February 05, 2014
The High Court in Sydney has delayed the deportation of an elderly Afghan man, just hours before he would have been forcibly flown to Kabul.
The 65-year-old man is from the minority Hazara community and arrived in Australia in 2011 and says he has not lived in Afghanistan for decades.
Early last year, the Refugee Review Tribunal knocked back his application to stay in Australia permanently.
Analysis: Peter Lloyd discusses the case
[The case] still gets considered by one judge as to whether or not there are grounds for this to be stopped, and that matter will be held at the High Court in Sydney via videolink to her [Justice Bell] in Canberra on Thursday afternoon at 4:30[pm].
It’s not an injunction of significance, because this is just delaying until Thursday the process going against this man.
The judge herself wasn’t satisfied that she had a clear enough, a readable enough copy of the original Refugee Review Tribunal’s arguments.
So this is in some sense a technical delay, not a delay on the merits of the case.
The High Court has granted the man an injunction until Thursday so it can decide if there are grounds for an appeal.
The court will then consider more fully looking at the Refugee Review Tribunal’s explanation for why it refused the application.
A solicitor representing the Government on Tuesday argued that the Afghan man had had a chance over the past year to make his application for a stay of deportation and had not done so.
The Government argued that effectively his time was up and the case was over.
Justice Virginia Bell, however, said the Government’s reasons were not strong enough and that she wanted to have a closer look at the tribunal report.
Grave fears for man if returned to Afghanistan
The Taliban is notorious for persecuting Hazara people and refugee advocates fear for the man’s life if he is forcibly repatriated.
“This is one of those rare cases where you can say with some confidence that the probability that those who orchestrate the return of someone like this to Kabul will end up having blood on their hands is pretty high,” said leading Afghanistan academic Professor William Maley.
The man at the centre of the case is illiterate and has lost contact with relatives back home. He says he fled persecution in Afghanistan in the 1980s.
Who are the Hazaras?
- Though to be of Central Asian decent, most likely from Mongolia and Turkey.
- Popular theory is that Hazaras are descendents of Genghis Kahn and his soldiers, who invaded Afghanistan in the 12th century.
- Around 7 million live in Afghanistan, in the ethnic region of Hazarajat.
- Smaller groups of Hazaras live in Pakistan and Iran.
- Hazaras’ facial features are distinctly Mongolian, setting them apart from most Afghans.
- Most are Shiite Muslims, as opposed to Sunnis who make up 85 per cent of Afghanistan’s population.
- Many Hazaras were killed or forced out of Afghanistan during conflicts in the 18th and 19th centuries.
- Historically, they have been oppressed by past governments and openly targetted by the Taliban.
For a long period he settled in Quetta in Pakistan but it too became a dangerous place for a man with his ethnic background.
When the case came before the Refugee Review Tribunal early last year, it agreed that he may be persecuted in his home province of Uruzgan – which has just been vacated by Australian troops – but the tribunal does believe that he could return and live in the Afghan capital.
That is strongly disputed by Sonia Caton, a lawyer and chairman of the Refugee Council of Australia.
Ms Caton says the man has no family in Kabul to go back to.
“The reasoning around the relocation to Kabul doesn’t accord with the UNHCR (United Nations High Commissioner for Refugees) eligibility guidelines for protection in our view,” she said.
“Furthermore, he has vulnerabilities such as his age, his illiteracy, the fact that he has no contacts or relatives at all in Kabul and hardly any in Afghanistan [which] would make him a very serious consideration for complementary protection, and no reasons were given for refusing complementary protection.”
A week ago the man was taken into custody and put into the Villawood detention centre in Sydney.
The tribunal’s judgment in refusing to provide a visa is also being challenged by Professor Maley, who has provided expert opinion to the lawyers.
“The Hazaras have had centuries of discrimination and persecution in Afghanistan. The reason for this is that they are members of the Shiite minority within the Muslim faith in Afghanistan,” he said.
“They’re also physically rather distinctive; they have east Asian appearance rather than southern European, and that means that when you get groups like the Taliban who tend to regard Shiite Muslims as heretics, the Hazaras are the obvious targets.
“We saw 2,000 Hazaras killed in just three days in northern Afghanistan in Mazar-e Sharif in August 1998.
“In December 2011 there was a bombing attack on a Hazara place of worship in Kabul itself, and on that particular day of attacks, over 50 people were killed in Afghanistan.
“Hazaras are tremendously apprehensive that they will again be targeted in a very substantial way as the Taliban seek to press their campaign of terror in different parts of the country.”
Ambassador voices concerns over deportation
Afghanistan’s ambassador to Canberra, Nasir Andisha, says his hands are tied, and he is shocked about the deportation.
“It’s a sovereign country’s decision to decide whether to keep this person or to send him to Afghanistan,” he said.
Mr Andisha says the Afghan embassy in Canberra has not issued any papers to say the man is an Afghan.
“The specific case of this gentleman – and again, this is what I’m hearing from media, I don’t have any documents to tell me this – in the specific case of this man, a 65-year-old man with no social support network in Kabul returning to a city he has not probably seen in the past and doesn’t have any relatives or siblings or anyone to look after him or receive him from the airport,” he said.
“And it’s cold – I don’t know where he’s going to live, where he’s going to stay. That’s why I’m really concerned.”
“As a human being, also, I don’t like this idea of course. But it’s nothing to do with the embassy to stop it or not to stop it because this is, again, a sovereign country.”
Mr Andisha says the Australian Government has not asked for input from the Afghan ambassador on the case.
In a possible corollary, the deportation order may backfire. The ambassador says his government is unlikely to accept the forced return of a citizen, so it’s likely the man may reach Kabul only to be sent back to Australia.