WAHZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 594

FEDERAL COURT OF AUSTRALIA

WAHZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 594

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – claim of well founded fear of persecution in Afghanistan – claim initially related to Taliban – claim subsequently related to Pashtun – whether Tribunal overlooked appellant claim of experience of Pashtun hostility – no jurisdictional error – appeal dismissed.

Migration Act 1958 (Cth)

Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 cited

WAHZ v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W330 OF 2002

FRENCH J
13 JUNE 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W330 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAHZ OF 2002 APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	13 JUNE 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	W330 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAHZ OF 2002 APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	13 JUNE 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. The appellant, who is of Hazara ethnicity and claims to be a citizen of Afghanistan, arrived in Australia by boat without authority on 22 August 2001.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 14 November 2001 and on 1 May 2002 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant him a visa.  On 8 May 2002 he applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 27 June 2002, the Tribunal affirmed the decision not to grant him a protection visa.  The appellant sought review of that decision in the Federal Court.  However by order of Lee J on 19 August 2002 the matter was referred to the Federal Magistrate’s Court.  On 8 November 2002, Raphael FM dismissed the application with costs.

2. On 3 December 2002, the appellant lodged a notice of appeal against the decision of Raphael FM. On 26 March 2003, the Chief Justice directed that, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal should be heard and determined by a single judge.

   Evidence and Claims

3. In support of his application for a protection visa the appellant provided a written statement in which he claimed to have been born in 1956 in Ghazni, Afghanistan and to be a citizen of Afghanistan.  The appellant said he is married with seven children and that his wife and children are still living in Afghanistan.  His ethnic group is Hazara and his religion is Muslim Shi’a.  He claimed that three years earlier the Taliban had taken one of his brothers who had not been heard of since.  Not long after this occurred the appellant moved to Deh Morda to get away from the Taliban.  He was frightened that the Taliban would take him.  Even while living in Deh Morda he and his family were constantly in fear that the Taliban would take him to the front line.  The vast majority of people living in Deh Morda were Pashtuns and they could have reported him to the Taliban. 

4. The appellant said that in May 2001 he heard from people in his village that Australia is a peaceful country which accepts refugees.  He went to Angoori to find out how to travel to Australia.  It  was then he was introduced to a people smuggler who took him to Pakistan where he was introduced to another smuggler who arranged his travel to Australia.  He said that he feared that if he were forced to return to Afghanistan he would be killed by the Taliban authorities. 

5. A linguistic analysis was carried out on a recording of the appellant’s speech.  This was done by the Swedish organisation, Eqvator.  The conclusion offered was that the appellant speaks Dari in the Hazaragi dialect which is mainly spoken in Central Afghanistan.  It is also used among Hazaragi speaking minority populations in Pakistan and Iran.  The appellant’s Hazaragi dialect was said to be Pakistani although his mother tongue was Dari. 

6. On 13 February 2002, the appellant’s migration agent made a submission to the Department in support of his application for a protection visa.  At this time the political situation in Afghanistan had changed with the fall of the Taliban.  Asylum seekers from Afghanistan who were in Australia had been given the opportunity to submit further reasons as to why they could not be returned to Afghanistan in the new political situation.  The appellant was so advised on 18 July 2002.  The submission described the appellant as a Hazara Muslim Shi’a who feared returning to Afghanistan.  The Ghazni area from which he originated was said still to be a high risk area.  The new governor of Ghazni, Qari Baba, had shown ‘blatant discrimination’ against Hazara in the past.  The submission then set out what were said to be examples of persecution Hazaras had experienced in the past under the Pashtuns.  It was also submitted that the chances of the Taliban regrouping as a significant future force could not be discounted.  Indeed, it was said, the appellant feared that the Taliban would return. 

7. The appellant himself made a further statement on 14 February in which he said that although the United States had pushed the Taliban out of the cities the situation was not much changed because the Taliban had 300,000 troops.  He went on to say:

   ‘Karzai Government came in power by the Americans in Afghanistan, this type of Government has been in power in the past many times.  Since King Abdul Rahman regime and until now the Hazara and Shi’aa people have been persecuted by every Pashtun government like Zahir Shah Government and the Dawood Government.  … We have always been under pressure by every Pashtun government because we are Hazara and Shi’aa.’

   Relevantly to this appeal he said:

   ‘In the area I was living in Jaghori, Dahmarda, it is very close to the Pashtun area.  I used to live in Helmand, we were forced as refugees to Dahmarda by Pashtuns.  If I return back I would be killed by the Pashtuns to day or tomorrow, because we are Hazara and cannot trust any Pashtun government.  Even before Taliban we were in danger by the Pashtuns, it does not mean that if they kill it is the only cruelty and persecution, the Pashtuns did many things that was just as bad such as not letting the Hazara people work freely buy (sic) confiscating our farmland and forcing us to leave and move to another area like we were forced to go to Dahmarda which is a place in isolation and close to Pashtun area.  They made our life very hard for us, we could not support our families properly.’

