WAHY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 76

FEDERAL COURT OF AUSTRALIA

WAHY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 76 MIGRATION – judicial review – protection visa – Refugee Review Tribunal – whether jurisdictional error – whether failure to construe visa grant criterion - 'well-founded fear of persecution' – whether real chance test applied or balance of probabilities – whether failure to consider claim – appeal dismissed Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 cited WAHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W103 OF 2003 FRENCH J 11 FEBRUARY 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W103 OF 2003

BETWEEN: WAHY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 11 FEBRUARY 2004

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 W103 OF 2003

BETWEEN: WAHY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 11 FEBRUARY 2004

PLACE: PERTH

REASONS FOR JUDGMENT Introduction 1 The appellant is a national of Afghanistan of Hazara ethnicity and is an adherent to the Shiite religion. He came to Australia without lawful authority on 16 August 2001 and on 11 September 2001 made application for a protection visa to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). That application was refused by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs on 23 April 2002. On 24 April 2002 the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision. The Tribunal affirmed the decision not to grant a protection visa on 26 June 2002. On 11 July 2002 the appellant applied to this Court for an order for review of the Tribunal's decision. His application was remitted to the Federal Magistrates Court and on 17 April 2003 his Honour Raphael FM dismissed the application for review with costs. The appellant filed a notice of appeal against that decision on 7 May 2003. On 14 July 2003 the Chief Justice directed that the appeal be heard and determined by a single judge pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). The appeal came on for hearing on 22 December 2003. The Appellant's Claims 2 In a statement, under the letterhead of his migration agents, and lodged in support of his protection visa application, the appellant said he was born on 31 December 1977 in New Quol, Waras, Bamian in Afghanistan. He lived his whole life in New Quol. He studied for four years in a mosque and worked on his father's farm. He was married but has no children. His wife remains in Afghanistan. He is Hazara and his religion is Muslim Shiite. 3 Under the heading 'Why I left my country', the appellant complained of Taliban attacks upon his village in which one of his brothers was killed. He was warned by his father that he also could be killed. His father arranged for a people smuggler to take him out of Afghanistan and gave him money to pay for the smuggler. He travelled from Afghanistan into Pakistan where he obtained a passport, travelled to Indonesia and eventually to Australia. He said that if he went back to Afghanistan he would be killed by the Taliban. They would kill him like they had killed both his brothers because he is Hazara and a Shiite. He did not believe that there would be any protection for him if he returned. 4 On 18 January 2002, an officer of DIMIA wrote to the appellant referring to changes in Afghanistan connected with the fall of the Taliban regime. It was put to the appellant in the letter that he might wish to consider whether he wanted to return home or to another place where he might have a right of residence, or whether he wanted to continue with his application. He was given an opportunity to provide further information to support his claims for a protection visa. 5 On 2 February 2002, the appellant made a supplementary statement, again under his migration agent's letterhead. In that statement he said that, according to news he had heard, there was still much conflict within the new government in Afghanistan. There was instability in the country and conflict between the Chairman of the interim government, Hamid Karzai and his defence minister. There was no security. The ABC news had reported a recent conflict south of Kabul between two commanders in which about 50 people were killed. There was a fight between two groups in Kunduz the previous week in which 13 people were killed. He had left Afghanistan to escape the oppression and took risks to get away. He posed the rhetorical question, how many people were being killed in the other provinces? He did not trust the new government. One of the warlords had said that if the ex-King, Zahir Shah returned, he would not accept him. He referred to the possible return of Shah after six months. When Shah had been in power 30 years earlier he had oppressed the Hazara minority. 6 The appellant referred to his Hazara ethnicity and the fact that Hazaras had been discriminated against for the past century. He said that the Taliban still retained a lot of power. Although seven previously high ranking ministers and commanders of the Taliban had been captured in Kandahar, the governor of Kandahar had released them back into the community. Again he posed a rhetorical question, if Taliban did not have any influence right now, how could they have secured the release of these ministers? He referred to Pashtuns who called themselves Taliban, whereas previously they had only called themselves Pashtuns. The Pashtuns, he said, are against the Hazara, and against the Uzbek and Tajik. The Taliban were Pashtuns who had just changed their name. 7 The appellant said there was general instability in Afghanistan and suggested that it would probably take about ten years at least for peace and security to return. He maintained that if he were returned to Afghanistan he would continue to be persecuted and his life threatened because of his ethnic and religious background. 