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.

the Tribunal's findings and reasons 18 The Tribunal reviewed independent country information. It acknowledged that some individuals who had exercised local authority under the Taliban administration had retained similar positions of authority. The Tribunal found that they no longer acted on behalf of the Taliban, but on behalf of the new regime. The Tribunal said that it was satisfied that the Taliban had been effectively removed and no longer governed or administered Afghanistan, notwithstanding ongoing "mopping-up operations". It said that reports of armed anti-Taliban actions continuing made it clear that the changes had not simply accommodated a continuance of local Taliban control. 19 The Tribunal noted that the United Nations High Commission for Refugees was now encouraging governments to offer repatriation assistance to all Afghans wishing to return to their country. The Tribunal referred to a UNHCR report that a legitimate government was in place, there was no longer a civil war raging in the central and northern parts of the country and that more than 1Ľ million Afghans had now returned from neighbouring countries since the assisted voluntary return programme began on 1 March 2002. 20 The Tribunal distinguished the position in other provinces from that which prevailed in Kandahar. The Tribunal said that it was not satisfied that on return to Afghanistan the appellant would face a real chance of persecution from the Taliban or others associated with them for a Convention reason. Nor was it satisfied that the appellant would be targeted by others because of his political association (through his father) with the Jamiat-e-Islami party. 21 The Tribunal then turned to that portion of the appellant's claims which was based on persecution due to his Pashtun ethnicity. 22 It referred to independent evidence which suggested that in Pashtun-dominated provinces such as Kandahar there was nothing to suggest Pashtuns were being targeted for their ethnicity or religion. It referred to a report that stated: 'Unlike the ethnically diverse north, Kandahar has a population that is almost entirely Pashtun, which eliminates many of the ethnic grievances or revenge crimes that are causing problems elsewhere.' 23 The Tribunal referred to other independent country information and stated that it was satisfied that the appellant did not face a real chance on return to Afghanistan of persecution by reason of his Pashtun ethnicity. 24 In relation to the problems with the daughter of a former Taliban commander, the Tribunal expressed some doubts about whether this incident occurred. But it accepted that the incident had occurred. It did not accept that the commander would be intent on harming or killing the appellant because of the appellant's family background. It noted that his background had not led to any consequences previously. The Tribunal did not accept that any potential consequences, including punishment whether judicially or ex-judicially for the incident with the commander's daughter, would be essentially or significantly for one or more of the Convention reasons (including past association of the appellant's father with the Jamiat-e-Islami party or his own earlier criticism of the Taliban) – see s 91R(1)(a) of the Migration Act 1958 (Cth) ("the Act"). 25 The Tribunal then referred to the letter forwarded to it by the appellant's solicitors concerning Commander Naqib. The Tribunal rejected the claim that the appellant and his father had been summoned to join Naqib in Panjsher in 1998 or that the appellant would now be targeted for not having joined the anti-Taliban opposition. It based this rejection on evidence that Commander Naqib did not leave Kandahar and join the anti-Taliban opposition in the north after the Taliban occupied Kandahar in 1994, but remained in his nearby home district and on good terms with the Taliban. 26 However, the Tribunal accepted as plausible that the appellant's father had some responsibility for local logistics for Commander Naqib and/or Jamiat-e-Islami and that he controlled money and materiel which Commander Naqib now wished to have returned. 27 But the Tribunal did not accept that the essential and significant reason for this interest in the appellant by Commander Naqib would be for a Convention reason. It was directed at recovering money and property entrusted to the appellant's father. Nor, in those circumstances, so the Tribunal reasoned, could those difficulties found a claim on the basis of the appellant's family as a particular social group. 28 The Tribunal concluded by stating that, having considered the evidence as a whole, it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention.

the decision at first instance 29 The appellant was not represented in the proceedings before the Federal Magistrate. His grounds of review were expressed in these terms: 'The member of Refugee Review Tribunal cannot find my persecution in my country (Afghanistan). But I still have persecution in my country.' 30 The learned Magistrate dealt with certain matters raised by the appellant both in oral submissions and in a document. It is not necessary to refer to all of those matters. 31 One complaint raised by the appellant at first instance related to the quality of the interpreter and his opportunity to be heard. His Honour stated that, having reviewed the material, it was clear from the Court Book that there was an opportunity for the appellant to make representation through his then solicitors. He was further satisfied that, in the circumstances, the summary of the background material by the Tribunal demonstrated clearly that the representations for and on behalf of the appellant were sufficient to convey properly to the Tribunal all relevant matters upon which the appellant then relied. The appellant had not referred to any specific point where it could be said that the Tribunal had misinterpreted what had been said on his behalf. His Honour was aware that under the principles explained in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, he had jurisdiction, notwithstanding the privative clause provisions of the Act, to review the Tribunal's decision for jurisdictional error. 32 His Honour found that the vast majority of the appellant's complaints concerned the merits of the Tribunal's decision. He found that there was no basis upon which the application could succeed.

