Minister for Immigration & Multicultural Affairs v Applicant S

Federal Court of Australia (Full Court)|2002-05-07|Before: Carr J, Stone J, Sackville J, Kiefel J, Tamberlin J, Whitlam J, Stone JJ

background 5 The respondent was born on 1 January 1980. He is married and comes from the Gizab district in Orozgan province. His wife still lives there, as do his parents and four brothers. 6 The respondent was a shop-keeper in Afghanistan. His family operated a mixed business. The Taliban took over the area in which he lived. The respondent said that this occurred in 1998. He said that 90 per cent of the people of the area did not like the Taliban, and there was some resistance when the Taliban took over.

claims before the tribunal 7 The respondent's father was the head of the village. The respondent claimed that his father was suspected by the Taliban of supporting the resistance. As a result his house was targeted by the Taliban. The respondent had not been involved in the fighting. 8 The respondent said that he and his father were detained for twenty days on suspicion of hiding weapons. 9 The respondent's main fear was that he would be taken by force by the Taliban to fight for them and that if he refused the Taliban would kill him. About twenty days before he left for Australia the Taliban approached him in his shop in the market area and asked him to fight for them. He gave them money and they left. Then, about a week before he left for Australia, more senior members of the Taliban came to his house to ask him to fight. They went away when he said he wanted to talk to his parents. 10 In a statement dated 25 July 2000, which was before the Tribunal, the respondent said: "It is impossible to refuse to go to the war zone, if I refused to go to the war zone with the Taliban they would have killed me or put me in jail. But you cant [sic] refuse, they can take you if they want to. … If I went back to Afghanistan now the Taliban would just hang me from one of the tree. … They would kill me because I avoided going to the front." 11 In a written submission to the Tribunal filed prior to the hearing, the respondent's migration agent outlined the basis of the claim as follows: "These statements indicate a fear of persecution for reason of imputed political opposition due to his refusal to fight for the Taliban as well as religion - he will be considered Godless by the Taliban because of the fact that he fled to a Western Country and he has made the authorities here aware of the atrocities committed by the Taliban."

decision of the tribunal 12 The Tribunal considered and rejected the contention that the respondent had acquired a particular adverse political profile as the son of the head of the village. Further, it did not accept that the respondent and his father had been imprisoned, and it held that the social restrictions imposed on the community, such as a ban on listening to taped music, did not amount to persecution. 13 On the question of the alleged fear of conscription by the Taliban, the Tribunal said at 21-24: "I accept the information cited above in Cisnet document CX39867, DFAT cable IS500488 to the effect that Taliban does not have a regular conscription policy but has as a practice the recruitment, often forced, of young men regarded to have the potential to fight. … 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. In the matter of Mijoljevic v MIMA [1999] FCA 834 (Branson J, 25 June 1999) the Applicant objected to military conscription on the basis of his pacifist views. The Tribunal found that this objection and the possible consequences of failing to undertake conscription did not bring the Applicant's case within the ambit of the Convention. In determining the appeal Branson J stated: In my view, the conclusion of the Tribunal that the applicant's pacifist views did not provide a basis upon which it could be satisfied that he was a person to whom Australia owes protection obligations under the Refugees Convention was open to it on the evidence and material before it. Further, in my view, the Tribunal's reasons for decision do not suggest that the Tribunal's conclusion in this regard involved any error of law. This Court has on a number of occasions recognised that the enforcement of laws providing for compulsory military service, and for the punishment of those who avoid such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention (see for example, Murill-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750). See also Hathaway, The Law of Refugee Status at para 5.6.2. (Ibid at 23). … I have considered the information before me and, while I am left in no doubt that Taliban is by most standards a ruthless despotic political body founded on extremist religious tenets. It is, nevertheless the body which controls 90 percent of Afghanistan and, though not internationally recognised by many states, is the current de facto government of Afghanistan. … As discussed above it is clear that Taliban does not have, as a policy, a regularised military service or conscription programme but rather, takes young men at random, as needed for its military purposes and I accept the DFAT advice in cable IS500488 of 21 October 1996 to the effect that thousands of young men have left Afghanistan for this reason. I find that this is what occurred in the case of the Applicant who had managed to avoid recruitment in one drive by paying the recruiters off and, in a second drive stalled them by saying he needed to speak to his parents. The nature of the recruitment process is such that there are no criteria for selection save being able bodied and, being in the wrong place at the wrong time. By his own account he was approached in an ad hoc recruitment drive and, I also find that the recruiters in that exercise were not seriously concerned whether he did fight or not as they were equally content with being payed [sic] to allow him to avoid the