FEDERAL COURT OF AUSTRALIA

SDAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 812

MIGRATION – no point of principle.

SDAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No S 91 of 2002

von DOUSSA J

ADELAIDE

4 JULY 2002

THE COURT ORDERS THAT:

1.                  Application dismissed.

2.                  Applicant to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application made under s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal (the Tribunal) made on 1 March 2002 which affirmed a decision of a delegate of the Minister not to grant a protection visa.

2                     The applicant, although initially represented by lawyers, was not represented at the hearing of his application.  He presented his case himself, and was at an obvious disadvantage in not appreciating the limited scope of an application for judicial review. 

3                     The challenged decision of the Tribunal is a “privative clause decision” within the meaning of s 474(2) of the Migration Act 1958 (Cth) (the Act) and the Minister relies on s 474(1) which provides:

“(1)     A privative clause decision:

(a)               is final and conclusive;  and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court;  and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

4                     The privative clause is to be understood and applied in accordance with the dicta of Dixon J in R v Hickman;  Ex parte Fox and Clinton (1945) 70 CLR 598 at 614 – 615.  However, rather than explore the scope of s 474(1), I think it is appropriate in this case to deal immediately with the merits of the application, independently of the provisions of s 474. 

5                     The applicant, who is a citizen of Afghanistan, arrived in Australia on 1 July 2001 by unauthorised boat.  On 31 July 2001 he lodged an application for a protection visa on the ground that he was a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (as those expressions are defined in s 5 of the Act).  Australia owes protection obligations to people who are refugees as defined in Article 1A(2) of the Refugees Convention, namely to any person who:

“… owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

6                     The applicant was born in about 1972 and came from Pari Sang, Jaghour, Gahzni Province.  He claims to be ethnic Sadaat Hazara and a Shi’a Muslim.  He says he was educated for about one year at a mosque and thereafter worked for some years as a farmer, then as a mason.  He married in 1997.  His wife is in Afghanistan.  He has two children aged three and one.  His father and stepmother and their two children also reside in Afghanistan.  He left the country about one month before his arrival in Australia.

7                     He informed the immigration authorities on being first interviewed that he left Afghanistan because of the Taliban, their cruelty and harassment.  He said he was beaten by them four times and imprisoned on one occasion.  He was held by them for four nights.  He said he was detained by them as his maternal uncle was a commander in the Wahdat Party.  His father negotiated his release.  He said other people had been arrested by the Taliban for being Shi’a, however with him the Taliban only wanted to find out about his uncle.  Following his release his family planned his escape which was arranged through a smuggler.  He said that he feared that if he were to return to Afghanistan that the Taliban may imprison him and send him to fight, or they might kill him because he is Shi’a.  He said that he would be so treated as he would be viewed by the Taliban as a traitor infidel for having fled Afghanistan to avoid “their war”. 

8                     Before the Tribunal the applicant advanced an additional ground for his fear about returning to Afghanistan.  He said that he had been threatened by a nomadic Pashtoon who he referred to as Kochi.  He told the Tribunal there were a few Pashtoon villages in the Gahzni area, although he had never been to any of them.  He said it was because of the problem of nomadic Pashtoons that his forefathers had moved from Gahzni to their village.  When asked to explain the basis of his fear, he said that when he was 11 or 12 years old (about 18 years ago) nomadic Pashtoons had come to graze their animals and were doing so in the land of his father.  The applicant had gone up to them to tell them to leave but his father had come and told him to say nothing as “they have the power and could make trouble for us”. 

9                     When asked by the Tribunal to elaborate on his assertion that the recent changes in Afghanistan would not render the country safe for him to return, he expressed concern that only a small percentage of the Taliban had been killed.  The others, he said, had merged back into the community and would continue to be a threat.  He then added that there had also been another more recent incident with nomadic Pashtoons.  He said the incident occurred in 1999.  It was similar to the one that occurred when he was eleven or twelve years old.  They came to graze their herds on the land of the applicant’s father.  He told them to leave.  One Pashtoon had a weapon on his shoulder and said “we will kill you”.  The applicant’s father had come on the scene and told the applicant not to argue.  These were the only two incidents he identified where he had direct contact with Pashtoons.  However, in answer to a direct question whether he had experienced any other problems or harassment before the Talibans arrived in his region, he said “only the problems with the Pashtoons who were harassing our people”.  He was asked to give further examples and said “they believe that Shi’a are unbelievers, their leaders say that if you kill a Shi’a you will go to heaven”.  He could offer no other examples of any problems.

