WADV v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 536

FEDERAL COURT OF AUSTRALIA

WADV v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 536

MIGRATION - refugee - Refugee Review Tribunal - judicial review - no grounds disclosed - argument confined to merits - application dismissed.

Migration Act 1958 (Cth)

WADV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W11 OF 2002

FRENCH J
23 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W11 OF 2002

BETWEEN:	WADV OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	23 APRIL 2002
WHERE MADE:	PERTH

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 Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W11 OF 2002

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

JUDGE:	FRENCH J
DATE:	23 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 21 March 2001, the applicant arrived in Australia without any lawful authority.  He is a national of Afghanistan.  In his first interview after arriving in Australia he was asked why he left Afghanistan.  This interview was conducted on 24 March 2001.  His reply to the question, “WHY DID YOU LEAVE YOUR COUNTRY OF NATIONALITY (COUNTRY OF RESIDENCE)?” was recorded by the interviewing officer.  He said it was because of the atrocities of the Taliban.  He said the area in which he had been living was the only place in his region where there were Shia people.  He said there were other tribes that the Taliban accepted but they did not accept the Shia people.  He said they were asking him to join them, that is the Taliban.  They wanted him to join their party and fight again Ahmed Shah Massoud and the Hazaras.  For a long time he and others like him had not been able to go out in their region.  The Taliban had asked him to join them about two years earlier. The Taliban captured his brother some six months earlier, held him for a week and beat him badly.  Asked why the Taliban had arrested his brother he said, “Because our tribe  Hassankhil is against our tribe because we are Shia.” 

2. In support of his application for a protection visa a more elaborate statement was prepared by his lawyers and signed by him on 26 July.  In that statement he said he had been born in the Ghundai village and had lived there all his life.  About thirty-five of the sixty houses in the village were occupied by Mangal ethnic Pashtuns.  The other twenty-five belonged to Hassankhail Pashtuns.  He belonged to the latter group.  They follow the Shia religion. The Mangal Pashtuns are Sunni Muslims.

3. There were two mosques in the village, one for each of them.  The village was close to the mountains.  It was about eight to nine hours by car from Kabul and two and a half hours walk from the Pakistan border.  He said his father had a timber business but he had died about two and a half years before.  He was a wealthy man and they had no problems with money.  When his father died his uncle carried on the business because the Taliban made it too dangerous for his brother and himself to run the business.  The family also had a small farm and he worked on that as a labourer.

4. He said the Taliban had come to their area about four years previously and for about the first two years it was safe.  The Taliban started to behave harshly towards them because they are Shia and the Taliban are Sunni Muslims.  In his area the Shia Muslims were only a small minority.  The Taliban would not let the Shia Muslims practise their religion.  They  closed the mosque in the village so that people could only practise their religion at home. About two years before this statement was made the Taliban had started to come to the village in a vehicle.  They took young men from the village.  All of those were Shia men.  There were about ten of them and after they were taken they were never seen again.  Since that happened the applicant said he had not been able to work or move around freely.  It was too dangerous for him to work in his father’s business.  He hid in the mountains and sometimes at other villages and was always on the move. 

5. One Friday in late October or November 2000 he was praying, he said, at the Shia mosque when the Taliban came to the village without warning.  They searched his house and alleged that his father was a freedom fighter and that they had weapons.  They threatened to take him and his brother for military service.  The Taliban, he said, came to the mosque and arrested him.  He was taken to a prison about an hour away from the village.  He was asked about weapons, but said he didn’t have any.  He was beaten repeatedly over the next six days.  Eventually his uncle arranged his release by bribing a Taliban official.  He went to his aunt’s house in another village about forty minutes walk away.  He knew he was still in danger.  The Taliban often came to his home village after that.  They arrested and beat his brother.  Eventually his mother was worried about his aunt being in danger from the Taliban coming to his aunt’s village.  Arrangements were then made for him to leave the country.   His uncle found him a smuggler.  He walked to the Pakistan border with his uncle through the mountains.  After that he took a bus to Peshawar and then Lahore and ultimately caught a plane to Indonesia.  From there he travelled on a small boat provided by a smuggler which took him to Australia. 

6. In his statement in support of his protection visa he said there was no safe place for Shia people in Afghanistan.  They were not permitted to practise their religion and all young Shia men were wanted to fight in the war.  He would not have been allowed to remain in Pakistan because, he said, Pakistan supported the Taliban.

7. On 14 September 2001, a delegate of the minister refused the applicant’s application for a protection visa.  On 19 September, he applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  The Tribunal affirmed the decision not to grant a protection visa on 14 December 2001.  On 10 January 2002, the applicant filed an application in this Court seeking an order for review of that decision.