recruitment drive. When the second group came they took no action when he said he wanted to speak to his parents first and indicated that he may also pay them. Given Taliban's rigid approach to compliance this action leads me to conclude they were not concerned about the Applicant who had no skills or any significant value to them apart from his youth and the fact he was able-bodied. No immediate follow up occurred and he was not required to report to them. This leads me to conclude that he was not targeted to the extent that he was listed or registered for recruitment by the Taliban but was merely seen as a young man who was available in that area at the time and, in the random manner of such an ad hoc drive he was able to avoid recruitment for a second time. There is no regular programme neither is there in the independent material or the Applicant's evidence any indication of a penalty for failure to serve. In the Applicant's case, he has given an account which indicated he evaded service by leaving the area to avoid recruitment. The large numbers of young men doing so, his minimal profile as a rural villager and the random nature of recruitment leads me to conclude that his departure from the area shortly after a recruitment drive would not have brought him to the attention of the Taliban such that he would be of concern or that an imputed political opinion would be attributed to him. While I have sympathy for this young man and the tragic plight of his country over the past twenty 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 consequence could be that he may face serious harm or death. … I accept that he may face serious harm as a consequence of being recruited into the Taliban militia as a consequence of fighting but, I find this harm would be the consequence of fighting between two opposing forces and, although he may not be committed to the aims and objectives of the Taliban, the motivation of the Taliban in recruiting him would be solely because he is a male with the potential to fight and for no other reason. This being the case, I find that his claims are such that I can not be satisfied that he faces discriminatory treatment for any one or a combination of the five Convention reasons or for an aggregate of other reasons with a component of any of the five Convention reasons." [emphasis added] 14 The Department of Foreign Affairs and Trade (DFAT) cable IS500488 referred to in the above passage and accepted by the Tribunal was extracted in the Tribunal's reasons as follows: "Approximately 3,000 to 5,000 people are leaving Kabul and Jalalabad per day, mostly on foot, headed for the Pakistan border crossing at Torkham. These individuals are currently comprised predominantly of young single males who fear conscription into the Taliban army (as has been past practice in other Taliban-held areas [sic]." [emphasis added]

proceeding before the primary judge 15 The primary judge rejected the argument that the Tribunal had failed to consider the question whether the respondent feared persecution for imputed political opinion by reason of his having left Afghanistan and travelling to the West. 16 His Honour then considered the "conscription issue". The issue was encapsulated in two paragraphs of particulars to the first ground of the application set out in pars 7 and 8 as follows: "[T]he 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. … [T]he 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." 17 These particulars were said to support the following grounds of the application for review, namely, that the Tribunal erred in law as provided in s 476(1)(e) of the Migration Act 1958 (Cth) (the Act), that the Tribunal did not have jurisdiction to make the decision as provided by s 476(1)(b) of the Act, or that the decision was not authorised by the Act as provided by s 476(1)(c) of the Act. 18 His Honour commenced the discussion by stating at par 19 that the question to be determined was: "… 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." 19 Although not so expressed in the notice of appeal, the case was fought before the primary judge and dealt with by his Honour on the basis that the particular social group to be considered was defined as "able-bodied Afghan men". The core of the reasoning of the primary judge was as follows: "42 … 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 [32]. 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."

Grounds of appeal 20 The supplementary notice of appeal set out five grounds of appeal as follows: "(a) His Honour erred in concluding that the Tribunal had made an error of law within the meaning of s.476(1)(e) of the Migration Act 1958 ('the Act') and committed jurisdictional error by reason of the Tribunal failing to consider whether able-bodied young men (or possibly able-bodied young men without the financial means to buy off the conscriptors) comprised a particular social group of which the respondent was a member; (b) His Honour erred in holding that the Tribunal found that there was a real chance that the Respondent faced persecution if he returned to Afghanistan. (c) His Honour erred in holding (in effect) that 'able-bodied Afghan men' or 'able-bodied young men' were capable of constituting a particular social group for the purposes of the Refugees Convention. (d) His Honour erred in concluding that the members of the particular social group of able-bodied Afghani men 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'. (e) His Honour erred in failing to hold that a claim to have a well-founded fear of persecution based on membership of the particular social group of able bodied young men could not succeed (and therefore that the Tribunal was not required to consider whether able-bodied young men comprised a particular social group) because conscription could be reasonably considered to be a legitimate object and therefore did not amount to persecution."

