Applicant WAEQ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 520

FEDERAL COURT OF AUSTRALIA

Applicant WAEQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 520

MIGRATION - judicial review - refugee - Refugee Review Tribunal - findings of Tribunal based on credibility - no grounds for review disclosed - application dismissed.

Migration Act 1958  (Cth)

W280 v Minister for Immigration and Multicultural Affairs [2001] FCA 1606 cited

APPLICANT WAEQ OF 2002 v      MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W44 and W45 OF 2002

FRENCH J
16 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W44 OF 2002

BETWEEN:	APPLICANT WAEQ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	16 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The Applicant to pay the Respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W45 OF 2002

BETWEEN:	APPLICANT WAEQ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	16 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The Applicant to pay the Respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W44 and 45 OF 2002

BETWEEN:	APPLICANT WAEQ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	16 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 6 January 2001 the applicant, who is a national of Afghanistan, arrived in Australia by boat from Indonesia.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 27 January 2001.  The application was refused on 23 March 2001 by a delegate of the Minister.  The applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 30 March 2001 for review of that decision.

2. The Tribunal heard his application on 1 June 2001.  On 22 June it decided to affirm the decision not to grant a protection visa.  The applicant filed an application in this Court on 6 July for review of the Tribunal’s decision.  His application for review in this Court was heard on 16 October.  On 14 November 2001, I made an order setting aside the first Tribunal decision and I directed that the matter be sent back to the Tribunal differently constituted to be determined according to law. 

3. In his application before the first Tribunal the applicant argued that he had a fear of persecution by the Taliban if he were returned to Afghanistan.  That fear, he said, was based upon the belief, held by Taliban members, that he had been associated with an organisation known as Jamiat-i-Islami.  Before the rise of the Taliban that had been the dominant party in the Persian speaking areas of north-eastern and western Afghanistan.

4. The first Tribunal accepted that the applicant’s eldest  brother was an active supporter of Jamiat-i-Islami.  It also accepted that his brother had the senior position as a guard at a detention centre in Kabul before 1993.  It accepted that the applicant himself had worked at that detention centre as a guard from about 1993.  When the Taliban had captured Kabul in September 1996 he and his brother had to leave their positions at the detention centre.  The first Tribunal accepted that people in the area regarded the applicant’s family as supporters of the Jamiat-i-Islami.

5. The applicant’s claims and evidence before the first Tribunal are set out in my reasons in W280 v Minister for Immigration & Multicultural Affairs [2001] FCA 1606. They included an allegation that the Taliban had insisted on the applicant’s family providing money and Kalashnikov weapons to the Taliban in exchange for their protection. Subsequently, it was said, the applicant’s elder brother had disappeared following the transfer of the Taliban Mullah who had responsibility for the local area. The Tribunal accepted that the Taliban arrested and detained the applicant’s elder brother in mid-1998. It also accepted that it had arrested his elder brother because of his political support of the Jamiat-i-Islami. It accepted the applicant’s evidence that a letter of clearance from the first Taliban Mullah, Mullah Qaium had protected his elder brother while that Mullah worked for the Taliban in his area. I do not propose to go further into the details of all the facts as they are set out in my reasons on that occasion.

6. The first Tribunal’s decision was set aside in part because the Tribunal member had said at the close of the evidence that he believed the applicant’s evidence.  In reasons subsequently published the Tribunal disbelieved his evidence.  This reflected an underlying failure properly to consider evidence which had supported a finding of credibility at the time that the Tribunal heard the matter.

7. When the matter came before the second Tribunal in accordance with my order, the situation had changed in Afghanistan.  The Taliban had been overthrown.  However, the applicant submitted to the second Tribunal that if he returned to Afghanistan he would be persecuted for deserting his former party, the Jamiat-i-Islami, and for remaining in Kabul when the party and most of its members had gone north to continue the fight against the Taliban.  He said that at the time Kabul was seized by the Taliban his elder brother had received direct orders from his superior, a Commander Asadullah, for the brother and other party members and supporters to retreat with the Jamiat forces.  He told the second Tribunal that he and his brother had discussed those orders with their father and family and decided they should give up the struggle and take their chances with the Taliban.

