Applicant M v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-10-05|Before: Carr J

introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 2 January 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a national of Afghanistan, arrived in Australia on 11 July 2000 travelling by boat from Indonesia, with the assistance of a people smuggler. On 25 July 2000 the applicant applied for a protection visa. On 5 September 2000 a delegate of the respondent refused to grant him a protection visa. On 8 September 2000 the applicant sought review of the delegate's decision by the Refugee Review Tribunal.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · the applicant is Pashtun by ethnicity and worked as a self-employed tailor; · he is married and has a young son. His wife and son are now living with his parents and three brothers in a village in a provincial district; · in about April 2000 the Taliban leader in that area spoke to the applicant's father and told him that the family had to give one son to fight against the opposition then led by Ahmed Shah Masood; · on that occasion his father gave the Taliban some money and neither he nor any of his brothers was required to fight. The same had happened to other families in the village; · his family could not afford to continue paying money to the Taliban; · if he were returned to Afghanistan he would be forcibly recruited into the Taliban forces; 3 The applicant, in later written submissions, stated that: · he worked as a sewing machinist and ran the tailor's shop. Apart from one brother who worked as a driver, the rest of his brothers and his father worked on a farm; · when he was working in his shop the Taliban used to come to the shop and give him a very hard time about his beard and long hair, saying that the beard had to be very long and he should not have long hair; · in about August 1999 the Taliban had taken his cousin away and the cousin was killed in battle; · when the Taliban had come to the family house in April 2000, the applicant was hiding inside the house. The Taliban told his father that his son had to be sent to fight. His father had told the Taliban that the applicant was not at home. It was on that occasion that his father decided that the applicant had to leave Afghanistan; · he held the political opinion that the Taliban should not be able to take young men to the front if they did not want to fight. Because of that opinion, he would be in danger if he remained in Afghanistan; · if he were returned to Afghanistan the Taliban would kill him, first because he had escaped from Afghanistan and secondly because, having been asked to fight, he had refused; · there were no authorities who could protect him from the Taliban; · after his cousin had been killed he had begun to speak out against the Taliban. His family had also been very upset and began talking to people against the practice of sending young men to fight if they did not want to go; · the applicant had also told people that the Taliban were not really Talibs (Muslim religious leaders) as they should be in mosques learning religion rather than fighting. 4 Shortly before the Tribunal hearing, the applicant made further claims in a written submission. They were as follows: · one of his customers was a member of the Jamiat-e-Islami (the main opposition party to the Taliban) and gave him anti-Taliban newspapers and articles to distribute secretly; · he gave these leaflets to other people and discussed the material with them; · the Taliban realised that he was spreading propaganda; and · he feared that he would be captured by means of forcible conscription into the militia or would be killed on return to Afghanistan. 5 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. Where the Tribunal used paragraph numbers I have put them in brackets. "FINDINGS AND REASONS

grounds of the application, relevant submissions and my reasoning 6 The applicant was unrepresented at the time when he filed his application. When the matter came on for hearing on 24 April 2001, Mr J McGrath of counsel was good enough to appear on behalf of the applicant on a pro bono publico basis. I mention that date so that it may be noted that it was before the High Court of Australia handed down its decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. Mr McGrath applied for, and was granted, leave to substitute four new grounds for those originally contained in the application. I shall summarise those grounds. Ground 1 asserted a failure to comply with the requirements of s 430(1)(b)-(d) of the Act. The failure was said to be that the Tribunal had failed to address the question whether the applicant had a well-founded fear of persecution: (a) because he held a political opinion, namely a conscientious objection to military service; or (b) by reason of his membership of a social group comprising those persons who held a conscientious objection to military service. 