WAGA v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1103

FEDERAL COURT OF AUSTRALIA

WAGA v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1103

MIGRATION – judicial review – protection visa – claimed well-founded fear of persecution by Taliban in Afghanistan – change of circumstances – alleged well-founded fear from Northern Alliance – application for judicial review dismissed – appeal against dismissal – no jurisdictional error – appeal dismissed

WAGA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W243 OF 2002

FRENCH J
23 SEPTEMBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W243 OF 2002

BETWEEN:	WAGA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	23 SEPTEMBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed. 

2.        The appellant pay the respondent's costs of the appeal. 

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	W243 OF 2002

BETWEEN:	WAGA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	23 SEPTEMBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 22 August 2001, claiming to be a national of Afghanistan.  He made application for a protection visa on 21 November 2001 and that application was refused on 31 January 2002.  He applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  On 28 March 2002, the Tribunal affirmed the decision not to grant him a protection visa.  He then applied for review of the Tribunal's decision.  That application was heard in the Federal Magistrates Court and was dismissed on 12 July 2002.  In August 2002, the appellant lodged a notice of appeal against the decision of the Federal Magistrate.  The Chief Justice of the Federal Court directed that the appeal be heard by a single judge.  That appeal now falls for decision.

2. The claims made by the appellant are summarised in the Tribunal's reasons for decision.  He said he had been born in Kabul in Afghanistan in 1982, of a Tajik father and a Pashtun mother.  His father and younger brother are deceased and his older brother is missing, and his mother remains in Afghanistan.  When he was only five years old the family moved to Jalalabad, which is near the border with Pakistan.  He has had no formal schooling, but does speak Pashtun and also, to some degree, speaks and reads Dari.  He is a farmer by occupation.  He worked on his uncle's farm for two years before leaving Afghanistan.  He said that he was at risk of harm by the Taliban at the time he left Afghanistan.  The Taliban were still in power at the time that he left.  A year before he left Afghanistan the appellant was beaten by the Taliban because he did not pray at the mosque.  He was taken to hospital by his uncle and was diagnosed with a fracture in his foot and that was placed in plaster.  He also said that in May 2001, the Taliban came to the family home and took away his older brother, who remains missing.  At the time he left Afghanistan he feared persecution by the Taliban as a Tajik.  He also now claims to fear persecution by the Northern Alliance because of his Pashtun ethnicity.

3. The appellant told the Tribunal that his father was a cook for the Mujahideen.  He claimed that his father had been killed by the Taliban while attempting to flee from them in 1999 and although at the time of the hearing the Taliban had been overthrown in Afghanistan he still claimed to fear harm from them.  This was on the basis that the area where he lives is mountainous and there may still be Taliban members there who will seek him out.

4. In his evidence at the hearing before the Tribunal, the appellant was asked when his father had first joined the Mujaheddin.  He said that this was at the very beginning when they took power.  His father followed a Mujahideen leader called Haji Qadir.  This man is now governor of his home province.

5. At the hearing, according to the Tribunal, he raised a new claim about the way in which his father died.  He told the Tribunal that Qadir had told his father to take one of his sons to go to the front line and that his mother had refused to allow this.  He thought that Qadir or supporters of Qadir had killed his father for failing to make one of his sons available to fight with the Mujahideen.

6. In its findings the Tribunal referred to a language analysis based on a tape‑recording of the applicant speaking Pashtu.  The conclusion offered in the language analysis was that he originated from Pakistan.  However the Tribunal was prepared to assume, in favour of the appellant, that he came from Afghanistan as he claimed. 

7. The Tribunal made reference in its reasons to the appellant's claim that he had difficulty with his Dari interpreter.  The interpreter told the Tribunal that the appellant's fluency in Dari was limited.  He told the Tribunal that the appellant spoke with a different accent, making it difficult to understand him.  The Tribunal asked the appellant to identify whether his first language was Dari or Pashtu.  According to the Tribunal, the appellant told the Tribunal that he spoke both but that his Pashtu was better than his Dari.  He had asked for a Dari interpreter as a mark of respect for his father, who is Tajik.  The Tribunal challenged this, saying to him that he had nominated Dari for the hearing because his Pashtu had previously been identified as the Pakistani version.  This was in the language analysis which was obtained by the Department of Immigration.  The Tribunal asked the appellant whether he had difficulty with the interpreter.  The Tribunal said the appellant told it that he did not have any difficulty understanding the interpreter.  The Tribunal then decided to continue the hearing in Dari and informed the appellant it would not adjourn for a later hearing in Pashtu. 