   Referring to the fact that there are Hazaras in the Karzai government the appellant said that they did not have authority and were still answerable to Pashtuns.  He could not say that the positions held by the Hazara in the government would put them in a position to do anything for the Hazara people as the majority of positions were held by Pashtuns. 

8. In addition to the submissions and statements already mentioned, the Tribunal had before it a record of interview with an immigration inspector on the appellant’s arrival in Australia and the records of two further interviews with an officer of the Department.  In its reasons the Tribunal reproduced the substance of the appellant’s claims including the statement that when he was living in Helmand he and other Hazaras were forced to move as refugees to Dahmarda and that his family had property in Helmand which was taken by the Pashtuns.

9. The Tribunal put to the appellant that, because his district formed part of the traditional Hazara homelands, there would be fewer Pashtuns in the area than in other parts of Ghazni province.  The appellant said he didn’t believe there was safety or security for Hazaras.  He said his area was surrounded by Pashtuns and he did not believe peace would continue.  The Tribunal also put to the appellant that large numbers of people are returning to Afghanistan including to Ghazni and Hazarajat and that the available information suggested that it was safe for people to return if they were returning to an area in which they constituted the main ethic group.  The appellant said that the location of his village was very bad, for on the one side there was Hazaras and on three sides there were Pashtuns. 

10. The Tribunal referred to independent country information and the history of the marginalisation of Hazaras in Afghanistan particularly in the late 19^th and early 20^th centuries.  That information did not support the appellant’s submission of a pattern of persecution of the Hazara by other ethnic groups and political parties.  The Tribunal referred to further country information going to the instability of Afghanistan.  On the other hand the Tribunal referred to ‘… the unprecedented level of international commitment to rebuilding Afghanistan, and to the establishment of a representative and effective government there’.

    The Tribunal’s Findings

11. Having regard to the linguistic analysis of the appellant’s speech and his features which were said to accord with ‘a general description of Hazara people’ the Tribunal was satisfied that he is an Hazara person.  However it regarded his nationality as another issue and made no finding in that regard.  Instead the Tribunal decided to proceed on the assumption, for the purposes of its decision, that the appellant was a national of Afghanistan and that his claims of persecution by the Taliban were true. 

12. Acting on that assumption, the Tribunal accepted that the appellant had incurred the enmity of the Taliban by reason of an imputed political opinion as opposed to the Taliban and that he feared forcible conscription into the Taliban forces.  It accepted that he  feared persecution by the Taliban by reason of his ethnicity and his religion.  However on the independent information set out earlier in the reasons, the Tribunal also concluded that the Taliban are no longer a force in Afghanistan.  The Tribunal said:

    ‘It is clear from the independent information that the Taliban forces have been defeated, the Taliban regime has been dispersed and its leadership eliminated from positions of power or influence in Afghanistan generally and in the Interim Authority specifically.  The Taliban is no longer in a position to harm the applicant as it was before the applicant’s departure from Afghanistan when it controlled Afghanistan.’

    The Tribunal was satisfied that the appellant’s fear of harm by the Taliban whether by reason of an imputed political opinion, his ethnicity, his religion, or for any other Convention reason was not well-founded.

13. The Tribunal went on to say it did not accept that the appellant was at risk of persecution on the basis of his religion or ethnicity or for any other Convention reason by another political party or ethnic group such as the Pashtuns.  While the Tribunal thought it possible that there were Pashtun villages in the vicinity of the appellant’s village it accepted the information available to it that the appellant’s village was located in the Hazarajat which is the Hazaras’ traditional land in Afghanistan.  The Tribunal also took the view that Hazaras do not number so few as to constitute an ethnic minority in Hazarajat.  It was then said:

    “Even if there are hostile Pashtuns in the applicant’s district, the applicant has not made any claims to have personally experienced any hostility from those Pashtuns other than during the Taliban regime.  There is no evidence of hostility in the applicant’s province, or in Afghanistan generally, by Pashtuns against Hazaras because of Hazaras’ ethnicity or religion.’

14. The Tribunal observed that historical marginalisation of Hazaras in Afghanistan in the late 19^th and early 20^th centuries and subsequent friction and conflict with other ethnic groups did not of itself mean that an individual Hazara would now face a real chance of persecution for a Convention reason particularly in the absence of claims of any particular difficulties encountered by his family or village other than at the hands of the Taliban.  There was, from the Tribunal’s point of view, nothing in the current material which persuaded it that Pashtuns and the Taliban were interchangeable terms or that Pashtuns generally were engaged in ongoing persecution of Hazaras.  There has been no report or suggestion of any persecution of Hazaras since the fall of the Taliban.  Nor were there any reports which supported the appellant’s claim that the current Governor of Ghazni had engaged in persecution of the Hazaras.  The Tribunal was satisfied that the appellant’s fear of harm by Pashtuns or by the Governor of Ghazni and his supporters whether by reason of his ethnicity, his religion, an imputed political opinion, or membership of a particular social group was not well founded. 