8. In its reasons for decision, the Tribunal reviewed the applicant’s claims and evidence to which I have already referred.  The delegate who had made the first decision to refuse the visa had obtained a report on the applicant’s language from a Swedish agency that specialises in translations and linguistic analysis.  According to that report, the applicant’s language originated from Waziristan in Pakistan.  The Tribunal noted that the delegate had given that report substantial weight in rejecting the applicant’s application. 

9. The Tribunal then referred to what the applicant had said at the Tribunal hearing itself.  At the hearing the Tribunal referred to the destruction of the Taliban as a political and military force following the American war on terrorism in Afghanistan.  The Tribunal referred to the arrangements which were being made to set up an interim government in Afghanistan.  It put to the applicant that these changes meant that he would not be persecuted if he were to return to Afghanistan.  He said that Tajiks and Uzbeks did not like Pashtuns.  It was put to him that he lived in a Pashtun area of Afghanistan but he repeated that Tajiks and Uzbeks did not like Pashtuns.  The Tribunal referred to maps of Afghanistan and information about the mistreatment of Pashtuns in Afghanistan.  It also referred to information and reports concerning the fall of the Taliban regime in Afghanistan.  The Tribunal then said that it was prepared to accept that the applicant is a national of Afghanistan.  He had shown a fair degree of familiarity with the country in answer to particular questions and in the form of other information he provided.  His evidence about the location of his village was consistent with maps consulted by the Tribunal.  The Tribunal also accepted that it was possible that it would have taken him more than two hours to travel to the Pakistan border.  The Tribunal referred to the report about his language which had been relied on by the delegate.  The Tribunal found it surprising that that report did not include basic information about the expertise of whoever wrote it.  In the end the Tribunal gave little weight to the report which had concluded that the applicant was a Pakistani. 

10. The Tribunal accepted that the applicant is a Shia Muslim.  However, it did not accept that the Taliban persecuted him because he is a Shia Muslim.  The Tribunal found that the evidence he gave in answer to questions about the effect of the Taliban on his life was unconvincing.  It did not accept that the Taliban prevented him from practising the Shia religion. Nor did it accept that the Taliban detained and mistreated him. 

11. The Tribunal accepted as accurate reports concerning the flight of the Taliban from Paktia in mid-November 2001.  It also accepted as true, reports about the expulsion of retreating Taliban forces from Gardez on about 3 December.  It accepted that the Taliban lost control of Kandahar on or about 7 December.  It was of the view that this represented the end of the Taliban’s rule in Afghanistan.  The Tribunal was therefore not satisfied that there was any real basis for the applicant to fear harm from the Taliban if he were returned to Afghanistan.

12. It then talked about his evidence in which he said he still feared that he would be persecuted if returned to Afghanistan.  He simply asserted that he would continue to be at risk of persecution because Tajiks and Uzbeks did not like Pashtuns.  The Tribunal felt that he appeared to be fabricating, to be making up, evidence as he was going along when describing problems that had existed between his tribe and other tribes because of religion.  He lived in a Pashtun region of Afghanistan.  The province is now controlled by a local Pashtun.

13. In the end, the Tribunal was not satisfied that there was any real chance that he would be persecuted by Pashtuns or any other ethnic group.  On that basis the Tribunal affirmed the refusal to grant him a protection visa. 

14. The applicant’s application to this Court says that as a Shia Muslim he is discriminated against in his local area.  He said he is considered as a Kaffir or non-Muslim by the majority group of Sunni Muslims.  He said the Afghani government is controlled by a majority of Sunni Muslims rather than Shia Muslims.  He said the Tribunal ignored his fear of persecution as a Shia Muslim.  There were no other grounds of review.  The applicant also sent a letter to the Court which was received on 26 February.  This made more elaborate submissions about his fear of persecution in that he said his situation is that he was still subject to personal persecution because of his ethnic background as a Shia faith Pashtun.  He said he would definitely be persecuted as a sworn enemy by all the different groups of Sunni faith. 

15. The provisions of the Migration Act 1958 (Cth), as they have been since 2 October 2001, make the decision of the Tribunal final and conclusive. There are, however, exceptional grounds upon which a Tribunal decision may be overturned. However, no such grounds exist in this case. Indeed even under the law as it was before 2 October the applicant would not have been able to succeed on this application. For those reasons the application must be dismissed. The applicant is to pay the respondent’s costs of the application.

16. These reasons were delivered orally following the hearing.  They were delivered via video link in the hearing of the applicant and interpreted to him by the interpreter present in Court. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             2 May 2002

WADV appeared in person via video link.
Counsel for the Respondent:	Ms LB Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 April 2002
Date of Judgment:	23 April 2002