arguments on appeal 21 The appellant relied on the decision of the Full Court (Sackville, Kiefel & Hely JJ) in Minister for Immigration & Multicultural Affairs v Applicant Z [2001] FCA 1823 (Applicant Z). At first instance, Carr J decided in that case that the Tribunal had erred in law in failing to consider whether able-bodied Afghan males constituted a particular social group. The circumstances of that case were said to be relevantly indistinguishable from the circumstances of the present case. Carr J adopted the same reasoning in the present case as he had expressed in Applicant Z. The Full Court allowed the Minister's appeal. 22 Sackville J held that able-bodied Afghan males could not constitute a particular social group on the evidence before the Tribunal in that case because a particular social group can only exist where society perceives people as constituting a group, and there was no evidence that able-bodied males were perceived by Afghan society as a particular social group. Further, he held that if able-bodied Afghan males was, in truth, a reference to a group of Afghan men at risk of forcible conscription by the Taliban, the group is defined by the act of persecution. His Honour relied upon several authorities commencing with Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 to hold that a particular social group cannot be defined by the persecutory conduct. 23 His Honour, at par 12, then referred to the passage of the judgment of McHugh J in Applicant A at 264 as follows: "while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because there were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed could create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group." 24 Sackville J continued at par 13 as follows: "There was, however, nothing before the Tribunal that would have justified it in concluding that the forcible recruitment of some able-bodied men in Afghanistan had created a 'public perception' that able-bodied Afghan men had become a distinct social group in that country. There was, for example, nothing to indicate institutionalised discrimination against able-bodied Afghan men independently of forcible conscription. It was evidence of institutionalised discrimination of this kind that influenced the majority of the House of Lords in Islam to hold that women in Pakistan could constitute a particular social group for Convention purposes: see at 644, per Lord Steyn; at 635, per Lord Hoffman; at 658, per Lord Hope." 25 And his Honour concluded at par 15: "This conclusion does not necessarily imply that 'able-bodied men' within a country can never constitute a 'particular social group' for Convention purposes. There may be a question as to whether all the reasoning of the majority in Islam will be followed in Australia: see the analysis in the dissenting judgment of Hill J in Minister for Immigration and Multicultural Affairs v Khawar (2000) 101 FCR 501, at 513-518 (judgment is reserved on the appeal to the High Court: S128/2001, heard 13 November 2001). But if the reasoning in Islam were to be followed, it is conceivable, depending on the circumstances of a given country, that able-bodied men could be found to constitute a 'particular social group'. In Islam, women in Pakistan were held to constitute a particular social group because, as Lord Steyn said (at 644): 'they are discriminated against and as a group they are unprotected by the "State"'. Islam decided that the size of a group was not a barrier to its being recognised as a particular social group for Convention purposes, provided that members of the group were discriminated against by reason of a shared characteristic (not being the fear of persecution itself). If able-bodied men were discriminated against and unprotected by the State, they might perhaps satisfy the criteria laid down in Islam." [emphasis added] 26 The essence of the approach taken by Kiefel J can be seen at pars 29-31 as follows: "29. McHugh J in Applicant A (at 264) observed that, whilst persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or create a 'particular social group'. Much would depend upon whether they became recognisable in the society as such a group. The example given by his Honour was left-handed persons, which one would not usually think of as forming a social group. If they were persecuted for being left-handed there would be a public perception that they were. Importantly, however 'it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group' (McHugh J at 264). 30. The critical feature of a social group which might be seen as persecuted is some shared attribute. McHugh J (at 264) referred to the group comprising a 'social unit' which had 'internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals'. It was however unlikely, in his Honour's view, 'that a collection of individuals will or can be perceived as being a particular social group'. Gummow J (at 284-285) expressed a similar view. The emphasis, his Honour explained, is upon a 'particular social group' and therefore 'numerous individuals with similar characteristics' do not comprise such a group. His Honour agreed with the statement in Ram (at 569) that: 'There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group.' 31. Whether one speaks of the Taliban recruiting or conscripting it is plain from the reasoning of Dawson and McHugh JJ in Applicant A, and perhaps Gummow J (see at 284), that such an action cannot define the group. In my respectful view the group to which his Honour the primary Judge must be taken to refer was able-bodied Afghan males who feared conscription or recruitment by the Taliban, or sought to avoid it. If one reduces the description of the group to 'able-bodied Afghan males' the difficulty encountered is that they share no common attribute which links them and sets them apart from society as a recognisable group. As Tamberlin J pointed out in Mahmoodi (at [7]) the description is simply of characteristics based on gender or health or fitness, and I would respectfully agree. The description is of a collection of individuals with those characteristics. Members of Afghan society are likely to be aware of the Taliban's policy and some may take action to prevent its success, but awareness of the fact of recruitment or conscription does not in my view amount to a public perception of there being a social group comprising young Afghan males." [emphasis added.] 27 Hely J agreed with the reasons of both Sackville J and Kiefel J. 28 The respondent relied upon the decision of a majority of the High Court (Gleeson CJ, McHugh, Gummow and Kirby JJ, Callinan J dissenting) in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 12 (Khawar). This decision was handed down on 11 April 2002, that is, after the Full Court decision in Applicant Z, which was handed down on 19 December 2001. 29 Mrs Khawar, a Pakistani woman, applied for a protection visa. She claimed that her husband had assaulted her violently on a number of occasions, that she had complained to the police, that the complaints had not been seriously entertained, and that such lack of response by the authorities was accepted in Pakistani society. The Tribunal did not make findings on these issues because it determined that, even if Mrs Khawar's version of the facts was accepted, she would not have established that she was a member of a particular social group. The High Court, by majority, held that the Tribunal had erred by failing to embark on the fact finding exercise because, if the facts were as alleged by Mrs Khawar, she may have established membership of a particular social group. 