WAIN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1281

FEDERAL COURT OF AUSTRALIA

WAIN v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1281

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 distinguished WAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W71 of 2003 CARR J 10 NOVEMBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W71 OF 2003

BETWEEN: WAIN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CARR J

DATE OF ORDER: 10 NOVEMBER 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 W71 OF 2003

BETWEEN: WAIN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CARR J

DATE: 10 NOVEMBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT

introduction 1 This is an appeal from a decision of a Federal Magistrate given on 21 March 2003. His Honour's decision was to dismiss the appellant's application for an order of review of a decision of the Refugee Review Tribunal, made on 22 August 2002, to affirm a decision of a delegate of the respondent not to grant the appellant a protection visa. The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge.

factual and procedural background 2 The appellant is a Sunni Muslim of Pashtun ethnicity and is a national of Afghanistan. He arrived in Australia on 22 August 2001. On 26 September 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 14 June 2002 a delegate of the respondent refused to grant him a protection visa. On 18 June 2002 the appellant applied for review of that decision by the Refugee Review Tribunal which conducted a hearing on 7 August 2002. 3 The following particulars were given in documents accompanying the appellant's application for the protection visa. The appellant estimated his date of birth as being in 1979. He said that he had never been married, although he was engaged in May 2001 with the intention of being married in Kandahar City. He had lived all his life in Mianji a village near the city of Kandahar in Kandahar Province. 4 In about 1994 the Taliban started taking over Kandahar and problems began for his family. At that time his father was a "sustenance commander" for the Jamiat-e-Islami party. On one occasion his father was captured by the Taliban and detained for two or three months. When he was returned, the Taliban searched his house for weapons. Upon failing to find any weapons they confiscated the titles to their land. 5 After this, the appellant's father opened a haberdashery business in a relative's shop in Charsu in Kandahar. On various occasions a Talib named Hafiz Majid came to the shop to try and persuade his father to join the Taliban forces. They particularly wanted his father to join, due to the fact that he was an ex-Jamiat-e-Islami party commander. 6 In about 1999 those persuasions turned into threats. On the last occasion when Hafiz Majid came to the shop to see the appellant's father he warned him that if he did not join the Taliban forces he would cause himself a lot of problems. Two or three days later the appellant's father and one of his brothers were shot dead as they were walking to work from their home. 7 Three days later the appellant and his family were evicted from their home by the Taliban. They moved to a village named Mazra. 8 The appellant began criticising the Taliban and speaking about their cruelty. About one month after the death of the appellant's father and brother, the Taliban took him from his shop and detained him at the Taliban security base which was located between the first and sixth zone of Kandahar. The appellant was detained for ten days and beaten frequently. While being tortured, the Taliban told him that his father had been killed because he had been active in the Jamiat-e-Islami party. They said that the appellant must also be a supporter of that party because he had been criticising the Taliban. 9 With the help of a maternal uncle the appellant managed, after a lot of trouble, to get released. He returned home, but was unable to work for a couple of days because of the injuries resulting from the beatings. 10 A few days later the appellant re-opened his shop and continued working. He became very good friends with a girl who frequently came to his shop and eventually they fell in love. While the appellant's mother was away at a wedding the appellant and that girl spent the night at his home. He found out that her father worked for the Taliban. 11 On one occasion the girl came to his shop with her ten year old brother. A vehicle pulled up outside and Hafiz Majid got out. It transpired that the girl was in fact Hafiz Majid's daughter. He grabbed his daughter and swore to Allah that he would not let the appellant live and that he deserved to be killed for the following reasons. First, because his father had been a "sustenance commander" with the Jamiat-e-Islami party, secondly he had been criticising the Taliban, thirdly his family had not given a son to fight as a soldier and finally the appellant had spent a night with his daughter. As Hafiz Majid walked out of the shop he said that he would be back, and started talking on a two-way radio. 12 The next day the appellant found that his shop had been locked and sealed by the Taliban. He was warned not to go home as his house was surrounded by the Taliban. He found out that they had taken his brother Niamat as hostage for his return. 13 With the help of an uncle he escaped dressed in women's clothing from Kandahar and eventually travelled by bus to Karachi. From Karachi he flew to Malaysia then boarded a boat to Indonesia. He later boarded another boat to Australia. He feared that if forced to return to Afghanistan he would be killed. The statutory declaration containing the foregoing claims was dated 20 September 2001. 14 On 18 February 2002, after the liberation of Afghanistan, the appellant swore a second statutory declaration. In that statutory declaration the appellant claimed that if returned to Afghanistan he would still face persecution. This was because Kandahar was where the Taliban originated. The Taliban were still there but had only taken off their turbans and shaved their beards. They were part of the interim government and the provincial government. He had seen on television a man called Malla Khaksar who had been Assistant Minister for Home Affairs in the Taliban government stationed in Kabul. He had heard on the radio that Khaksar had accepted a position in the interim administration. 15 He had also learned that Hafiz Majid's paternal cousin, a man named Haji Bashar, who was a high ranking official in the Taliban, and before the Taliban with the Mujahideen, had also been given responsibilities in the interim administration. It was even more dangerous for him to return to Afghanistan, as the Taliban would want to make an example of him because he left Afghanistan and had previously spoken out against their former practices. Due to his late father's history as a commander with the Jamiat-e-Islami party, the appellant's escape from Afghanistan and from the Taliban, his sexual association with Majid's daughter, his voiced opposition to the Taliban and his failure to fight for them, the appellant felt certain that he would be killed if returned to Afghanistan. Even if the Taliban were no longer in control in Kandahar, he would face certain death from either Majid or his family members because they feel great dishonour. The dishonour was greater because he had made known to them his views about the Taliban and because he was the son of a man who was known to be in opposition to the Taliban. 16 In later submissions forwarded to the respondent's Department by the appellant's solicitors in May 2002, the appellant continued to claim that he would not be safe if returned to Afghanistan, even in Kandahar. 17 When the application for review to the Tribunal was pending, the appellant's solicitors forwarded to it a letter from a Mr Ismail Kakar who said that he had been contacted by an uncle of the appellant and asked to forward the following information. The appellant's younger brother had been kidnapped by the commander of the Jamiat-e-Islami party, Mr Molah Naqib. Molah Naqib had warned the appellant's uncle that he must also "bring forward" the appellant because four years ago the appellant's father received a letter from the commander requiring the appellant's father to go to Panjsher and he had not done so. He had been asked to go to Panjsher because he had weapons, money and a car which belonged to the party. Commander Naqib had said that he wanted these items from the appellant because he believed that the appellant was in possession of them. Another commander named Hafiz Najeb had also ordered that the appellant be "brought forward" to him. The appellant's family had been troubled and very frightened by the threats and actions of these people.