QAAT v Minister for Immigration

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FEDERAL COURT OF AUSTRALIA

QAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 968

MIGRATION – protection visa – applicant refused permanent visa following grant of two temporary protections visas – application to review decision of the Refugee Review Tribunal under s 39B Judiciary Act 1903 (Cth) – whether the Tribunal erred in failing to have regard to the second temporary protection visa when considering application for permanent visa – whether Tribunal erred in its consideration and application of Article 1C(5) of the Convention relating to the Status of Refugees – whether the Tribunal erred in failing to consider the inability of the State of Afghanistan to protect applicant from persecution – whether the Tribunal erred in finding that the applicant ceased to be a member of a particular social group for Convention purposes – whether the Tribunal’s decision is affected by unreasonableness for failing to take into account the most recent country information

Statutes

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 65(1), 36(1), 36(2), 36(3), 36(4)

Cases

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Cited

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Cited

Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 Cited

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Dist

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 54 Cited

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 393 Cited

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6 Foll

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Cited

NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373 Foll

QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448 App

Re Minister for Immigration and Multicultural Affairs;  Ex parte Applicant S20/2002;  Appellant S106 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 Cited

Re Minister for Immigration and Multicultural and Indigenous Affairs;  Ex parte Applicant S134/2002 (2003) 211 CLR 441; [2003] HCA 1 Cited

SWNB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1606 Cited

Other Authorities

Convention relating to the Status of Refugees, 189 UNTS 150 (Geneva, 28 July 1951) Articles 1A(2), 1C(5), 1

Protocol relating to the Status of Refugees, 606 UNTS 267 (31 January 1967)

QAAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUD 238 of 2004

KIEFEL J
BRISBANE
15 JULY 2005

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 238 OF 2004

BETWEEN:

QAAT
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

15 JULY 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:   Settlement and entry of orders is dealt with in…

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Details
Case
[2005] FCA 968
Decision Date

CaseChat Overview and Summary

The applicant, QAAT, applied for a temporary protection visa, contesting the decision of the Minister for Immigration to refuse the application. The dispute was heard by the Tribunal, which was required to consider the applicant’s claims for protection and the Minister’s decision. The key legal issue was whether QAAT satisfied the criteria for a temporary protection visa, specifically whether Australia had protection obligations towards him under the Refugees Convention.

The Tribunal assessed the applicant’s claims in light of independent country information and expert evidence. It considered the general instability in Afghanistan post-Taliban, particularly in Ghanzi province where QAAT was from. The Tribunal noted that the area was under the control of the Harakat-e-Islami, a group that had cooperated with the Taliban, and faced risks from both the Taliban and local warlords. Additionally, QAAT’s family faced specific persecution from a local commander due to his sister’s divorce from that commander. However, the Tribunal found that the UNHCR information did not support a conclusion that the Taliban or other groups would target QAAT specifically. The Tribunal concluded that the general instability and risks did not meet the threshold for Australia to have protection obligations under the Refugees Convention. Therefore, QAAT did not satisfy the primary criteria for a temporary protection visa.

As a result, the Tribunal dismissed the application and ordered QAAT to pay the respondent’s costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL J
In relation to a subclass 785 (temporary protection visa) the primary criteria to be satisfied include (reg 785.211) that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.THE TRIBUNAL DECISION At the hearing, the applicant had stated that he needed protection for three reasons: there was no security in Afghanistan after the collapse of the Taliban; warlords and regional fighters had taken their place and the central government was not powerful. Secondly, his sister had married one of the local leading Wahdat commanders whom she had subsequently divorced. Her ex-husband was putting the family under pressure. Finally, people who had worked for the Taliban were still in charge, having changed sides. Following the hearing the applicant’s migration agent summarised the applicant’s claims: ‘= Mr [QAAT] is a Hazara and a Shia from the Jaghoori district of Ghanzi province in Afghanistan; ·Following the fall of the Taliban, that area is under the control of the Harakat-e-Islami, a group that cooperated with the Taliban when they were in power (refer UNHCR update on the situation in Ghanzi Province, May 2004): In reference to the July 2003 District Profile on Jaghoori District in Ghanzi province, it is stated that Jaghoori is 100% Hazara but this does not mean that it is therefore not subject to risk of Taliban or ethnically based persecution. The District Profile of July 2003 indicates that Jaghoori District neighbours Northern Zabul Province, where there has been significant recent upsurge of Taliban activity.·Mr [QAAT’s] former brother-in-law is a commander in the Harakat-e-Islami in his local area;·The main problems for civilians in this district are described by UNHCR in the same report:Main concerns of the population: robberies and crimes related to personal enmities; pressure, extortion of crops, food, firewood and illegal taxation by armed elements, by local soldiers and commanders affiliated with Nasr in Maknak village in Malistan district, and in some villages in Nawur, reportedly by the District Administrator; abuses reported to take place mostly during the autumn and winter seasons and caused by the Head of Police, particularly in villages in Jaghouri district.·In addition to the general problems faced by Hazara villagers in Jaghori, Mr [QAAT’s] family faces the additional problem of persecution at the hands of a Harakat commander with a ‘personal enmity’ towards them caused by Mr [QAAT’s] sister’s refusal to live as his second wife and her family’s support for her decision to divorce him; and·The persecution of the family for this reason was sufficiently grave to force Mr [QAAT’s] brother to also flee Afghanistan.’ The Tribunal had regard to independent country information. It commenced with a reference to the US State Department’s advice that during most of 2001 the Taliban controlled approximately 90 per cent of the country but by mid-November 2001 they had been removed from power. The UNHCR had advised, with respect to the Taliban regrouping in the Northern Zabul Province, that the strengthening of the Taliban in this area did not reach the Hazara areas of Jaghoori District and it was unlikely they would do so without open conflict with the Wahdat groups. In February 2004 the UNHCR advised that in some districts of Ghanzi province, the Taliban were active and carrying out activities against persons working with NGO’s and also with the government. The Tribunal then had regard to an expert on the Hazaras of Afghanistan, Dr Mousavi, who expressed the opinion that Jaghoori was under the control of the Wahdat party Khalili faction and that its power lies in the hands of two commanders of that faction. Although there was at present little direct confrontation and fighting, the situation remained highly unstable and volatile with respect to powerful local commanders changing their alliances. It advised that these leaders are suspicious of the people of Jaghoori for their betrayal of them and their acceptance of a Taliban incursion into the area, previously these leaders were also linked with crime. On 26 September 2003 the UNHCR field office in Ghanzi provided an update to the Tribunal. The power structure in Ghanzi province showed that there was now a leader who had put into place a structured administration. He had resisted the Taliban and enjoyed the support of the Americans. It went on: ‘Official Heads of Districts and police have been appointed in most of the 18 districts of the province in year 2003, including Hazara-inhabited and ruled districts of … Jaghori … . These districts had been since the fall of Taliban ruled by self-appointed warlords. Reports of abuses were collected in this district during year 2002, authorities abusing their power to extort money, crop, land and in a few instances, to kidnap women.’

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

Full text does not contain this section.