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MIGRATION - Application for review of decision of Refugee Review Tribunal - applicant Afghanistanian - Hazara Shi'a/Muslim - application for review of decision of Refugee Review Tribunal, whether applicant had a "well founded fear of persecution" despite the fall of the Taliban - no grounds available for review - application dismissed.

WAHK v Minister for Immigration [2003] FMCA 1 (7 January 2003)

WAHK v Minister for Immigration [2003] FMCA 1 (7 January 2003)
Last Updated: 17 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHK v MINISTER FOR IMMIGRATION
[2003] FMCA 1



MIGRATION - Application for review of decision of Refugee Review Tribunal - applicant Afghanistanian - Hazara Shi'a/Muslim - application for review of decision of Refugee Review Tribunal, whether applicant had a "well founded fear of persecution" despite the fall of the Taliban - no grounds available for review - application dismissed.

Migration Act 1958, s.474

Federal Court of Australia Act 1976

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

FCA 1108

Minister for Immigration & Multicultural & Indigenous Affairs v Yusef [2001] 180 ALR 1

MIEA v Guo (1997) 191 CLR 559, 575

NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294



Applicant:
WAHK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 171 of 2002



Delivered on:


7 January 2003



Delivered at:


Melbourne via video link to Perth



Hearing Date:


23 December 2002



Judgment of:


Bryant CFM



REPRESENTATION

Counsel for the Applicant:


Applicant appeared in person



Solicitors for the Applicant:


Applicant appeared in person



Counsel for the Respondent:


Ms Price



Solicitors for the Respondent:


Blake Dawson & Waldron



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


WZ 171 of 2002

WAHK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Background

1. The applicant is a national of Afghanistan and arrived in Australia on 22 August 2001. The applicant applied for a protection (class XA Visa) on 4 September 2001. On 30 November 2001 a delegate of the Respondent made a decision refusing to grant a protection visa to the applicant.

2. On 10 December 2001 an Application was made to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. The Tribunal conducted a hearing of the Application in March 2002 at which the applicant gave oral evidence assisted by an Interpreter. The Tribunal decision affirming the delegates decision not to grant the applicant a protection visa (class XA Visa) was made on

29 May 2002

3. On 14 June 2002 the applicant filed with the Federal Court an Application for Review of the Tribunal's decision. On 13 August 2002 the Federal Court transferred the Application to the Federal Magistrates Court under s.32AB of the Federal Court of Australia Act 1976.

4. The Minister's delegate had initially taken into account a linguistic analysis which suggested that the applicant had not recently lived in Afghanistan and had spent the major part of his life in Pakistan. This was completely at odds with the Application made by the applicant in which he asserted that he always lived in Afghanistan and he was a ethnic Hazara of the Shi'a faith and had been persecuted by the Taliban and others. The Minister's delegate, acting upon the linguistic analysis, rejected the applicant's assertion that he resided in Afghanistan for all his life and found that he had spent most of his life in Pakistan. As a result he rejected the applicant's claim to have experienced mistreatment which amounted to persecution at the hands of the Taliban in Afghanistan as he did not accept that the applicant had recently resided in Afghanistan.

5. The applicant sought to review that decision to the Refugee Review Tribunal. Prior to the matter being dealt with by the Tribunal the applicant had obtained his own linguistic analysis which supported his claim to be Afghani.

The Refugee Review Tribunal's decision

6. Faced with conflicting linguistic analyses the Tribunal accepted that the applicant is a Shi'a Hazara citizen of Afghanistan and he lived in Afghanistan before he departed for Australia.

7. The Tribunal was satisfied that the applicant fled Afghanistan and because he is a Hazara Shi'a Muslim he feared persecution for reasons of his race and religion. The Tribunal noted his claims that he and his family were harassed and mistreated by the Taliban, and that his brother was killed. The Tribunal accepted that those claims were consistent with the country information and may well be true.

8. The Tribunal noted that the applicant stated that he feared if he returned to Afghanistan he would be killed by the Pashtuns because they were against his race and religion. The Tribunal noted that the applicant stated that those who were in power when he left Afghanistan are still in power and nothing had changed. He stated the remnants of Taliban who remain in his home region of Ghazni will seek to harm him. The Tribunal accepted that the applicant's state of fear is genuine.

9. The Tribunal accepted that at the time of his departure from Afghanistan the applicant was at risk of persecution by the Taliban due to his race and religion.

10. The applicant argued that nothing had changed in Afghanistan and the Taliban had just changed their names and shaved off their beards. He argued that the area in which he came from was inhabited by the Pashtuns Tribe who had made the Hazara people their enemy and that notwithstanding the Taliban were no longer in power he feared persecution from the Pashtuns, were he to return to Afghanistan. He submitted to the Tribunal that the interim government of Afghanistan has not had the ability to provide any protection from harm from groups other then the Taliban and that there was a high probability of the recurrence of persecution of the Hazaras in Afghanistan based on the history of persecution and conditions similar to the current situation. Persecution would be for reasons of his Hazara ethnicity, and Shi'a religion.

11. The Tribunal accepted that country information referred to supported the applicant's claim that Shi'a Muslims, Hazaras, and all political opponents of the Taliban were at risk of suffering persecution while the Taliban effectively governed Afghanistan. The Tribunal accepted that the time of his departure from Afghanistan that the applicant was at risk of persecution by the Taliban because of his race and religion.

