Applicant S v Minister for Immigration & Multicultural Affairs

grounds of the application 4 The applicant did not appear to have had legal assistance in lodging his application. 5 When the matter first came on for hearing before me, on 1 May 2001, Mr M D Howard of counsel appeared for the applicant on a pro bono publico basis. He applied for, and obtained, leave to substitute two grounds for the grounds originally contained in the application. Ground 1 asserted a failure to observe procedures required by s 430(1)(c) of the Act on the Tribunal's part by failing to set out particular finding on a material fact. Ground 1 was later abandoned, with the result that Ground 2 became Ground 1 and is in the following terms: "Pursuant to paragraph 476(1)(e) of the Act, the applicant applies for review of the decision of the Tribunal on the basis that the Tribunal erred in law and incorrectly interpreted the applicable law and, or, incorrectly applied the law to the facts. That is: 1) the Tribunal did not consider whether the applicant held a well-founded fear that he would be persecuted if he were returned to Afghanistan because the Taliban would impute to him an "adverse" political opinion by reason of him leaving Afghanistan and travelling to the "West"." 6 [The above reflects the content of former Ground 2 as at the hearing on 1 May 2001, but I have altered the format slightly to facilitate understanding the nature of further amendments which the applicant seeks to make to this ground. Those proposed amendments arose because I raised with counsel for the applicant the question whether the manner in which the Tribunal had dealt with the matter of conscription might have given rise to reviewable error. The trial was adjourned part-heard. When the matter came on for further hearing on 2 August 2001 the applicant applied to add some further particulars to what is now Ground 1]. 7 The two further particulars which the applicant seeks to add to this ground are: "2) the Tribunal proceeded on the basis that the Taliban's ad hoc, random, or selective conscription was the same as a matter of law, as conscription pursuant to a law of general application." 8 [The respondent did not oppose this amendment, and the applicant will have leave to make it.] "3) the Tribunal did not consider whether the applicant was part of a social group within the meaning of the Convention; namely: (a) those sought on an ad hoc, random, or selective basis for conscription; and, or (b) those who are unable to avoid the ad hoc, random, or selective conscription by reason of not being able to pay or otherwise." 9 The applicant also sought to add a new Ground 2 in the following terms: "Pursuant to paragraphs 476(1)(b) and, or, (c) of the Act, the applicant applies for review of the decision on the basis that the Tribunal did not have jurisdiction to make the decision, and, or, the decision was not authorised by the Act. Particulars The applicant repeats 1), 2) and 3) set out under Ground 1 above." 10 The respondent opposed the amendment of Ground 2 by the addition of the particulars pleaded in proposed sub-paragraph 3 above and by the addition of Ground 2. 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. 11 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. 12 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. 13 In my opinion, it is in the interests of justice that the applicant have leave to amend in the terms sought.

ground 1(1) - imputed political opinion 14 The applicant submitted that the Tribunal had erred in law by either incorrectly interpreting the applicable law or incorrectly applying it to the facts by not considering the point of whether the applicant held a well-founded fear that he would be persecuted if he were returned to Afghanistan because the Taliban would impute to him an "adverse" political opinion by reason of his having left Afghanistan and having travelled to the "West". 15 Mr Howard referred to: · the fears expressed by the applicant in his initial interview and in his written submissions in support of his application for a protection visa; · the findings by the Tribunal that the Taliban would not tolerate or ignore opposition or suspected opposition and was a ruthless regime which had a pattern of taking revenge on its opponents; · the fact that the applicant might come to the attention of the Taliban if he were returned to Afghanistan; · the findings by the respondent's delegate that it was possible that the applicant, on return to his village, might be questioned by local Taliban representatives or supporters regarding the period he spent outside Afghanistan and might be criticised for having expressed a preference for life in the West over a life of pious austerity as valued by the Taliban.

my reasoning in relation to this sub-ground 16 I accept the respondent's submissions that the Tribunal had regard to evidence before it that large numbers of people who had formerly fled Afghanistan (including people like the applicant who had departed to avoid the Taliban's ad hoc recruitment drives) were returning to Afghanistan in conditions which the United Nations High Commissioner for Refugees considered safe. I also accept the respondent's submission that the Tribunal made a specific finding that the applicant could similarly return to Afghanistan and would not face a "real chance" of persecution for a Convention reason. In the present context that meant either actual or imputed political opinion. The relevant paragraphs in the Tribunal's reasons include paragraphs numbered 68, 69 and 70. 17 As the respondent pointed out, there was no evidence or material before the Tribunal that Afghani citizens who returned to Afghanistan and who had been to a Western country were persecuted for reason of an imputed political opinion as a result of having done so (having gone to a Western country). 18 In my view, in this part of its reasoning, it can be seen that the Tribunal understood the law and correctly applied it.

