The background to the application and the applicants' claims.
2 In its reasons for decision the Tribunal gave this summary of the applicant's circumstances and her claims to be accorded protection as a refugee;
"The applicant and her older children arrived in Australia on a flight from country A. Documentation on the applicant's file indicates that the applicant may have initially boarded the flight in country B under a different name. On arrival in Australia she had no passport or other travel document. She had in her possession an Afghan identity book known as a Taskera. The Document Examiner was unable to conclude whether or not this document was genuine because he did not have an authenticated specimen with which to compare it.
In her application for a protection visa, the applicant states her date of birth. She was born in village A, district A of a named province in Afghanistan. She states that she is an Hazara and a Shi'a Muslim. Her parents and siblings are still in Afghanistan.
The applicant states that she was married in the 1990s. She stated the years in which her children were born in district A. The applicant states that her husband's whereabouts are unknown.
In a statement submitted with her application for a protection visa, the applicant states that her husband worked with his brother in a shop selling goods. On one occasion when the stock in the shop was low, and the usual supplier was unavailable, an unknown man approached the applicant's husband and brother-in-law offering to bring them new stocks. The applicant's husband agreed and paid the man a sum of money as an advance payment. The man returned after a week. He did not bring any goods but demanded the rest of the money. The applicant's husband was not in the shop at the time, but the applicant's brother-in-law refused to pay the rest of the money until he had sighted the goods. The man became abusive, and said to the applicant's brother-in-law "You are a Hazara. Your life and death depends on me". An argument ensued and the two men began fighting. The applicant's brother-in-law, who was a teenager, was severely beaten, but during the altercation the other man hit his head on the wall and sustained a minor injury. He then threatened the applicant's brother-in-law that he would kill him. The man left the shop but returned with some other people who were armed. They looted the shop and took away the applicant's brother-in-law. They then came to the applicant's home. They grabbed her husband and beat him. Then they searched the house, and found religious books from Iran, one of which also had a picture of the Hazaras' leader, Mazari.
The applicant claims that at the time the men came, she was teaching the Holy Koran to the neighbouring children. She claims that the men accused her family and the government of Iran of supporting the Hezb-e-Wahdat party. They demanded that she should leave the house and go with them. The applicant said that she began crying and screaming. The men took her husband away, but one of them remained guarding the house. The applicant claims that this man began interrogating her and threatening to kill her husband and children. The applicant claims that she feared she would be raped. The applicant told the man that she had no support from Iran she was just teaching the children some religious principles. The applicant claims that her mother-in-law then appeared, and the man began to question and threaten her.
The applicant claims that the next night the man guarding the house fell asleep. The applicant, her children and her mother-in-law sneaked out of the house and escaped through a neighbour's property. They went to a house belonging to a friend of her father-in-law, and begged him for help. The applicant claims that if the men took her with them as they were planning to do, they would have raped her and then killed her.
The applicant claims that the next day she and her children commenced their journey out of Afghanistan. When they arrived in Pakistan, her father-in-law's friend told her that she was safe. The applicant claims that she still did not have peace of mind because she was worried about her husband.
The applicant claims that after the Taliban took power in Afghanistan she felt hopelessness and despair. She claims that she never felt safe because the Taliban were so brutal to women, and she could not leave her house because she feared being raped.
The applicant claims that she fears that if she returns to Afghanistan she will be stoned and killed by the Taliban. She states that they will kill her because she is a Hazara woman and a Shi'a, and because she taught her children Shi'a religious principles. She states that the Taliban will kill her because of her husband's problem with them and because she managed to escape."
3 The Tribunal then noted that a linguistic analysis of the applicant's speech by a Swedish agency had concluded that she spoke with a Kabuli accent, ie one attributed to residents of Kabul, the capital of Afghanistan.
