FEDERAL COURT OF AUSTRALIA

WAHJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 404

MIGRATION – protection visa – appeal from Federal Magistrates Court dismissing application for a review of decision of Refugee Review Tribunal – Magistrate applied the Hickman principles – subsequent decision of High Court in Plaintiff S157/2002 v Commonwealth of Australia – whether any arguable basis for finding that the Tribunal’s decision was not made under the Migration Act – whether Tribunal erred in not considering whether appellant was a member of a particular social group, namely Afghani civilians – whether Tribunal fell into jurisdictional error in failing to consider that appellant might face persecution as a civilian in Afghanistan – no such error identified – whether appeal should be dismissed or matter remitted to Federal Magistrates Court for rehearing.

Migration Act 1958 (Cth)

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 referred to

Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 followed 

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19 referred to

WAHJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W349 of 2002

CARR J

2 MAY 2003

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

introduction

1                     This is an appeal from a decision of a Federal Magistrate given on 10 December 2002.  Her Honour’s decision was to dismiss the appellant’s application for an order of review of a decision by the Refugee Review Tribunal, on 30 May 2002, to affirm a decision of a delegate of the respondent not to grant the appellant a protection visa.  The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge. 

factual and procedural background

2                     The appellant is a citizen of Afghanistan.  Ethnically he is a Tajik who (until his departure from Afghanistan in June 2001) has always lived in Kabul.  The appellant arrived in Australia by boat without any visa documentation on 22 August 2001.  He was interviewed by officers of the respondent’s department on three occasions.  At his arrival interview on 3 September 2001 the applicant’s claims were as follows.  He was a Tajik who lived in Kabul.  His older brother had been killed in 1994, while fetching water from a well, when he was hit by part of a missile during a battle.  The Taliban were hostile to Tajik people and had looted his family shop in Kabul.  His father had been a military officer in the Communist regime before the take-over by the Taliban.  His father had left Kabul and had served with the Northern Alliance when the Taliban came to power.  His father had returned to Kabul, had been taken by the Taliban and was missing, believed to be dead.  The appellant had left Afghanistan because the Taliban “came after me because of my father”.  When asked for any reasons for not wishing to return to Afghanistan, the appellant responded that he could not return “as long as the Taliban is in power” because they would send him to fight. 

3                     In a typewritten statement which accompanied the appellant’s application for a protection visa, made on 13 November 2001, he gave similar particulars which included the following: 

“8.  What I fear might happen to me if I am forced to return to my country.

I would be killed.

9.  Who I think will harm or mistreat me if I return.

The Taliban authorities.

10  Why I believe they will harm or mistreat me if I return.

Because I ran away from them and also because I departed the country illegally.  The Talibans are hostile to Tajiks because we fought against them.  The Taliban looted our shop in 1998.

11.  Why I believe the authorities would not protect me if I return.

I do not believe that the Taliban would protect me if I go back because I am Tajik.”

4                     On 18 January 2002, before his application was determined by a delegate of the respondent, the respondent’s department sent to the appellant a statement about the substantial changes which had occurred in Afghanistan during the previous months.  The appellant’s migration agent responded on his behalf, claiming that he still had a well-founded fear of persecution.  In summary, that claim was based upon an assertion that the appellant’s father had deserted the Northern Alliance (also referred to as the Mujahideen) to return to his family.  If the appellant returned to Afghanistan, the Mujahideen would come after him as the only male in the family and would sentence him to death instead of his father.  The administration in Kabul would regard the appellant as having a political opinion against it, being an opinion passed on by his father who had had links with the Communist Party. 

5                     On 12 March 2002, a delegate of the respondent refused the appellant’s application for a protection visa.  On 18 March 2002, the appellant applied to the Refugee Review Tribunal for review of the delegate’s decision.  On 2 April 2002, the Tribunal sent a notice under s 424A of the Migration Act 1958 (Cth) (“the Act”) drawing attention to what it described as inconsistencies about what the appellant had said about his father and his experiences with the Taliban.  The appellant’s migration agent responded by letter dated 3 April 2002. 

6                     On 7 May 2002 the appellant’s new migration agent, a solicitor, wrote to the Tribunal outlining the evidence of a witness whom he proposed to call.  The witness claimed to have received a telephone call from the appellant’s uncle (a former classmate) who asked him to contact the appellant who was in detention in Australia.  The uncle had told the witness that the appellant’s father had been fighting with General Masoud and the Northern Alliance in the Panjsher Valley, but had deserted to Kabul where he had been taken by the Taliban and was missing feared dead.  When the Northern Alliance re-entered Kabul following the defeat of the Taliban, so the uncle told the witness, members of the Northern Alliance came to the appellant’s family house and made enquiries after his father.  He was wanted for desertion and on suspicion of providing information to the Taliban.  The appellant’s mother was forced to leave the house, which was subsequently taken over by one of the Northern Alliance leaders. 