7 Ground 2 alleged an error of law by the Tribunal incorrectly interpreting Article 1A(2) of the Convention, and in particular the concept of persecution, by reason of the two matters mentioned in Ground 1. 8 Ground 3 alleged error of law in the form of an incorrect application of Article 1A(2) to the facts as found by the Tribunal, in relation to conscientious objection to military service being regarded as imputed political opinion for which the applicant would be persecuted. 9 Ground 4 asserted that the Tribunal had failed to comply with s 430(1)(a) of the Act by failing adequately to expose its reasoning process for its conclusion that the applicant's claims to a fear of persecution by reason of a political opinion, namely opposition to the Taliban, were belated and could not be accepted. 10 The hearing proceeded on 24 April 2001 and judgment was reserved. A few days later, on 1 May 2001, I heard a very similar case namely Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA1411 in which I gave leave to the applicant to formulate proposed grounds based upon the applicant's membership of a particular social group namely young able-bodied Afghan males. On the same date I made directions in this matter to enable the applicant to consider applying to amend his application to incorporate a similar ground. 11 On 14 May 2001 counsel for the applicant filed a minute of further proposed amended grounds which I shall refer to as proposed Grounds 5 and 6. Proposed Ground 5 asserts an error of law in the application by the Tribunal of Article 1A(2) of the Convention in concluding that the Taliban's selection of young, able-bodied males for conscription did not amount to discrimination and persecution for membership of a particular social group. Proposed Ground 6 alleges that the Tribunal had failed to comply with s 430(1)(b)-(d) of the Act by failing to address the question referred to in proposed Ground 5. 12 Then, on 24 July 2001 (i.e. after the decision in Yusuf), the applicant sought to add proposed Ground 7 asserting jurisdictional error on the Tribunal's part in failing to address the questions referred to in proposed Grounds 5 and 6 i.e. whether the selection of young, able-bodied males for conscription amounted to persecution for membership of a particular social group. 13 The respondent opposed the application to add proposed Grounds 5, 6 and 7. The basis for that opposition was the same as that adopted by the respondent in Applicant S. In order to make these reasons a self-contained set of reasons, I shall repeat here as applicable to this case my summary of the respondent's main arguments and my reasoning. 14 The respondent argued that the principles explained in Bank Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at pp 284 and 416, as followed by Lee J in Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, applied notwithstanding that this is an application for judicial review, not an appeal. The applicant should not be granted leave, so it was put, completely to alter the basis of his claims to the Tribunal as to his entitlement to a protection visa. 15 I propose to grant leave to amend for the following reasons. First, the respondent has not pointed to any prejudice which he may sustain if the amendments are allowed. On the other hand, there is a risk of very substantial prejudice to the applicant if the amendments are not allowed, should there be any merit in them. Secondly, this being an application for judicial review, all the relevant facts have been determined by the Tribunal. The question is one of construction of law and, in my view, it is expedient and in the interests of justice that the point be decided. 16 The respondent asserted that the applicant had made no claim to the Tribunal that he feared persecution by reason of his membership of a particular social group. He also referred to the fact that the applicant had legal representation in putting his case before the Tribunal. In my view, those matters go to whether the proposed amendments have any merit and, although relevant to the question of leave to amend, do not outweigh the other considerations to which I have referred. 17 In my opinion, it is in the interests of justice that the applicant have leave to amend by adding what will now become Grounds 5, 6 and 7.

my reasoning 18 The issues which I now have to decide, as I see the distillation of the various grounds, are as follows: Did the Tribunal err in law or fall into jurisdictional error by failing to consider: (a) whether the applicant held a conscientious objection to military service which would be regarded as imputed political opinion for which there was a real chance that he would be persecuted?; or (b) whether the applicant was a member of a relevant particular social group by reason of which there was a real chance that he would be persecuted?

