WAIE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 149 (27 February 2004)

Last Updated: 1 March 2004

FEDERAL COURT OF AUSTRALIA

WAIE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 149

WAIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W 48 OF 2003

MOORE J
27 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN REGISTRY	W 48 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.	The appeal be dismissed.

2.	The appellant pay the 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
WESTERN AUSTRALIAN REGISTRY	W 48 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	27 FEBRUARY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 This is an appeal from a judgment of Federal Magistrate Raphael of 19 February 2003, dismissing an application for judicial review (the application was implicitly seeking the grant of constitutional writs) of a decision made by the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (the ‘Act’).

Background

2 The appellant, a citizen of Afghanistan, arrived in Australia by boat on 22 August 2001. On 26 September 2001 he lodged an application for a protection visa. On 22 May 2002 the Minister refused to grant him a protection visa. On 27 May 2002, the appellant lodged an application for review of that decision. On 11 July 2002, the Tribunal affirmed the decision of the Minister. The appellant applied to the Federal Court for judicial review of that decision. The application was remitted to the Federal Magistrates Court and was dismissed on 19 February 2003.

3 Generally, the appellant’s initial account (in the application lodged in September 2001) of his experiences in Afghanistan was as follows. After the Taliban arrived in the area in which he lived (the Patkia region), they pressured his family and others to pay a Zakat. The usual payment was four out of every ten sheep and half of the pine nut harvest. Mattresses, quilts and pillows were also forcibly taken from his home. In April 2001, the Taliban came to the appellant’s home and said to his father that they had to take either himself or the appellant to fight for them. The father resisted, but he was forcibly taken and has not been seen since. Two months after taking his father, the Taliban detained the appellant because his beard was not long enough. The appellant’s detention lasted approximately one month. During this time, the appellant said he was beaten with a cable on his legs and soles of the feet. His beard had grown the appropriate length and, as a result, he was released from detention and was ordered to fight for the Taliban or else his father would be killed. The Taliban agreed to let the appellant go home first to say goodbye to his family, at which point his mother told him to leave Afghanistan or else he would be killed. The appellant sold his goats and sheep and left the country.

4 In January 2002, the Department wrote to the appellant pointing out that the situation in Afghanistan had changed substantially in the preceding few months. It summarised those changes in an accompanying information report. It invited the appellant to consider whether he wished to return home or continue with his application. He followed the latter course and prepared a statutory declaration dated 16 February 2002 explaining why he could not return. The appellant claimed he would still be persecuted if he were to return to Afghanistan. People who occupied positions of power under the Taliban, such as Jalaladdin Haqani, had retained power in the region he came from. The appellant claimed that the Taliban, or persons allied to the Taliban or who have previously been Taliban, would kill him or require him to fight and kill him if he refused.

The Tribunal’s Decision

5 The Tribunal noted that, understandably, the original focus of the appellant's claim concerned persecution under the Taliban. It also noted that at the Tribunal hearing, the appellant raised for the first time claims concerning persecution arising from his uncle’s involvement in the Najibullah regime and concerns about harm at the hands of a (non-Taliban commander) Bacha Khan who would target and kill him because his father had refused an order by Bacha Khan to fight in the jihad against the Russians and against Najibullah.

6 The Tribunal found that, despite successive opportunities arising before the Tribunal hearing:

There was no mention of any family connection with or specific difficulty in relation to Bacha Khan; there was no mention of any personal or family difficulties preceding or separate from the Taliban; there was no mention of any particular hostility from the people in the Applicant’s village; and there was no mention of problems for the family or the Applicant’s father because an uncle had had some involvement with the former Najibullah regime.

7 The Tribunal found unpersuasive and unsatisfactory the explanation given by the appellant for omitting the above claims and did not accept that he had explained:

the omissions from a succession of interviews, statements and submissions (and, presumably, discussions and communication with the Applicant’s adviser) over a period of more than ten months. The Tribunal is satisfied that the Applicant has elaborated these claims not because they represent his genuine experience or fears but simply for the purpose of establishing a Convention claim.

If these related issues were a problem or reason to fear persecution as finally represented by the Applicant, it is very difficult to understand why they emerged in the way they did and at the very end of the review process.

8 The Tribunal rejected the appellant’s claim that the current situation in Afghanistan had not improved so as to amount to a substantial or material change now and in the reasonably foreseeable future. The Tribunal pointed to fundamental change in Afghanistan with the removal of the Taliban government in September 2001.

9 The Tribunal apparently accepted that there were individuals who exercised local authority under the Taliban administration and who have retained these positions of authority in the new regime, but was:

satisfied that the Taliban had been effectively removed and no longer governs or administers Afghanistan.

10 The Tribunal concluded there was no real chance of the Taliban:

returning to power in the reasonably foreseeable future. The Tribunal is aware of no evidence that the Taliban or former Taliban, in Gardez or elsewhere, are now targeting or persecuting ordinary persons because they were perceived to have opposed or failed to support the Taliban in the past and does not accept that the Applicant on return would face a real chance of persecution for this reason.

Nor is the Tribunal aware of any independent reports that Taliban remnants are now forcing villagers to fight for them.

The Tribunal is not satisfied that the Applicant would face a real chance of persecution from the Taliban or others associated with them on return to Afghanistan.

11 The Tribunal rejected the appellant's claims based on the power struggle in Pakita, the area from which the appellant came:

The Tribunal notes that [local] conflict has not involved Taliban but rather local warlords fighting over a share of local power (Pashtuns fighting Pashtuns). The Tribunal does not accept that the Applicant would be targeted in this context or that if the Applicant were to be caught up or harmed in fighting between groups intent on grabbing a share of local power, and Convention reason would be the essential or significant reason for such harm.

