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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - credibility of evidence - translation of declaration - whether the Tribunal made a jurisdictional error - whether persecution was `serious' - whether there was a `real chance' of persecution in the foreseeable future.

WAIE v Minister for Immigration [2003] FMCA 34 (19 February 2003)

WAIE v Minister for Immigration [2003] FMCA 34 (19 February 2003)
Last Updated: 21 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIE v MINISTER FOR IMMIGRATION
[2003] FMCA 34



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - credibility of evidence - translation of declaration - whether the Tribunal made a jurisdictional error - whether persecution was `serious' - whether there was a `real chance' of persecution in the foreseeable future.



Migration Act 1958 (Cth), s.474

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

Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

W375/01A v Minister for Immigration [2002] FCA 379

Kamal v Minister for Immigration [2002] FCA 818

SCAM v Minister for Immigration [2002] FCA 964

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Applicant:
WAIE



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 189 of 2002



Delivered on:


19 February 2003



Delivered at:


Perth



Hearing date:


3 February 2003 at Melbourne via videolink to Perth



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


L B Price



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4 250 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 189 of 2002

WAIE


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is an Afghani citizen of Pashtun ethnicity who lived in the Paktia province of Afghanistan near Gardiz City. He had been detained by the Taliban. He had been required by the Taliban to fight for them although he escaped the country before doing so. His father had been taken by the Taliban and ordered to fight for them. In mid to late July 2001 he sold his animals and commenced his travels to Australia where he became an unauthorised boat arrival on 22 August 2001. On 26 September 2001 he lodged an application for a protection (Class XA) visa which the delegate of the Minister refused to grant. On 24 May 2002 he applied for review of the delegate's decision by the Refugee Review Tribunal. The review was carried out and the applicant had the opportunity to address the Tribunal and had the assistance of an immigration adviser. On 11 July 2002 the Tribunal affirmed the decision not to grant a protection visa.

2. The applicant sought review of the Tribunal's decision from the Federal Court. In his application he stated that he was aggrieved by the Tribunal's decision because:

"I am disagree with Tribunal's decision because it did not found my persecution in my country."

3. In his grounds of application the applicant stated:

"I am not satisfied with RRT decision because I am from Paktia and I have been persecuted in Taliban government and I have still in persecution in my area and I cannot relocate to another place. I have still problems with current government. I need safety and justice. Any assistance given by you will be highly appreciated."

4. On 20 August 2002 the Registrar of the Federal Court made orders including the following:

"2 The applicant to file and serve on or before 17 September 2002:

(a) An amended application giving particulars of any grounds of review; or

(b) A written statement setting out the reasons why he considers the decision of the Refugee Review Tribunal is wrong; and

(c) An affidavit upon which he intends to rely at the hearing of this matter."

On 2 September 2002 Justice Lee made an order pursuant to o.82 r.6 of the Federal Court Rules transferring the matter to this court. On 29 October 2002 the applicant secured the assistance of a solicitor at whose request the case was adjourned in order that he could file an amended application and obtain further documents from the respondent. An adjournment to 3 February 2003 was granted, however on 31 January 2003 the solicitor advised the Registrar of the court that he was no longer acting. In the meantime no amended application had been filed nor were any of the other orders complied with.

5. The Tribunal accepted the representations made by the applicant as to the treatment of himself and his family under the Taliban. It also appears to have accepted some evidence produced in writing from a neighbour of the applicant that his parent's house had been destroyed by an American bomb and his family had been killed. The Tribunal did not accept the respondent's submissions that the situation currently in Afghanistan was still too dangerous for him to return. It did not accept his submissions that his life remained in danger from a warlord known as Bacha Khan or another known as Jalaladian Haqani who was still powerful in his province. In coming to this conclusion the Tribunal relied heavily on the applicant's failure to make mention of these concerns in a series of statements and oral evidence which have been given to the delegate and to the Tribunal. At [CB 119] the Tribunal says:

"As detailed above, the adviser's subsequent statement that the applicant had omitted these claims only from his first statement and at his initial interview, but that they had been mentioned subsequently including in his February 2002 statement, is demonstrably incorrect. The applicant at hearing did not dispute that he had not previously mentioned these matters but stated that this was because the smuggler had told him not to and because he had not been asked specifically about his uncle.

The Tribunal finds these attempted explanations to be most unpersuasive and unsatisfactory and does not accept that they explain the omissions from a succession of interviews, statements and submissions (and, presumably, discussions and communication with the Applicant's adviser) over a period of more than ten months. The Tribunal is satisfied that the applicant has elaborated these claims not because they represent his genuine experience or fears but simply for the purpose of establishing a Convention claim."

6. I have looked through the papers and the court book. It is correct that prior to the interview with the Tribunal there are no specific references to the applicant's problems with people in his home village. There are references to his concern about persecution from Jalaladian Haqani and some mention of Bacha Khan. Mr Bacha Khan is mentioned in the statutory declaration of February 2002. However, a difficulty arises in connection with this document. It is in English. A copy was attached to the submissions made by the respondents. It says in paragraph 5:

"Also there is a new entrant in the power struggle for Paktia, Bacha Khan who has returned from Miramsha or some place. How can one return to Paktia in those circumstances?"

