SWLB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2005-01-20|Before: Finn J

REASONS FOR JUDGMENT 1 This matter was heard together with SVYB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 15. Save in one minor and immaterial respect that involved reliance on s 36(3) of the Migration Act 1958 (Cth) in SVYB, the two proceedings raised identical issues and were so treated in submissions. 2 The applicant is from Afghanistan. He is of the Hazara ethnic group; is a Shia Muslim; and comes from the Behsud district of Wardak province. Having arrived in Australia in October 1999, he lodged an application for a protection visa and was subsequently granted a temporary protection visa. That visa was granted on the basis that the applicant was at risk of being killed by the Taliban because of his race and religion. 3 The applicant made a further application for a protection visa in 2000. By the time it was determined in October 2003 the Taliban had been removed from power in Afghanistan. The application was rejected on the ground that the applicant did not face a real chance of persecution on return to Afghanistan, by the Taliban or other groups or factions. Review of this decision was sought in the Refugee Review Tribunal ("the Tribunal"). 4 Though the Tribunal in this matter was not constituted by the same member as in SVYB, the approach taken on review was, for present purposes, the same. First, acknowledging that the applicant had already been recognised as having refugee status, the Tribunal considered whether he had ceased to be a refugee under the Convention by reason of the operation of Article 1C(5) of the Convention ("the Cessation clause"). Under that Article the Convention ceases to apply to a person owed protection obligations if that person can no longer continue to refuse to avail himself of the protection of the country of his nationality "because the circumstances in connection with which he has been recognised as a refugee have ceased to exist". 5 Having regard to the particular basis on which the applicant was found to be a refugee and to the later country evidence concerning the Taliban, the Tribunal concluded that Article 1C(5) applied to the applicant. 6 It then went on to consider whether the applicant was nonetheless owed protection obligations for other reasons. It concluded he was not for reasons I note below. In consequence his application was refused. 7 The application to this Court proceeded on two distinct bases. The first related to the manner in which the Tribunal considered his application in light of Article 1C(5). I will call this the Cessation clause ground. The second challenged the decision on other judicial review grounds. I will call these the non-Cessation clause grounds. 8 The Cessation clause ground is relevantly identical to that raised in SVYB. I have given my reasons for rejecting the applicant's contention in that matter: see [1]-[6]; and I incorporate those paragraphs by reference into these reasons. The present applicant must fail on this ground for those reasons.

THE NON-CESSATION CLAUSE GROUNDS 9 These again are identical to the grounds raised in SVYB, though they are to be considered in a distinct factual setting. For this reason it is necessary to refer briefly to the background and reasons for the Tribunal's decision. In so doing I need to refer to the manner in which the Tribunal characterised the changed circumstances in Afghanistan after the grant to the applicant of the original temporary protection visa.

The Tribunal's Decision 10 The Tribunal only considered the application of the Cessation clause in relation to the applicant's risk of persecution by the Taliban in Afghanistan for reasons of his Hazara ethnicity and his Shia religion. 11 It accepted that, though removed from power, remnants of the Taliban remain active and those remnants had a "stronghold" in Wardak province. It equally accepted country information that the security situation in the applicant's home district was "relatively stable". It found that there was no likelihood of the Taliban returning as the governing authority or being otherwise in a position to exercise control in the manner it did in the past. It noted that: "… there is no independent evidence before the Tribunal that the Taliban exercise any significant degree of control in the applicant's own district of Hisa I Awali Behsud or are targeting Hazaras (or Shi'as) there. Indeed recent UNHCR advice seen by The Tribunal indicates that UNHCR 'has not received any reports of discrimination towards Hazaras' in Wardak Province as a whole. Continuing terrorist acts against foreign aid workers, government officials and government and international forces by Taliban remnants - and consequent military operations against Taliban elements - does not of itself give rise to a real chance of persecution of the applicant for a Convention reason." 12 The Tribunal concluded in consequence that Article 1C(5) applied. 13 The Tribunal then turned to consider whether the applicant was nonetheless owed protection obligations by Australia for other reasons, noting that since he was first recognised as a refugee the applicant has made other claims. These, which I will note in order, it considered in turn. (i) It was claimed that as a Shia Hazara he was at risk of persecution by Pashtuns for reasons of race and religion. The Tribunal referred (a) to country information and in particular to recent advice of the UNHCR on the security situation in the applicant's home district; (b) to the new governmental arrangements in which Hazaras held significant positions of power; and (c) to the fact that the applicant's district was one that was virtually exclusively occupied by Hazaras. It concluded that were he to return to his district he would not face persecution on the grounds of being a Shia Hazara.

