Abedi v Minister for Immigration & Multicultural Affairs [2001] FCA 1081

FEDERAL COURT OF AUSTRALIA

Abedi v Minister for Immigration & Multicultural Affairs [2001] FCA 1081

No question of principle Ex parte Durairagasingham (2000) 168 ALR 407 cited Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 applied W63 v Minister for Immigration & Multicultural Affairs [2001] FCA 890 referred to Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523 referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 140 ALR 1 referred to Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 referred to ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955 referred to Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 referred to Migration Act 1958 ss 420(2), 430(1)(d), 476(1)(g), 476(4)(a), (b) ALI JUMA ABEDI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 104 OF 2001 HELY J 10 AUGUST 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 104 OF 2001

BETWEEN: ALI JUMA ABEDI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 10 AUGUST 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed with costs. 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 W 104 OF 2001

BETWEEN: ALI JUMA ABEDI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 10 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") seeking review of a decision made by the Refugee Review Tribunal ("RRT") on 15 March 2001. That decision affirmed a decision of the Minister's delegate not to grant a protection visa to the applicant. 2 The applicant claims that he is a citizen of Afghanistan who lived in a village populated by members of the Hazara ethnic group. He is a Shi'a Muslim, and his occupation is that of a shepherd. He claims that about two years ago the Taliban took control of the area, and began arresting the young men and sending them off to the front line of their war. Around that time the applicant's father went missing. People in the village told the applicant's family that the Taliban had taken him. 3 The applicant claims that in September 2000, the applicant's mother told him that he had to leave Afghanistan before he was also arrested by the Taliban. His mother arranged his marriage to Nadia, and her father arranged a smuggler and paid the money for the applicant to leave Afghanistan. In November 2000 the applicant claimed to have been "smuggled across the border", and to have entered Pakistan illegally. From Lahore he flew to Indonesia using a false passport. He arrived in Australia by boat on 17 December 2000 without any travel documentation. He was detained in the Curtin Detention Centre. 4 The applicant claims that he fled from the Taliban in Afghanistan to save his life. He said that he used a false, dark green passport on his voyage to Australia. He did not know what name was on the false passport, as the smuggler told him not to open it. 5 The Department of Immigration & Multicultural Affairs ("DIMA") had in its possession (CB 49-50) a photocopy of a Pakistani passport bearing a photograph apparently that of the applicant. According to the Minister's delegate (CB 56), the passport appeared to have been issued on 16 October 2000. Again, according to the delegate (CB 57): "Intelligence reports obtained by the Department indicated that there were many Pakistanis posing as Afghans among the Protection Visa applicants in Australia". According to a file note at CB 66 Indonesian authorities intercepted a bus load of "boat people" and took their passports for checking. The passports were photographed and then returned to the occupants of the bus. Copies were then passed on to the Australian authorities. The document at CB 49-50 is one of these copies. 6 By letter sent to the applicant on 16 February 2001 (CB 75) the applicant was advised: "The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa. The information is as follows: The Tribunal has received information that the Indonesian authorities intercepted a group of people in Indonesia and photocopied their passports. One of those passports that has been photocopied has a photo in it that you have identified as being your own. It notes the holder's usual address as Quetta in Pakistan. The passport is a Pakistani passport. This information is relevant because it suggests that you were in Indonesia with a Pakistani passport which suggests you are a national of Pakistan not Afghanistan. You are invited to comment on this information. Your comments are to be in writing and in English." 7 The applicant's response to this enquiry (CB 78) was as follows: "I write this letter in response to your enquiry pertaining my passport. Naturally, any person travelling abroad needs travel documents such as passport. However, Afghans are exception to this rule due to the fact that the ruling authorities persecute certain race such as myself. Therefore, most Afghans are forced to cross the borders to neighbouring countries without a passport. Once these Afghans arrive in either Pakistan or Iran, they have no choice but to seek assistance of a smuggler who then arrange false documents for them to travel to their final destinations. These smugglers usually arrange and keep the travel documents during the course of the journey. It has happened that these smugglers use the same travel documents over and over by changing the photos. I was one of these Afghans as I have explained in my interview. Pertaining the passport you have pointed out, I must state that I have no information as it was the first time I have travelled overseas. Besides, the smuggler never let me have my passport. I don't know how the Indonesian police has obtained this passport. Furthermore, I am not sure that the photo belongs to me as the photocopy is not clear. If I have acknowledged previously that the picture resembles me, this doesn't mean that it is my photo. Besides, this acknowledgment was partly arranged by the Interpreter who recommended me to say 'yes' because it would help my case. If you can provide my fingerprints, I would be satisfied. Otherwise, I must say that I don't know whose passport it is!" 8 On 8 March 2001 a further response was prepared with the assistance of a migration agent. It was as follows (CB 82): "In response to your letter regarding the Passport. Firstly the passport is not mine. The photo was not of me, when questioned I replied no, however the interpreter said I must say yes or otherwise I could be jailed for 10 years. I have never lived in Quetta in Pakistan. I only transited in Pakistan for 5 days. The smuggler prepared the passports, the passport was a green colour. I said at my interview it was dark green. I never hid that fact. I noticed that all of the people had the same colour. None of us come from Pakistan just had the passports prepared and bought in Pakistan."