8. In spite of this they were unable to buy protection from the Taliban.  His brother was taken and is presumed to have been killed and the applicant himself says he was detained and mistreated by the Taliban.  The applicant was afraid, nevertheless, that the Jamiat would consider the decision taken by his brother and himself to remain in Kabul as an act of desertion.  He told the Tribunal that he would be suspected of having cooperated with the Taliban.  He also said that he has received information that since the Northern Alliance entered Kabul, another one of his brothers had been detained and questioned.  He had been questioned about the whereabouts of the applicant’s elder brother and the applicant himself.  He said threats were made that the Jamiat would know how to deal with his elder brother and with him.

9. His adviser submitted to the Tribunal that despite the new interim government and the international peace-keeping force, it was likely that Afghanistan will remain a lawless place with a significant risk of revenge killings.  There was also a significant risk of killings for people who were believed to have been traitors to the Jamiat or to have cooperated with the Taliban.  On this basis his legal adviser argued before the Tribunal that he was at risk of persecution because of what people thought his political opinions were. 

10. The second Tribunal reviewed the evidence which was given by the applicant.  It told him that it had difficulty accepting that his brother would have disobeyed a direct order from the Jamiat if he had been an important person in that organisation.  The Tribunal also noted that the applicant had not previously mentioned, as he now claimed, that his brother had disobeyed an order to go to a place called Shomali.  He had told the first Tribunal that he and his brother had returned to their village because they had nowhere to live and no job and no income.  They were concerned that Taliban informers in their village could have reported that there were two sons living in Kabul.  He told the second Tribunal that he had not previously been asked about the decision not to go to Shomali.  The Tribunal nevertheless thought it was surprising that he had not volunteered that information.  The applicant said he had told the delegate that he had not joined Jamiat because he was not a fighter and did not have a weapon.  He had not told the delegate that his brother had disobeyed an order from Commander Asadullah.

11. He also told the second Tribunal that he had spoken to his uncle in Pakistan “about two weeks ago”.  He said his uncle had recently received a letter from his father who said that Commander Asadullah had come to the village.  He had arrested the applicant’s brother Ismail and questioned him about his missing siblings and the Kalashnikovs.  His father and other elders told Commander Asadullah that they had seen the Taliban arresting the applicant’s older brother and the applicant himself.  The Commander released Ismail but told his father he would wait to find out what happened to the missing sons and weapons; if the sons were alive he would return and apply to them whatever the government rule was about such things.

12. In its findings and reasons the Tribunal did not accept that the applicant had ever been at risk of being harmed by the Taliban because he was a member of the Jamiat.  It did not accept that he was persecuted by the Taliban as he had claimed.  The applicant had given consistent evidence that while he supported Jamiat and worked at the Jamiat detention centre and had a Jamiat membership card, he never attended any of their meetings nor did he work in any other capacity for Jamiat apart from his duties at the detention centre and after the fall of Kabul he had nothing further to do with Jamiat before he left Afghanistan.

13. The Tribunal found that he was not a high profile or active member of Jamiat while he was in Kabul and he did not continue to support them after he returned to Char Asiab.  The Tribunal did not accept that he was at risk from the Taliban, given his limited political profile and it said, among other things, that if the applicant was afraid he was at risk as a Jamiat supporter it was reasonable to expect that he would have taken some precautions to ensure his safety.  The Tribunal did not accept that he was arrested by the Taliban in May 2000 or detained and mistreated for six months.  It did not think it plausible that the Taliban would wait four years before arresting him.

14. The Tribunal then turned to his claim about being at risk from Jamiat itself.  The Tribunal did not accept his claim that he would be at risk of persecution by Jamiat if he returned to Afghanistan.  The claim that he would be at risk was based on his argument that he and his brother had disobeyed a direct order to retreat with Jamiat forces to Shomali in 1996.  The Tribunal accepted that his brother was a high profile activist in Jamiat.  It did not accept that a person of that standing would have disobeyed a direct order.