12 The Tribunal did not accept that the appellant would face persecution for a Convention reason on returning to his own village, although it accepted he might well be affected by the general insecurity in Paktia. It ultimately concluded that the appellant was not a person to whom Australia had protection obligations.

The Federal Magistrate's reasons

13 The appellant was unrepresented before the Federal Magistrate (though, for a period prior to the hearing he had the assistance of a solicitor). His application did not identify any relevant grounds for challenging the decision of the Tribunal in judicial review proceedings. The Federal Magistrate nonetheless undertook an examination of the papers and the court book, apparently to ascertain whether the Tribunal had erred in its approach. His Honour set out a passage from the Tribunal's reasons (see [6] above) in which the Tribunal had expressed a view that certain things had not been mentioned before the hearing undertaken by the Tribunal and, in particular, had not been mentioned in the statutory declaration made by the appellant on 16 February 2002.

14 The Federal Magistrate noted that while appellant had made reference to Bacha Khan in his statutory declaration of 16 February 2002, he made no specific references to his problems in his home village. His Honour then addressed an issue arising from the way in which the statutory declaration of 16 February 2002 had, one could infer, been presented to the appellant. It was in English and had, on its face, been translated to the appellant. It contained what is apparently a mark of the appellant signifying he had made the declaration and the declaration records that the making of the mark (akin to a signature) had been witnessed by solicitor. His Honour noted that following appeared at the foot of the declaration:

I have faithfully interpreted the contents of this statutory declaration from the English language to the Dari language to the abovenamed, and I am an accredited interpreter.

15 A signature followed. However, his Honour noted that the appellant spoke Pashtu, not Dari. His Honour was obviously concerned about an apparent anomaly in the translation of the statement. Nonetheless, his Honour went on to indicate that that nothing turned on this as:

The Tribunal considered the arguments put by the applicant including the statement and weighed them against the country information which was in its possession. It came to a conclusion that the applicant did not have a well-founded fear of persecution for convention reasons in the current situation that existed in Afghanistan. This is a view with which the applicant disagrees but it is not within the power of this court to substitute its views for those of the Tribunal. (Emphasis added)

16 His Honour then posed the question of whether there was anything that the appellant might have said in the statement, had he been able to articulate his thoughts through a competent interpreter, and whether his would have affected the Tribunal’s decision. His Honour appears to have concluded nothing would have been said which would have affected the decision.

Issues in the Appeal

17 The appellant was unrepresented at the hearing of the appeal. The notice of appeal did not raise any readily identifiable legal issue. However a document headed ‘statement of appellant’ was filed by a firm of solicitors then acting for the appellant in the week preceding the hearing of the appeal. The statement was signed by the appellant. The gist of the statement was that, first, the appellant was at risk of persecution in Afghanistan at the hands of warlords including Bacha Khan (and his supporters which included people in his village and relatives of his) because his uncle had been a tank driver in the Communist government army and, secondly, he did not raise the issue of his uncle's involvement at his first interview because he was told by the interpreter not to, and an explanation was given as to why the matter was not raised either through his adviser or in later interviews (preceding the Tribunal hearing).

18 Counsel for the Minister took issue with the significance the Federal Magistrate placed on what may well have been a deficiency in the interpretation of the 16 February 2002 statement. Counsel pointed out that it was likely the statement (the English version) was prepared by a lawyer on the appellant's instructions and, in any event, the appellant had the opportunity at an interview with the delegate on 23 February 2002 to put his case (including concerns arising from the presence of Bacha Khan and his uncle's activities). Moreover, the explanation given by the appellant to the Tribunal for not having raised the consequences for him of his uncle's activities earlier (the ‘people smuggler’ told him not to and he had not been specifically asked about his uncle) was not corrected in a subsequent written submission from lawyers acting for the appellant to the Tribunal which adverted to the 16 February 2002 declaration.

19 Cases can arise where, as a result of an error of interpretation, the account given by an asylum seeker is not fairly and properly evaluated by the Tribunal. An example is starkly revealed by the facts in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379. However, in the present case, the Tribunal rejected the appellant's claims based on Bacha Khan's presence in Paktia generally and his uncle's earlier involvement as a tank driver in particular because these matters had not been raised prior to the Tribunal hearing of July 2002. The Tribunal was substantially correct, as a matter of historical fact, in the approach it took. The matters had not been raised earlier in the way they were ultimately raised during the Tribunal hearing.

20 In isolation, the apparent deficiencies surrounding the interpretation of the 16 February 2002 statutory declaration might suggest the Tribunal's confidence in rejecting the appellant's more recent account was misplaced to the extent that it was based on the statutory declaration (and what it did not say). But as counsel for the Minister pointed out, the Tribunal's assessment of the more recent account was founded on the appellant's failure to advert to those matters in the entire period leading up to the Tribunal hearing, together with its assessment of the explanations actually given for the failure. It was open to the Tribunal, in my opinion, to reject the appellant's account having regard, in particular, to his failure to advert to these matters in the interview with the delegate on 23 February 2002 and in reaching the conclusion it did. Putting it perhaps a little more aptly, it is not apparent to me that the Tribunal fell into jurisdictional error of the type discussed in W375/01A v Minister for Immigration & Multicultural Affairs.

21 The Tribunal might, in this matter, have taken a more benevolent view of the appellant's perceived inconsistency of approach. However, it did not. Ultimately it was a matter for the Tribunal to determine whether the claims finally articulated should be rejected or not. The Tribunal’s rejection of the claims did not involve jurisdictional error. The appeal should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 27 February 2004

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	L B Price
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 February 2004
Date of Judgment:	27 February 2004