30 Gleeson CJ said at pars 32-35: "32. In my view, it would be open to the Tribunal, on the material before it, to conclude that women in Pakistan are a particular social group. 33. The size of the group does not necessarily stand in the way of such a conclusion. There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur. In some circumstances, the large size of a group might make implausible a suggestion that such a group is a target of persecution, and might suggest that a narrower definition is necessary. But I see nothing inherently implausible in the suggestion that women in a particular country may constitute a persecuted group, especially having regard to some of the information placed before the Tribunal on behalf of Ms [sic] Khawar. And cohesiveness may assist to define a group; but it is not an essential attribute of a group. Some particular social groups are notoriously lacking in cohesiveness. 34. In Applicant A, McHugh J explained why the persecutory conduct itself cannot define the particular social group in question for the purposes of Art 1A(2), but went on to add that the actions of the persecutors may serve to identify or even cause the creation of such a group. He held that couples in China who want to have more than one child, contrary to the one child policy, were not a particular social group, as there was no social attribute or characteristic which linked them independently of the alleged persecutory conduct. 35. Women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments. Neither the conduct of those who perpetrate domestic violence, or of those who withhold the protection of the law from victims of domestic violence, identifies women as a group. Women would still constitute a social group if such violence were to disappear entirely. The alleged persecution does not define the group." [emphasis added] [citations omitted] 31 McHugh and Gummow JJ said at pars 81-83: "81. The harm amounting to persecution which has been identified above must be suffered for a Convention reason. The case put here is that Mrs Khawar was a member of a particular social group in Pakistan. Again, the Tribunal failed to make the necessary finding. It failed to determine whether Mrs Khawar was a member of such a group. It was open to the Tribunal on the material before it to determine that there was a social group in Pakistan comprising, at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by the members of the household. Other formulations have been referred to earlier in these reasons and nothing said here is intended to foreclose a finding that a group so defined existed. This is a matter for the Tribunal on reconsideration of the case. 82. It may be that the members of a group under any of the above formulations are very numerous. However, the inclusion of race, religion and nationality in the Convention definition shows that that of itself can be no objection to the definition of such a class. Applicant A establishes that disagreement with a law of general application and fear of the consequences of the failure to abide by that law does not, on that account, constitute the persons in question a social group within the meaning of the Convention definition. That has no bearing upon the present case. Nor does the proposition, which also is to be derived from Applicant A, that ordinarily the enforcement of a generally applicable criminal law will not constitute persecution of a social group constituted by those against whom that law is enforced. 83. Applicant A indicates that the particular social group cannot be defined solely by the fact that its members face a particular form of persecution so that the finding of membership of the group is dictated by the finding of persecution. Those considerations do not control the present case. The membership of the potential social groups which have been mentioned earlier in these reasons would reflect the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships. The alleged systemic failure of enforcement of the criminal law in certain situations does not dictate the finding of membership of a particular social group." [emphasis added] [citations omitted] 32 Kirby J said at pars 126-129: "126. These conclusions leave only the Minister's final suggestion that no relevant 'particular social group' could exist with application to a person such as the respondent. There is force in the submission that, whilst attention is focussed on women in Pakistan in domestic conflict with their husbands, the causal nexus necessary to the Convention definition of 'refugee' is missing because of the very great width of the 'social group' postulated. But once the focus shifts to the failure of state protection, that suggested problem recedes in importance. The 'group' is capable of being properly defined in a principled manner, specifically by reference to the group upon which the state concerned has withdrawn the protection of the law and its agencies. 127. In some overseas jurisdictions it has been held, or postulated, that women in a particular country may, as such, constitute a 'particular social group' for the purposes of the Convention definition. The possibility appears consistent with some of the documentation emerging from the agencies of the United Nations. The Minister conceded in argument that the number of persons potentially involved in a 'particular social group' would not of itself put an applicant otherwise within that group outside the Convention definition. This must be correct. After all, there were six million Jews who were incontestably persecuted in countries under Nazi rule. The mere fact that they were many would not have cast doubt on their individual claims to protection had only there been an international treaty such as the Refugees Convention in force in the 1930s and 1940s. 128. Nevertheless, the sheer number of persons potentially involved in a group such as 'women in Pakistan' or even 'married women in Pakistan' is such that some commentators have expressed doubt that this is the kind of 'particular social group' that the Convention was referring to. The Minister contested that such wide categories could in law ever amount to a 'particular social group' within the Convention. 129. However that may be, the 'particular social group' propounded by the respondent in the present case was capable of being expressed in terms that were considerably narrower and more specific. The materials presented by the respondent to the Tribunal suggest that there may be a particularly vulnerable group of married women in Pakistan, in dispute with their husbands and their husbands' families, unable to call on male support and subjected to, or threatened by, stove burnings at home as a means of getting rid of them yet incapable of securing effective protection from the police or agencies of the law. In the present case, because of the approach which it took, the Tribunal did not embark upon a consideration of whether there was a specific, and thus identifiable, 'social group' of such a 'particular' character and, if so, whether the respondent was a member of it."

