Mangal v Minister for Immigration and Multicultural Affairs

[2001] FCA 1617

FEDERAL COURT OF AUSTRALIA

Mangal v Minister for Immigration and Multicultural Affairs [2001] FCA 1617

CHINAR GUL MANGAL V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 163 OF 2001

O’LOUGHLIN J
6 NOVEMBER 2001
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 163 OF 2001

BETWEEN:	CHINAR GUL MANGAL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	6 NOVEMBER 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 163 OF 2001

BETWEEN:	CHINAR GUL MANGAL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	6 NOVEMBER 2001
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant is an Afghani citizen who arrived in Australia on 23 April 2001.  He is aged fifty and his wife and eight children remain in Afghanistan.  His application for a protection visa was rejected by the Department of Immigration and Multicultural Affairs (“the Department”) and his subsequent application to the Refugee Review Tribunal (“the Tribunal”) was also unsuccessful.  He now seeks from this Court a review of the Tribunal’s decision.

2. The Tribunal was satisfied the he was an Afghan citizen, but there were aspects of his evidence, his antecedents and his history, that the Tribunal was not able to accept.  I have read the reasons for the Tribunal’s decision.  I have listened to what the applicant has had to say today, but I have come to the conclusion that the Department and the Tribunal arrived at the correct decision.  Even if the applicant’s case was accepted at its highest, even if the Tribunal accepted every word that he spoke, the history of his treatment by the Taliban is not sufficient to constitute persecution for a Convention reason.

3. A Convention reason means that a person will be entitled to the classification of a refugee if there are grounds for concluding that the person has a well-founded fear of being persecuted for one of five reasons.  Those five reasons are the person’s race, religion, nationality, membership of a particular social group or political opinion.  If a person is persecuted or fears that they will be persecuted for one of those reasons, then they might be properly called a refugee, but if they are persecuted for some other reason, even though the persecution might be very cruel, then they cannot be called a refugee.

4. Mr Mangal is of Pashtun ethnicity and he is a Sunni Muslin.  He is therefore in the ethnic and religious group that accords with the teachings of the Taliban.  There is nothing in his history or in his evidence that points to him being, or likely to be, persecuted for reason of his race, religion or nationality.  Mr Mangal has made many complaints about the Taliban.  First he complained of ill-treatment and assaults because of the length of his beard.  There is evidence that the Taliban insist on men wearing their beard in a particular way.  I sympathise with the applicant, who was denied his freedom of choice about his personal appearance, but that sort of conduct by the Taliban cannot amount to persecution for a Convention reason.  It is not conduct which is based on the applicant’s religion.

5. His other main complaint is his fear that he will be forced into service by the Taliban.  He has given evidence about receiving letters from the Taliban and he has given evidence about being forced to work against his will by the Taliban.  He is a fifty-year-old truck driver and he believes that the Taliban wants him as a truck driver to assist them in their military activities.

6. There are cases where successful claims for refugee status have been made out on the grounds that the applicant is a conscientious objector against military service, but the applicant’s history does not go so far as to describe him as a conscientious objector against military service.  He, like many other men, does not wish to be involved in the affairs of the Taliban.  That is very understandable.  But the risk of him being forced into working for the Taliban as a truck driver cannot amount to persecution.

7. It is not necessary for this case to consider whether there is such a thing as a social group consisting of all Afghan able-bodied males.  Finally, there is nothing that he has said to me or to the Tribunal or to the Department that points to him having political beliefs which might be grounds for believing that there is a real chance of him being persecuted for political beliefs if he were to return to Afghanistan.  For those reasons, I have concluded that the Tribunal did not make a mistake and his application to this Court must be dismissed.

8. There will be an order for costs to be taxed in default of agreement.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:

Dated:             6 November 2001

The Applicant appeared in person:
Counsel for the Respondent:	Ms Sashi Maharaj with Ms K Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 November 2001
Date of Judgment:	6 November 2001