the first question - imputed political opinion 19 Mr McGrath pointed to evidence given by the applicant to the Tribunal that the performance of military service would have required his participation in military action contrary to his political beliefs. That evidence is reproduced at p 6 of the Tribunal's reasons as follows: "I do not agree that the Taliban should make young people go to the war zone and fight. I will never agree to kill anybody. If the Taliban caught me and wanted me to go and fight and I refused, they would either have taken us by force, put me in jail or killed me. It is my political opinion that the Taliban should not be able to take young men to the front if they do not want to fight, but they take them by force. Because of that opinion I would be in danger if I stayed in Afghanistan." 20 There is also reference to this claim at p 13 (the paragraph reproduced and numbered 1 above), p 14 (the paragraph reproduced and numbered 18 above) and p 19 (the paragraph reproduced and numbered 54 above) of the Tribunal's reasons. 21 The applicant submitted that the Tribunal had erred when it made the statement at p 17 of its reasons (in the paragraph reproduced and numbered 39 above) to the effect that he had made no claims to have feared harm at the hands of the Taliban for any reason other than being made to fight for them. 22 The respondent submitted that this paragraph (paragraph numbered 39) had to be read in context. That, of course, is so, but I consider that the context shows that the Tribunal confined its reasoning, on the question whether the applicant had suffered persecution by reason of political opinion, to the question whether he had spoken out against the Taliban and had been identified as such. I think that it is sufficiently clear that the applicant put forward, as part of his claims, that he would be at risk of persecution by reason of political opinion, a claim that such opinion would be attributed to him on the basis of his pacifist views. There were two aspects to this, first, what might happen to him in the reasonably foreseeable future by reason of his departure from Afghanistan to avoid conscription and, secondly, what might happen to him in the reasonably foreseeable future if he were again required as a conscript. All that is found in the reasons (at paragraph reproduced and numbered 67 above) is that the Tribunal declined to find that the applicant's departure to avoid conscription would lead the Taliban to consider that he was politically opposed to them. 23 The respondent submitted that the fact that an applicant may have particular political views in relation to conscription and military service which might cause him or her to disobey a law of general application did not cause the sanction for non-compliance to amount to persecution for a Convention reason. The apprehended persecution which attracts Convention protection, so the respondent submitted, must be motivated by possession of the relevant Convention attributes on the part of the person or group persecuted. 24 At this point I note that in relation to the matter of conscription there was no evidence before the Tribunal of any "law of general application". I return to that subject further below. 25 The respondent, in his first set of written submissions, claimed that the applicant had not suggested that he would be singled out from other objectors to conscription on the basis that he was a conscientious objector and thus held a political opinion for which he would be persecuted. In my view the applicant's claims and evidence, to which I have referred in summary above, did raise that issue. I think that the Tribunal can be seen to have recognised this when, at paragraph reproduced and numbered 1 above, it said this: "He also claimed that he disagreed with the fighting and killing people and that his failure to fight would be regarded as opposition to Taleban (sic) [emphasis added]." 26 The respondent submitted that there was no evidence or material which suggested that conscientious objectors were singled out by the Taliban. 27 In my opinion, the fact (as I have found) that the applicant had raised the issue that his failure to fight (which would include his future refusal to fight) would be regarded as opposition to the Taliban, not only required the Tribunal to consider the significance of that claim under the heading of political opinion but as a claim simultaneously raising the possibility that there was a relevant particular social group the members of which were persecuted by reason of such membership (a matter which I discuss further below). 28 At paragraphs reproduced and numbered 52 and 53 above the Tribunal relied upon the authorities, which it there cited, for the proposition that the holding of pacifist views and the consequences of failure "to undertake conscription" did not bring the applicant's case within the ambit of the Convention. 29 I would distinguish all of those cases on the basis that they concerned the enforcement of laws of general application providing for compulsory military service. 30 There was no evidence before the Tribunal that there was such a law in Afghanistan. On the contrary, the Tribunal (at paragraphs numbered 10 and 11 above) appears to have accepted that there are two groups fighting for control in Afghanistan, namely the Taliban and the opposition forces with the former said to control about 80% of the country. At paragraphs numbered 25, 28, 47 and 51 above, the Tribunal found that the Taliban did not have a regular conscription programme, but used force to press-gang new recruits into its forces. It described the process (at paragraph numbered 51) as targeted at "young, able-bodied males", but said that this did not amount to discrimination for a Convention reason. It repeated such a view at paragraph numbered 73 above when it said that the Talbian's motivation in recruiting him would be solely because he was a male with potential to fight and for no other reason. 31 Even if there exists a conscription law of general application in the country from which a claimant refugee has fled, conscientious objectors, or a class of conscientious objectors defined by reference to a particular belief or opinion, may be, for the purposes of the Convention, a particular social group - see Lehane J in Mehenni v Minister for Immigration and Multicultural Affairs [1999] FCA 789 and the authorities there cited. As his Honour pointed out, it would be necessary for an applicant for a protection visa to show that he or she had a well-founded fear of persecution for reason of membership of that group. 32 In paragraph numbered 54 above the Tribunal acknowledged the applicant's claim to have pacifist views. At paragraph 51 the Tribunal referred to the Taliban's ad hoc practice of recruitment as "… not one which would be condoned internationally". At paragraph 66 the Tribunal found that the applicant's fear was the same as "… that of many young men in his circumstances …". 33 In the present matter, as I have mentioned, there was no evidence of a law of general application on the matter of conscription. All the evidence points to forcible conscription by the Taliban without any lawful justification. In my opinion, when the Tribunal relied on Branson J's decision in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834, which was a case of enforcement of laws of general application providing for compulsory military service, it fell into error. 34 In my view, the Tribunal was obliged to consider whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group comprising those persons who held a conscientious objection to military service. In failing to do so I consider the Tribunal erred in law to the extent that it fell into jurisdictional error.

