Minister for Immigration & Multicultural Affairs v Reza

Federal Court of Australia|2001-08-22|Before: Madgwick J

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter the applicant Minister seeks the form of judicial review available in this Court, of a favourable decision of the Refugee Review Tribunal ("the Tribunal"), given on 17 May 2001, in relation to the respondent whose application for a protection visa had been initially rejected by a delegate of the applicant Minister. The Tribunal set aside the decision of the delegate and remitted the matter for reconsideration with the direction that the respondent was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention").

Background 2 The respondent is a young man who claims to be an Afghani national of the Hazara ethnic group who fears persecution by the notoriously authoritarian Taliban regime in Afghanistan on account of his Hazaran ethnicity and of his being a follower, like most Afghan Hazaras, of the Shiite branch of Islam. He claimed that he departed Afghanistan via Pakistan en route to Australia.

The Tribunal's decision 4 The Tribunal Member disbelieved the respondent's actual story as to his background and in particular his claims that he had resided all his life in Afghanistan. Instead the Tribunal Member relied on an expert analysis of the respondent's speech patterns. The evidence of that expert was that the respondent spoke "Dari" [an Afghan language] with a typical Hazaragi accent, but that some of his pronunciation was consistent with his having "lived for a long time in Pakistan". 5 Primarily on the basis of the expert's evidence, the Tribunal Member found that the respondent was a Hazara of Shiite Muslim faith and either was born and apparently had lived for some significant period of time in Afghanistan or was the child of people from Afghanistan. The independent evidence, noted by the Tribunal, was that there are Hazaras who have resided in Pakistan for generations and these have indeed been accepted by the Pakistani authorities as a "local tribe". 6 The Tribunal Member was satisfied that the respondent was "not one of those Hazaras whose ancestors had resided in Pakistan for generations". The Tribunal Member no doubt also had regard to the respondent's appearance. The evidence was that the Hazaras typically have features commonly associated with Mongolian people. As to how the respondent came to be in Pakistan, and whether or not he had any residency rights there, the Tribunal Member said: "Given the Tribunal's findings above, it strongly suspects that the applicant has concocted his entire story, and that he may well have residency rights in Pakistan … The Tribunal has before it no information whatsoever to support a finding that the applicant has residency rights in Pakistan … Similarly, as the Tribunal has no evidence about the applicant's status, legal or otherwise in Pakistan (or, indeed, in any third country), the Tribunal is unable to conclude that he has effective protection in any country." 7 The Tribunal Member accepted the overwhelming evidence that a Shiite Hazara would have a well founded fear of persecution in Afghanistan at the hands of the Taliban and, accordingly, the Tribunal Member found that the respondent should be granted a protection visa and that he satisfied the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act") to be given such a visa.