15. It referred to the applicant’s evidence that many other Jamiat members, including high level members, did not go to Shomali either.  The Tribunal did not accept that a direct order was issued for non-combatant members of Jamiat such as the applicant and his brother to retreat to Shomali.  It found that he would not be at risk of harm from Jamiat-i-Islami if he returned to Afghanistan now because he and his brother were considered to have deserted Jamiat by disobeying an order to go to Shomali.

16. Neither did the Tribunal accept the claim that his brother’s former commander had come to his village and arrested his brother, Ismail. The Tribunal was not persuaded by the letter which the applicant said came from his father though his uncle in Pakistan.  The date of the letter, which was 31 December 2001, was difficult to reconcile with the applicant’s claim that he found out about it two weeks before the hearing which was on 9 January 2002.  On his evidence, his father would have had to give the letter to someone who was travelling to Pakistan.  That person would have had to give it to his uncle and the applicant would only have found out about it when he rang his uncle from the detention centre.

17. The Tribunal did not find the applicant to be a credible witness.  It found that he had fabricated the claim about the visit by Commander Asadullah to his village.  The Tribunal also found his claim that he might be accused of cooperation with the Taliban to be fanciful and did not accept that there was a real chance that he would be persecuted by Jamiat-i-Islami for cooperating with the Taliban. 

18. The Tribunal referred to the changed circumstances in Afghanistan since the terrorist attacks on the United States on 11 September 2001.  It referred to the establishment of the interim authority in Afghanistan.  It observed that the interim authority has taken control in Kabul and appears to have the support of key political and ethnic groups in Afghanistan.  This includes the Jamiat-i-Islami.  Of the thirty cabinet members, eighteen belong to the Northern Alliance and three belong to Jamiat-i-Islami.  Tajiks are also well represented in the cabinet.

19. Taking into account that information, the Tribunal found that the Taliban had been effectively eliminated as a political and military force in Afghanistan. There was no real chance that the applicant would be persecuted by the Taliban if he were to return to Afghanistan and because the applicant is a Tajik and had been a member of Jamiat in the past, his family are regarded as being supporters of Jamiat.  The Tribunal did not think either he or his elder brother were regarded adversely by Jamiat and so it found there was no real chance that he would be persecuted by the new Afghan administration or any part of it if he were to return to Afghanistan.

20. The Tribunal found that if the applicant were to return to Afghanistan now or in the reasonably foreseeable future there was no real chance that he would be harmed because of his ethnicity or political opinion, nor was there any real chance that he would be persecuted for any other reason under the Refugee Convention.  On this basis the second Tribunal again affirmed the decision not to grant a protection visa.  That decision was given on 16 January 2002. 

21. On 11 February 2002, the applicant lodged two applications in this Court. One was an application in Form 56 under the Rules, being an application for an order for review of a decision of the Tribunal. The other was a Form 5 and simply headed up “Application”. Neither application disclosed any grounds for review of the Tribunal’s decision. I assume that the first-mentioned application was brought on the assumption that the grounds of review under Pt 8 of the Migration Act 1958 (Cth) were still available. The second application does not disclose on what basis it seeks to invoke the Court’s jurisdiction.

22. As I explained to the applicant at the beginning of the hearing today, the law has been changed with effect from 2 October 2001 so that grounds for review previously open under the Act are no longer available.  Under the law as it now stands, the Tribunal’s decision is to be treated as final and conclusive.  There are certain circumstances in which the decision may be set aside in spite of that provision of the law and there is still some uncertainty about the scope of those circumstances.  The applicant, however, has in his submissions to the Court complained about the findings of fact made by the Tribunal and suggested that it should have questioned him more than it did about the circumstances in support of his claim.  Nothing he has said indicates any ground of review that would have been available under either the Act as it was before 2 October 2001 or the Act as it now is. My own reading of the reasons of the Tribunal does not indicate to me that there is any basis for reviewing its decision.

23. The application will therefore be dismissed.  The applicant is to pay the respondent’s costs of the application.  That order will be made on each of the applications.

24. These reasons were delivered orally on the hearing of the applicant by video link and were translated to him by the interpreter as they were delivered.  The printed version now published embodies stylistic and grammatical changes only.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             April 2002

WAEQ appeared in person via video.
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 April 2002
Date of Judgment:	16 April 2002