The second question - young, able-bodied males as a particular social group 35 I have already considered this question in two very similar cases, Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881 and Applicant S, a judgment delivered today. Instead of incorporating by reference my reasons in those two cases I shall largely reproduce below the relevant portion of the reasons in the latter case. 36 In Applicant Z v Minister for Immigration and Multicultural Affairs I held that the Tribunal had erred in a manner giving rise to reviewable error when it had failed to consider: · whether able-bodied Afghan men comprised a particular social group of which the applicant in that case was a member; · whether forcible recruitment by the Taliban of such persons to fight on the Taliban's side against the Northern Alliance (which, on the evidence in that case, controlled about 10% of Afghanistan), amounted to persecution by reason of membership of that particular group within the meaning of the Convention; · whether, despite the fact that people may pay to avoid such recruitment, such extortion could amount to persecution within the meaning of the Convention; and · whether there was any evidence that the Taliban were acting pursuant to a law of general application. 37 Mr P R Macliver, counsel for the respondent, in written submissions, acknowledged that although the findings in the present case were not in precisely the same terms of the findings by the Tribunal in Applicant Z, they were of a sufficiently similar nature as to make my reasoning in that case equally applicable to the Tribunal's decision here. Mr Macliver submitted that my decision and reasoning in Applicant Z was in error. 38 The respondent contended that because: (a) the applicant had had legal assistance from solicitors in making his application for a protection visa and his application to the Tribunal for review; (b) he had never asserted a claim to be considered as a refugee on the basis of his membership of a particular social group; and (c) he had never made any claim to have a well-founded fear of persecution by reason of his membership of any particular social group; there was no error on the part of the Tribunal in failing to consider whether the applicant was a member of a particular social group. Counsel relied upon the observations of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (at 443) where his Honour said: "… the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant." 39 In Randhawa the question was whether the appellant, a Sikh from Punjab, could reasonably be expected to relocate elsewhere in India. The appellant had raised several matters in relation to that issue and the Tribunal was held to have dealt with those issues (on the question of whether it was reasonable to relocate elsewhere in India). Those matters (so it would appear from p 443) were concerned with certain impediments to relocation. It was in that context that his Honour held that because the appellant had not raised certain other impediments to relocation, there was no error on the Tribunal's part in failing to consider whether there were such other impediments. 40 The respondent also relied upon a decision of a Full Court of this Court in Suleiman v Minister for Immigration and Multicultural Affairs [2001] FCA 752. 41 I would distinguish Randhawa on the facts of this matter. In my view, the appropriate test is whether in this matter it could fairly be said that sufficient facts were placed before the Tribunal as to require it to consider whether there existed a particular social group, being able-bodied Afghan men, and whether the applicant, as a member of that particular social group, had a well-founded fear of persecution if returned to Afghanistan. 42 In his written submissions, the respondent said this: "For example, if an applicant had no representation or assistance, and if the evidence and material before the Tribunal disclosed the existence of a particular social group within the relevant country, and that the members of that group were persecuted for reason of their membership of that group, and if the evidence and material also showed that the applicant was a member of that particular social group, the Tribunal would be bound to consider whether the applicant had a well-founded fear of persecution by reason of his membership of that particular social group, even if the applicant had not raised that as an issue. However, such a case will be rare, and does not arise on the evidence and material before the Tribunal in the present case." 43 As I see it, the only difference between the test which I propose and the test for which counsel for the respondent contends, is the fact that the applicant had representation or assistance. 44 I do not think that, in the present context, the fact that the applicant was legally represented can shield the Tribunal from legal error or jurisdictional error if, on the facts before it, there appeared to be a particular social group of which the applicant was a member and by reason of such membership had a well-founded fear of persecution if returned to his country of origin. In my view, it was the Tribunal's duty to consider whether the facts threw up an arguable basis for the existence of any of the five Convention reasons. 