10                  On his arrival in Australia the applicant produced a Taskera (an Afghanistan identification document).  The Tribunal had that document forensically examined.  It bore evidence of a number of changes.  He told the Tribunal that when he was about six years old he had been sick, and a mullah had suggested that if his father had his name changed he would get better.  His father arranged for this to be done and his surname was changed.  Otherwise, the applicant said the document was genuine and it was his identification.  The Tribunal, in its reasons for decision, expressed some concern about the genuineness of the document and found that the applicant had been misleading the Tribunal about its genuineness.  The Tribunal nevertheless concluded that it was prepared to accept that the applicant was who he claimed to be, but the adverse finding about his evidence on the topic of the Taskera was a factor that the Tribunal took into account on another aspect of the credibility of his claims.

11                  The Tribunal also identified an inconsistency between what the applicant told the immigration authorities on his arrival, and what he later told the Tribunal.  The Tribunal concluded that he had made up an assertion that his father had paid 300 lakh rupees to secure his release by the Taliban after the four days that he was held in captivity.  Initially he had not offered that detail.  Again, the Tribunal treated this inconsistency as an indication that the applicant was prepared to enhance his claims and to mislead the Tribunal.

12                  On the question of the claimed problems with the nomadic Pashtoons, the Tribunal noted that initially he referred to only one incident when he was a boy, but later claimed the second incident in 1999.  The Tribunal concluded that the second incident was a fabrication for the purposes of enhancing his claim. 

13                  Notwithstanding these findings about the applicant’s credit, the Tribunal concluded that he was who he claimed to be and the Tribunal assessed his claim on the basis that he was an Afghan national of Hazara ethnicity that had been a resident in Afghanistan under the Taliban rule.  The Tribunal accepted that under the Taliban rule Hazaras in general faced at least some degree of risk of arbitrary adverse attention by reason of their ethnicity and religion.  It also accepted that the applicant’s uncle was and might still be a commander in the Hezb-e-Wahdat, a party that is one of the main supporters of the Northern Alliance.  The Tribunal accepted that the applicant had faced questioning and was beaten by the Taliban in relation to his uncle and that it was because of the applicant’s and his family’s concern about continued persecution from the Taliban that the family decided the applicant should leave Afghanistan.  At that time the Tribunal accepted that there was a risk of persecution from that source.

14                  In its reasons for decision the Tribunal canvassed country information available from a number of sources regarding the changes which occurred in Afghanistan after 11 September 2001.  In its findings, the Tribunal said:

“The extent of change in Afghanistan over what is in effect a short time is extreme.”

15                  The Tribunal considered it to be of significance that there was now a level of international commitment to rebuilding Afghanistan and to establish a representative and effective government there.  The Tribunal noted agreement between broadly represented Afghan parties for the establishment of the Interim Authority, and that there were reports of western peace keepers having been deployed in Gahzni City and Province since 13 January 2002.  The Tribunal noted that Hazaras held portfolios in the new interim government including the portfolios of Planning, Transport, Commerce and Education.  In addition there were non-Hazara Shi’as in the interim government.  Further, the interim government had been publicly supported by the Hazara leader, Karim Khalili, on 27 December 2001 at a large meeting in Kabul.  The Tribunal concluded:

“The Tribunal is satisfied that Hazaras are adequately represented in the Interim Administration and, indeed, hold senior positions in key portfolios.  The Tribunal gives weight to the reports of Khalili’s address to Hazaras reassuring them that the Interim Administration represents the interests of Hazaras.

The Tribunal notes that although Afghanistan has been the subject of intense scrutiny by the international media for the past four months, there have been no reports or suggestions of any persecution of Hazaras since the fall of the Taliban nor of mistreatment of Hazaras, Shi’as or Hezb-e-Wahdat supporters by the Northern Alliance or any other group.  I can find no evidence that any group suggested by the applicant as Wahabis are a threat to anyone.  I have presumed here that he means the Al-Qaida, and note that they are no longer a presence nor threat in Afghanistan.”