7. The document is marked by the applicant and at the bottom there is a statement as follows:

"I have faithfully interpreted the contents of this statutory declaration from the English language to the Dari language to the abovenamed, and I am an accredited interpreter."

Then follows a signature.

8. The problem that has arisen is that the applicant does not speak the Dari language. He speaks Pashtun. Had he been represented he might have argued that the Tribunal's reliance upon his failure to make mention in more detail of his problems with the warlord Khan in his February statement was the result of his not knowing what was being said on his behalf. It is accepted by the Tribunal that the applicant was a small sheep farmer. He does not appear to be able to read or write. Since most people who come to Australia seeking protection do not speak English, translation problems are common. In W375/01A v Minister for Immigration [2002] FCA 379, the Tribunal failed to perform a duty imposed on it by refusing to hear `evidence' on a cardinal issue and it was held that the Tribunal purported to make a decision for which it did not have jurisdiction. The court outlined the various stages in the application process. It concluded, that from the date of arrival to the date of the hearing, an applicant will have had to give his or her reasons for seeking protection using an interpreter on five separate occasions and therefore "it is inevitable that each version will be slightly different." The inconsistencies in an applicant's evidence

"...may be explicable by looseness in language, or the result of an inability on the part of the visa applicant, in the company with most others, to recall events with precision, particularly if many years have passed by. It may be the result from different ways in which a question is posed or interpreted, or from the confusion an applicant suffers by reason of trauma or dislocation." [17]

9. Unlike the case above, where the Tribunal had been alerted to the error and failed to rectify it, there is no suggestion that the Tribunal in this particular case knew that the document which it had before it had not been properly translated. The Tribunal considered the arguments put by the applicant including the statement and weighed them against the country information which was in its possession. It came to a conclusion that the applicant did not have a well-founded fear of persecution for convention reasons in the current situation that existed in Afghanistan. This is a view with which the applicant disagrees but it is not within the power of this court to substitute its views for those of the Tribunal. As confirmed by Mansfield J in Kamal v Minister for Immigration [2002] FCA 818 at [36]:

"It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal."

The court cannot review the merits of the Tribunal's decision: Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

10. The question to consider in relation to the statutory declaration is whether anything which the applicant might have said in it had he been able to articulate his thoughts through a competent interpreter, would have affected the Tribunal's decision. If the statement was not relevant to the decision then there are no grounds for review.

11. The decision regarding the Paktia conflict is set out at [122 CB]:

"The Applicant has stated that local leaders, including Bacha Khan, continue to contend for power in Paktia, contributing to a situation of dangerous instability. The Tribunal notes that this conflict has not involved the Taliban but rather local warlords fighting over a share of local power (Pashtuns fighting Pashtuns). The Tribunal does not accept that the Applicant would be targeted in this context or that if the Applicant were to be caught up or harmed in fighting between groups intent on grappling a share of local power, any Convention reason would be the essential or significant reason for such harm."

The reasoning above appears to accept the possibility of persecution by Bacha Khan but rejects it as not being convention related.

12. I am unable to see how, in the circumstances, the Tribunal can have committed a jurisdictional error by not having before it a statement obtained with the aid of a Pashtun interpreter. The statement was obviously prepared by the applicant's advisers and can be assumed to represent the best case they thought that he could make for asylum.

12. The Tribunal, after considering the current situation in Afghanistan came to the conclusion that the applicant did not have a well-founded fear because there was not a `real chance' that he would suffer persecution in the future. This principle is well-established:

"...the real chance of persecution necessary to meet the objective element of the definition of refugee must be present at the time when the claim for refugee status is determined. I consider it follows that where the threat of persecution that caused an asylum seeker to hold a well-founded fear at the time of departure from the country of nationality has in the meantime evaporated, and the circumstances pertaining in the country have so changed that there is no longer a real chance that the asylum seeker would risk persecution for a Convention reason if he or she were to return, any persisting fear of persecution held by that asylum seeker does not have the objective quality of being well-founded." (SCAM v Minister for Immigration [2002] FCA 964)

13. The Tribunal decided that although some individuals who exercised local authority under the Taliban administration have retained similar positions of authority, it was satisfied that on the whole the Taliban had been effectively removed from power and no longer governs Afghanistan. Further, it was not satisfied that there was any `real chance' of the Taliban returning to power in the "reasonably foreseeable future" and similarly, the applicant does not face a `real chance' of persecution on return by reason of his Pashtun ethnicity. In any event, the Tribunal stated that relocation was a possibility open to the applicant should he be affected by the general insecurity in Paktia.

14. As there is no arguable jurisdictional error in the Tribunal's decision it is unnecessary to consider s.474 of the Migration Act 1958 (Cth) or the effect of Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.

15. I dismiss the application and order that the applicant pay the respondent's costs assessed in the sum of $4 250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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