Hussain v Minister for Immigration and Multicultural Affairs

[2002] FCA 754

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural Affairs

[2002] FCA 754

NAVEED HUSSAIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.142 of 2001

MANSFIELD J
19 JUNE 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.142 OF 2001

BETWEEN:	NAVEED HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	19 JUNE 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay to the respondent costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.142 OF 2001

BETWEEN:	NAVEED HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	19 JUNE 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) given on 27 July 2001.  The Tribunal affirmed a decision of a delegate of the respondent refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 20 February 2001, about a month after the applicant arrived in Australia.

2. As the application to the Court was made before 2 October 2001, the Act as it stood prior to its amendment by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) applies. Relevantly for present purposes, the available grounds of review are those specified in s 476(1) of the Act as it stood prior to 2 October 2001.

3. To be granted the visa, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention):  see s 36(2) of the Act.  In the present matter, the issue was whether the decision-maker was satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, as the Tribunal appears to have proceeded on the basis that if the applicant was a “refugee” as so defined, he would satisfy the criterion expressed for the grant of the visa in s 36(2) of the Act, and the Tribunal would then have granted him the visa pursuant to s 65(1) of the Act.  Article 1A(2) of the Convention defines a refugee as any person who:

   “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   THE CLAIMS

4. The Tribunal accepted that the applicant is a national of Afghanistan and is of Tajik ethnicity.  He is a young man who claimed to have been born in Khoshi in the Logar Province and to have lived there all his life until he left Afghanistan.  He told the Tribunal he is a Shi’a Muslim.  He had worked only on the family farm.

5. The applicant claimed to have left Afghanistan because of his fear of the Taliban, who had moved into his family area after the fall of Kandahar some four or five years previously.  He did not have particular troubles with the Taliban for the first three years or so, but thereafter in his area the Taliban began to treat Shi’a Muslims very harshly.  They were prevented from celebrating their religion, and obliged to pay extra taxes.  They collected young men who were of Tajik ethnicity and Shi’a religion, and the applicant hid on a number of occasions to avoid being taken by the Taliban.  In around September 2000, he was taken in a vehicle with five others and detained for five months by the Taliban and was beaten, but in his case then released because he told the Taliban that his mother was unwell.  He also refused to go to the front to fight for the Taliban.  However, after his release, he claimed to fear again that he would be taken to the front line like other young Shi’a Muslims from Afghanistan and that he feared being killed because of his religion or his ethnicity if he refused.  After his release, on that occasion, he said the Taliban had come looking for him and other young men from his village on many occasions, but he had successfully been able to hide to avoid being taken by them.

   THE TRIBUNAL’S REASONS

6. The Tribunal was not satisfied that the applicant gave a truthful account of his experiences.  It concluded concerning his claim to have been persecuted by the Taliban by reason of his Shi’a religion:

   “The applicant’s evidence about the religion of the people in his village was not consistent, his evidence about the Taliban’s treatment of Shi’a people was in significant ways not consistent with independent information about what has happened since the Taliban took control of most of the country, and his evidence about being asked to go to the front, about his arrest and detention, and about what followed was not credible.  In these circumstances, I do not consider that the benefit of the doubt can reasonably be extended to his claim to be Shi’a.”

   In reaching that view, he had regard to the difficulties asylum seekers face in putting their claims, particularly in the case of persons such as the applicant who claimed to have had little education.  It also made allowance for possible confusion in interpretation, and for the difficulty of converting concepts of place and time from Afghanistan to evidence before the Tribunal.  Its reasons do not disclose an insensitivity to the sort of issues concerning the measurement of credibility of asylum seekers referred to in The United Nations High Commissioner for Refugees “Handbook on Procedures and Criteria for Determining Refugee Status” (Geneva, 1992, par 196 ff); Hathaway “The Law of Refugee Status” (Butterworths, 1991, pp 83-87).