16                  The Tribunal noted the historical marginalisation of Hazaras in Afghanistan, particularly in the late 19^th and 20^th centuries, and subsequent friction and conflict with other ethnic groups that had occurred.  The Tribunal however found that there is now active in Afghanistan, unconstrained by the Taliban authorities, a formidable Hazara militia, and that as early as the beginning of December 2001 the powerful militia of the (Hazara) Harekat-e-Islami Party was reported as a significant force in Gahzni Province.

17                  The Tribunal said it was prepared to accept that the applicant had experienced the incident with nomadic Pashtoons when he was eleven or twelve years of age.  As already indicated, the Tribunal rejected as a fabrication the assertion of a second incident in 1999.  The Tribunal found that the first incident did not demonstrate a level of harm that could be considered as persecution, nor did it accept that it provided an objective basis for a well founded fear.  On the contrary, the Tribunal did not accept that it gave rise to anything other than a remote chance of harm.

18                  The Tribunal concluded that on the evidence it could not accept that the applicant would face any harm amounting to persecution if he were to return to Afghanistan, and that there was no basis for a well founded fear of persecution for a Convention reason.

19                  Before this court, the applicant sought to canvas again the factual information which he had supplied to the Tribunal.  He repeated his assertion that he feared that if he were to return to Afghanistan he would be killed either by members of the Taliban, or by nomadic Pashtoons who in 1999 had threatened to kill him.

20                  Apart from the restrictions placed on this court by s 474(1) of the Act, upon judicial review under s 39B of the Judiciary Act, the court does not have power to re-hear the matter on the merits.  Judicial review is confined to correcting errors of law made by the decision maker.  In this instance, the only possible error of law identified by the application and the applicant’s submissions would lie in there being no evidentiary base for the findings which the Tribunal made on critical issues, namely the applicant’s credit which led to the rejection of his account of the 1999 incident with the nomadic Pashtoons, the defeat of the Taliban, and the absence of a real risk that the applicant would suffer persecution by reason of his Hazara ethnicity and Shi’a religion if he were to return to Afghanistan at 1 March 2002.  It was at that date which the Tribunal had to consider whether there was a well founded fear of persecution for a Convention reason if the applicant were to return to Afghanistan. 

21                  I have considered the material before the Tribunal.  In my opinion there was ample information to support the findings that were made, and there was a rational basis for the adverse finding made about the 1999 incident.

22                  I can detect no legal error on the part of the Tribunal in its approach and assessment of the applicant’s claims.  In these circumstances, whatever the scope of s 474(1) of the Act, the applicant’s claim must fail. 

23                  In the course of argument the applicant made a general complaint that whilst his claim for recognition as a refugee had been rejected, other non-citizens from Afghanistan had been granted refugee status at about the same time as the Tribunal’s decision.  No particulars of the other matters were given.  Possibly the applicant was referring to two matters decided by differently constituted Tribunals which his migration agent had cited to the Tribunal.  This complaint does not raise a ground for judicial review, but as the applicant expressed his concerns about apparently unequal treatment I mention the topic.  It seems to me on the limited information contained in the court papers that the explanation may well lie in the date when the different matters were heard and determined by the Tribunal.  The situation in Afghanistan, as revealed in the country information relied on by the Tribunal, was changing rapidly at the end of 2001 and in January 2002.  It is understandable that a particular Tribunal deciding a matter at those times may have concluded that the risk of persecution to a person of Hazara ethnicity and Shi’a religion returning to Afghanistan was not remote.  Further, each case has to be decided on the merits, and it is also possible that the explanation lies in the fact that stronger claims were made by other applicants and accepted by the Tribunal.  I can do no more than record the applicant’s complaint. 

24                  Accordingly, the application is dismissed with costs. 

Associate:

Dated:              4 July 2002

Applicant in Person

Counsel for the Respondent:                 Ms S Maharaj

Solicitors for the Respondent:                Sparke & Helmore

Date of Hearing:                                   17 June 2002

Date of Judgment:                                 4 July 2002