QAAP v Minister for Immigration - [2005] FMCA 1908

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QAAP v MINISTER FOR IMMIGRATION

[2005] FMCA 1908

MIGRATION – Refugee Review Tribunal – protection visa – applicant recognised as a refugee and granted temporary protection visa – application for permanent visa refused – approach to a case of possible cessation of refugee status.

Migration Act 1958, s.36(2)

Convention Relating to the Status of Refugees adopted at Geneva on 28 July 1951, as amended by the 1967 Protocol Relating to the Status of Refugees art 1A(2), 1C(5)

QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136

Applicant:

QAAP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

BRG 439 of 2004

Judgment of:

Jarrett FM

Hearing date:

26 January, 2005

Date of Last Submission:

3 November, 2005

Delivered at:

Brisbane

Delivered on:

21 December, 2005

REPRESENTATION

Counsel for the Applicant:

Mr D. Atkinson

Solicitors for the Applicant:

Macrossans Lawyers

Counsel for the Respondent:

Ms M Brennan

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Refugee Review Tribunal be joined as a second respondent to this application;
That the decision of the Refugee Review Tribunal made on 3 May 2004 be quashed;
That the applicant’s application for a permanent protection visa be remitted to a differently constituted tribunal for further hearing and determination according to law; and
That the respondent pay the applicant’s costs to be agreed between the parties and failing agreement to be fixed by the Court upon application by either party for that purpose, such application to be filed within sixty (60) days from the date of this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG439 OF 2004

QAAP

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act1903 seeking a review of the decision made by the Refugee Review Tribunal dated 28 June, 2004 affirming the Minister’s decision to refuse the applicant’s application for a Protection (Class XA) visa subclass 866.
The applicant, who is a national of Afghanistan, arrived in Australia in an unauthorised vessel on 26 November, 1999. On 1 February, 2000 and whilst he was detained at the Woomera Immigration Centre, he lodged an application for a protection visa with the Department of Immigration, Multicultural and Indigenous Affairs under the Migration Act1958 ("the Act").
On 3 August, 2000 the Minister granted a protection (Class XA) visa subclass 785 ("the temporary protection visa"). On 11 August, 2000 the applicant applied for a protection (Class XA) visa subclass 866 ("the permanent visa") but that application was refused by a delegate of the Minister on 24 February, 2004. On 10 March, 2004 the applicant applied to the Refugee Review Tribunal for a review of the Minister’s decision. In its decision made on 28 June, 2004 and handed down on 20 July, 2004 the tribunal affirmed the delegate's decision to refuse the grant of the visa.

Background

The applicant was born on 15 April, 1979. He is of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1908
Decision Date: 21 December, 2005

CaseChat Overview and Summary

The case of QAAP v Minister for Immigration involved an Afghan national who had applied for a permanent protection visa on the grounds of fear of persecution due to his Hazara ethnicity and Shiite religion. The applicant claimed that he was unable to work in Afghanistan due to the civil war and feared being forced to fight against his own people by the Taliban, which would result in his death if he refused. The application was initially reviewed by the Refugee Review Tribunal, which made a decision on 3 May 2004. The applicant subsequently sought judicial review of that decision in the Federal Court of Australia.

The central legal issue before the court was whether the Refugee Review Tribunal had erred in law in its assessment of the applicant's claims and the evidence provided. Specifically, the court had to consider whether the tribunal had properly evaluated the applicant's credibility, the risk of persecution if he returned to Afghanistan, and the adequacy of the government's ability to protect him from the Taliban. The court also needed to determine whether the tribunal had appropriately weighed the evidence of the applicant's fear of persecution by both the Taliban and other ethnic groups.

The court found that the Refugee Review Tribunal had erred in several respects. It had failed to properly consider the evidence of the applicant's fear of persecution by the Taliban and had not adequately assessed the risk of persecution if he returned to Afghanistan. The tribunal had also failed to properly consider the applicant's fear of persecution by other ethnic groups and had not given sufficient weight to the applicant's statements about the presence and activities of the Taliban in his area. The court held that these errors amounted to a failure to properly apply the relevant legal principles and warranted the quashing of the tribunal's decision.

