FEDERAL COURT OF AUSTRALIA Myakhail v Minister for Immigration and Multicultural Affairs SAID ANWAR MYAKHAIL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 12 of 2001 WILCOX J 3 JULY 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA W 12 of 2001 DISTRICT REGISTRY BETWEEN: SAID ANWAR MYAKHAIL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WILCOX J DATE OF ORDER: 3 JULY 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application for review be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 W 12 of 2001 DISTRICT REGISTRY BETWEEN: SAID ANWAR MYAKHAIL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WILCOX J DATE: 3 JULY 2001 PLACE: PERTH REASONS FOR JUDGMENT WILCOX J: 1 This is an application by Said Anwar Myakhail for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse Mr Myakhail a protection visa. The application for a protection visa was based upon a claimed fear by the applicant of persecution on account of political opinion if he was returned to his native Afghanistan. 2 It is not necessary for me to recount the detail of Mr Myakhail's evidence. The essential point was that Mr Myakhail worked for a period of about 10 years for the Jamiat-i Islami Party of Afghanistan, which is opposed to the Taliban group that now controls much of Afghanistan. Apparently Mr Myakhail worked for the Jamiat-i Islami Party in Peshawar, Pakistan, until about 1996. 3 The basis of the refugee claim was that the Taliban now control the area where Mr Myakhail lived before he left Afghanistan. However, in supporting his claim, he was unable to refer to any incidents of persecution of himself; and this despite the fact that he said he had continued, in a low-key way, to spread a message amongst residents of the area as to the evils of the views and practices of the Taliban. 4 Mr Moen appeared on behalf of Mr Myakhail today, on a pro bono basis, and I express the Court's appreciation to him for his involvement and the argument he put. Basically, he put three points. 5 The first submission deals with the claim that was made. Mr Moen does not suggest the Tribunal failed to give consideration to the evidence of Mr Myakhail as to his past work for the Jamiat-i Islami Party, and as to the events that have taken place in recent years in his part of Afghanistan. However, he says the Tribunal erred in failing to have regard to future possibilities; particularly, so far as Mr Myakhail is concerned, if he were returned to Afghanistan. 6 Mr Moen refers to the decision of the Full Court in Omar v Minister for Immigration and Multicultural Affairs [2000] FCA 1430, in support of the submission that the Tribunal, in considering an application for refugee status, is required to look to the future. There is, I think, no doubt about the principle. It is inherent in the definition of "refugee" in the Convention on Refugees 1951, which refers to a person having a well‑founded fear of persecution on a particular ground, if returned to the country of nationality. The ultimate question always must be what is likely to happen in the future. There will be occasions when the past is no guide to the future; for example, if some dramatic event has occurred in the country of nationality, that either worsens or improves the prospects of a person, if returned to the country. However, where there has not been a dramatic change, it will often be the case that the past is the best guide to the future; for that reason, it is the practice of the Tribunal, and decision‑makers in refugee cases, to spend time looking at the past history of the applicant. That occurred in the present case. 7 It is true to say that the Tribunal, in the present case, did not deal specifically with the future. However, it is plain, from the tenor of the reasons for decision, that the past was being examined in order to determine what would be likely to happen if Mr Myakhail were sent back to Afghanistan. I reject the submission that the Tribunal failed to consider the future. It is inherent in what the Tribunal did. 8 The other points put by Mr Moen concern the Tribunal's failure to deal with matters that were not raised at the Tribunal hearing. I accept there may be occasions where the Tribunal is under an obligation to consider a matter, even though that matter is not raised, in terms, by the applicant. Most applicants for refugee status lack familiarity with the requirements of the Migration Act and with refugee law. A large proportion of them have little or no command of the English language. They can only tell their story; it will usually be a matter for the Tribunal to determine whether that story indicates the existence of a Convention ground. 9 However, it is relevant, in considering whether there was a failure to consider a relevant matter, to have regard to the way in which an applicant's case was put. Mr Moen referred to the applicant's education. The Tribunal found the applicant completed his secondary schooling in 1979. He was apparently born in 1959, so he was then aged about 20 years. The Tribunal found the applicant worked as a teacher for two years in the north of Afghanistan. He attended King Saud University in Saudi Arabia in 1990. It is not clear how long he was at university, but apparently only for a short time. The Tribunal noted this degree of education, but recorded: "The applicant makes no claim that he is or would be perceived to be an intellectual or academic or that he fears persecution on that basis." 