grounds 1(2) and (3) and ground 2 - the conscription issue 19 The question here is whether the Tribunal erred by not considering whether the applicant had a well-founded fear of being persecuted for reasons of membership of a particular social group. 20 In Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881, I held that, in a similar case, 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. 21 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. 22 I am inclined to agree with the respondent that the manner in which the applicant's counsel has defined the particular social groups in Ground 1(3)(a) and (b) above does not disclose a particular social group within the meaning of the Convention. That is because, in my view, the descriptions fall foul of what was held by the High Court of Australia in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 i.e. that a shared fear of persecution is not sufficient to constitute a particular social group. But this case was fought (in common with another application in which argument was heard at the same time) on the basis that the applicant was putting forward able-bodied Afghani men as the relevant particular social group. 23 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." 24 In Randhawa the question was whether the appellant, a Sikh, 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. 25 The respondent also relied upon the decision of a Full Court of this Court in Suleiman v Minister for Immigration and Multicultural Affairs [2001] FCA 752. 26 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. 27 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." 28 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. 29 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. 30 I would 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. 31 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. 32 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. 33 On the question of a subjective fear, I first refer to the following passage at p 8 of the Tribunal's reasons where it was reciting what took place before the respondent's delegate: "The delegate asked the Applicant if it was reasonable to say that the Applicant's greatest fear of Taliban was that they may conscript him to fight for them. The Applicant agreed that was the case." 34 At pp 18-19 of that portion of the Tribunal's reasons which was headed "Findings and Reasons" there appears the following: "Having considered his claims, as discussed above, I find that the Applicant has no enhanced profile and his is the situation of a young Afghan Muslim man of the Pashtun race who has lived under Taliban for about two years without coming to undue interest of the Taliban becoming fearful that he will be recruited as has been the case with many youths. I find his experience in this regard was in a drive for recruits in his area where his household/business and others in his area were called (sic) where young men were seen and called on to fight. This fear of recruitment is understandable when the situation in the on-going battle for control of Afghanistan is considered and the lack of training or support for these recruited, unskilled youths is taken into account." 35 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. 36 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 72 of its reasons set out above. 37 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. 38 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 the following [the Tribunal's description of part of its dialogue with the applicant]: "I said that the information before me was that there was no regular conscription in Afghanistan but that 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 …" . . . In regard to conscription I put to the Applicant that the information cited above indicated to me that Taliban did not have a regularised conscription but that they recruited young men at random when they were going to attack and (sic) area." . . . I said that was my point that Taliban did not operate on normal rules of law." [In the Tribunal's findings at p 19] "4. The Taliban is predominantly Pashtun and does not have a regular conscription programme but, on an ad hoc basis has a practice of rounding up or press-ganging young men available at the time into their services." . . . I accept the information cited above in Cisnet DocumentCX39867, DFAT Cable IS500488 to the effect that Taliban does not have a regular conscription policy but has a practice the (sic) recruitment, often forced, of young men regarded to have the potential to fight." 39 Finally there is this passage at pp 21-22: "While the ad hoc practice of recruitment and press ganging new recruits including young students as described in the independent material cited above, is not one which would be condoned internationally, Taliban's motivation is solely based on whether or not the recruits are capable of fighting. This selective process which targets young, able-bodied males does not amount to discrimination for a Convention reason. The selection of young men or men of fighting age albeit in an "ad hoc" manner does not amount to discrimination and is not Convention related any more than regularised conscription is in other countries." 40 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. 41 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. Those two other factions respectively were under the command of Ahmed Shah Masood in parts of the Parwan and Kapesia Provinces, and the Hezb-I-Whdat. 42 In paragraph numbered 49 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. 43 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.

44 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.

45 The particular social group (able-bodied Afghan men) is not defined by reference to the discriminatory treatment that its members fear. The members of the group 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." 46 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]. 47 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]. 48 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. 49 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 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. 50 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. 51 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." 52 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. 53 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. 54 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 55 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 fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

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

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 1 May 2001, 2 August 2001