consideration 33 The primary judge held that the Tribunal took the wrong approach in regarding the applicant's situation as comparable to the situation of a person subject to conscription under a law of general application. He explained that the authorities concerning conscription laws of general application addressed very different circumstances. In contrast, in Afghanistan, there was no such law of general application. Rather, the country was in the grip of a civil war. In the course of conflict between one part of the population and other parts of the population, the dominant element, the Taliban, took young men able to fight by force for the purpose of advancing their cause by military means. The Tribunal found that the Taliban was despotic, ruthless and extremist. This action against young men was taken without any legal basis. In some instances, the Taliban extracted money in return for not forcing young men to fight for the moment. These circumstances, his Honour held, pointed to a classic situation for the generation of a particular social group. Consequently, the primary judge determined that the Tribunal was bound to consider whether able-bodied young Afghan males constituted a particular social group. By failing to consider that question, the Tribunal erred in law. 34 The appellant argued that the group identified by the primary judge was defined by the persecutory conduct and, hence, could not constitute a particular social group for the purpose of the Convention. This conclusion followed, it was contended, from the judgment of McHugh J in Applicant A, and from its application in similar circumstances to the circumstance of the present case in Applicant Z. 35 In Applicant A, McHugh J said at 263: "The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution." 36 His Honour then, at 264, referred to, and extracted the following passage from the judgment of Heald JA sitting in the Canadian Federal Court of Appeal on a claim for membership of a particular social group because of a fear of compulsory sterilisation under China's "one child policy": "This leads me to a fundamental objection to acceptance of the group of parents with more than one child who are faced with forced sterilisation as a 'particular social group'. This group, it seems to me, is defined solely by the fact that its members face a particular form of persecutory treatment. To put it another way, the finding of membership in a particular social group is dictated by the finding of persecution. This logic completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa) and voids the enumerated grounds of content." 37 Earlier in the discussion McHugh J said at 263: "Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the 'particular social group' ground to take on the character of a safety-net." [emphasis added] 38 The point to be emphasised is that a particular social group is not constituted where the only basis for the constitution of the group is the shared fear of persecution. But that does not mean that persecution cannot play a role in the determination of the existence of such a group. McHugh J makes this clear where he said at 264: "Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society." 39 Then followed his Honour's example of left-handed men as extracted in par 23 of these reasons, and his Honour continued at 264: "The fact that the actions of the persecutors can serve to identify or even create 'a particular social group' emphasises the point that the existence of such a group depends in most, perhaps all, cases on external perceptions of the group. The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit." [emphasis added] 40 This approach has recently been recognised by the United Nations High Commissioner for Refugees in the publication on 7 May 2002 of "Guidelines on International Protection: 'Membership of a particular social group' within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees". At par 14 the Guidelines state: "[A] particular social group cannot be defined exclusively by the persecution that members of the group suffer or by a common fear of being persecuted. Nonetheless, persecutory action toward a group may be a relevant factor in determining the visibility of a group in a particular society." [emphasis added] [citations omitted] 41 Whilst the Guidelines are not binding, they should be considered because they are an attempt to harmonise the construction of the Convention. Further, they result from a comprehensive consideration by experts including judges and academics as part of the review of the operation of the Convention on its 50th anniversary. The introduction to the Guidelines refers to their function and basis as follows: "UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United Nations High Commissioner for Refugees, and Article 35 of the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol. These Guidelines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Reedited, Geneva, January 1992). They further supersede IOM/132/1989 - FOM/110/1989 Membership of a Particular Social Group (UNHCR, Geneva, 12 December 1989), and result from the Second Track of the Global Consultations on International Protection process which examined this subject at its expert meeting in San Remo in September 2001. These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determinations in the field." 42 Each of the judgments in Applicant Z accepted that, while persecutory conduct could not on its own define the group, the persecutory conduct might serve to identify or even create the group. But it was necessary that the group was perceived by society as such. The critical vice identified in both of the judgments was that there was no evidence in that case of a group constituted by able-bodied Afghan males and recognised by Afghan society as a group. Sackville J expressly recognised at par 15 that "depending on the circumstances of a given country, … able-bodied men could be found to constitute a 'particular social group'". He referred to Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 (Islam) as an example. Subsequently, in Khawar the High Court has come to the same conclusion. 43 It follows that the question to be determined in this case depends entirely upon the facts before the Tribunal in this case. In Applicant Z, Sackville J said at par 11: "There was simply no material before the Tribunal that would have justified it in finding that Afghan society, or some clearly identifiable section of it, perceived 'able-bodied Afghan men' as a distinct social unit." 44 And, in a further passage extracted in par 24 of these reasons, Sackville J said that there was no evidence before the Tribunal which would have justified a conclusion that there was a public perception in Afghanistan that able-bodied Afghan men had become a distinct social group. 