(ii) The applicant claimed he would face persecution because of his family's past political affiliations. The Tribunal in narrating the evolving nature of these affiliation claims noted that some of the new claims contradicted earlier claims. It rejected the late claim that his father was a Communist and gave no weight to a letter allegedly from his father which, it considered, read as a document prepared for the purpose of providing corroborating evidence. It equally rejected the claim (not made until August 2003) that he feared reprisals from the family of a man he allegedly killed in a military encounter when serving in the militia. It noted inconsistencies in his evidence over time and again rejected the authenticity of a document put forward to corroborate his having been in a particular militia group. It considered he had changed his story to try to fit what was in that document. Finally, while accepting that the applicant had affiliations with Hezb-e-Wahdat (a political grouping) the Tribunal found that this would provide no basis for persecution of him in his home district. His district was governed by a man from the Wahdat party.

(iii) The applicant claimed that his outlook in Australia had changed to such an extent that he would face persecution were he to return to Afghanistan. Again the Tribunal refused to give weight to a document (which was unrelated to the applicant) which was said to support his claim to be at risk as a returnee from Australia. While accepting that the applicant would find Afghan society more restrictive than that in Australia the Tribunal did not consider those restrictions would cause such serious harm as was envisaged by s 91R of the Migration Act 1958 (Cth). 14 In all the circumstances the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.

The grounds 15 Save for proper names and geographical adaptations, the large number of grounds and particulars of the Amended Application replicate those in SVYB. Similarly, in the submissions ultimately made, these were reduced to the following three matters. 16 First, it is alleged that the Tribunal misconceived the nature of the applicant's claim and considered his fear of persecution by the Taliban only as a "State" agent and not as a non-State body. This claim mischaracterises the Tribunal's treatment of the Taliban. Fairly read, the Reasons do address such fears as the applicant could reasonably have of the Taliban, not only as a potential government, but also as "remnants" that continued to make it up since its overthrow: see Court Book at 197 and 211. 17 Secondly, it is alleged (a) that the Tribunal decision was so unreasonable that no reasonable person properly applying the law could have made it; and (b) the Tribunal's findings were based on no evidence. The latter of these was promptly - and wisely - abandoned at the hearing. It simply cannot be said that there was no evidence for the findings made. 18 As in SVYB, the basis of the alleged unreasonableness in the decision was, essentially, that the country information before the Tribunal evidenced a lack of law and order in Afghanistan, as also chaos, violence and discrimination and it disclosed the Taliban's implication in this. Though the violence etc may not have been practised specifically for a Convention reason, when one acknowledges that the Taliban was still there and in circumstances where there was no effective state protection against harm, the Tribunal could not have come to a conclusion that there was no basis for a well-founded fear for a Convention reason into the reasonably foreseeable future. 19 The respondent's counter to this in this matter as well is to accept that while there was no evidence of "a vast amount of violence" in Afghanistan, it is not the evidence that the violence was directed to Hazaras by the Taliban or by anyone else for a Convention reason and that that was acknowledged in the approach of the Tribunal. 20 The country information, in my view, does not lead to the inevitable conclusion that the risks confronting Hazaras and Shias as citizens in Afghanistan were being confronted for Convention reasons. I do not consider that the Tribunal was guilty of any jurisdictional error in reaching the conclusion it did. That conclusion might seem controversial but it was open on the evidence. 21 Thirdly, and this seems to in substance involve a re-packaging of the unreasonableness submission, it is said the Tribunal must have misapplied the well-founded fear test. All I need say of this that it was open on the evidence for the Tribunal to conclude that there was not a real chance of persecution for a Convention reason. 22 I will order that the application be dismissed with 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 Finn.

Solicitor for the Applicant: Westside Community Lawyers

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