8 In a written submission to the Tribunal, the appellant's migration agents restated that in spite of the apparent demise of the Taliban regime, the appellant feared that he would be killed if he returned to Afghanistan. They referred then to the meaning of the word 'persecution' in the Refugees Convention and the operation of s 91R of the Migration Act 1958 (Cth). They submitted that the appellant's claimed harm, if he were returned to Afghanistan, was sufficiently grave to constitute persecution. They asserted that his initial claims and his statements in the course of interviews with an officer of DIMIA indicted a fear of persecution by reason of his race and religion. 9 In elaboration of the appellant's concerns, his agents submitted to the Tribunal: 'The applicant instructs that he fears persecution at the hand of Pashtun Afghan's (sic) in his area who were associated with the Taliban. The applicant fears that many of the same people remain in Afghanistan, and fears persecution at their hands. It is submitted that the reason for the applicant's fear is his race, as a Hazara. The applicant also instructs that he fears persecution at the hands of other ethnic factions within Afghanistan because he is a Hazara. The applicant instructs that many of the people currently holding power in Afghanistan have been responsible for the persecution of Hazara's (sic) in the past, and fears persecution at their hands for reason of his race.' The submission contended that the appellant feared persecution in Afghanistan because of his Shiite Muslim religion. An outline of his claims previously made was repeated. Reference was also made to the Taliban presence and to newspaper reports that they remained a presence, albeit in the background, in Afghanistan. It was submitted that given the delicacy of the current situation in Afghanistan and the reported presence of Taliban leaders and supporters in and outside that country, the appellant's fear of persecution was well-founded. It was submitted that there was 'a real chance' that he would suffer persecution at the hands of those formerly associated with the Taliban due to his race and religion. 10 Mention was made of the Northern Alliance which was described as a confederation of various militia groups made up of persons of Tajik, Uzbek and Hazara ethnicity. Evidence of human rights abuses by the Northern Alliance and tension within the Alliance was cited. The appellant was said to have instructed that he fears persecution at the hands of powerful members of the current administration and that he would not be protected by those persons associated with the Mujahideen who had recently returned to power in Afghanistan. Evidence was cited of the persecution of persons of Hazara ethnicity, not only under the Taliban regime but also at the hands of other regimes in Afghanistan. 11 The persecution of Shiite Muslims was mentioned and the ongoing instability in Afghanistan. A transcript of a report on Afghanistan from a television program, Dateline, of March 27, 2002, was quoted. The transcript recorded an interview with George Gittoes, an Australian war artist who had recently returned from Afghanistan. He referred to insecurity in the country and abuses by the Northern Alliance forces directed at the Pashtun community. He referred to the risk of civil war in Afghanistan. The submission then quoted an extract from a recent report on CBS News of 25 February 2002 in which it was said: 'Already there have been reports of bitter fighting in northern Afghanistan between armies loyal to Uzbek warlord Rashid Dostum and former commander Atta Mohammed as well as in central Bamiyan province between rival groups.' The inability of government to protect citizens was asserted. 12 On the question of relocation, it was said that relocation of the appellant within Afghanistan would not be safe or reasonable within the present circumstances. 13 A further handwritten statement in support of the application for review before the Tribunal was submitted on 23 May 2002. In that statement the appellant made additional reference to his fear of members of the Wahdat Party which fought the Taliban during the war. He said that many provincial leaders had come from the Mujahideen and joined the Taliban when the Taliban came to power. They had subsequently supported the interim government after the fall of the Taliban. He then said: 'When the Government of Najeeb Allah fall down in the hands of Moujahedain, the Hazara people were under attacks from the 'Sunni' Bashto and Tajeek, and as I have mentioned previously, there were many massacres in the Afshar, and confiscated in Bamyan, against Hazara. In that time Bamyan was under control of AL WAHDAH party, and others Shai't parties. Those parties they were coming to my village to take young men and anybody how can carry weapon, to the training camps, to used them against groups, or war, even if there is no battel or war. (sic) My family were under extream fear from the party will come and take one member of family frorcely; exscusing that they are definding us and protect us from the opperssion and the enime of Hazara. My family they were paying money to some well know people to the party. At that time Abdul Kharlme Khalil one of the AL WAHDAH members, which force my family and village to send the young men to the front line, by helping from a small leader like Shakh Ahkbary and others, before Shakh Ahkbary spilet from AL WAHDAH party, and joined Taliban, by attacking the party after Taliban tack over the Bamyan State.' (sic) 14 The appellant expressed 'extream (sic) fear' of returning to Afghanistan with ongoing discrimination and retribution between ethnic groups and parties. He claimed that enemies of the Hazara were waiting for the Americans to leave to begin another cycle of bloodshed against the Shiite people. Further on in the statement he rejected the suggestion that there was no more fighting in the Bamian Province. He relied upon a statement from the BBC that its reporters were not allowed to go anywhere in Afghanistan to report. 