45 Kiefel J also applied the approach described by McHugh J in Applicant A. She said, at par 31, in relation to the suggested group "able-bodied Afghan males" that: "the difficulty encountered is that they share no common attribute which links them and sets them apart from society as a recognisable group." 46 It is not entirely clear whether her Honour here suggested that such a group is not capable of being a particular social group for the purpose of the Convention, or whether, on the facts of the particular case, there was no evidence of a social perception that these people formed a particular social group. I take her Honour to mean the latter. The former position is not tenable after Khawar. There one of the possible formulations of the particular social group was "women in Pakistan". In the passage extracted in par 30 of these reasons Gleeson J said: "Women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments." 47 Thus, Applicant Z was determined on the basis that there was no evidence before the Tribunal that Afghan society perceived young able-bodied Afghan males to be a recognisable group. 48 When the court is to determine whether the Tribunal should have considered an issue which it did not consider, the court must take into account the fact that the Tribunal does not function in an adversarial manner. A proceeding before the Tribunal is commenced when the applicant files an application for review. The Tribunal considers the application without a contradictor. It inquires into the merits of the application and is entitled to gather information itself (s 424 of the Act). The applicant does not have a right to call witnesses. The applicant may request the Tribunal to obtain oral evidence from a person, but the Tribunal is not bound to obtain evidence from that person (s 426 of the Act). It is common practice for the Tribunal to rely on country information which it obtains for itself. Further, as a specialist Tribunal, the members accumulate knowledge and expertise in relation to the circumstance of applicants and their countries of nationality generally. The members bring this knowledge and expertise to bear in each case. 49 Further, when determining whether the Tribunal should have considered an issue where the applicant has produced certain relevant evidence, the court will examine not only whether the evidence directly required the Tribunal to consider an issue, but also whether there were inferences open to the Tribunal from the evidence which engaged the inquisitorial function of the Tribunal. 50 The erroneous rejection of a protection visa application could involve risk of death, injury or other serious consequences to the applicant. The scope of the Tribunal's obligation to inquire must be seen against this background. The nature of the application, therefore, requires a broad view of the obligation of the Tribunal to consider issues and material even if not directly articulated by the applicant. 51 A further reason for such an approach is that applicants usually face difficulties in communicating their cases to an official body such as the Tribunal as a result of language and cultural differences. Many applicants require the use of an interpreter, and it is recognised that sometimes important elements in a narrative are lost or obscured in the translation. 52 And, finally, it should not be thought that this broad inquisitorial function which requires the Tribunal to explore the applicability of the Convention grounds to each case imposes an unduly heavy burden on the Tribunal. The Convention grounds are limited in number. Most of them are clear cut, and easily ruled applicable or not. The "particular social group" ground is, in that respect, in a class of its own. It is more difficult to assess. However, the Tribunal is bound to assess the case against that ground if it seems that the ground could be applicable. 53 No doubt it was in recognition of the nature of the claims to be brought before the Tribunal, and the difficulties faced by the Tribunal in investigating the cases that the legislature prescribed that the Tribunal is not bound by technicalities, legal forms, or rules of evidence and must act according to substantial justice and the merits of the case (s 420 of the Act). The same reasoning requires that the Tribunal has an obligation to consider the case raised by the applicant against all the Convention grounds which are reasonably open, and then to investigate the applicability of the grounds in the light of the material available to the Tribunal. 54 These features of the way and circumstances in which the Tribunal is required to work mean that, in determining whether the Tribunal should have considered an issue, the court cannot limit attention to the issues and the evidence which the applicant has raised before the Tribunal: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, 63; Navarro v Canada (Minister of Citizenship and Immigration) [1994] FCJ No. 1963. 55 For example, a Pakistani woman who suffered domestic violence and who was refused assistance by the police in Pakistan may bring an application for a protection visa. She may raise those facts alone. She may not articulate her claim in terms of persecution by reason of membership of a particular social group. However, the Tribunal member would know from country information and from decisions such as Islam and Khawar that women in Pakistan constitute a particular social group for the purposes of the Convention because they suffer institutionalised discrimination in Pakistan. Even though the applicant did not produce evidence of the institutionalised discrimination, the Tribunal would be obliged to consider whether the applicant was a member of a particular social group. This is so because the applicant raised a case sufficient to engage the inquisitorial function of the Tribunal in relation to the circumstances of women in Pakistan. 56 I now turn to the question whether there were sufficient indicators that able-bodied Afghan males may be perceived by Afghan society as a particular group subject to persecution that the Tribunal was obliged to consider that issue. 57 The perceptions of Afghan society are formed in the context of a civil war. Even if young able-bodied males might not be seen as a distinct group in a settled society, there is an inherent likelihood that they will be so viewed where groups in the community are engaged in fighting against each other. In that environment, those members of society most likely to be engaged in fighting are likely to be regarded as sharing a characteristic relevant to the state of antagonism in the community. One consequence of the fact that young men are primarily engaged in the fighting is that many of them wish to escape from it. There was evidence before the Tribunal that large numbers of young able-bodied men were streaming out of Kabul and Jalalabad daily. This evidence was expressly accepted by the Tribunal. Further, there was evidence that the Taliban conducted house to house searches, and raided schools and mosques in the search for recruits. These actions have an effect, not only on the young men being sought, but on relatives, teachers, and religious leaders. In other words, the practical execution of the forced recruitment of young men is an activity which is visible to and involves a wide segment of the population. As the activity is directed to young Afghan males, the actions contribute to the moulding of social perceptions. Thus, Afghan society experiences Taliban raids into houses, schools and mosques in search of young men to fight, and sees a daily exodus of young men from Afghanistan. From these experiences, and quite apart from the persecutory conduct directed to young men, Afghan society might arguably perceive young men as a distinct social group. 