SGZB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 108 (26 February 2003)

Last Updated: 17 March 2003

ApplicantJudgeJudgment_datedDistributionMNCNumMNCPlaceRespondentStateFEDERAL COURT OF AUSTRALIA

SGZB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 108

SGZB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 258 of 2002

von DOUSSA J

ADELAIDE

26 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 258 OF 2002

BETWEEN:	SGZB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	26 FEBRUARY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. Application dismissed with 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 258 OF 2002

BETWEEN:	SGZB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	von DOUSSA J
DATE:	26 FEBRUARY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal) made on 21 November 2002 which affirmed a decision of the delegate of the respondent not to grant a protection visa to the applicant.
2. The applicant has brought this application, and argued it, without the benefit of legal advice. The application states as the grounds for review:

"I am not satisfied with the decision of Tribunal, because it was unfair and unjustified. Tribunal’s Member didn’t consider my fear of persecution and couldn’t understand my oral evidence. Tribunal’s member has committed error in my oral evidence. Because my life is still in danger due to my ethnicity, race, religion, and political spectrum if I go back to Afghanistan. I hope that you will just with me and consider my case deliberately."

1. The oral submissions made by the applicant, in substance, sought to have the merits of the decision reviewed. However, the jurisdiction of this Court is limited to correcting jurisdictional errors and other errors of law. The only ground of this kind identified in the application is that the Tribunal member failed to consider the applicant’s asserted claim of fear of persecution.
2. The applicant is a citizen of Afghanistan who arrived in Australia illegally by boat on 4 August 2001. On 23 August 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). Subsection 36(2) of the Act relevantly provides that one of the criteria for a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (both those expressions being defined in s 5 of the Act). Such an obligation is owed to a person who is a refugee as defined by Article 1A(2) of the Refugees Convention. That definition relevantly provides that a refugee is any person who:

"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 ..."

1. The Tribunal accepted that the applicant is of Hazara ethnicity and Shi’a Muslim faith. Prior to his departure for Australia the applicant lived in the Yawkawlang District of Bamian Province in Afghanistan. He worked there as a livestock farmer and shepherd. In 1998 the Taliban took control of Bamian. In his initial application for a protection visa the applicant asserted that he feared persecution by the Taliban for reasons of race and religion. The applicant gave details of persecution of himself and his family by the Taliban. He described day-to-day mistreatment which Hazara people in his area received at the hands of the Taliban. The Tribunal accepted his evidence in that regard.
2. After the fall of the Taliban, and before the application for a protection visa had been determined by a delegate, an offer by the Minister to repatriate the applicant to Afghanistan was discussed with him by a migration agent then acting on his behalf. The offer was not accepted, and the applicant made a further statement in support of his application in which he said that, regardless of the changes in Afghanistan, nothing had changed for the Hazara people. He claimed that Pashtun people had always persecuted Hazara people under different names, sometimes in the names of the Taliban, in the name of Hekmatyar and in the names of other governments. He said this persecution had continued for 120 years. He said that he now feared that if he were to return he would be persecuted not only by Pashtuns, but also Tajiks and Sunni Muslims. He said that these groups had persecuted Hazaras immediately before the Taliban regime, and would do so again following its collapse. He also asserted disbelief that there is peace in Afghanistan, such that he would not be under a general threat of harm were he to return.
3. These claims were rejected by the Tribunal upon country information available to it at the time of its decision. The Tribunal found that the changes in the political and military circumstances in Afghanistan since the applicant left that country were unprecedented. The Tribunal accepted reports to the effect that the Taliban had been effectively eliminated as a political and military force in Afghanistan. Further, the Tribunal accepted as authoritative reports that Hazaras and Shi’as were represented in the Interim Authority which was supported by Abdul Karim Khalili, the Hazara Governor of the Bamian Province, and that on the establishment of the Transitional Authority two Hazaras and two Shi’as had been appointed to the new Cabinet, Khalili being one of the three vice-presidents of that body. The Tribunal also accepted reports concerning substantial international commitment to the establishment of a representative and effective government in Afghanistan and to funding the reconstruction of the country, and a report to the effect that Hazaras were then in a position both politically and militarily to resist incursions into Hazarajat by the Kuchis (Pashtun nomads). On other country information reports the Tribunal found that Hazaras constitute approximately 99 per cent of the population of the Yawkawlang District and 80 per cent of the population of the Bamian Province, and accepted as authoritative a DFAT report that Afghans "would not face specific problems in re-settling in areas where they form an ethnic majority".
4. The Tribunal concluded on these findings that it was not satisfied that the applicant had a well-founded fear of being persecuted by the Taliban, Pashtuns, Tajiks or Sunni Muslims in Bamian Province. The Tribunal further found that on the basis of the DFAT report, Afghans can generally travel through areas of Afghanistan where other ethnic groups are in the majority, and found that the applicant would not be at risk of serious harm en route to his home area because of his race, religion or other Convention reason. These findings addressed and determined the claims made by the applicant at the time of his original visa application, and in his supplementary statement of 14 February 2002.
5. In the course of giving evidence before the Tribunal on 1 August 2002, the applicant for the first time advanced an additional claim. This new claim was summarised by the Tribunal in its reasons as follows:

"The applicant referred to two factions of the Hezb-i-Wahdat – the Akbari faction and the Khalili faction. The Hezb-i-Wahdat-Akbari had been aligned with the Taliban and had reported to the Taliban that the applicant had been fighting on the side of Mohammed Juma Nazari. That is why the Taliban had wanted to arrest the applicant. However, he and his family were enemies of Nazari. While the applicant was in Iran, his father paid Nazari 70,000 Afghanis so that he did not have to fight. After the applicant returned to Afghanistan from Iran, in 1375 (according to the Afghan calendar, which converts to between March 1996 and March 1997 according to the Gregorian calendar), Nazari’s forces arrested and beat him before forcing him to fight for them for one year. It was during that year that supporters of the Hezb-i-Wahdat-Akbari had seen that the applicant was fighting for Nazari. He had fought in small battles against the Hezb-i-Wahdat-Akbari but in autumn 1376 (i.e. in about October 1997) a big fight was organized. The applicant was afraid so he went to his aunt’s house in Dai Zanghi. He remained in hiding there for one year, during which time the Taliban took over.