4 At the hearing before the Tribunal on 25 January 2002, the applicant, through an interpreter, amplified the claims which she had earlier made in support of her application for a protection visa. Additional matters noted by the Tribunal in its reasons were;
"The applicant informed the Tribunal that she was a young adult. She was born in village A in district A in Afghanistan. She has a number of siblings. Her father was a shopkeeper in Kabul, but the shop burned down several years ago and her father had returned to village A. The applicant claimed that she didn't know whether or not her family was still living in village A. The Tribunal asked if they had been living there at the time she left Afghanistan. The applicant responded that she didn't know. The Tribunal noted that she had informed the delegate that she had travelled to the district town frequently. The applicant claimed that the last time she had visited was when one of her children was born there a few years ago. She claimed that she hadn't been in contact with her family since then. The Tribunal asked the applicant which towns she passed through when she travelled from her home in Kabul to district A. The applicant described two alternative routes.
The applicant said that her family had a house in village B, in Kabul province, which was a long drive from the centre of Kabul City. The applicant stated that this house had been destroyed and no one was living there now. The applicant stated that she had not travelled from village B to the centre of Kabul for some years.
The applicant said that she had attended a government school in village B. In winter she had studied the Koran with the Mullah. The applicant named the 12 Imams venerated by Shi'a Muslims and identified important religious festivals and holy places for Shi'as.
The applicant informed the Tribunal that her husband's family also came from the district A area, and they also had a house in village B. When she married, she went to live with her husband's family in village B. Her husband's father was dead, so she had lived with her husband, her children, her mother-in-law and her brother-in-law. The applicant said that her husband's shop was in village B. He did not go into Kabul to buy items for the shop, as someone brought them to him. The applicant described the shop and the goods which were sold there. The applicant said that although everyone had been frightened of the Taliban, she and her family had not experienced any problems prior to the incident which had precipitated her departure from Afghanistan."
5 The applicant's amplification in her oral evidence of the events at her husband's shop has been recorded by the Tribunal in its reasons for decision in these terms;
"The applicant recounted the details of her claim to have been persecuted by the Taliban. She stated that an unknown Pashtun man had come to the shop offering to supply goods. After being given a cash advance, he had returned to the shop a week later without any goods but demanded to be paid. Her husband was at home at the time, and her brother-in-law had refused to give the man more money, and there had been a fight. The man had returned an hour later with some other men who were armed. They had taken her brother-in-law and the goods in the shop. On being asked how she knew what had happened, the applicant said that she had been told later by a neighbour who had been out shopping and witnessed what happened.
The applicant claimed that when the men came to the house, she was teaching the Koran to the neighbour's children. She said that the men began beating her husband, and that they had said that beating an Hazara was a good thing to do in terms of their religion. She said that they searched the house and found religious books from Iran. She said that the men also found a photograph of Mazari, the former leader of the Hazara party, Hezb-e-Wahdat. The applicant claims that the men accused her of teaching the children to be followers of Khomeini, and told her that they hated Shi'as.
The applicant claims that the men accused her family of supporting Iran and of being members of Hezb-e-Wahdat. She informed the Tribunal that although her family prayed for Hezb-e-Wahdat, they were not members of the party and had not fought for Hezb-e-Wahdat.
The applicant stated that a number of men searched her house, and one remained in the front yard. She said that the brother of the man who had come to the shop was minding her husband. The applicant claims that the men told her to come with them, but she cried and begged them and they allowed her to stay. A number of the men took her husband, and one remained guarding the house. The applicant said that she did not know where they had taken her husband. The applicant claimed that the man who remained accused her of helping Hezb-e-Wahdat. When her mother-in-law returned, this man questioned her mother-in-law. On being asked why the man had remained at the house, the applicant said that he may have thought that members of Hezb-e-Wahdat would come to the house. The applicant claimed that the man remained at her house for two days and two nights. When he fell asleep, she and her mother-in-law and the children climbed a ladder and escaped into a neighbour's house and from there they went to the house of a friend of her father-in-law. The applicant said that she had stayed for a few hours at this house and then her father-in-law's friend had driven them to Pakistan. The applicant described the route she claimed they had taken to the Pakistani border.
