Applicant A148 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 566

FEDERAL COURT OF AUSTRALIA

Applicant A148 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 566

MIGRATION – whether well-founded fear of persecution from Taliban – concern at prospect of returning to Afghanistan without wife – not persecution for a convention reason – whether error in Refugee Review Tribunal's failure to consider if protection could be afforded by authorities. Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 cited APPLICANT A148 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL S 717 of 2003 LANDER J 30 APRIL 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 717 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT A148 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 30 APRIL 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 717 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT A148 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: LANDER J

DATE: 30 APRIL 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) made on 29 August 2002. 2 The applicant commenced these proceedings in the High Court of Australia on 18 March 2003 by seeking the issue of the constitutional writs. 3 The matter was remitted to this Court by Hayne J on 11 June 2003. 4 An amended application was filed on 6 April 2004, which was supported by an outline of the applicant's submissions. 5 The applicant arrived in Australia on 17 June 2000. On 6 July 2000, the applicant lodged an application for a protection visa. On 22 February 2001, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 20 March 2001, the applicant applied to the RRT for a review of that decision. 6 The applicant claimed to be an Afghani citizen. Although the RRT had doubts about that claim, the RRT said that it would give the applicant 'the benefit of the doubt and for the purposes of this decision has proceeded on the basis that the Applicant's nationality is as claimed and that his experiences and circumstances are broadly as he has stated'. 7 The applicant claimed to be an ethnic Pashtun from Afghanistan. He said he was born in the village of Lalpur in the Jalalabad district of Afghanistan, but had left Afghanistan in about June 1999 to escape from the Taliban. He said that he had lived in Pakistan at various addresses until he left for, and came to, Australia. 8 He left Afghanistan to avoid being recruited by the Taliban. His father is dead and there was no-one in Afghanistan to help or protect him. On one occasion he was beaten by the Taliban when he was unable to recite accurately from the Koran. 9 His claim was simply that he feared that if he returned to Afghanistan he would be detained and punished severely, and maybe even killed. His claim was that he feared the Taliban and being punished for not joining the Taliban Army. 10 He also said that he had other concerns about returning to Afghanistan. He claimed that he lacked family or financial means to support himself. He was also concerned at the prospect of returning to Afghanistan without his wife, whom he has married since arriving in Australia. The Tribunal, rightly, in my opinion, found that those two reasons could not amount to persecution for a convention reason. 11 In respect of his claim that he feared persecution by the Taliban, the RRT found: 'Although some individuals who exercised local authority under the Taliban administration have retained similar positions of authority, they do not act on behalf of the Taliban but on behalf of the new regime, and the Tribunal is satisfied that the Taliban has been effectively removed and no longer governs or administers Afghanistan.' 12 Later, it found: 'On the basis of the country material it has consulted, the Tribunal is not satisfied that there is a real chance of the Taliban returning to power in the reasonably foreseeable future (and then targeting ordinary persons who failed to support them in the past), notwithstanding reports of numbers of Taliban or el-Qaeda fighters in remote and border areas where they receive some support from local villagers, as well as some continuing skirmishes. The Tribunal is not satisfied that on return to Afghanistan the Applicant would face a real chance of persecution from the Taliban or others associated with them for a Convention reason.' 13 For those reasons, the RRT found that the applicant was not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (opened for signature 28 July 1951, [1954] ATS 5, entered into force 22 April 1954). Put simply, the RRT's finding was that the applicant was not at risk of persecution from the Taliban. It was never suggested he was at risk of persecution by the authorities. 14 On this application, the applicant argued that the RRT failed to address whether the authorities in Afghanistan could offer him protection, as is contemplated in Article 1A(2) of the Convention. 15 That Article provides: '… owing to 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it. …' 16 The applicant argued that the RRT did not consider the issue of State protection and did not make a finding in relation to the issue. He argued: 'In order to fully discharge its obligations to act according to law, the Tribunal was required to consider the issue of state protection and to make a finding in relation to the issue of state protection because these issues were placed squarely before the Tribunal. The Tribunal did not fully discharge its obligations to act according to law and therefore the Tribunal made a jurisdictional error.' 17 In my opinion, the argument is misconceived. Certainly, if the RRT had determined that there was a real chance of persecution, the RRT would have needed to have addressed the question of protection. 18 However, the RRT did not find that there was a real risk of persecution. Indeed, it found, on the other hand, that there was no risk. It found that, because the Taliban was no longer in a position of power, the applicant did not have a well-founded fear of persecution. In those circumstances, it did not need to consider whether the authorities could protect him, because there was nothing to protect him from. 19 The matters considered in Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 simply do not arise. 20 The application for judicial review should be dismissed. The orders of the Court will be that the application is dismissed; the applicant to pay the first respondent's costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 7 May 2004

Counsel for the Applicant: M Clisby

Solicitor for the Applicant: M W Clisby

Counsel for the Respondent: M Roder

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 30 April 2004

Date of Judgment: 30 April 2004