WAHZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 594

FEDERAL COURT OF AUSTRALIA

WAHZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 594

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – claim of well founded fear of persecution in Afghanistan – claim initially related to Taliban – claim subsequently related to Pashtun – whether Tribunal overlooked appellant claim of experience of Pashtun hostility – no jurisdictional error – appeal dismissed.

Migration Act 1958 (Cth)

Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 cited WAHZ v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W330 OF 2002 FRENCH J 13 JUNE 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W330 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: WAHZ OF 2002

APPELLANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 13 JUNE 2003

WHERE MADE: PERTH

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.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W330 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: WAHZ OF 2002

APPELLANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 13 JUNE 2003

PLACE: PERTH

REASONS FOR JUDGMENT Introduction 1 The appellant, who is of Hazara ethnicity and claims to be a citizen of Afghanistan, arrived in Australia by boat without authority on 22 August 2001. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 14 November 2001 and on 1 May 2002 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant him a visa. On 8 May 2002 he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 27 June 2002, the Tribunal affirmed the decision not to grant him a protection visa. The appellant sought review of that decision in the Federal Court. However by order of Lee J on 19 August 2002 the matter was referred to the Federal Magistrate's Court. On 8 November 2002, Raphael FM dismissed the application with costs. 2 On 3 December 2002, the appellant lodged a notice of appeal against the decision of Raphael FM. On 26 March 2003, the Chief Justice directed that, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal should be heard and determined by a single judge. Evidence and Claims 3 In support of his application for a protection visa the appellant provided a written statement in which he claimed to have been born in 1956 in Ghazni, Afghanistan and to be a citizen of Afghanistan. The appellant said he is married with seven children and that his wife and children are still living in Afghanistan. His ethnic group is Hazara and his religion is Muslim Shi'a. He claimed that three years earlier the Taliban had taken one of his brothers who had not been heard of since. Not long after this occurred the appellant moved to Deh Morda to get away from the Taliban. He was frightened that the Taliban would take him. Even while living in Deh Morda he and his family were constantly in fear that the Taliban would take him to the front line. The vast majority of people living in Deh Morda were Pashtuns and they could have reported him to the Taliban. 4 The appellant said that in May 2001 he heard from people in his village that Australia is a peaceful country which accepts refugees. He went to Angoori to find out how to travel to Australia. It was then he was introduced to a people smuggler who took him to Pakistan where he was introduced to another smuggler who arranged his travel to Australia. He said that he feared that if he were forced to return to Afghanistan he would be killed by the Taliban authorities. 5 A linguistic analysis was carried out on a recording of the appellant's speech. This was done by the Swedish organisation, Eqvator. The conclusion offered was that the appellant speaks Dari in the Hazaragi dialect which is mainly spoken in Central Afghanistan. It is also used among Hazaragi speaking minority populations in Pakistan and Iran. The appellant's Hazaragi dialect was said to be Pakistani although his mother tongue was Dari. 6 On 13 February 2002, the appellant's migration agent made a submission to the Department in support of his application for a protection visa. At this time the political situation in Afghanistan had changed with the fall of the Taliban. Asylum seekers from Afghanistan who were in Australia had been given the opportunity to submit further reasons as to why they could not be returned to Afghanistan in the new political situation. The appellant was so advised on 18 July 2002. The submission described the appellant as a Hazara Muslim Shi'a who feared returning to Afghanistan. The Ghazni area from which he originated was said still to be a high risk area. The new governor of Ghazni, Qari Baba, had shown 'blatant discrimination' against Hazara in the past. The submission then set out what were said to be examples of persecution Hazaras had experienced in the past under the Pashtuns. It was also submitted that the chances of the Taliban regrouping as a significant future force could not be discounted. Indeed, it was said, the appellant feared that the Taliban would return. 7 The appellant himself made a further statement on 14 February in which he said that although the United States had pushed the Taliban out of the cities the situation was not much changed because the Taliban had 300,000 troops. He went on to say: 'Karzai Government came in power by the Americans in Afghanistan, this type of Government has been in power in the past many times. Since King Abdul Rahman regime and until now the Hazara and Shi'aa people have been persecuted by every Pashtun government like Zahir Shah Government and the Dawood Government. … We have always been under pressure by every Pashtun government because we are Hazara and Shi'aa.' Relevantly to this appeal he said: 'In the area I was living in Jaghori, Dahmarda, it is very close to the Pashtun area. I used to live in Helmand, we were forced as refugees to Dahmarda by Pashtuns. If I return back I would be killed by the Pashtuns to day or tomorrow, because we are Hazara and cannot trust any Pashtun government. Even before Taliban we were in danger by the Pashtuns, it does not mean that if they kill it is the only cruelty and persecution, the Pashtuns did many things that was just as bad such as not letting the Hazara people work freely buy (sic) confiscating our farmland and forcing us to leave and move to another area like we were forced to go to Dahmarda which is a place in isolation and close to Pashtun area. They made our life very hard for us, we could not support our families properly.' Referring to the fact that there are Hazaras in the Karzai government the appellant said that they did not have authority and were still answerable to Pashtuns. He could not say that the positions held by the Hazara in the government would put them in a position to do anything for the Hazara people as the majority of positions were held by Pashtuns.