Ali Mohsen v Minister for Immigration & Multicultural Affairs [2001] FCA 1206

FEDERAL COURT OF AUSTRALIA Ali Mohsen v Minister for Immigration & Multicultural Affairs [2001] FCA 1206 Migration Act 1958 (Cth) Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495 considered Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 considered Curragh Queensland Mining Ltd v Daniels (1992) 34 FCR 212 considered ALI MOHSEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 86 OF 2001 MANSFIELD J ADELAIDE 29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S86 OF 2001

BETWEEN: ALI MOHSEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 29 AUGUST 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S86 OF 2001

BETWEEN: ALI MOHSEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 29 AUGUST 2001

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 6 June 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 11 April 2001 to refuse to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is nineteen. He arrived in Australia on 9 January 2001 and applied for the visa on 23 January 2001. To be eligible to be granted the visa, the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention"), using those terms as defined in the Act. In practical terms, that meant that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant was a "refugee" as defined in Art 1A(2) of the Convention, namely a person who : "... owing to a 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." 3 The Tribunal referred to the information provided by the applicant to officers of the respondent when initially interviewed and subsequently in a statement in support of his application for the visa, as well as the information which he provided to the Tribunal himself, including at a hearing on 30 May 2001. It is not necessary to refer in detail to those claims. The applicant claimed to be a citizen of Afghanistan, born in Ghouch, Bulu, Orozgan Province in Afghanistan. He claimed that his religion was Shi'a Muslim, and his ethnic group was Hazara. He said he had had no schooling, and was illiterate. From a young age he had worked as a shepherd. He is a single man, with four siblings, and his family remains in Afghanistan. 4 The applicant claimed that he left Afghanistan because he was at risk of being taken by the Taliban to the front to fight. He opposed fighting for the Taliban, and did not wish to be forcibly conscripted. He feared that if he was returned to Afghanistan, his life would be at risk because the Taliban would forcibly conscript him. He also complained that the Taliban banned Hazaras from practising their religion and threatened to kill them if they did not obey. He said his uncle was a Commander in the Hezb-I-Wahdat Party, and he had been killed by the Taliban three years ago.