WADY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1115

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate made on 9 April 2003. 2 On 11 July 2003 the Chief Justice determined pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal should be heard by a single Judge. 3 The appellant arrived in Australia in March 2001 without any travel documents and without a visa to enter the country. He claims to be and was in due course found, by the Refugee Review Tribunal (RRT), to be a national of Afghanistan. He entered Australia illegally and thus was an unlawful non-citizen. 4 On 26 July 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). On 21 September 2001 a delegate of the respondent refused to grant a protection (class XA) visa. 5 On 26 September 2001 the appellant applied to the RRT for a review of that decision. 6 On 17 December 2001 in a decision which was published on 19 December 2001 the RRT affirmed the delegate's decision not to grant a protection visa. 7 On 10 January 2002 the appellant applied to this Court in the Western Australian registry for an order for review of the RRT decision. The matter was transferred to the Federal Magistrates Court on 30 April 2002. The matter was heard in that Court on 18 June 2002 and on 9 April 2003 Federal Magistrate Walters dismissed the application. 8 It is from that decision that this appeal is brought. 9 The appellant is unrepresented but it is likely that he has had some assistance in drawing the grounds for appeal which are: 1. His Honour erred in concluding that there was no jurisdictional error on the part of the Tribunal that the RRT acted in good faith. 2. In the particular circumstances of my claim of Shi'a faith. The Tribunal required as a matter of law to consider my Shi'a faith that would definitely expose me to persecution, serious harm and threat to my life, and significant threat to my life and liberty and lasting mental intimidation by Sunni majority. Orders sought 3. The appeal be allowed. 4. The orderers (sic) made by his Honour Walters FM on 9 April 2003 be aside (sic) and in lieu thereof it be ordered that the application be dismissed with costs. 5. The respondent pay the appellant's costs of the appeal.' 10 Clearly enough there is an error in the fourth ground of appeal. The appellant sought an order before the Federal Court Magistrate that the application be allowed rather than dismissed with costs. The appellant, if he had established a jurisdictional error, would have been entitled to orders quashing the RRT decision and remitting the matter to the RRT. 11 In any event, I have treated this appeal as seeking an order overturning the Magistrate's dismissal of the application and in lieu thereof making an order allowing the application and remitting the matter to the RRT with the necessary consequential orders. 12 There was some delay between the hearing and the Magistrate's decision. The matter was heard on 18 June 2002 which of course was before the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (Plaintiff S157). The hearing was also before the decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449. 13 However, the Magistrate's decision was given after the High Court's decision in Plaintiff S157 and his Honour had regard to that decision in determining that not only had the RRT proceeded in accordance with a Tribunal's obligations as discussed in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 but more importantly the Tribunal had not fallen into any jurisdictional error which would allow the Magistrates' Court to review the RRT's decision. 14 There is no error disclosed in the Magistrate's reasons. The Magistrate proceeded in accordance with Plaintiff S157. The Magistrate asked himself the right question in relation to his jurisdiction on the application. No error is disclosed in his reasons. 15 It is clear that the application to the Magistrate sought a review by the Magistrate of the merits of the decision of the RRT. The merits are for the administrative body not for the Court on a review: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347. 16 However, because the appellant is unrepresented, I have considered the appellant's case before the RRT and carefully read the reasons for decision of the RRT especially in the light of the claim of jurisdictional error. 17 The appellant claimed a fear of persecution for reasons of his religion. He relied on Art 1A(2) of the Convention Relating to the Status of Refugees (Geneva, 28 July 1951) (the Convention) which provides the criterion for the grant of a protection visa pursuant to s 36(2) of the Migration Act 1958 (the Act). Article 1A(2) of the Convention defines refugee as 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.' 18 The appellant is a Pashtun of the Hasan Khel tribe who was born Ghunday, Paktia Province, in 1981. That province is on the eastern border of Afghanistan and Pakistan. Ghunday consists of 60 households, 35 of which belong to the Mangal tribe who are Sunni Muslims and about 25 belong to the applicant's tribe who are Shi'a Muslims. 19 It was the appellant's case that the Taliban assumed control of the village in about 1997 and began to 'cause problems' for the Shi'a people in the village. The Taliban took 20 to 25 Shi'a men away to fight on the front line. His case was the Taliban had looked for him eight or nine times and had searched for him in his home, the village and in the mountains for about four months before he left Afghanistan. 20 Not only did the Taliban take the Shi'a men but they closed the Shi'a mosque and took action to prevent Shi'a people from celebrating important religious days. 21 He claimed that his brother-in-law was arrested by the Taliban about a month before the appellant left Afghanistan. His brother-in-law's body was later found in the mountains. He had been severely beaten. 22 The RRT found that the appellant was an Afghani. That finding contradicted the finding of the delegate which found that the appellant was not an Afghani and that his country of citizenship or former habitual residence was Pakistan. 23 The RRT thus proceeded on the basis that the appellant's claim that he was an Afghani national had been made out. However, on other important matters the RRT rejected the appellant's account. It did not accept that the Taliban had persecuted the appellant because of his religion or for any other Convention reason. It did not accept that the Taliban had prevented him from practising his religion, nor did it accept that the Taliban had searched for him for the purpose of recruiting him to fight on the front line. Whilst the RRT did accept that the Taliban had killed his brother-in-law it was not prepared to find that he had been killed for any Convention reason and in particular because he was a Shi'a. 24 Those findings necessarily meant that the appellant's application for review had to fail. 25 However, the RRT also found that the Taliban had lost control of Afghanistan and there was no objective basis for the appellant to believe that he would be harmed by the Taliban for any reason including a Convention reason if he were to return to Afghanistan. 26 The RRT examined his claimed fear of persecution if he were to return. He claimed that because he was a Pashtun other ethnic groups in Afghanistan such as Tajiks, Uzbeks and Hazaras would identify him with the Taliban and he would be liable to be persecuted by those other ethnic groups. 27 The RRT described this claimed fear of persecution as incongruous particularly because the area in which he lived was dominated by Pashtuns who in turn had recently 'routed the Taliban throughout southern and eastern Afghanistan'. 28 The appellant's review failed before the RRT first because the RRT did not accept that he had a fear of persecution if he were to return to Afghanistan. In reaching that conclusion the RRT rejected the appellant's claim that he had been subjected to persecution for a Convention reason before he came to Australia. Secondly, even if he did have a fear of persecution that fear was not well founded. 29 There is nothing in the RRT's reasons or in any of the other papers or documents before me to suggest any jurisdictional error on the part of the RRT. The RRT's decision was simply based on fact and was a decision that was open to it. 30 As earlier mentioned, it is not for this Court nor was it for the Magistrate to enter into a review of the merits of the decision. 31 In my opinion the Magistrate was bound to come to the decision it did.