8. The Tribunal put to the appellant that there was no evidence of Tajiks being persecuted by other ethnic groups.  The appellant responded that his main fear was that Qadir's supporters would arrest and kill him because he did not go to fight for Jamiat.  The appellant claimed that supporters of Qadir told him that when his older brother was arrested by the Taliban he had to join Jamiat and fight with them.  He also claimed to have been at risk because Tajiks had killed many people in Northern Afghanistan during the conflict with the Taliban.  He repeated that he would be killed by the Taliban.  There were still Taliban members who lived in the mountains and came out at night.

9. The Tribunal referred to information about the history of Afghanistan and the present situation in the appellant's province.  It was unable to locate any reports to support the appellant's argument that he was at risk of persecution because of his part Pashtun ethnicity.  It said there was no evidence that he would be at harm of persecution from the Northern Alliance or any other group on that account.  There had been reports of violence against Pashtuns by other ethnic groups in the northern provinces, but these reports, it said, were not relevant to the appellant's circumstances in the province of Nangarhar.  The Tribunal noted that the interim authority in Afghanistan is headed up by a Pashtun moderate, Hamid Kazai.  It includes a Pashtun vice-chairman, the Ministry of Finance.  There are six other Pashtun ministers.

10. In its findings the Tribunal said that the Taliban was no longer a force in Afghanistan.  The Taliban regime had been dispersed and its leadership eliminated from positions of power in Afghanistan generally.  The Tribunal found that even if there remained pockets of Taliban resistance in Afghanistan it is no longer in a position to harm the appellant.

11. The Tribunal was satisfied that the appellant's fear of harm from the Taliban was not well-founded.  It did not accept the suggestion by the appellant that his father was part of Qadir's militia before his death.  It thought that the appellant's first version of his claims, that his father was killed in Northern Afghanistan while fighting the Taliban, was more consistent with the independent country information.  The Tribunal went on to find that the claim that the appellant had reason to fear retribution by Qadir was something he had made up recently.  The Tribunal was not satisfied that the appellant's fear of harm from the Northern Alliance was well-founded. 

12. When the matter went to the federal magistrate, one of the matters that was raised by the appellant was the question of the adequacy of the interpretation.  As to that, the magistrate said this:

    ‘15.… The tribunal examined the evidence given by the applicant, in some detail.  It is apparent that the tribunal understood what it was that the applicant was saying about the death of his father.  Any deficiency in interpretation has not effected (sic) this finding of fact. 

    16.The foundation for the tribunal decision is not the applicant's evidence.  That foundation is independent information about the circumstances in Afghanistan at the time the decision was made, that being the relevant time.  The Taliban has been overthrown.  There is now an Interim Authority dominated by Northern Alliance members.  The tribunal found that there was no well founded basis of fear of persecution by the applicant arising out of his Tajik and Pashtun background, his opposition to the Taliban, or any enmity there might have been to him or his family by people or groups in Afghanistan other than the Taliban.  The applicant's evidence was not significant to this finding.  Any deficiency in interpretation was of no significance to the tribunal's basis of reasoning.’

    In his oral argument on the appeal today the appellant has relied upon the deficiency in the interpretation at the level of the Tribunal.  He also says that while he was still in detention and after the fall of the Taliban he was interviewed by a case officer about whether he still faced dangers after the change in circumstances in Afghanistan.  He said that case officer had never responded to him after that interview. 

13. What I am concerned about in the present case is whether the Tribunal's decision was affected by a mistake in law.  The way in which the appellant was dealt with by a case officer has no bearing on that question.  The only basis upon which the Tribunal decision could be reviewed is if there were shown to be a serious error of law, called a jurisdictional error.  In some cases inadequacy of the interpretation at the Tribunal would amount to such an error if it deprived an applicant of the chance of a hearing.  The Tribunal, however, found that the appellant had told it that he did not have any difficulty understanding the interpreter and on that basis said it would continue the hearing in Dari.  In any event, as the learned magistrate has found, the Tribunal's decision ultimately did not depend upon the adequacy of the interpretation of the appellant's evidence.  That appears from the paragraphs from the magistrate's decision which I have already quoted.  In the circumstances, no reviewable error has been shown. 

    1.        The appeal be dismissed. 

    2.        The appellant pay the respondent's costs of the appeal. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             10 October 2003

The appellant appeared in person by video link.
Counsel for the Respondent:	Mr J Allanson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 September 2003
Date of Judgment:	23 September 2003