45 I would also distinguish Suleiman on the facts. In Suleiman the Court was, in my view, very much influenced by the fact that there was nothing before the Tribunal to suggest that the appellant had a fear of harm or injury by reason that he was a member of a class of "coastal people". As will be seen below, that was very different from the circumstances of this case. 46 The respondent contended that there was simply no evidence or material before the Tribunal from which it might have been open for it to conclude that there existed within Afghanistan a particular social group such as able-bodied Afghani men, nor, so it was submitted, was there any evidence that the Taliban's conscription of such men was by reason of their membership of any such particular social group. 47 Finally, the respondent submitted that there was no evidence that the applicant in any way feared persecution (i.e. a subjective fear) by reason of his membership of a particular social group. 48 On the question of such a subjective fear, I first refer to the following passage at pp 12-13 of the Tribunal's reasons where it was summarising the applicant's claims in his application and subsequent interviews: "The Applicant's original application and subsequent interviews were such that he can be taken to have claimed to fear "persecution" at the hands of the Taliban authorities in Afghanistan for reasons of conscription to fight for them in the same way that other young men or men of fighting age had been conscripted from time to time." 49 At p 14 of its reasons the Tribunal referred to part of the applicant's statutory declaration submitted with his application. That part read: "The reason I left Afghanistan was that the Taliban forced us to go to the front line and fight against their enemies. Otherwise we have to pay 20,000,000 Afghani a month not to go and fight". 50 Finally at p 20 of its reasons there is the following passage: "While I have sympathy for this young man and the tragic plight of his country over the past 20 years and under the current control of the extremist Taliban movement I find that his fear is that of many young men in his circumstances that, for non Convention reasons he will be recruited to fight for Taliban and that, the consequences could be that he may face serious harm or death." 51 In my view, the above constitutes a finding that the applicant, as one of many similar young men, held a subjective fear of persecution in the form of forced conscription (without the authority of any law) to fight on the Taliban's side in the civil war. At the very least there was, in my opinion, evidence before the Tribunal that the applicant had a subjective fear of such persecution. 52 It is also, in my view, quite clear that the Tribunal found that there was a real chance of the applicant facing persecution (in the sense of some significant detriment or disadvantage) if returned to Afghanistan. This can be seen in paragraph numbered 73 of its reasons set out above. 53 This finding is comparable to the finding of the Tribunal in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, which was referred to at paragraph 4 of the main reasons for judgment. 54 There is no reference anywhere in the Tribunal's reasoning to there being a law of general application in Afghanistan requiring military service. On the contrary, the Tribunal in several parts of its reasoning acknowledged that there was no regular conscription in Afghanistan, but that the Taliban was known to have conscripted people into their forces in an ad hoc way by rounding up young men in the areas of their control to serve in their militias. I refer to paragraphs numbered 28(4), 46, 51 and 59 of its reasons set out above. 55 The Tribunal cited some authorities which involved conscription-based refugee claims, mainly authorities in this Court. Each of those decisions concerned the enforcement of laws of general application which provided for compulsory military service and for punishment, without discrimination, of those who avoided such service. 56 This case was different. The Tribunal accepted that Afghanistan was in a state of civil war between the Taliban, on the one hand (which controlled about 90 per cent of the country) and on the other hand, the forces of two other factions of those who formerly opposed the Soviet Union. 57 In paragraph numbered 51 of its reasons, set out above, the Tribunal characterised the Taliban's ad hoc practice of press-ganging recruits as being "… not one which would be condoned internationally". In my view, this can be seen to have come very close to characterising that practice as "… such a significant departure from the standards of the civilised world as to constitute persecution" and not being "appropriate and adapted to achieving [a] legitimate government object" [the quotes are from Chen Shi Hai at [29]]. The Tribunal then characterised the Taliban's motivation, whereby it based its selection process upon targeting young able-bodied men, as not amounting to discrimination and not being Convention-related, any more than regularised conscription was in other countries. It was at this point, in my opinion, that the Tribunal started to fall into error by asking itself the wrong questions, being such an error of law as to amount to jurisdictional error. 