The applicant said that after he deserted the ranks of the Hezb-i-Wahdat-Khalili, supporters of that faction went to his home and accused him of having 20 guns and having joined the Hezb-i-Wahdat-Akbari.

The applicant was asked whether he feared being harmed by supporters of the Hezb-i-Wahdat if he returned to Bamian Province. He responded that he fled Afghanistan because they wanted to send him to fight, and that commanders of the Hezb-i-Wahdat were a problem now that the Taliban had been defeated. He was asked why they would be a problem now. He responded that when he deserted the Hezb-i-Wahdat-Khalili in 1376, a summons was issued for his execution. When the Taliban took over his area, he returned home. However, the Hezb-i-Wahdat-Akbari had reported him to the Taliban as a commander of the Hezb-i-Wahdat-Khalili.

It was put to the applicant that there had not been reports of fighting between factions of the Hezb-i-Wahdat in Bamian Province. He responded that he was afraid he would be harmed if he returned there because he had fled the war and because of his experiences with the factions of the Hezb-i-Wahdat."

1. The Tribunal reviewed country information available regarding the Hezb-i-Wahdat and accepted the applicant’s evidence given at the hearing that there were two factions, the Hezb-i-Wahdat-Khalili and the Hezb-i-Wahdat-Akbari, and that they had been in conflict with each other in the Bamian Province at various times from at least 1996 until some time after the Taliban took over the Bamian Province. The Tribunal also accepted the applicant’s evidence at the hearing that he was forced to fight for the Hezb-i-Wahdat-Khalili for one year upon his return from Iran in about October 1996, and that he deserted from the military ranks of that faction in about October 1997 because he did not want to be involved in further fighting. The Tribunal considered that part of his evidence to be plausible. However, the Tribunal rejected his evidence that he had been targeted for harm by the Hezb-i-Wahdat-Khalili and the Hezb-i-Wahdat-Akbari. The Tribunal considered that evidence to be inconsistent, implausible and incongruous in significant respects, and gave reasons for that conclusion. The Tribunal rejected the applicant’s evidence that he fled Afghanistan for this reason. The Tribunal did so as the applicant initially gave evidence to the effect that he fled because the Hezb-i-Wahdat wanted him to fight for them, and it was only when he was asked why he feared the Hezb-i-Wahdat at the hearing that he referred to a summons (a directive) having been issued for his execution. The Tribunal considered it reasonable to assume that he would have been primarily motivated to flee Afghanistan to avoid execution if there had been such a summons. Moreover, the Tribunal considered it reasonable to expect that he would have volunteered evidence about it at an earlier point in time. The Tribunal did not accept that the Hezb-i-Wahdat-Khalili perceived the applicant to be a political supporter of Hezb-i-Wahdat-Akbari, and did not accept that the Hezb-i-Wahdat-Khalili went to his home and made accusations that he was a supporter of the Hezb-i-Wahdat-Akbari. Further, having considered a wide range of country reports on political and military developments in districts and provinces of Afghanistan, the Tribunal was not satisfied that there had been significant conflict, if any conflict, between the Hezb-i-Wahdat-Khalili and the Hezb-i-Wahdat-Akbari in Bamian Province since the downfall of the Taliban.
2. In the result, the Tribunal was not satisfied that upon any of the claims advanced by the applicant that he had a well founded fear of being persecuted in Afghanistan because of his race, his religion, or for any other Convention reason.
3. In his oral submissions to this Court, the applicant again canvassed the matters which he had discussed with the Tribunal during his evidence, and sought to persuade the Court that it should substitute different conclusions on the factual merits of the case. The applicant sought to explain his failure to mention earlier the claim first advanced before the Tribunal in oral evidence on the ground that when he was initially interviewed departmental officers urged him to give short, simple answers, and he did not go into detail. He said that the new claim was not advanced in his statement of 14 February 2002 because at that time his migration agents who prepared the statement were concentrating on him being persecuted by the Taliban which they told him would be a sufficient basis for the establishment of his refugee status. This explanation however overlooks the fact that his statement of 14 February 2002 was primarily directed to explaining why, notwithstanding the downfall of the Taliban, he still feared persecution. Moreover, as I have already observed, this Court does not have the authority to review the factual merits of the case and to substitute different findings of fact to those made by the Tribunal.
4. Insofar as the grounds of review stated in the application raise a question whether the Tribunal considered each of the claims made by the applicant, the applicant’s oral submissions to this Court tended to confirm that in the course of his oral evidence before the Tribunal, the Tribunal investigated each of those claims. However, whether that was the case or not, in my opinion it is plain from the published reasons of the Tribunal that the Tribunal did consider each of the claims made by the applicant, and moreover did so in detail citing the source or sources of information which the Tribunal relied upon as the basis for its findings. I am unable to detect in the material before this Court any error of law in the reasons for decision published by the Tribunal, or in the procedures which it followed. In my opinion the application must be dismissed, and costs should follow the event.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated: 26 February 2003

The Applicant appeared in person by videolink.
Counsel for the Respondent:	Mr Michael Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 February 2003
Date of Judgment:	26 February 2003