hazara people by the Pashtoon who formed the majority in the interim government and were in control of the applicant's home province;

b) that it was impossible to predict future events in Afghanistan in its state of political turmoil;

c) the threat that the Taliban would return.

7. The Tribunal's reasons set out the relevant legislation and the definition of refugee under article 1A(2) of the 1951 Convention relating to the status of refugees. It set out various High Court decisions concerning this definition. It then set out the claims and the evidence including that the applicant gave oral evidence to the Tribunal on 20 March 2002.

8. In a statutory declaration, which the Tribunal sets out in its reasons, the applicant stated his basic personal details and the circumstances which gave rise to his claim for a well founded fear of persecution. He is a Hazara and Shi'a Muslim. One day he was walking by the river near his village listening to a tape recorder. He passed the house of a man who told him that the tape recorder was too loud. An argument developed and the applicant was stabbed. He spent eight days in hospital. He said that his father could not do anything because the person who had stabbed him was a member of the Taliban and always reported everything that happened in the village to the Taliban.

9. The applicant had been smuggled out of Afghanistan. Two days before being smuggled out, the Taliban had come to his village asking for one male from every house to go with them to the front. He said that they took details of everyone in the village and said that they would return two days later to collect every person whose name had been put on a list. The applicant's father told him that he was on the Taliban's list. The applicant said that the Taliban frequently took Hazara to the front line where they were either made to charge the enemy or were shot by the Taliban. Plans were then made for his escape and he left for Kandahar with his father and uncle where his father paid US $4,000.00 to a smuggler. Eventually he arrived at Christmas Island.

10. The Tribunal accepted that the Hazaras have traditionally been an underprivileged minority in Afghanistan. The Tribunal said this

The Tribunal accepts that under Taliban rule Hazaras generally faced some degree of risk of harm by the Taliban by reason of their ethnicity and religion (shias), as documented in a range of material about the years of Taliban rule. The Tribunal accepts that in the applicant's area (as elsewhere in Afghanistan) the Taliban press the young men for military service, and that they may have targeted young Hazaras for this purpose, including "cannon fodder" on the front lines. The Tribunal has not cited specific country information on this point because it is no longer the point of issue so far as the applicant is concerned.

11. The Tribunal accepted that the applicant was Hazara and accepted the evidence that he gave about his personal circumstances, including the attack on him by the Taliban member of his village. It accepted that he was on a Taliban list and likely to be taken for military service.

12. The Tribunal identified the issue for it to decide whether in light of the charged circumstances in Afghanistan, there was a real chance that the applicant would be persecuted for a Convention reason now or in the reasonably foreseeable future. It found that there was no such real chance.

13. The applicant was unrepresented in the hearing before me. The substance of his complaint about the Tribunals finding was that other Hazara had been granted protection visas but he had not. The power of the court to review a decision of the Tribunal is limited by the provisions of part 8 of the Migration Act 1958, specifically Sections 475A and 476. This limits review to what are described as the Hickman grounds of review, stated by Dixon J in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 at 616. The operation of the Hickman grounds of review, in relation to Section 474 of the Migration Act has been accepted and applied in a number of decisions handed down by single judges of the Federal Court.

14. There are different views as to the extent of review now available - Boakye - Deanquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 (Wilcox J); Kwan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 498 (Finklestein J); SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101(Mansfield J); Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594 (North J).

15. What is beyond doubt is that questions of fact are matters for the Tribunal not matters for a court on review.

16. The applicant's basic claim was that the overthrow of the Taliban regime in Afghanistan by the Northern Alliance assisted by a foreign alliance had not changed the situation in Afghanistan. His claim was that most of the Taliban remained in Afghanistan, that the Taliban are Pashtoon, that power resided with the Pashtoon and that the Pashtoon hate Hazaras. The argument was that the security situation in Afghanistan was so tenuous and uncertain that persecution of particular people could not be prevented by the interim authority. The resolution of this question of fact was for the Tribunal. The Tribunal considered the evidence in detail and concluded that the change in situation meant that there was not a fear of persecution as required by the Convention definition.

17. The Tribunal also considered the applicant's contention that if he returned the Pashtoon neighbour who had stabbed him would kill him or else other Pashtoon would accuse him of propagandising against the administration and kill him. Again, the Tribunal considered the evidence. Again this was a question of fact to be decided by the Tribunal and it found neither to be correct.

18. The stabbing the Tribunal found, was a random act of spontaneous savagery by someone with connections to the then ruling Taliban. The Tribunal did not accept that the same person, if still there, would be motivated to attack the applicant again bearing in mind that he could no longer draw on his Taliban connections for protection. As to the second claim having found that the Pashtoon did not control the central government, the Tribunal said that it was able to be satisfied the applicant's absence would not be apparent to or any interest to any person of that ethnic group. The Tribunal concluded with this;

In short, the recent changes in Afghanistan constitute, for a person such as the applicant, such a fundamental change in circumstances that the Tribunal is satisfied that he does not have a well founded fear of persecution for a convention reason if he were to return to Afghanistan. The Tribunal does not accept that there is a real chance that the applicant would be persecuted now or in the reasonably foreseeable future by the Taliban or by the Pashtoon generally or by any other group, whether by reason of his ethnicity or religion or any other convention reason.

19. This is a finding of fact by the Tribunal. The fact that different findings have been made in relation to other Hazara people is not a basis for attacking this decision. Indeed, the fact that different findings have been made in other cases is not a basis for suggesting that the finding of fact in this case is wrong. Each case must be decided on its own evidence.

20. The applicant advanced no other criticism of the Tribunal's decision and reasons. None other is apparent. The Tribunal accepted the applicant's evidence about his personal circumstances. It accepted the position of the Hazara people under the Taliban. It specifically raised with the applicant and his adviser well before the hearing, the issue on which the application was decided. It considered that issue in detail. That was the changed circumstances in Afghanistan.

21. The application for review therefore, must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date:
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