7. The Tribunal explained in some detail why it took that adverse view of the applicant’s claims.  It recorded specifically the inconsistency in his evidence about the religion of people in his village.  It noted inconsistency in what the applicant had said from time to time about the treatment of religious elders in his village.  It explained in detail the inconsistency between the applicant’s account of the Taliban’s impact upon people in his village, including Shi’as, in the first three years following the fall of Kandahar with independent country information which indicated that “the Taliban has been relentlessly anti-Shi’a from the beginning”.  In the light of the apparent conflict, it gave careful consideration to the applicant’s explanations as to why he and his village might not have been affected by the general attitude of the Taliban for a few years following the fall of Kandahar, although more broadly that had been the case.  It found his evidence about having been asked by the Taliban to go to the front, and what had happened to him when he refused, to be unsatisfactory, and did not accept that it was accurate.  His story of being arrested and detained following the request that he go to the front, and his response, contained inconsistencies which the Tribunal identified in some detail in its reasons.  It therefore concluded, as to that part of his claims, that the applicant was never arrested, detained, mistreated and interrogated as he had claimed, or that the Taliban had in fact come looking for him.  There were other aspects of the applicant’s evidence which it found to be unsatisfactory, contributing to the overall picture it formed as to his reliability, but it is not necessary to refer to them in these reasons.

8. The Tribunal separately considered whether the applicant, by reason of his Tajik ethnicity, might have a well-founded fear of persecution if he were to return to Afghanistan, and whether there is a real chance that he might face forcible recruitment by the Taliban if he were to return to Afghanistan.  Having regard to the independent country information to which it referred, the Tribunal concluded that a Tajik person would not, at the time of its decision, be at risk simply because of ethnicity if such a person were to return to a place where they had social links.  It would be factors other than ethnicity which would draw the adverse attention of the Taliban to a person such as the applicant.  It concluded that there is no more than a remote chance that the applicant would be of interest to the Taliban because of his ethnicity.  In the applicant’s particular circumstances, it also concluded that there is no more than a remote chance that he would face forced recruitment by the Taliban if he were to return to Afghanistan, even though the Tribunal noted some independent evidence which indicated that in some circumstances forcible recruitment had occurred.

9. Consequently, the Tribunal was not satisfied that the applicant faces a real chance of persecution for a Convention reason if he were to return to Afghanistan, and found that his fear of doing so was not well-founded.  He did not, therefore, satisfy the criterion set out in s 36(2) of the Act for the grant of a protection visa.

   THE GROUNDS OF REVIEW

10. The applicant evidently prepared his application to the Court in person.  It was accompanied by an unsworn “affidavit”.  Neither the application, nor the affidavit identified any grounds of review referable to s 476(1) of the Act.  Those documents in essence asserted that the Tribunal’s decision was wrong, and repeated in broad terms the applicant’s claims as made to the Tribunal.

11. The applicant also appeared in person at the hearing.  Again, he did not in his submissions identify any ground of review available under s 476(1) of the Act.  Apart from one aspect referred to below, he sought to re-argue the decision of the Tribunal on the merits.  That is not a course open before the Court.

12. It is not surprising, given the applicant’s background and circumstances, that he should be unable to focus his contentions on any of the grounds of review specified in s 476(1) of the Act.  In the circumstances, I have myself considered carefully the Tribunal’s reasons to determine whether they disclose a matter which might involve reviewable error on its part.  The contentions of counsel for the respondent indicate that he also looked carefully at the Tribunal’s reasons to see if they expose possible reviewable error.  I accept his contention that the Tribunal has not made any such error.  It has correctly identified the applicable law.  It has applied the law to the facts as it has found them to be.  In reaching its findings of fact, it appears to have had regard to the relevant material and to have addressed the applicant’s claims.  It has not taken into account irrelevant material, or failed to take into account relevant material, in a way which affects the exercise of its jurisdiction:  see generally Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1.

13. The one additional matter that the applicant ventilated in his oral submissions was that there was evidence now available to him, which was not adduced before the Tribunal, and which confirmed that he is of Afghan nationality.  Shortly before the hearing, there had been sent to the Court, apparently by or on behalf of the applicant, a letter in the following terms:

    “We the Afghan Community member after extending our sincere regards would like to draw the attention of your excellency to the fact that Mr Naveed Hussain Sardar belongs to Afghan nationality.  We know if he is deported, Taliban will execute hi [sic].  Therefore We strongly support his application applied for protection Visa in Australia.  We kindly request your honour to help him in this regard.”