The Tribunal noted that the applicant had not identified the men who had harmed her family as Taliban. She had only said that they were Pashtuns. The applicant said that the man at the shop had said that his brother was a Taliban. She said that he spoke Dari. On being asked what colour the men's turbans were she said that they were black. The Tribunal commented that it was strange behaviour for the Taliban to leave someone to guard the house instead of taking her away. The applicant stated that the two men brought by the first man were Taliban, and they were speaking Pashtu. The Tribunal noted that not all Pashtuns belonged to the Taliban. The applicant said that the men had beaten them because they were Hazaras and Shi'as."
6 The Tribunal then described answers given by the applicant to questions posed to her by the Tribunal itself. The Tribunal obviously regarded some of the applicant's responses as less than satisfactory. For example, it noted;
"The applicant was asked who were the leaders of the Taliban at the time she left Afghanistan. The applicant was able to name Mullah Omar, but could not name any other national or local leaders. She offered the name of another person, X, but did not know what this person did. She did not know the name of the Taliban commander in charge of her area, although she said that she believed that the Taliban were based in the military school."
7 The Tribunal went on to record that it had explained to the applicant that it was trying to establish whether she had been living in Afghanistan as recently as she had claimed. In that context, the Tribunal noted that the applicant had only recalled fighting in Bamiyan and in the northern part near Panjsher and did not know if there had been fighting near Kabul. When asked to try to recall events in May 2001 shortly before she claimed to have left Afghanistan, the applicant repeated her reference to "big fighting" in Bamiyan and recounted fighting between different parties - "Panjsheris, Wahdat and Tajiks." She had been unable to recall any edicts issued by the Taliban shortly before she left.
8 The Tribunal devoted a considerable part of its reasons to an examination of the applicant's account of the means by which she had left Afghanistan. She claimed to have left from Peshawar in Pakistan pursuant to arrangements made by a smuggler who had procured passports and purchased air tickets. The money had been supplied partly in Afghani currency by her mother-in-law and had been supplemented by money provided by a friend of her father-in-law who had facilitated her departure. As this passage reveals, the Tribunal was particularly sceptical about the route by which the applicant had flown from Pakistan to Australia;
"The Tribunal asked the applicant if she had flown straight to country A from Peshawar, or if she had changed planes. The applicant said that she had not changed planes, although the plane had stopped somewhere but she had not got off the plane. She did not know the airline she had flown with. She said the smuggler had been with her at this stage. The applicant said that she had arrived in country A when it was almost evening. She had spent a few days there, and then she had returned to the airport for the flight to Australia. She could not recall if the flight to Australia had left from the same terminal where she had arrived. The applicant claimed that the smuggler had taken her onto the plane, but she had not seen him again. She claimed that she had looked for him everywhere on the plane, but he was not on it. The Tribunal noted that it was not possible for the smuggler to have been able to take her onto the plane but not to have boarded the plane himself. The applicant said that the smuggler had told her in the little corridor leading directly onto the plane that from now on he would have nothing to do with her.
The Tribunal informed the applicant that it had several problems with her account of her travel to Australia. From checking the internet web sites of the Pakistan tourist authority, Pakistan's national carrier, Pakistan International Airlines, and the Country A Airport information site, the Tribunal believed that it was not possible to fly directly to country A from Peshawar. She would have had to board an international flight in Karachi, Islamabad or Lahore. The Tribunal also informed the applicant that it did not accept her account of when she last saw the smuggler. The security arrangements at the country A Airlines terminal at the airport were such that it was not possible for a person who was not travelling on the flight to get near the plane at all. There was a checkpoint at the entrance to the departure lounge, and it was not possible for a person who was not travelling on the flight to even get into the departure lounge, let alone into the corridor leading to the plane."
9 The Tribunal then noted that the applicant had claimed that there had been no way of contacting her family in Afghanistan since her arrival in Australia. It observed that the applicant claimed that, because she was a woman, an Hazara and a Shi'a, it was still unsafe for her to return despite the overthrow of the Taliban and the installation of the government of Hamed Karzai which included Hazaras and had been endorsed by Khalili, the leader of the Hazara party, Hezb-e-Wahdat.
