SBBB v Minister for Immigration & Multicultural & Indigenous Affairs

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 14 December 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 7 September 2001 refusing to grant to the applicant a protection visa for which he had applied on 31 May 2001 following his arrival in Australia. The Tribunal affirmed the decision of the delegate for reasons quite different from those of the delegate. 2 The Tribunal accepted the applicant's evidence. It found that he is a national of Afghanistan, that he is a Shi'a Muslim, and that he lived in the vicinity of Khowst in the Paktia province until he left Afghanistan. It accepted that his adherence to the Shi'a religion was one of the reasons why he was identified as a conscript or as a candidate for forced labour by the Taliban. It accepted that the Taliban forced him to collect wood for them because he would not fight for them, and that he genuinely feared that they would seriously harm him for avoiding conscription or avoiding working for them. It accepted that he had therefore fled Afghanistan because he had a well-founded fear of persecution by the Taliban in Afghanistan by reason of his religion. 3 Section 36(2) of the Migration Act 1958 (Cth) (the Act), under which the application for the protection visa was made, prescribes that it is a criterion for the grant of a protection visa that the delegate of the respondent, and on review the Tribunal, be satisfied that the visa applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). It is common ground that, in practical terms, in the present matter that meant that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely that he has a well-founded fear of being persecuted for reasons of his religion, that he is outside Afghanistan, and that he is unable or, owing to such fear, is unwilling to avail himself of the protection of Afghanistan. The satisfaction as to the existence of a well-founded fear of persecution must exist at the time of the decision: see cl 866.221 of the Migration Regulations, and Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan); Minister for Immigration & Ethnic Affairs v Mohinder Singh (1997) 72 FCR 288 at 290-294; Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 556-557. 4 The Tribunal was aware that there had been drastic changes in the political and military circumstances in Afghanistan in the few months preceding its decision. It discussed those changes with the applicant in the course of its hearing on 7 December 2001. It discerned that the applicant was apparently unable to digest detailed information about the destruction of the Taliban, and the ramifications of that and other recent developments in Afghanistan. It referred to independent country information about those changes. 5 The Tribunal accepted that the applicant continues to fear that he will be persecuted if he returns to Afghanistan despite those changes. However, it correctly identified that it is necessary for that fear to be "well-founded", judged objectively, before the criterion specified in s 36(2) of the Act and in cl 866.221 of the Regulations is satisfied. It discussed what is meant by the expression "well-founded" fear in terms which accord with the High Court decisions in Chan, and more recently in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, and Minister for Immigration & Multicultural Affairs v Ibraham (2000) 175 ALR 585. 6 The application failed because the Tribunal was not satisfied that the applicant's fear of persecution if he returns to Afghanistan is well-founded. The district in which he was brought up is in the Paktia province, an eastern province of Afghanistan. On the basis of independent country information as recent as November 2001, it found that the Taliban had been forced from the Paktia province in mid-November 2001, and that by 7 December 2001 when the Taliban lost control of Khandahar their rule in Afghansitan had come to an end. It further found that the Paktia province is now controlled by a local Pushtun, who participated in the United Nations talks that resulted in the Agreement on Provisional Arrangements in Afghanistan agreed to on 5 December 2001. 7 Accordingly, it was not satisfied that there is any objective basis for the applicant to fear being harmed by the Taliban for any reason upon returning to Afghanistan, now or in the reasonably foreseeable future. The Tribunal was not therefore satisfied that the applicant's fear of being persecuted by the Taliban was well-founded. 8 In the course of its reasons, the Tribunal also accepted that the applicant is a Pushtun who is illiterate and has worked on his family farm since he was a child. In the course of the hearing before the Tribunal, although the applicant told the Tribunal that before the Taliban took over his area his life was "a good life", he expressed concern that despite the departure of the Taliban he would be at risk of persecution by reason of his Shi'a religion and his Pushtun ethnicity. He told the Tribunal that he believed that everyone would have weapons, and that Tajiks or other Pushtuns would persecute him because of his minority religion as a Shi'a. It appears that, as the Tribunal apprehended, that claim was in part prompted by the applicant's strong determination not to return to Afghanistan due to his genuine fear of doing so. In an earlier statement to the Tribunal, he said that in the past, that is before the Taliban's arrival, there had been no religious differences, but that the eruption of war in Afghanistan had lead to those differences. His focus was clearly only upon the threat to him from the Taliban. Nevertheless, the Tribunal apprehended his fear that he might be subject to persecution from other Pushtuns because he was a member of the Shi'a religion, or from other groups. It referred to the independent country information and concluded: "Having considered a substantial amount of material in relation to Convention-related mistreatment of Pushtuns in Afghanistan, I am not satisfied that there is more than a remote chance that the applicant would be persecuted by Pushtuns or another ethnic group for a Convention reason if he were to return to the vicinity of Khowst or the Paktia Province now or in the reasonably foreseeable future." 9 The applicant did not have legal assistance in filing his application for review, or at the hearing. Neither his application, nor his submissions, identify any matter which would entitle the Court to make an order under s 39B of the Judiciary Act setting aside the Tribunal's decision. His application, and his submissions, amounted to the reassertion of claims he had made to the Tribunal in an attempt to alter the findings of fact made by the Tribunal adverse to him, to the extent that those findings led the Tribunal to conclude that his genuine fears were not "well-founded". In essence, he claimed that he could not return to Afghanistan despite the collapse of the Taliban regime because the Taliban still had influence in the Paktia region, and because, his area being close to the border with Pakistan, he is vulnerable to Taliban and other radical Muslim influence from Pakistan areas. He claimed it will take some years to establish peace and security in his area. He said that because the Taliban had extolled those Sunni Muslims who had killed Shi'a Muslims, those who had been sympathetic to the Taliban and who were still in his area would continue to hold those views, and that therefore his fear of persecution remained a well-founded one. 10 In my judgment, none of those matters demonstrate error on the part of the Tribunal such as to enliven the power of the Court to make an order under s 39B of the Judiciary Act setting aside its orders. The Tribunal was aware of those claims, and addressed them. It referred to independent country information upon which it decided that those fears of the applicant were not well-founded. It has not misdirected itself as to the applicable law, nor has it misapplied that law. It has addressed all of the applicant's claims. The Tribunal concluded that, despite the applicant's genuine fear of persecution if he were to return to Afghanistan, that fear is not well-founded. In my judgment it did not fall into any error in reaching that conclusion. 11 The application must be dismissed. I so order. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.