    That letter then bears the names, addresses, telephone numbers and signatures of 11 persons, all apparently from Dandenong in Victoria.

14. The applicant submitted, in response to questioning by the Court, that he did not have those persons give evidence at the hearing because he did not then think that it was necessary.  He did not expect that the Tribunal would refuse his application for a protection visa.  As the delegate of the respondent had already rejected his claim in a decision made on 10 April 2001, and as the applicant had had the assistance of a migration agent in the presentation of his review application to the Tribunal, it is difficult to understand his response.  He also suggested that, initially when his application was made to the Tribunal, the persons whose names appear on the letter were not at the Woomera Immigration Reception and Processing Centre, so he did not have a full opportunity to secure their evidence.  He did not claim that all, or any of them, had not been resident at the Woomera Immigration Reception and Processing Centre by the time of his hearing before the Tribunal on 14 June 2001, as distinct from the time of his application.

15. I do not consider that those circumstances give rise to any ground of review available under s 476(1) of the Act.  The Tribunal had an obligation under s 425 of the Act to invite the applicant to appear to give evidence on his application.  In that invitation, it was obliged by s 426 to give the applicant notice that he may request the Tribunal to obtain oral evidence from any persons that he identified, and the Tribunal was then obliged to have regard to his wishes.  He did not then indicate that he wished the Tribunal to call oral evidence from any person.  He indicated that he wished to bring with him to the hearing his migration agent.  The Tribunal in my view met the obligations imposed upon it under ss 425 and 426 of the Act.

16. As I have noted, the applicant also was assisted in his application before the Tribunal by a registered migration agent.  That agent made submissions on his behalf to the Tribunal both before the hearing and subsequently on 18 July 2001.  No request was made for any further time to present evidence to the Tribunal.  No suggestion was made that the Tribunal should itself procure evidence from any other person.  I consider that the Tribunal provided to the applicant a proper opportunity to be heard, and to present such evidence and arguments as he wished.  In my judgment, the applicant was accorded procedural fairness by the Tribunal:  see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

17. Accordingly, in my judgment, to allow the applicant to present the additional evidence to the Court would not demonstrate any reviewable error on the part of the Tribunal in any event.  I add that, as I understand the proposed further evidence, the additional witnesses do not purport to provide information which might have affected the Tribunal’s decision.  The Tribunal accepted that the applicant is of Afghan nationality.  It also accepted that he is of Tajik ethnicity.  His claim was rejected because the Tribunal did not accept that the applicant was of the Shi’a religion, or that as a Shi’a or as a Tajik he would be vulnerable to persecution by the Taliban.  The additional information, as presently presented, does not directly relate to the question of his Shi’a religion, or whether the Taliban might by reason of his religion have persecuted him.  The claim collectively to “know if he deported, Taliban will execute him” is devoid of detail.  It is no more than an assertion, in less detail than the applicant’s own evidence.  No foundation for the assertion, including whether any of the signatories knew the applicant or anything about his personal circumstances whilst in Afghanistan, is suggested.  I do not think such material provides a basis for the Court setting aside the Tribunal’s decision.  At its highest, it does not demonstrate that there was no evidence upon which the Tribunal’s decision could have been made:  s 476(1)(g), far less that the Tribunal based its decision upon the existence of a particular fact where that particular fact has been shown not to exist:  s 476(1)(g) and s 476(4)(b).  Consideration was given to the analogues of those provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212.

18. I have therefore reached the view that the application for review of the Tribunal’s decision must be dismissed.  I so order.  I see no reason why the usual rule as to costs should not apply.  I order that the applicant pay to the respondent costs of the application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             13 June 2002

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke & Helmore
Date of Hearing:	23 November 2001
Date of Judgment:	19 June 2002