Proceedings before the Tribunal

7                     The review application was heard by the Tribunal over a period of two days.  The appellant and the witness, referred to above, gave evidence.  The appellant’s solicitor who took part by telephone in the hearing before the Tribunal, subsequently made a written submission to the Tribunal in which he identified the primary issue as persecution of the appellant at the hands of the Northern Alliance as a revenge pay back or deterrent to others for the appellant’s father’s desertion and return to Kabul in December 2000. 

the Tribunal’s findings and reasons

8                     The Tribunal found that the appellant was a Tajik from Kabul in Afghanistan.  While expressing some reservations about the appellant’s evidence concerning the rank of his father, the Tribunal accepted that his father was an officer in the army of the Northern Alliance and that he had been captured by the Taliban. 

9                     The Tribunal found that the appellant’s fear of the Taliban had been overtaken by the extent and nature of the then recent political changes in Afghanistan.  On the basis of independent country information, the Tribunal found that the Taliban had been effectively eliminated as a political and military force in that country.  The Tribunal noted that it was not satisfied that the appellant would face a real chance of persecution from the Taliban or others associated with them on his return to Afghanistan. 

10                  It noted that the present authorities in Kabul were themselves largely Tajik and that it was aware of no credible material suggesting that Tajiks in Kabul now faced a real chance of persecution by reason of their ethnicity or imputed political opinion as Tajiks from Kabul.  The appellant had made no claim of persecution based upon his religion, and the Tribunal noted that it was aware that the overwhelming majority of Afghan citizens were Sunni Muslims, as was the appellant.  The Tribunal found that the appellant did not have a well-founded fear of persecution for reasons of his race or his religion, or because of any political opinion imputed to him because of either of those factors coupled with his place of birth and residence.  The Tribunal then turned to consider the manner in which the appellant’s claims had developed as summarised above.  It found that the appellant had been put on notice that the Northern Alliance having expelled the Taliban from Kabul and most of the remainder of the country, his claims about fears of the Taliban would not make him a refugee under the Convention.  His failure to raise any concerns about the Northern Alliance, so the Tribunal found, suggested that the issue had not then presented itself to him as a matter of great significance or concern.  

11                  The Tribunal said that the appellant had embellished his story since he first articulated his concerns about the Northern Alliance.  In relation to the oral evidence given by the witness who claimed to have heard from the appellant’s uncle, the Tribunal said that it gave little weight to that evidence.  It gave some reasons for taking that course.  The Tribunal said that it did not accept the witness’s evidence as “truly independent”.  The Tribunal did not expressly say that it rejected the witness’s evidence, but said that it was not satisfied that elements of the Northern Alliance and in particular the named commander, were motivated to seek out the appellant’s father and family and persecute them because of his father’s desertion. 

12                  The Tribunal said that even if it were to accept the witness’s statement that the commander had taken over the family home and evicted the appellant’s mother, brother and sister, the witness’s associated evidence was that the appellant’s relatives had come to no harm, were in good health and were living with the appellant’s uncle.  The Tribunal observed that the commandeering of private property by the military was not unusual following the take-over of an area (see page 32 of its reasons).  Although there appear to be words missing in the next sentence of the Tribunal’s reasons, it would seem that the Tribunal did not regard the commandeering of the appellant’s family home, if it had in fact taken place, as amounting to persecution. 

13                  For reasons which it set out, the Tribunal said that it was satisfied that if the Northern Alliance had sought out the appellant’s father, they would have become aware of his capture and presumed murder by the Taliban, and would not regard him as a political opponent. 

the decision at first instance

14                  The grounds of the application at first instance were stated as follows:

“I do not agree with the RRT decision because he made an error in law and can’t find that I still have persecution of Afghanistan in this current government (sic).”

15                  Her Honour’s decision was given after the Full Court decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 but before the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. 

16                  Her Honour applied NAAV and stated that the application did not identify any exception falling within the Hickman principles.  Accordingly she dismissed the application with costs. 

the appeal and my reasoning

17                  The appellant was unrepresented.  The grounds of appeal were stated in the following terms: 

“The applicant will face persecution if he is forced to return home on the grounds of their past political affiliations with communists. 

The applicant lives will be in jeopardy due to their anti-Islamic beliefs because the current regime is a strict Islamic government. 

The applicant cannot remain silent and have to express his political views against the government which will lead to his persecution (sic).”

18                  This morning the appellant caused to be filed a written outline of submissions which appears to have been prepared on his behalf by a Ms Naleya Everson.  At the hearing this morning the appellant told me that he had signed that document, that he relied upon the submissions in it and did not wish to add to them.  The essence of the written outline of submissions was as follows:

1.         The Tribunal had fallen into jurisdictional error and its decision was invalid because it failed to identify a correct issue, ignored relevant material and incorrectly applied applicable law.

