Wahk v. Minister for [Australian] Immigration and Multicutural & Indigenous Affairs

2004 FCAFC 12 (2004)

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Wahk v. Minister for [Australian] Immigration and Multicutural & Indigenous Affairs

Australia Federal Court
2004 FCAFC 12 (2004)

Facts

In August 2001, Wahk (defendant) entered Australia from Afghanistan seeking asylum, and the Minister for Immigration and Multicultural & Indigenous Affairs (plaintiff) initiated deportation proceedings before the appropriate magistrate. The magistrate denied Wahk’s application for asylum, and Wahk appealed to the Refugee Review Tribunal (RRT). Wahk testified that he was a Hazara, a social group that faced significant persecution from the Taliban while the group was in power and from the Pashtun majority. Wahk claimed the Hazaras in his home province Ghazni were unarmed and defenseless, and he feared he would be harmed or killed if he returned to Afghanistan. In May 2002, the RRT found that, as of August 2001, Wahk had demonstrated he would be at risk for persecution if he returned to Afgahnistan. However, the RRT denied the asylum application, finding that, since August 2001, the Taliban had been removed from power in Afghanistan. The RRT found that the change in circumstances demonstrated Hazaras like Wahk would not face a risk of persecution. Wahk appealed to the federal court, arguing the RRT erred by failing to consider that the Taliban maintained significant power in Afghanistan despite their removal from government, and the risk of persecution remained for Hazara individuals.

Rule of Law

Issue

Holding and Reasoning (Lee, J.)

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