15. The Tribunal then looked to the question whether the interim authority offered any threat of persecution.  It did not accept that the Interim Authority dominated as it is by Northern Alliance members, would impute to the appellant any political opinion other than opposition to the former Taliban regime. 

    The Decision of the Federal Magistrates Court

16. The grounds of the application for review before the learned Federal Magistrate were expressed thus:

    ‘I am a 45 years old man from Afghanistan.  My ethnicity is Hazara and my religion is Shiaa.  I know every thing about my country religion customs.  I have been persecuted by Taliban and by Pashtuns.  That is right Taliban is no more in Afghanistan.  But they are not removed not killed.  Just they changed their name their groups and still the Pashtun which I have fear they are in power and the rulers so I seek of protection from honourable member.’ (sic)

17. After referring to the Tribunal’s reasoning in the case, his Honour observed that a new claim was being made by the appellant that if he returned to Afghanistan it would be thought that he had a political affiliation with the Communist Party.  Identification documents which he had, indicated  that he had served in the army during the time of the Russian occupation and that this would be known upon his return.  The learned magistrate observed that this claim had not been made before the Tribunal.  Although the appellant contended that it was clear from the identification document that he had been involved with the Communist Party, the learned magistrate observed that this clarity only came with his explanation of the effect of the words in the documents that indicated that he had undertaken military service at that time. 

18. The learned magistrate held he was unable to review a decision based upon new evidence which was not before the Tribunal.  There was nothing in the application or the appellant’s submissions which raised the ground upon which he could overturn the Tribunal’s decision.

    The Basis of the Appeal

19. The notice of appeal filed in this matter sets out as the grounds of the appeal:

    ‘3.I am not satisfied with the decision of Federal Court because it was unfair and unjustified.

    4.I lodge application in Full Federal Court of Australia in order to consider my case deliberately.’

    There was no other indication of the grounds of the appeal.

20. At the hearing of the appeal there was tendered on behalf of the appellant an outline of submissions prepared by Mr Thackrah, a law student involved with the Refugee Appeals Project at the University of Western Australia Law School.  These submissions raised the contention that the Tribunal had appeared to ignore the appellant’s claim of persecutory conduct by Pashtuns.

21. In an interview with the delegate who considered his initial application for a protection visa, the appellant was asked whether he still feared persecution given that the Taliban was no longer in power.  He told the delegate that he did and that the basis for his fear was the proximity of his village to a Pashtun area.  He feared he would be killed by Pashtuns if returned to Afghanistan.  The Tribunal member observed that the conflict between the Pashtun and Hazara ethnic groups did not amount to persecution for a Convention reason and this was particularly relevant in the appellant’s case because of ‘the absence of any claims of any particular difficulties encountered by his family or village other than at the hands of the Taliban’.  The Tribunal member, it was said, appeared to ignore the appellant’s claim that he and his family were forced as refugees to Dahmarda by Pashtuns.

22. The claim made by the appellant of actual exposure to Pashtun hostility was contained in the sentence:

    ‘I used to live in Helmand, we were forced as refugees to Dahmarda by Pashtuns.’

    He also predicted that he would be killed by Pashtuns.  There is no development of that proposition which was put to the delegate.  It is not indicated how or when the alleged incidents occurred or how the appellant himself was involved in them.  In my opinion the Tribunal’s comment is consistent with a view which it formed that he had not claimed to have experienced hostility directed to him personally.  The statement that there was ‘no evidence of hostility’ in the appellant’s province or in Afghanistan generally by Pashtuns against Hazaras because of Hazaras ethnicity or religion was not undercut by the unsupported assertions of the appellant.  The Tribunal did not ignore the appellant’s claims in this respect.  Indeed it expressly referred to them in its reasons. 

23. Having regard to s 474 of the Migration Act 1958 (Cth) and the exposition of its effect in the decision of the High Court in Plaintiff S157 of 2002 v  Commonwealth (2003) 195 ALR 24 it is necessary in order to obtain certiorari to set aside the decision of the Tribunal, to show some jurisdictional error. In my opinion the comments of the Tribunal do not indicate the existence of such error in this case. There was no substantive or detailed evidence before the Tribunal of hostility from Pashtuns. A failure to expressly refer, in the findings portion of the Tribunal’s reasons, to the broad claims about Pashtun hostility advanced by the appellant would not, in my opinion, constitute jurisdictional error. In the circumstances the appeal will be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             13 June 2003

The appellant appeared on his own behalf (via video)
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 June 2003
Date of Judgment:	13 June 2003