12. The Tribunal however did not accept that the position in Afghanistan had not changed. The Tribunal found itself satisfied that the Taliban had effectively been eliminated as a political and military force in Afghanistan and no longer governs or administers Afghanistan. The Tribunal was not satisfied that situation was essentially unchanged or that the Pashtuns control the interim government. The Tribunal noted that Pashtuns have about 8 of the ministerial positions while Hazaras hold 5 portfolios in the new Afghan government including planning, transport and education. There are also non-Hazara Shi'as in the interim government.

13. The Tribunal accepted that there has been some historical marginalisation of Hazaras in Afghanistan and that Hazaras had been accorded low status in Afghanistan. However the Tribunal also noted that despite the current media spotlight on Afghanistan there has been no report or suggestion of any persecution of Hazaras since the fall of the Taliban last year nor any reports of any present mistreatment of Hazaras or Shi'as (by the Northern Alliance or by Pashtuns or any other group). The Tribunal also noted that the applicant claimed that the Hazaras are unarmed and defenceless and presumably at risk of being mistreated by other groups but noted evidence of formidable Hazara militia.

14. Accordingly, the Tribunal was not satisfied on the available evidence that Hazara's in Ghazni are generally at risk of persecution in the foreseeable future or the applicant would face a real chance of persecution from Taliban or others on return to Afghanistan. The Tribunal was not satisfied that the applicant has a real chance of persecution from Pashtuns should he return to Afghanistan.

Did the Refugee Review Tribunal err?

15. The Court is concerned with whether or not the Tribunal in coming to its decision exercised the jurisdiction given to it. Since the decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 as comprehensively explained by Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108, (and approved by the Full Court in NABM of 2001 v MIMIA (2002) FLAFC 294) it is clear that s.474 of the Migration Act 1958 (Cth) has so widened the power of the Tribunal, it is only a failure to exercise its decision-making powers in a bona fide manner that now provides grounds for review.

16. I have carefully read the submissions prepared on behalf of the applicant. In paragraph 23 of his submissions the applicant argues that the Tribunal did not consider the reasons the applicant had to leave Afghanistan and cannot return in the future. He argued that the danger to the applicant remains from the Pashtuns Tribe and that it was erroneous on the part of the Tribunal to find that there is no danger in Afghanistan. It is clear that the Tribunal did consider all of the reasons put forward by the applicant as to why he feared persecution should he return. It is also clear that the Tribunal turned to the "country information" and reached its own conclusions on the basis of that information.

17. The applicant contends that s.474 of the Migration Act 1958 does not preclude review of decisions amounting to jurisdictional error. The applicant relies upon the minority view in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs and contends Wilcox J and French J did not preclude from review, decisions that fail to afford natural justice to the applicant and did not exclude jurisdictional error from review. The applicant contends that jurisdictional error in the present case was the failure by the Tribunal to apply the proper test for a "real chance" of persecution in the future. The applicant relies upon the comments of the High Court in MIEA v Guo (1997) 191 CLR 559, 575 where the High Court comprising of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ stated that the relevant question in considering a "well founded fear" related to the likelihood that persecution would occur in the future. Their Honours held that past events must be considered to the future as a guide to the future. "In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty". The applicant contends that this statement was quoted with apparent approval in Minister for Immigration & Multicultural & Indigenous Affairs v Yusef [2001] 180 ALR 1 (para 73-75).

18. The applicant contends that the Tribunal should have considered the possibility of harm in the future if the Pashtoon group or those who previously comprised the Taliban are able to regain power. The Tribunal comment, he contends, that they were not satisfied "that Hazaras in Ghazni are generally at risk of persecution in the foreseeable future" indicates an incorrect application of the test. He contends that the Application was made in the context of consideration of the current circumstances in Afghanistan as a result of the fall of the Taliban, and the Tribunal failed to consider whether the applicant would be safe in the future in light of the historical persecution of Hazaras Shi'as by the Pashtuns or other ethnic groups.

19. The problem with the contentions of the applicant is that the minority view in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs is not currently the law in Australia. I must apply the majority view in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs which does not allow for a ground of review based upon jurisdictional error.

20. Furthermore, I am not satisfied that the Tribunal failed to apply the correct test in any event. The Tribunal examined recent country information on events in Afghanistan.

21. The Tribunal pointed to various country reports from which it stated that:

* Although some individuals who exercise local authority under the Taliban administration have retained similar positions of authority on behalf of the new regime, the Taliban has been effectively eliminated as a political and military force in Afghanistan and no longer governs or administers Afghanistan;

* Pashtuns have about 8 of the ministerial positions in the interim government while Hazaras hold 5 portfolios in the new Afghan government. There are also non Hazaras Shi'as in the interim government;

* Despite the historical marginalisation of Hazaras in Afghanistan and evidence that they have been accorded low status, there has been no report or suggestion of any persecution of Hazaras since the fall of the Taliban last year nor any reports of any present persecution (by the Northern Alliance or by Pashtuns or any other group).

* There is evidence of a formidable Hazara Militia as early as December 2001 the militia of the Hazara-Harekat-e Islami party is reported as a significant force in Ghazni province.

22. The Tribunal looked at the most up to date information available and assessed for itself that there was no risk. (MIEA v Guo (1997) 191 CLR 559, 575 at page 575). The matters raised by the applicant were all considered by the Tribunal. In all the circumstances I am unable to find any grounds for review as currently permitted by the legislation and the decision of the Full Bench of the Federal Court exist.

23. I further find that even if the minority view in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs prevailed, the applicant has not established an error in this case then I must dismiss the Application.

24. I will hear from the parties on the question of costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 6 January 2003
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