10 On 30 January 2002, Ms Donovan, a solicitor and migration agent employed by the Refugee and Immigration Legal Centre Inc ("RILC") who had advised the applicant during the hearing, made a supplementary written submission on behalf of the applicant. The effect of that submission, as recorded by the Tribunal, was;
"The adviser noted that there had been significant political changes in Afghanistan, and the Taliban had been largely ousted from power. The adviser submitted that as the applicant's husband and brother-in-law were presumed to have been killed by the Taliban and the whereabouts of the other members of the applicant's family were uncertain, if the applicant returned to Afghanistan she would find herself alone with the care of her young children. The adviser submitted that the applicant would be without adult male protection, and would be at risk of persecution as a member of a social group comprised of "women at risk". The adviser submitted that without financial support and having to care for young children, the applicant's work options were limited and she might be forced to beg on the streets, which would make her more vulnerable to persecution because of her ethnicity and her religion. The adviser speculated that the applicant might seek to find her birth family in her home province, which was under the control of Pashtun tribal warlords with a history of persecuting Hazaras. The adviser noted that the role of the international security force was confined to protecting the interim administration in Kabul, and lawlessness was rife in some areas. The adviser submitted that this created an environment where people could be persecuted for Convention reasons with impunity. The adviser referred to recent Tribunal decisions (by Tribunals differently constituted) which had reviewed the treatment of Hazaras in the past and had concluded that there was no state protection for Hazaras in Oruzgan and Ghazni. The adviser submitted news reports about the activities of tribal warlords and the security situation in Afghanistan, and reports identifying potential sources of instability in the new government."
11 Under the heading "Findings and Reasons", the Tribunal accepted that the applicant was an Afghani national of Hazara ethnicity and a Shi'a Muslim by religion. However, it did not accept her claim to have recently escaped from Afghanistan. In that respect, the Tribunal said;
"The Tribunal is not satisfied that the applicant recently escaped from Afghanistan in the circumstances she described. When the Tribunal asked the applicant about life in Afghanistan under the Taliban, her answers consisted of vague generalities which did not satisfy the Tribunal that she had experienced Taliban rule herself."
12 There was then reference to "country information" which detailed a number of restrictions on education, work and social and cultural activities which had been imposed by the Taliban, particularly on women in Afghanistan. The Tribunal's reasons then continued;
"The Tribunal considers that if the applicant had lived under Taliban rule for some years as she claimed to have done, she would have observed the Taliban's implementation of these rules and would have been able to provide a detailed description of them. The Tribunal also notes that the applicant had difficulty identifying Taliban leaders, and did not know the name of the local Taliban commander, a fact which the Tribunal considers she could reasonably be expected to know. When asked about events which took place shortly before her departure, she correctly identified some particular damage. However, there was reporting of this damage in the international media, and the Tribunal is confident that it would have come to the attention of an Afghan Hazara living outside Afghanistan at the time. The applicant was unable to identify less publicised events which took place in Afghanistan, even though some of these events would presumably have been important to her if she had been living in Afghanistan at the time."
13 By way of exemplifying a matter which the Tribunal considered the applicant should have known had she lived in Afghanistan during 2001, the Tribunal referred to another item of "country information" dated 1 April 2001 reciting the giving of permission to Shi'a Muslims to celebrate, for the first time since 1996, traditional Muharram rituals. That permission was exercised, according to the information, by thousands of devotees in the main Chendawol mosque in Kabul.
14 Reliance on another piece of country information dated 14 April 2001 enabled the Tribunal to make this further observation;
"The applicant was asked to identify parts of Afghanistan where fighting was taking place at the time she claimed to have left. She correctly identified that there was fighting in the north near Panjsher and there had certainly been fighting in Bamiyan earlier in the year. However, the applicant did not know if there was fighting near Kabul. In fact, the Shomali Plains near Kabul have been part of the frontline since 1996."