10 The Tribunal referred to a document published by the United Kingdom Home Office in April 2000. This document listed various groups of people considered to be at risk from the Taliban. About 20 different groups were mentioned. One of them is described as: "Persons considered educated or secularly inclined." The contention is that the Tribunal should have directed itself that Mr Myakhail was a person who would be considered educated and therefore at risk. 11 It is to be noted this contention contrasts with the apparent disclaimer of Mr Myakhail himself, at the hearing, when he said he would not be perceived to be an intellectual or academic and he did not fear persecution on that basis. However, accepting that there was some obligation upon the Tribunal, the Tribunal seems to have discharged that obligation. The Tribunal said: "I am aware that it is not possible to give an exhaustive account of the groups that risk persecution in Afghanistan because alliances and conflicts are changing and seem to arise across ethnic, political, social and clan barriers. However I am satisfied that the applicant is not included in most of the groups at risk described in the reports mentioned above. I am satisfied on the basis of the applicant's own evidence at the hearing that the only category into which he may fall from those categories mentioned above is that he is a person considered as holding anti-Taliban views." 12 It will be observed that the Tribunal took the course of going to the United Kingdom list, and indeed some shorter lists from other agencies, and considering whether it appeared that the applicant fell within any of the stated categories. Having considered the lists, the Tribunal made a finding that Mr Myakhail only fell into the category of "holding anti-Taliban views". It is possible, of course, to debate whether the Tribunal's finding of fact on that matter is correct, but it seems impossible to deny that the Tribunal took the matter into consideration. 13 The other matter which is said not to have been considered by the Tribunal is the likely reaction of the Afghanistan government, if Mr Myakhail is sent back to Afghanistan from Australia. It seems, from what he told a departmental officer, that Mr Myakhail no longer has his Afghanistan passport, he having discarded it on the way to Australia. 14 It seems to me this complaint is also without foundation. The Tribunal included in its reasons for decision references to material concerning repatriation into Afghanistan. It seems substantial repatriation is now occurring from Pakistan. Details were given of the number of families involved. The repatriations include repatriation into the area from which the applicant comes, and where his family still resides. The Tribunal referred to information from international agencies and made a finding: "… the United Nations is satisfied that in general circumstances it is safe for Afghan citizens to return to the applicant's province and the UN is facilitating that return." 15 Reference was made to a United States State Department report which claims that some 92,000 Afghans returned to Afghanistan in 1998 and some 93,000 Afghans in 1999. The Tribunal went on: "I note the UN is facilitating a return of people to the applicant's province and I am satisfied that subject to any difficulties arising out of the applicant's particular circumstances (which I will consider later in these reasons) it is safe for him to return to his province." The particular circumstances are the matter I first mentioned: his previous association with the Jamiat-i Islami Party. 16 It may be contended that the member did not sufficiently distinguish between repatriation from areas such as Pakistan and from a country such as Australia. Indeed, Mr Moen made that criticism. However, the quoted statement is one of general application. It is impossible to dispute that the subject of repatriation was directly addressed by the Tribunal. Whether the Tribunal made the right finding of fact is, of course, not a matter for this Court. 17 I repeat the Court's gratitude to Mr Moen for raising the mentioned points. It is always comforting, in a matter of such importance as a refugee case, where removal to another country is involved, to have counsel go over the Tribunal's reasons carefully and put whatever arguments may be put in favour of the proposition that the Tribunal's decision requires reconsideration. However, with the assistance I have gained from the submissions, I am left in no doubt that this is not a matter which attracts the jurisdiction of the Court under s 476 of the Migration Act. Accordingly the appropriate order is that the application be dismissed with costs. I make that order. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox . Associate: Dated: 5 July 2001 Counsel for the Applicant: D P A Moen Counsel for the Respondent: R L Hooker Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 July 2001