58 In my view, the circumstances of: · civil war of the type described above; · recruitment by force (without legal right) on an ad hoc basis of able-bodied young men at random; · preparedness to extort money as the price for not conscripting such young persons; and · the existence of a targeted class of persons, namely able-bodied young men all point to a classic situation for the generation of a particular social group of refugees. 59 As to the Taliban's motivation - the High Court of Australia in Chen Shi Hai at [33] to [35] explained that the absence of "enmity" or "malignity" does not mean that conduct does not amount to persecution for a Convention reason. 60 The particular social group (able-bodied Afghan men) is not defined by reference to the discriminatory treatment that its members fear. They are defined by the very characteristic of being able-bodied Afghan men, in the same way as the appellant in Chen Shi Hai was identified as a "black child". As McHugh J said in Applicant A at 264: "Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognised as a particular social group." 61 The fact that able-bodied Afghani men receive adverse treatment from the Taliban, as the Tribunal found in this matter, is "descriptive of their situation" and facilitates their recognition as a social group for the purposes of the Convention, but it does not define them - see Chen Shi Hai at [23]. 62 The evidence accepted by the Tribunal showed that the applicant would be persecuted (the Tribunal expressly found this) because he was an able-bodied Afghan male. There was no scope, in my view, for the Tribunal to conclude that that treatment was for any other reason - see Chen Shi Hai at [32]. 63 In my opinion, the Tribunal should have considered whether able-bodied young men (or possibly able-bodied young men without the financial means to buy-off the conscriptors) in the above circumstances, comprised a particular social group within the meaning of Article 1A(2) of the Convention. 64 By not doing so, in my opinion, the Tribunal erred in law in the manner to which I have referred above. The extent of its error was, in my view, such as to amount to jurisdictional error within the meaning of the principles explained in Yusuf. 65 Since writing the above reasons I have had the advantage of reading the reasons for judgment of Tamberlin J in Mahmoodi v Minister for Immigration and Multicultural Affairs [2001] FCA 1090, to which I was referred by the respondent's solicitor about a week after I reserved judgment in this matter. At that stage his Honour's reasons, delivered ex tempore, were not available, so I proceeded to draft the above set of reasons and deferred delivering judgment until the judgment in Mahmoodi was published. 66 One of the grounds of the application in that case was that the Tribunal had failed to consider and make findings on whether there was a real chance that the applicant as a member of a particular social group (able-bodied Afghan males) might be persecuted, by reason of such membership, by forcible conscription into the Taliban militia to fight in the civil war. Tamberlin J held that "able-bodied Afghan males" could not be a basis for defining and delineating a particular social group for Convention purposes. The relevant paragraphs of his Honour's reasons were as follows:- "7. In the present case, the class contended for - "able-bodied Afghan males" - is a reference to characteristics based on gender and health or fitness. In my view, neither of these criteria, either taken alone or in conjunction, could amount to a basis on which to find the existence of a particular social group within the meaning of the definition in the Refugees Convention as amended by the Protocol. The reference to "able-bodied" is a reference which could encompass any Afghan male regardless of age, location and political, religious or social persuasion or beliefs. It would encompass a major section of the community. Indeed, the characteristic of being "able-bodied" could well be transient or fortuitous and vary from day to day because at any particular time a person may not be "able-bodied" or at a later point in time may become "able-bodied" within the description. Such a criterion is quite unsatisfactory and inappropriate as a basis for defining and delineating a relevant class or group for Convention purposes. There is simply no common, unifying element apart from basically having a sound body and being male. 8. Accordingly, on this aspect of the matter, I am not persuaded that there has been any error of law by the RRT in failing to take into account the question whether this possible description amounted to a particular social group or whether any possible persecution based on that classification could amount to persecution within the meaning of the Convention. 