Consideration 8 The applicant Minister complains of legal errors. It is certainly the case that the respondent was fortunate in the findings made by the Tribunal. 9 The Tribunal Member posed the task for himself as follows: "The Tribunal finds that any fears of persecution by the Taliban, on the part of an Afghan citizen who is a Shiite Hazara would be well-founded. The issues for the Tribunal to determine, therefore, are whether the applicant is a citizen of Afghanistan, and, if so, whether or not subsection 36(3) of the Act or the common law principles of effective protection apply to him." 10 Section 36(3) provides: "Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national." 11 The Tribunal Member went on to discuss the evidence shortly, including the evidence to which I have already referred. The Tribunal Member continued: "For all these reasons, the Tribunal is not satisfied that the applicant has lived in Afghanistan continuously up until late 2000. The Tribunal finds that the applicant has resided in Pakistan for a long time. It follows that the Tribunal cannot be satisfied as to the truth of the applicant's claims." The Tribunal then went on to record its acceptance that the respondent was either born in Afghanistan or was a child of people from that country, findings to which I have referred above. 12 The Tribunal Member then continued, "[t]he question remains open as to how the applicant came to be in Pakistan, and whether or not he has any residency rights in Pakistan". The Member referred to his suspicions, as indicated above, and said that suspicion was not enough because there was no evidence whatsoever to support his suspicions. The Member then referred to the lack of information to support a finding that the applicant had residency rights in Pakistan and continued: "Following the reasoning of Carr J in Applicant C v Minister for Immigration & Multicultural Affairs (citation omitted) that the term 'right' in s 36(3) of the Act means a 'legally enforceable right', the Tribunal finds that that subsection does not apply to the applicant in this case. Similarly, as the Tribunal has no evidence about the applicant's status, legal or otherwise, in Pakistan (or, indeed, in any third country), the Tribunal is unable to conclude that he has effective protection in any country." 13 One of the legal errors asserted by the Minister is that Applicant C v Minister for Immigration & Multicultural Affairs [2001] FCA 229, was wrongly decided insofar as it requires decision makers to consider the existence of legally enforceable rights rather than an ability to enter and to reside in a country as a question of practical reality and fact. However, the applicant acknowledges that the decision in Applicant C has been followed by several judges at first instance and does not contend that I should hold that the decision was clearly wrong and therefore decline to follow it. The consequence is that it would be very bold of me to say that the decision was clearly wrong and I am not prepared to do so. (Addendum: the correctness of Applicant C has now been affirmed on appeal: see [2001] FCA 1332.) 14 Therefore, in my view, there was no error in the Tribunal Member construing s 36(3) of the Act in the way it did, which was in accordance with the decision in Applicant C. Accordingly, that challenge to the Tribunal Member's reason must fail. 15 The applicant Minister complained of two other errors. The first was that although the Tribunal Member correctly set himself the task of determining whether the respondent was a national (the term citizen was used but no point was taken about this) of Afghanistan, it did not determine that question but rather permitted the point to slide away and in the end found no more than that the respondent was a Hazara of some "Afghani background". It was said that this was supported textually because there was an absence of any express finding of nationality and a reference to a finding of background. Where nationality was a live issue, one could only find it, in the context of this case, if some consideration had been given to whether a person born in Afghanistan or born outside of Afghanistan of Afghan parents would be considered a national or a citizen of Afghanistan under Afghan law. Counsel for the applicant claimed that the fact that the Convention contemplates and deals with the concept of statelessness shows that the putatively persecutory State's domestic recognition of nationality is a relevant matter. Therefore, it was submitted, failure to have done that indicates failure to make a finding on nationality. 16 The Taliban rulers of Afghanistan are notoriously narrow. They discriminate against and may well persecute Hazarans and Shiites and it would be strange, if nationality were truly being considered, for the Tribunal to have in effect assumed that the Taliban would necessarily not take a very narrow approach to the recognition of Afghan citizenship or nationality. 17 The final point argued was that the common law doctrine of effective protection would merely require in this case that the applicant be permitted to re-enter Pakistan at least temporarily and that he could obtain protection there from resettlement to Afghanistan. That involves a much wider inquiry than what his citizenship or other "status" is in Pakistan. 18 Turning to the first argument, the Tribunal Member was required positively to be satisfied that the applicant was not a national of Afghanistan. As to the textual point, the real content of the well known strictures against reading decisions of the Tribunal too narrowly, in my opinion, is that the Court should strive to understand what it is that the Tribunal Member was truly trying to express. I think the Member's thought processes, which sufficiently clearly appear from his Reasons, were as follows: · The respondent was either born in Afghanistan and lived there long enough to acquire the relevant dialect, subsequently modifying its pronunciation by the long time that he had lived in Pakistan, or was born to Afghani parents in Pakistan and acquired, from proximity to the long term and integrated Hazara residents of Pakistan, the pronunciation of a typically Pakistani Hazara; and · The Tribunal Member assumed that because birth and descent are common criteria of citizenship or nationality, even if with some qualification, either hypothesis provided evidence from which Afghan nationality could be inferred and he chose to make that inference; and

· The Tribunal Member did not consider it necessary to say in terms that he had found Afghan nationality because he had clearly said that the issue before him was whether the applicant was a citizen of Afghanistan. 19 I was attracted, for a time, to a point that in the circumstances of a case such as this, absence of a reference to Afghani domestic law on citizenship or nationality could found an inference that a finding was not actually made about nationality. However, while it probably would have been better that there be such a reference, the content of Afghani domestic law was, for an Australian decision-maker, only a relevant factual matter and the failure by the Tribunal member to refer to a relevant factual matter is not reviewable unless it is so important as to show a failure to comprehend the Tribunal's task properly. In my opinion, the failure to refer to Afghan domestic law neither per se betokens any such error nor was the content of Afghani law such a necessary factual inquiry that one can draw any inference of error from the Tribunal Member's failure to advert to it. Therefore, that challenge to the Tribunal Member's decision also, in my opinion, must fail. 20 The second matter was in effect whether the Tribunal Member misdirected himself about the "permission to re-enter" aspect of the common law doctrine which, whilst said to be a common law doctrine, is really an exegesis of the relevant Convention. Textually the references do support the Minister's argument on this point. However, it should in my opinion be rejected for the following reasons. 21 In the first place, the Member was well aware of the difference between the release of Australia from its protection obligations effected by s 36(3) of the Act and the common law doctrine. Second, in the circumstances of this case, it can be said with confidence that if the respondent had no right to reside in Pakistan and no citizenship of that country, then it would be extremely unlikely that he would be permitted to re-enter Pakistan with a view to not returning to Afghanistan even on a temporary basis. What the Tribunal Member did was to say that he could not be affirmatively satisfied that either of those two pre-conditions to be permitted re-entry existed. I do not think that the factual manner in which the Tribunal approached the case allows for any inference of legal error of ultimate approach to this issue by the Tribunal. For those reasons, in my opinion, that challenge also must fail.

Disposition 22 Accordingly, the application will be dismissed and the applicant will be ordered to pay the respondent's costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Ron Kessels Solicitor

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