2.         In particular, the appellant submitted that the Tribunal failed to identify the issue that there was a real risk that he would face persecution in Afghanistan for reasons of his membership of a social group, namely civilians in Afghanistan.  The Tribunal was said to have ignored submissions made by the appellant’s adviser as to the abuse of human rights in Afghanistan.  There was, so it was put, substantial evidence before the Tribunal that human rights abuses, including killings, were frequent occurrences in Afghanistan at that time.  It was submitted that the material indicated that an Afghani civilian was at around 100 times greater risk of being killed, because the warring parties “did not care that they got killed because they were civilians i.e. for reasons of being a civilian, than say an ordinary Australian would be likely to be killed because they are a civilian.”  This, so it was submitted, meant that there was a real chance that the appellant would be killed.

3.         The Tribunal was said to have incorrectly interpreted an applicable law and exceeded its jurisdiction in failing to apply the test outlined in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 on the question of relocation.  It was submitted that the Tribunal had accepted that the Taliban had persecuted him and, if still in power, would persecute him.  The Tribunal had also accepted that the Taliban was still present and active in parts of Afghanistan.  Therefore, so it was put, the appellant was expected to go to a place where the Taliban were not present and active to avoid persecution.  It was submitted that the information before the Tribunal showed that there was no place in Afghanistan where the appellant could go which would not meet the description, referred to in Randhawa, of a place “where the quality of internal protection fails to meet basic norms of civil, political and socio-economic or human rights”.

19                  In my view, there is no substance in these submissions.  I very much doubt whether the evidence before the Tribunal required it to consider whether there was a relevant particular social group (within the meaning of the Convention) of civilians in Afghanistan. 

20                  However, assuming but not deciding, that there was evidence to identify such a particular social group, there was no evidence that Afghani civilians were persecuted by reason of being civilians.  Furthermore the appellant, who was represented by a solicitor, did not make any such claim before the Tribunal. 

21                  The submissions about relocation, are, in my opinion, also misplaced.  The evidence was that the appellant had lived all his life in Kabul.  The Tribunal referred to independent country information to the effect that the Taliban had been effectively eliminated as a political and military force in Afghanistan and no longer governed or administered Afghanistan.  In particular, the Tribunal referred to evidence that law and order in Kabul was largely under control.  Immediately after referring to this evidence, the Tribunal said this (at p 29 of its reasons):

“The Tribunal is not satisfied that the applicant would face a real chance of persecution from the Taliban or others associated with them on return to Afghanistan.”

22                  The question whether it was reasonable for the appellant to relocate to any other part of Afghanistan was not an issue before the Tribunal.  The whole basis of its decision was that the appellant would return to Kabul where he had spent all his life. 

Affiliation with the Communists

23                  Although there was some mention of the appellant’s father’s former links with the Communist Party in the written submission dated 16 February 2002 to the respondent’s delegate, the appellant did not claim, either at that stage, or before the Tribunal that he would be persecuted by reason of past political affiliation with the Communists.  His claims were based upon his father’s desertion and political opinion against the administration which might be imputed to his father (and also to the appellant) by virtue of such desertion. 

24                  In my view, there is no substance in this ground of appeal.

Religion

25                  The appellant has not previously made any claim based on religious persecution.  As I have mentioned, the Tribunal stated that it was aware that the overwhelming majority of Afghan citizens are Sunni Muslims, as is the appellant.  The Tribunal found that the appellant did not have a well-founded fear of persecution for reasons of his race or his religion.  In my view, there is no substance in this ground of appeal.  

26                  Although the basis of the Tribunal’s rejection of the evidence of the witness, referred to above, might not be very persuasive, in my view it was open to the Tribunal to reject the factual basis upon which the appellant put his claims i.e. that his father would be regarded as a deserter and that, being the son of such a deserter, he would be persecuted if returned to Afghanistan. 

27                  I have reviewed the papers to see whether there is any basis upon which it might be found that the Tribunal’s decision was not a decision “made under the Act”, within the meaning of that expression as explained in Plaintiff S157/2002.  If there were such an arguable basis, I would set aside the decision at first instance as being made in inadvertent error of law, and remit the application to the Federal Magistrates Court either for rehearing or further hearing.  There is no such arguable basis.  I think that the proper course is to dismiss the appeal: see Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33, compared with NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19.   

28                  In my view, the Tribunal acted within its jurisdiction and I find no error on its part which might amount to jurisdictional error.  Accordingly, in my opinion, the Tribunal’s decision was “made under” the Act. 

29                  I agree with her Honour’s conclusions that there was nothing before her which suggests that the application of the Hickman principles would give rise to a basis for judicial review.

Conclusion

30                  For the foregoing reasons the appeal will be dismissed with costs.

Associate:

Dated:              2 May 2003