15 In its reasons for decision the Tribunal set out the appellant's claims and referred to oral evidence in which he said that he accepted that Karim Khalili, the Shiite and Hazara Governor of Bamian Province, had been made a Vice-President of the new Afghanistan government and would represent Hazara interests. He said that he still had a problem if he were to return to Afghanistan. He had nobody there. Two of his brothers had been killed by the Taliban, another had disappeared four years before and there had been no news of his parents or his sister. He would not be able to support himself. 16 The appellant told the Tribunal that he feared to return to the Waras area as Sheik Akbari had been fighting factions of the Hezb-e-Wahdat party there. Asked which faction he had supported, the appellant said he had not taken sides. Asked why he would then be in danger, he replied that Sheik Akbari had escaped from the area and that he might be accused of treason by the Hezb-e-Wahdat party. Asked why this would be, he said it was because the Waras area had supported Akbari during the Taliban time. The Tribunal referred him to independent evidence that the Akbari faction of the Hezb-e-Wahdat party was a constituent part of the current administration. However the appellant said that as an ordinary person he might be forced to be absorbed into the Hezb-e-Wahdat ranks or otherwise be accused of treason. 17 The appellant also told the Tribunal that his wife had rejected a commander in the Hezb-e-Wahdat party when she had married him and the appellant was frightened of that person who might want to harm him because of that. The Tribunal's Reasons for Decision 18 The Tribunal outlined the appellant's claims at some length and referred extensively to independent country information. In particular, it referred to a report prepared for the UN Coordinator's Office in March 2000 in which it was said that the Waras district was the most secure district in the Hazarjat in 1999 due to the changing politics and the exit of Khalili faction. 19 The Tribunal referred to estimates that Bamian Province was 67% Hazara and reports that it is now firmly under the control of Khalili and the Hezb-e-Wahdat and that although official figures were not available, hundreds of Hazaras had returned to the Province since the collapse of the Taliban regime in November 2001. It referred to a report that the Akbari faction had rejoined the Northern Alliance after the fall of Kabul and its present leader, Hajji Mohammad Mohaqqeq is a minister in the interim government. 20 The Tribunal cited advice from the Department of Foreign Affairs and Trade that Afghans from various ethnic groups in the country were generally able to traverse areas where other groups were in the majority. Although many parts of Afghanistan were insecure, the level of lawlessness applied generally rather than to any ethnic minority traversing the territory. Returnees would face less suspicion and harassment by resettling in areas in which they found an ethnic majority. The potential for harassment would be drastically decreased if they had family or property ties to the area of resettlement. 21 The Tribunal cited information about the Akbari faction of the Hezb-e-Wahdat party. It said that although Sheik Akbari had forged an alliance with the Taliban after the fall of Bamian in 1998, his faction of the Wahdat party was a constituent part of the current administration in Afghanistan. Its leader, Mohaqqeq, was a minister in the interim government. The Tribunal had found no reports of Hazaras in Bamian Province being killed by reason of their perceived association with, or opposition to, Akbari. 22 The Tribunal found that the appellant was a citizen of Afghanistan, of Hazara ethnicity and a member of the Shiite religion. It found that he came from the Waras region of Bamian Province, an area dominated by Hazara people. It accepted his claims of great fear of the Taliban and of Pashtuns associated with the Taliban by reason of their oppressive treatment of Hazara people. The Tribunal had no reason to doubt that the appellant and his family had suffered at the hands of the Taliban and of the Pashtuns in the manner he claimed. The Tribunal found, and it was not disputed by the appellant, that Bamian Province is now firmly in the hands of Hazara forces under the command of Khalili, the Hazara governor of Bamian who has been appointed one of the country's Vice-Presidents. In light of these findings the Tribunal held that the appellant no longer had a well-founded fear of persecution from the Taliban by reason of his race or religion. 23 The Tribunal accepted the appellant's claims that he had played no political role in any conflict between Sheik Akbari and the Hezb-e-Wahdat party. Absent any evidence of continuing conflict between factions of that party, his fear that he might be harmed because of a perceived association with Akbari because of the strong support Akbari had in Waras, was unfounded. 24 The Tribunal accepted that the appellant had legitimate concerns about the lack of family support and material resources should he return to Afghanistan. These matters, however, were not covered by the Convention and could not form the basis of the grant of a protection visa.