58 Finally, in ascertaining whether Afghan society may see young men as a distinct group, regard must be had to the finding of the Tribunal that the Taliban is a ruthless, despotic and extremist regime. Naturally these features impact upon and are deeply appreciated by the society. The power of the Taliban is built upon military force. That force is provided by the young males forced to fight for the Taliban. It would be surprising if Afghan society did not see young males as a particular group where the regime which has such an impact on life in Afghanistan depends on these people to keep the regime in power. 59 There was sufficient material before the Tribunal to require it to consider the question. Its failure to do so was a legal error requiring that it now reconsider the application. The nature of this error means that it is not necessary to consider the other arguments relied upon by the appellant to impugn the decision of the primary judge. 60 The court in Applicant Z reached the opposite conclusion to the conclusion I have reached in this case. Each appeal has been determined according to the facts before the Tribunal. As has been explained, the evidence before the Tribunal in this case gave rise to obligations on the Tribunal to consider whether able-bodied Afghan males constituted a particular social group. In Applicant Z the Court determined that there was no evidence before the Tribunal which gave rise to such an obligation. 61 On 5 July 2002, that is to say, after this decision had been reserved, the respondent forwarded to the members of the Full Court further information about the situation in Afghanistan. I have not taken this material into account in reaching my decision. It was not before the Tribunal. Much of it relates to events after the hearing before the Tribunal. Both of these reasons prevent this Full Court having recourse to the material. In any event, the material does not appear to advance the claims which the respondent made before the Tribunal. 62 It follows from these reasons that I would dismiss the appeal with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT STONE J: 63 I have had the advantage of reading the draft judgment of North J. His Honour has set out the facts and the background to this matter and it is not necessary for me to repeat them. Unfortunately I am not able to agree with the orders proposed by his Honour and must set out my own reasons for decision. 64 This is one of a number of cases decided by the same primary judge, involving young able-bodied Afghan males who fled Afghanistan to avoid military conscription by the Taliban; Applicant Z v Minister for Immigration & Multicultural Affairs [2001] FCA 881; Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411; Applicant M v Minister for Immigration & Multicultural Affairs [2001] FCA 1412. In these cases the primary judge decided that the Tribunal was in error in failing to consider whether able-bodied young Afghan men (or perhaps "able bodied young men without the financial means to buy off the conscriptors") comprised a particular social group within the meaning of the definition of "refugee" in Article 1A(2) of the Convention relating to the Status of Refugees 1951 ("Convention"). 65 The Full Court in Minister for Immigration & Multicultural Affairs v Applicant Z [2001] FCA 1823 ("Applicant Z"), set aside the decision of the primary judge and held that the Tribunal had not been in error in failing to consider whether able-bodied Afghan men could be found to constitute a particular social group. Sackville and Kiefel JJ expressed their reasons in separate judgments and Hely J agreed with both. Sackville J did not exclude the possibility of "able-bodied" men within a country constituting a separate group for Convention purposes but held, at [13], that in the case before him there was no material before the Tribunal that: "would have justified it in concluding that the forcible recruitment of some able-bodied men in Afghanistan had created a 'public perception' that able-bodied Afghan men had become a distinct social group in that country. There was, for example, nothing to indicate institutionalised discrimination against able-bodied Afghan men independently of forcible conscription." 66 Kiefel J rejected the claim that able-bodied Afghan men were a particular social group. It is not entirely clear, however, if her Honour based this rejection on the same ground as Sackville J or whether her view was that such a claim could never be made out. In any event, I agree with North J that following the decision of the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574; [2002] HCA 14 ("Khawar") the latter position is not tenable. The facts and findings in Khawar have been amply described by North J (see [29] to [32] above) and it is not necessary to repeat that summary here. I do, however, wish to emphasise several aspects of the High Court's decision. 67 The High Court's finding that it was open to the Tribunal to conclude that Mrs Khawar was a member of a particular social group was based on the conclusion that the social group was not merely defined by the form of persecution to which these women were subjected, but reflected "the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships"; per McHugh and Gummow JJ at 594, [83]. Kirby J also referred to material that had been presented to the Tribunal, including a report of the Canadian Immigration and Refugee Board dealing with the devaluing of the testimony of females as distinct from males, the alteration of the criminal law in respect of retribution, entrenched legal discrimination against women in relation to murder, bodily injury and abortion and a 50% reduction in compensation payable to a female victim of crime. There was also information in relation to oven burns that sometimes led to the death of wives, a US State Department Report on the practice of Pakistani police returning battered wives to abusive husbands, as well as information concerning the killing and mutilation by male relatives of women accused or suspected of adultery. Gleeson CJ also referred to this information and observed that much of it was to the same effect as the facts that were found and were ultimately before the House of Lords in R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 (sometimes reported as Islam v Secretary of State for Home Department, a case that involved similar facts and which was heard with Ex parte Shah). 