Consequently, the Federal Court quashed the decision of the Refugee Review Tribunal, remitted the applicant's application for a permanent protection visa to a differently constituted tribunal for further hearing and determination, and ordered the Minister for Immigration to pay the applicant's costs. The court's decision emphasised the importance of thorough and legally sound decision-making in refugee cases, ensuring that the rights and fears of applicants are properly considered.

Orders

Orders of the court

That the Refugee Review Tribunal be joined as a second respondent to this application;

That the decision of the Refugee Review Tribunal made on 3 May 2004 be quashed;

That the applicant’s application for a permanent protection visa be remitted to a differently constituted tribunal for further hearing and determination according to law; and

That the respondent pay the applicant’s costs to be agreed between the parties and failing agreement to be fixed by the Court upon application by either party for that purpose, such application to be filed within sixty (60) days from the date of this order.

Background

Background to the litigation

When the applicant first claimed protection as a refugee, he did so on the basis of the following statement[3]:[3] at RD 24 - 25BackgroundI am a citizen of Afghanistan and I am 20 years of age having been born on 15 April 1979. I am not married and I resided with my parents and siblings in Kabul until I fled Afghanistan. I am Hazara and my religion is Muslim Shiite. In Afghanistan I was not able to work due to the civil war.Why I left my country:In our area many young Hazara men have been taken by the Taliban and forced to fight against the Hazara people.Since 1996 the Taliban have come to our house on five different occasions in search for weapons and young Hazara males to take to the front. Whenever the Taliban approached our area I would hide under our house in a hiding place prepared by my Father. I also often went to stay with relatives in the Northern part of Afghanistan, until it fell under the control of the Taliban, to ensure my safety.I lived in constant fear that I would be found by the Taliban and forced to fight against other Hazara males of my own religion where I would inevitably be killed. If I refused to go to the front line I would have been arrested, detained, tortured and possibly killed. For this reason I decided to flee Afghanistan to save my life.What I fear might happen if I go back to my country:I fear that I will be forced to fight on the front line by the Taliban where I will be killed. If I refuse I will also be arrested, detained and possibly killed.Who I think will harm or mistreat me if I go back:The Taliban.Why I believe they will harm or mistreat me I go back:I believe I will be harmed or mistreated because I am a young Hazara man in an area when many young Hazara men have been taken by the Taliban to fight on the front line.Why the Authorities will not protect me if I go back:It is the Afghan authorities, the Taliban, that will persecute me. There is no individual or group in Afghanistan to protect me. The tribunal recorded that in his statement made on 25 March, 2003 the applicant claimed that[4]:… the Taliban “are still armed and are powerful: they just pretend they aren’t Taliban”, and the government would be powerless to protect him if he returned, and his next door neighbours were Taliban soldiers from Kandahar and his relatives subsequently escaped to Iran and told him 6 months before that the Taliban were still living there so it was still dangerous to go back and they had been asking after him and had threatened his father as they thought he had escaped to fight against them. [4] at RD 112 Further, at the hearing before the tribunal, the applicant claimed[5]:… that he has heard in a media report that the government had created another group of Taliban who would vote for the government, and a Taliban spokesman claimed they have enough power to take over and reoccupy the country at any time as the government would allow them to work for it. [5] at RD 112 The applicant was assisted by an adviser at the tribunal hearing and[6]:Towards the end of the hearing, the adviser submitted what the applicant had meant was there were some extremists and some moderate Taliban and Karzai wanted the moderate Taliban to participate [in the election] and rejoin the coming new Afghanistan and government, and a new party for the Taliban had been established, so the applicant is concerned that the previous problems will re-emerge with the support of the majority Pashtuns (the applicant has previously claimed he fears he may be harmed by the Tajiks and Pashtos because he is Hazara and the fighting between the Hazara and these groups has worsened since his departure).[6] at RD 112

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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