the appeal and my reasoning 33 The appellant was not legally represented in the appeal. At one stage it looked as though a Melbourne barrister was going to appear on his behalf. It was on that basis that the hearing of the appeal, originally scheduled for 25 September 2003, was adjourned until today. 34 However, despite indications as late as last Friday that the appellant would be legally represented, no such representation was forthcoming. 35 The appellant's grounds of appeal read as follows: 'I am not satisfied with the decision of federal court becuase it was unfair and unjustified. I am seeking for justice. I hope the full federal court just with me and consider my case deliberately becuase my life is still in danger if I go back.' (sic) 36 The appellant made oral submissions to the Court this morning. He asserted that the Tribunal had not considered the dangers that he would be facing on return to Kandahar. In my view, the Tribunal gave fair consideration to everything which was put before it by the appellant and by his solicitors. Those included extensive submissions before the hearing and two further submissions after the hearing. 37 The appellant then complained that the interpreter had incorrectly interpreted two aspects about the letter from Mr Ismail Kakar. First, the interpreter had erred in saying that it was Molah Naqib who had written to his father some four years ago requiring him to go to Panjsher. Secondly, the interpreter had erred in relation to what had become of the letter which required the appellant's father to go to Panjsher. 38 There is no evidence before the Court about whether there was a breakdown in interpretation of the proceedings before the Tribunal. 39 The letter from Mr Ismail Kakar is in evidence. In it Mr Naqib is identified as the commander of Jamiat-e-Islami (the reference is to "Jamaith") and there are subsequent references to the letter of request four years previously having been from the commander. The appellant's point is that he did not say that Mr Naqib and the commander were one and the same person. But a fair reading of Mr Kakar's letter is that they were. 40 It is apparent from the Tribunal's reasons (pp 16 and 17) that it decided that the appellant and his father had not been summoned to join Mr Naqib in Panjsher in 1998 because it had evidence that Mr Naqib did not leave Kandahar, but remained in his nearby home district and on good terms with the Taliban. If the Tribunal erred in reaching that conclusion, I do not think that such error amounted to jurisdictional error. The Tribunal can be seen to have been well aware of the appellant's concerns. It accepted that Mr Naqib and his party were at present in Kandahar and would have the practical means to exert extra-legal pressure to recover the claimed property. 41 As Mr M T Ritter, counsel for the respondent submitted, whatever happened to the original letter from Mr Naqib does not seem to have played any part in the Tribunal's reasons. 42 I have examined the papers, and in particular the Tribunal's reasons to see whether any jurisdictional or legal error exists which might cause the Tribunal's decision not to have been "made under" the Act within the principles explained in Plaintiff S157. 43 I have considered whether a fairly recent decision of a Full Court of this Court, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 might have application to this appeal. That case involved an Afghani Hazara from a village in the province of Oruzgan. The essence of the argument on appeal was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant in that case came which could or would protect him from persecution for a Convention reason. The Tribunal, basing its decision largely on information concerning the general situation in Afghanistan, had stated that it was satisfied that he would not have a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan. Two of the key findings of the Tribunal were that the area where the appellant in that case lived was under the de facto or de jure control of a Hazari leader from an adjoining province and, secondly, that although there were reports of Taliban/Al Queda in Oruzgan, those reports referred to areas which were not close to or accessible to the part of the province where the appellant lived. The Full Court noted that there was no material which either party could point to which would support either of those factual conclusions. In fact the information before the Tribunal was to the contrary. 44 In those circumstances the Full Court held, at [27]: 'Given that the Tribunal had already accepted that the appellant had a well founded fear of persecution for a Convention reason from the Taliban at the time that he left Afghanistan and given that all of the evidence before the Tribunal seemed to point to at least a possibility that 'pockets' of the Taliban remained effective in the area from which he had come the Tribunal should have considered the question of whether the government or governments in Afghanistan were capable of and willing to protect the appellant:' (Authorities cited). 45 In the present matter there were some submissions on behalf of the appellant to the effect that Afghanistan was not a safe place to which to return. See for example the appellant's fax which his solicitors sent to the Tribunal on 13 May 2002, their further submissions of 19 August 2002 and further material which they forwarded to the Tribunal after the hearing (which referred to fighting having broken out in Kandahar between rival Pashtun factions in December 2001). 46 On the other hand, it is clear from the Tribunal's reasons that it was aware that persecution might take the form of serious harm officially tolerated or uncontrollable by the authorities of the country of nationality – see page 3 of its reasons. 47 In my view, the Tribunal's decision in this matter is distinguishable from the Tribunal's decision which was set aside in SFGB. 48 In the present matter the Tribunal had specific regard to the particular circumstances in Kandahar in the context of other independent country information. That included a report from United Nations High Commissioner for Refugees to the effect that more than 1Ľ million Afghans had gone home from neighbouring countries between 1 March 2002 and 16 July 2002. The Tribunal also distinguished the situation in Kandahar from that in the province of Paktia. 49 In SFGB the appellant was a Hazara with a history of persecution. The appellant in this matter is a Pashtun from Kandahar where Pashtuns form the majority. The Tribunal was aware of this when it stated, at p 15 of its reasons: 'There is nothing at all in the independent evidence to suggest that in Pashtun-dominated provinces such as Kandahar, Pashtuns are being targeted for their ethnicity or religion and the Tribunal does not accept that any such suggestion is well-founded. Kandahar is overwhelmingly (over 98%) Pashtun and Sunni (Danish Immigration Service, Fact-Finding Mission to Afghanistan: 1-29 November 1997, July 1998), section 4.H.1; see also Perry-Castaneda Library Map Collection (University of Texas Library On-line) 1997 Ethnolinguistic Groups in Afghanistan). The tiny minority of Hazaras or Tajiks in Kandahar are in no position – numerically or militarily – to persecute the majority Pashtun Sunnis such as the applicant.' 50 In my view, the Tribunal did not fall into jurisdictional error or any other legal error sufficient to cause its decision not to be a decision made under the Act. Nothing in the materials before the Court indicates that the Tribunal fell into any reviewable error. 51 Accordingly the appeal will be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate: Dated: 11 November 2003

The Appellant appeared in person

Counsel for the Respondent: Mr M T Ritter

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 November 2003

Date of Judgment: 10 November 2003