15 As to the applicant's claim that there had been fighting between Panjsheris, Wahdat and Tajiks shortly before she left Afghanistan, the Tribunal pointed out that;
"There were certainly conflicts between these groups prior to the Taliban taking over Kabul, but through the repressive measures they adopted, the Taliban succeeded in ensuring that their version of law and order prevailed in the areas under their control, and the applicant's claim that there was fighting between the different ethnic groups in Taliban-controlled Kabul is not supported by country information available to the Tribunal."
16 The Tribunal went on to note further items of "country information" which it said were not consistent with that statement by the applicant, and concluded;
"The cumulative effect of these gaps and inaccuracies in the applicant's knowledge of the situation in Afghanistan at the time she claimed to have left the country, causes the Tribunal to strongly doubt that the applicant was living in Afghanistan until a short time before she arrived in Australia.
The Tribunal's concerns about the applicant's account of her travel to Australia add to its doubts that she left Afghanistan at the time and in the circumstances she has claimed. The Tribunal notes that the applicant had to be prompted when asked about the arrangements for obtaining her passport in Peshawar, and, as discussed with the applicant at the hearing, the Tribunal does not accept that the applicant could have flown from Peshawar to country A without changing to an international flight in another city in Pakistan. Nor does the Tribunal accept that it was possible for the smuggler to retain the applicant's documents by taking her almost onto the plane to Australia before leaving her in country A. The physical security arrangements in country A do not allow people who are not boarding the flight to enter the departure lounge. The Tribunal finds that the applicant did not travel to Australia via Pakistan as she has claimed, and this gives the Tribunal further cause to doubt her claims about the circumstances in which she left Afghanistan.
Taking into account the above, the Tribunal finds that the applicant was not living in Afghanistan at the time she claims to have left, and concludes that she was living in a third country (or countries) for some period of time, possibly several years, before travelling to Australia. As the Tribunal has found that the applicant was not living in Afghanistan at the time in question, the events she described as having taken place at that time could not have occurred. The Tribunal finds that the applicant's claim that she and other members of her family were persecuted by the Taliban a short time before she arrived in Australia is not true, and that her husband and her brother-in-law have therefore not disappeared after being taken by the Taliban in the circumstances described by the applicant."
17 The Tribunal accepted that the applicant had a genuine subjective fear of rape or other harm if she were to return to Afghanistan. It concluded that those fears may have stemmed from events which she had witnessed while living there from 1992 to 1996 when the Mujahideen were in power. Reference was made to a Human Rights Watch Backgrounder for October 2001 which described rape, summary executions, arbitrary arrest and torture while various factions were struggling for control before the accession to power of the Taliban. The Tribunal concluded, in this context, that;
"While the applicant has not claimed to have been persecuted herself in the pre-Taliban period, the Tribunal accepts that her fear may be based on her knowledge of the history of persecution of the Hazara people by other ethnic groups which now form part of the new administration of Afghanistan."
18 The Tribunal then noted, that, despite the applicant's suggested links with Germany, it was unable to conclude that she had a present right to seek protection in that country. On the question of whether the applicant had a well-founded fear of persecution if she were to return to Afghanistan, the Tribunal reviewed recent events in that country since the overthrow of the Taliban and concluded;
"The Tribunal is satisfied that the Taliban has been effectively eliminated as a political and military force in Afghanistan (notwithstanding ongoing mopping-up operations) and no longer governs or administers Afghanistan. The measures being taken by the international community to ensure that Al Quaida forces are prevented from acquiring further weapons should prevent the Taliban's re-emergence as a significant threat to stability in Afghanistan. The Tribunal finds that there is not a real chance that the applicant would be persecuted by the Taliban if she were to return to Afghanistan.
The Tribunal has noted above that there have been conflicts in the past between the different ethnic groups which are now included in the Interim Administration, and also notes that some of the individuals involved are still players in the current political scene. It accepts that Hazaras suffered at the hands of these individuals during the mujahideen period, and that the applicant's fear that history might repeat itself is understandable. The Tribunal also accepts that for much of the past century Hazaras have been regarded by other ethnic groups as being inferior because of their ethnicity, and have at times been mistreated for this reason.
