The claim concerning the Taliban: was it properly considered?
11 The applicant then argued that, in applying the test prescribed by s 36(2), and in substance the assessment of whether he is a 'refugee' as defined in Art 1A(2) of the Convention at the time of its decision, the Tribunal had committed jurisdictional error. It was contended that the Tribunal had:
(1) wrongly asked itself only whether there was a real chance that the Taliban might re-assume political power in Afghanistan and so resume its persecution of persons like the applicant, when the Tribunal should also have considered whether the applicant might be at risk from the Taliban even though it had not resumed political power and then whether the Afghani authorities have taken reasonable measure to protect the applicant from them; and
(2) wrongly imposed too high a test to determine whether the applicant had a well-founded fear of persecution by reason of his race and religion.
12 In my view, the first of those contentions is made out.
13 In addressing the present status of the Taliban, the Tribunal after reviewing certain independent country evidence said:
'Given the ongoing presence and interest of Western powers in Afghanistan and their keen desire to prevent the re-emergence of the Taliban, its chance of becoming a force that is able to take control of the country again, conscript men at will and persecute particular minorities, is remote.
On the basis of the evidence referred to above I find that the Taliban have been removed from power in Afghanistan. I do not accept that there is more than a remote chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future.'
That led the Tribunal to conclude that the circumstances in connection with which the applicant was first recognised as a refugee have ceased to exist.
14 The Tribunal then proceeded to address whether the applicant is a person to whom Australia has protection obligations for other reasons. It identified those other reasons as being for political opinion imputed to the applicant consequent upon his father's political activities, and his membership of a particular social group which it described loosely as 'those tainted by the west'. It did not accept that the applicant has a well-founded fear of persecution for either of those reasons. It is not necessary to refer further to them.
15 The Tribunal did not, when addressing the other reasons, have regard to the applicant's claimed fear of persecution by reason of the renewed activities of the Taliban, even if (as it found) the Taliban was unlikely to re-assume political power in Afghanistan in the foreseeable future. That was a claim made by the applicant. If it were a real possibility that the Taliban might pose a serious threat to the applicant if he were to return to Afghanistan, because the Taliban (on the Tribunal's findings) would be a non-State entity, it would also be necessary for the Tribunal then to address the capacity of the Afghani authorities to protect the applicant and others from the threat of the Taliban: see Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [23]. The Afghani authorities are obliged to take reasonable measure to protect the lives and safety of its citizens from non-State violence, including by provision of an appropriate criminal law and the provision of a reasonably effective and impartial police force and justice system: per Gleeson CJ, Hayne and Heydon JJ in Respondents S152/2003 at [26].
16 In my view, the Tribunal's failure to address that particular claim of the applicant's is apparent from the part of its reasons for decision to which I have referred. Immediately preceding the passage quoted, the Tribunal recognised that Taliban remnants are in Afghanistan, and that its activities demonstrate that its power, militarily and politically, is growing. It quoted material headed 'Stronger and more deadly, the terror of the Taliban is back'. Its conclusion that the Taliban is unlikely to be able to take control of the country again was reached in part because it had not disrupted the 2004 general election, nor prevented the formulation of an elected government. The conclusion referred to in the context of that reasoning does not address the significance of the Taliban as a non-State threat to the applicant by reason of his race or religion. The use of the conjunctive 'and' before reference to it persecuting particular minorities is in the context of its re-emergence as the political controller of Afghanistan.
17 Counsel also referred to a later passage in the reasons for decision of the Tribunal in which it said it was not satisfied that there is a real chance that harm will 'befall the applicant at the hands of the Pashtuns (and/or Taliban remnants)'. That passage occurs as a conclusion to its consideration of the applicant's other claims. It explained why it rejected his claim to have a well-founded fear of persecution because of his father's earlier political activities. It then explained why it rejected his claim to have a well-founded fear of persecution because of his being perceived as 'westernised'. It then turned to his claim to have a well-founded fear of being persecuted by Pashtuns who lived near his village. It referred to the relevant geography. It identified the threat as being from Pashtuns who may have continued to support the Taliban, and observe that there had not been any reports of Taliban incursions into Jaghouri since November 2001. It continued:
'The applicant claimed that Pashtuns would persecute Hazaras as the latter travelled to market towns like Sang-e Masha. This is the market town to which the applicant's family must go if it needs supplies, although the applicant said he had not been there except on his departure [from] Afghanistan. His father, however, went regularly. I note that the route from the applicant's village to Sang-e Masha is entirely within the central part of Jaghori, not close to any district borders, and as there are no reports of incursions by Pashtuns into Jaghori, I discount this claim.
On the evidence before me, I am not satisfied that there is a real chance that harm will befall the applicant at the hands of the Pashtuns (and/or Taliban remnants) for reason of his ethnicity or his religion as a Hazara Shi'a.'
18 In my view, from the structure of the Tribunal's reasons, the brief reference to the Taliban in that passage is merely incidental. The claim being considered is based upon an asserted fear of Pashtuns. It does not, upon reading the whole of the Tribunal's reasons, represent a conclusion of the Tribunal based upon a consideration of the applicant's claim to have a well-founded fear of persecution by reason of the renewed activities of the Taliban as non-State agents.
19 The failure to address a particular claim of the applicant clearly expressed amounts to jurisdictional error: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]-[25] per Gummow and Callinan JJ. In this matter, there was also evidence which the Tribunal accepted, which might support the conclusion that the Afghani authorities might be unable to provide the protection of the law and its agencies to the applicant. The Tribunal accepted that there was a lack of the rule of law and unprofessional police force throughout the province of Jaghouri. The inquiry required by Respondents S152/2003 in respect of the applicant's fear of violence from non-State agencies, namely the Taliban, would not obviously be a fruitless one.
20 It is not necessary to address the second of the contentions referred to in [11] above. However, I observe that the independent country information about the activities of the Taliban up to the time of the Tribunal's decision, and its uncontrovertible (and accepted) previous persecutory behaviour in relation to Hazaras, may well make it difficult for the Tribunal to be so confident that the Taliban would pose no threat to the applicant that it properly took into account the chance that the applicant may be at risk in the future from the Taliban, and that the Afghani authorities can provide a reasonably effective and impartial police force to protect him from such threats: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.