68 Gleeson CJ saw nothing "inherently implausible" in the suggestion that women in a particular country may constitute a persecuted group. The Chief Justice held that this would not involve the persecutory conduct defining the particular social group commenting that: "Women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments. Neither the conduct of those who perpetrate domestic violence, or of those who withhold the protection of the law from victims of domestic violence, identifies women as a group. Women would still constitute a social group if such violence were to disappear entirely. The alleged persecution does not define the group." 69 Read out of context, this comment might appear to suggest that, if women in any society are a distinct and recognizable group, the same can be said of males and, in particular, able-bodied males. When the whole of the Chief Justice's judgment is considered, however, the comment can be seen to depend on the evidence presented to the Tribunal as to the position of women in Pakistani society and culture generally. The "alleged persecution" that does not define the group is a reference to the persecution of which Mrs Khawar complained. This was that she was a victim of serious and prolonged violence on the part of her husband and members of her family. The cultural and social factors to which the Tribunal and the High Court were referred left it open to the Tribunal to conclude that women in Pakistan are a particular social group using the reasoning that McHugh J illustrated in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 264 with reference to the example of a left-handed person. 70 The issue to be decided here is whether the facts before the Tribunal in this case could justify it in reaching the conclusion, contrary to that to which the Tribunal in Applicant Z came, that able-bodied men in Afghanistan (or able-bodied young men with or without the financial means to buy off the conscriptors) comprise a particular social group within the meaning of the Convention. Following Khawar it is clear that this description is not sufficient to justify such a conclusion. Additional evidence to support a claim that they are perceived as such by their society is necessary.

71 In its reasons for decision the Tribunal stated that the issues material to the claims made by the respondent and which it accepted were: "1. He is Afghan. 2. He is Pashtun, the same ethnic group as the Taliban. 3. He of fighting age and, had faced conscription in Afghanistan and was at risk of facing it again. 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 pressganging young men available at the time into their services. 5. The Taliban has been in control of his area for two to two and a half years and continues to be so. 6. The situation in Taliban held areas has stabilised to the extent that the UN is prepared to facilitate return to them."

72 The Tribunal also accepted that the Taliban targeted young men in recruiting soldiers and that this engendered fear of such recruitment among young men. The Tribunal stated: "The nature of the recruitment process is such that there are no criteria for selection save being able bodied and, being in the wrong place at the wrong time." As the above discussion of the High Court's decision in Khawar makes clear, however, this is not a sufficient basis from which to conclude that such young men constitute a particular social group. 73 It is well established that the Tribunal should not limit itself to the case articulated by an applicant where the facts found by it (or, as Sackville J stated in NAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 332 at [43], not negated by its findings) might support an argument that the applicant is entitled to the protection of the Convention; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38. In this case, however (unlike the position in Khawar), I can find no trace of any evidence before the Tribunal that would support a claim that Afghan society perceived young able-bodied men as comprising a separate group either as a result of the Taliban's recruitment process or for any other reason. In my view there is nothing to distinguish this case from that considered by the Full Court in Applicant Z. 74 Although the Tribunal may initiate additional enquiries (s 424 and s 427(1)(d) of the Migration Act 1958 (Cth)) it is not required to do so. Comments to the contrary in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Luu v Renevier (1989) 91 ALR 39 are not relevant here for reasons explained in Kola v Minister for Immigration and Multicultural Affairs [2002] FCAFC 59 and NAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 332. In my view the Tribunal cannot be in error in failing to come to a conclusion that is not supported by the material before it. 75 In reaching a different conclusion North J has relied on the broad inquisitorial function of the Tribunal. While I do not disagree with the principles espoused by his Honour, with respect, I do not accept that the implications that he would draw from the material before the Tribunal can support the respondent's claim to be a member of a particular social group within the meaning of the Convention. 76 For these reasons I would allow the appeal with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 21 August 2002 Counsel for the Appellant: Mr P R Macliver

Solicitor for the Appellant: Australian Government Solicitor

Migration Act 1958(Cth)ss 424, s

WHITLAM J: 1 I agree with Stone J that this appeal must be allowed. Like her Honour, I can find no evidence or material before the Tribunal which would support a claim that Afghan society perceived young able-bodied men as comprising a particular social group. 2 I do not think that it can be said that in Minister for Immigration and Multicultural Affairs v Khawar (2002) 76 ALJR 667 the High Court came to the same conclusion as Sackville J in Minister for Immigration and Multicultural Affairs v Applicant Z [2001] FCA 1823 at [15]. Moreover, I think that in the last mentioned case Kiefel J did mean at [31] to say at least that the adjective "able-bodied" was not apt to set some males apart from others as members of a social group. Her Honour agreed with Tamberlin J in Mahmoodi v Minister for Immigration and Multicultural Affairs [2001] FCA 1090 at [7] that such a description of a person's health or fitness was "transient or fortuitous". I am not sure that Khawar makes such a position untenable, but it is unnecessary to consider that question in the present case. 3 The appeal should be allowed with costs, the orders made at first instance set aside and the application dismissed with costs. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

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