However, the Tribunal is required to consider whether there is a real chance that the applicant herself would be persecuted if she were to return to Afghanistan now or in the reasonably foreseeable future. In the absence of information from which conclusions can be drawn about whether or not it would be safe for a particular individual to return, it would be appropriate to place significant weight on historical evidence. While the Tribunal has certainly taken history into account in this case, the Tribunal is satisfied that the information available to it about the current situation in Afghanistan and, in particular, the situation in the part of Afghanistan to which the applicant could reasonably be expected to return, enables it to conclude that there is not a real chance that the applicant would be persecuted for reason of her ethnicity, her religion, her political opinion or a political opinion imputed to her if she were to return to Afghanistan now or in the reasonably foreseeable future."
19 Hazara support for the Interim Authority and the presence of Hazara and Shi'ite Ministers in that administration led the Tribunal to say that it was;
"… … satisfied that as one of the leaders of the Interim Administration, General Fahim is committed to the success of the new government and to working cooperatively with the other ethnic groups and parties represented in it, and there is not a real chance that the applicant would face persecution for reason of her ethnicity, religion or political opinion in an area under his control."
20 The Tribunal then made this positive finding that the applicant would have family support if she were to return to Qalie Shada in Afghanistan;
"As discussed in detail above, the Tribunal does not accept that the applicant's husband or brother-in-law were taken by the Taliban or that the applicant parted from her mother-in-law in the circumstances she described. Although the Tribunal has found that the applicant must have been outside Afghanistan for some period of time, she has given the Tribunal no information about the members of her husband's family other than an account which the Tribunal does not accept is true. As the applicant stated in her protection visa application that prior to the claimed incident shortly before her stated date of departure she had a 'good life' and she told the Tribunal that she had not had problems with the Taliban prior to then, the Tribunal considers that it is reasonable for it to assume that the applicant's husband's family, with whom she claims to have lived since she was married in the 1990s, are still in village B. Noting that the applicant stated that she had last visited her home province a few years before she left Afghanistan and she had not been in contact with her family there since that time, the Tribunal does not accept the proposition that the applicant would seek to travel to that province if she returned to Afghanistan. The Tribunal finds that she is able to return to village B and would have family support there.
Taking into account all of the above, the Tribunal is satisfied that there is not a real chance that the applicant would be persecuted for reason of her Hazara ethnicity or her Shi'a religion or for a political opinion supportive of the Hezb-e-Whadat party (imputed or actual) if she were to return to Afghanistan now or in the reasonably foreseeable future."
21 On the applicant's claimed fear of persecution as a woman, the Tribunal accepted that such persecution had occurred under the Taliban but noted;
"As discussed with the applicant at the hearing, the leader of the Interim Administration, Hamid Karzai, has pledged to ensure a significant role for women in the reconstruction of Afghanistan, and to support education and employment opportunities for women (Afghan interim leader pledges to empower women, Reuters Business Briefing, 21 January 2002). Foreign governments and international organisations have agreed to support programs for women. Two women have been appointed to the cabinet of the Interim Administration, and there is a portfolio called Women's Affairs. The minister responsible for this portfolio is one of the Vice Chairs, an Hazara woman doctor named Sima Simar, who has earned recognition for her work in providing education and health services for women in rural communities despite the opposition of the Taliban. The international media have been full of reports about women on television, women removing their burqas, women enrolling at university and girls returning to school."
22 Accordingly, the Tribunal expressed itself satisfied that, if the applicant were to return to Afghanistan, she would not be persecuted because of her membership of the social group "women in Afghanistan." Nor did it regard her as at risk because of her membership of the narrower social group, single young women in Afghanistan without male protection. The Tribunal's rejection of that ground for a fear of persecution was based on its earlier refusal to accept that the applicant's husband and brother-in-law had been taken by the Taliban and that the whereabouts of her mother-in-law were unknown.