9. There is another aspect to the case and that is the reference in the authorities to "laws of general application". The RRT considered that because laws relating to conscription in Afghanistan were in substance laws of general application, using the expression "law" in the broad sense of "policy" or "objective", then there could be no discrimination, the assumption being that the laws would be applied on a general and non-selective or discriminatory basis. In support of this proposition reference is made to Applicant A, where McHugh J said, at 258: "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution." 10. In my view, these principles meet the argument that there has been an error in the conclusion reached by the decision-maker in this case. The requirement of conscription, on the material before the decision-maker, could be reasonably considered to be a legitimate object of the refugee's country. . . . 12. In the course of argument, reference was made to a recent decision by Carr J in Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881. In that case, his Honour found that there had been an error in a decision of the RRT because it gave no consideration to a number of questions, one of which was "whether able-bodied Afghan men comprised a particular social group" for Convention purposes: at 9. Other matters which had not been considered and which flowed from that failure were whether conscription by the Taliban amounted to persecution by reason of membership of that particular group and whether there was any evidence that the Taliban were acting pursuant to a law of general application: ibid. 13. It appears that the question as to the application of the decision of the High Court in Applicant A was not argued before his Honour. For reasons given above, I do not consider that it was an issue which the RRT was bound to consider in this case." 67 I regret that I must differ, respectfully, from Tamberlin J on this point. I decline to follow Mahmoodi because, with the greatest respect, I think it is plainly wrong. First, the description "able-bodied" does not encompass any Afghan male. In practical terms, it will exclude those who are too young or too old to fight, but will include, mostly, fit Afghan males ranging from early teenagers through to, say, men in their fifties or possibly sixties. The fact that such a group would encompass a major section of the community is, in my respectful opinion, not relevant in the context of the Convention. History has shown that persecution can, at any particular time, be targeted at millions of people. The clearest example, of course, is Nazi Germany's persecution of five to six million Jewish people. Had they been able to escape and had the Convention been in force, they would quite clearly have been refugees within its terms. 68 Nor do I regard the fact that the characteristic of being "able-bodied" might vary from day to day as being determinative of, or even, (again respectfully), relevant to the existence of a particular social group. Some persons may change their political opinions or religious persuasion from time to time. Thus the composition of those groups who might seek protection on political or religious grounds may also change from time to time. That cannot be a basis for exclusion from protection under the Convention. 69 The proposition that forcible conscription by the Taliban forces could be reasonably considered as a legitimate object of Afghanistan, as the refugee's country, and thus fall within the "law of general application" exception is not one which fits the facts as found by the Tribunal in this matter. As mentioned above, the evidence before the Tribunal was that Taliban controlled about 90% of Afghanistan by force of arms. Judicial knowledge can be taken of the facts that the Taliban were not recognised, at the time of the Tribunal's decision, as the government of that country by the United Nations or (with only three exceptions) by the individual members of the international community. In my opinion, the Tribunal erred in law and committed jurisdictional error in characterising what the Taliban do to any able-bodied male they can lay their hands on, (or whose family cannot afford to bribe them), as the enforcement of a law of general application.

Conclusion 70 For the foregoing reasons, the application will be allowed. The Tribunal's decision will be set aside and the matter will be remitted to it for decision in accordance with the law. I have given consideration to the question whether the matter should be remitted to a differently-constituted Tribunal. The question was not debated at the hearing, but has been the subject of some recent authority, including Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 at [11-12], [23-27] and [112], and Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332. As the issue has not been the subject of any submissions, I will take the course adopted in Wang of reserving liberty to apply on that matter. The respondent should pay the applicant's costs.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

A/g Associate: Dated: 5 October 2001 Counsel for the Applicant: Mr J McGrath (who appeared on a pro bono publico basis)

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 24 April 2001, 2 August 2001

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