SBBN v Minister for Immigration & Multicultural & Indigenous Affairs

5 The Tribunal then turned to address the consequence of the defeat of the Taliban forces in Afghanistan, the dispersal of its regime, and the elimination of its leadership from positions of power or influence in Afghanistan including in the Interim Authority. It found that the Taliban is no longer in a position to harm the applicant as it was before his departure from Afghanistan when it controlled Afghanistan. 6 The Tribunal sought the applicant's response to the collapse of the Taliban regime. He said that he maintained his fear of returning to Afghanistan, despite the fall of the Taliban, because he feared its re-emergence. There were some alternative outcomes which, he claimed, led him to having the same fear of persecution if he were to return to Afghanistan. The applicant claimed that one possibility is the emergence of a Pashtun backed government which would persecute him because of his Hazara ethnicity and his Shi'a religion. Another is the emergence of a Tajik/Pashtun government, those groups forming the majority of the Northern Alliance which defeated the Taliban, which similarly would persecute him because of his Hazara ethnicity. A further possibility he fears is that Afghanistan would descend into a state of anarchy and lawlessness in which the Tajik and Pashtun people would have considerable defacto power and would persecute him, again by reason of his Hazara ethnicity. 7 The Tribunal referred at some length to independent country information about events which have occurred in Afghanistan subsequent to the fall of the Taliban. It did not accept that the Interim Authority, dominated by Northern Alliance members, would impute to the applicant any political opinion other than opposition to the former Taliban regime, or that he would be targeted for persecution by reason of any such political opinion. It also did not accept that the Interim Authority would persecute the applicant by reason of his ethnicity or religion. It noted that there are a number of Hazara and other Shi'a cabinet members in the Interim Authority, and that the stated intent of the formation of the Interim Authority was representation of all major ethnic groups, as has occurred. There was no information to suggest that any episodes of persecution of Hazaras or Shi'as by the Northern Alliance or by the Interim Authority had occurred since the collapse of the Taliban. It concluded: "I am satisfied that the applicant's fear of harm by the Northern Alliance, or the Interim Authority, whether by reason of an imputed political opinion or ethnicity or religion or for any other Convention reason, is not well-founded."

8 The Tribunal then addressed other possible groups within Afghanistan which the applicant had identified might emerge with authority, and which might persecute him. It did not accept that the applicant is at risk of persecution on the basis of his religion or ethnicity or for any other Convention reason by another political party or grouping. It referred to a number of those groupings, including the supporters of the former King. It referred to independent country information concerning Afghanistan which indicated that such groups, unlike the Taliban, had not persecuted Hazaras or Shi'as by reason of ethnicity or religion in the past. Any detriments suffered by Hazaras or Shi'as at the hands of such groups in the past had not been by reason of ethnicity or religion but as a consequence of "the constantly shifting political alliances which have characterised recent Afghan history". In the light of that past history, it concluded: "The defeat and elimination of the Taliban constitutes, for persons in the situation of the applicant who were the targeted enemies of the Taliban, such a fundamental change in circumstances that I am satisfied that the applicant does not have a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan."

9 To be eligible for the grant of a protection visa under the Act, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant met the criteria for the grant of that visa specified in the Act and the Migration Regulations. Relevantly for present purposes, the criterion specified in s 36(2) of the Act is that the decision-maker is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). In the present matter, effectively, that meant that the delegate of the respondent and on review the Tribunal had to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The Tribunal was not satisfied that the applicant has a well-founded fear of being persecuted for reasons of his ethnicity or religion, or for any political opinion imputed to him if he were now to return to Afghanistan and so he did not meet the criterion for the grant of the visa specified in s 36(2) of the Act. 10 The Tribunal was obviously concerned about the applicant's circumstances. Under the heading "Humanitarian Concerns" it added at the end of its reasons for decision the following: "It is apparent from the information available to me about the unstable security situation in Afghanistan, combined with the long drought and the coming winter, that the applicant's return to Afghanistan may raise legitimate humanitarian concerns. In the applicant's case, these concerns are amplified by the fact he is very young and, particularly, that most of his immediate family, parents and siblings, are either dead or missing. He has only one brother in Afghanistan and his paternal uncle, who was responsible for assisting him to leave Afghanistan, was taken away by the Taliban and his whereabouts now are unknown. My power, however, is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa and I am satisfied, for the reasons set out above, that the applicant is not at risk of persecution for a Convention reason if he returns to Afghanistan. I do not have any power or discretion in relation to humanitarian issues, consideration of which is solely within the Minister's discretion. Responsibility for the applicant's safe return to Afghanistan, or for any decision to permit the applicant to remain in Australia for humanitarian reasons, are beyond my jurisdiction. Notwithstanding my lack of jurisdiction in relation to these issues, I urge the relevant authorities to consider the applicant's plight in the context of these humanitarian concerns."

The grounds of Review 11 The applicant through counsel contended that the Tribunal had committed two jurisdictional errors in its consideration of the applicant's claim, and that those jurisdictional errors entitled the applicant to the relief sought under s 39B of the Judiciary Actnotwithstanding the terms of s 474(1) of the Act. It will only be necessary to address the latter part of that contention if either of the jurisdictional errors asserted are made out. 12 The first jurisdictional error alleged that the Tribunal failed to address whether the applicant had a subjective fear of persecution by reason of his ethnicity or religion or imputed political opinion. 13 It is clear that a "well-founded fear of persecution" under Article 1A(2) of the Convention involves both a subjective element and an objective element: see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389, 397 and 429 - 430; Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22. The reasons of the Tribunal largely address the objective element, that is the element by virtue of which a subjective fear of persecution is determined to be "well-founded". But, in addition, in my judgment the Tribunal also addressed whether the applicant subjectively has an ongoing fear of persecution if he were to return to Afghanistan. And, in my judgment, it accepted that he did have such a fear. 14 In relation to the claim to have a well-founded fear of the Taliban, the Tribunal expressly accepted "that the applicant feared persecution by the Taliban", but concluded further that by reason of the downfall of the Taliban that fear of harm was not at the time of its decision well-founded. It appears also to have accepted the genuineness of the applicant's fear of persecution from those who have, or might come to, power in Afghanistan following the downfall of the Taliban. However, it was satisfied "that the applicant's fear of harm by the Northern Alliance, or the Interim Authority" was not well-founded. Although there is no express acceptance of the applicant's claim to fear persecution from other groups who might come to power in Afghanistan, the Tribunal did not need to make an express finding on that topic. It appears to have accepted that such a fear exists, as it addressed whether such a fear could be well-founded. It concluded that the applicant's fear is not well-founded. 15 In addition, the subjective and objective elements of a well-founded fear of persecution are each necessary elements to qualify as a refugee under Article 1A(2) of the Convention. As the Tribunal found that the applicant does not have a well-founded fear of persecution from any such groups if he returns to Afghanistan, on the basis that any such fear could not objectively be justified according to the test prescribed by the authorities referred to above, any failure on its part to address whether the applicant has a subjective fear of persecution from any such group by reason of his ethnicity, his religion, or political beliefs imputed to him, would not result in a different outcome of his claim. The Full Court in Selliah v Minister for Immigration & Multicultural Affairs [1999] FCA 615 [40] said: "The appellant contended that the Tribunal failed to apply the correct test in that it neither made an express finding as to the appellant's subjective fear nor identified the characteristics of that fear as claimed by him. However, even if it be assumed that the appellant had the relevant fear, the question still remains as to whether the fear was well founded. The Tribunal, in effect, made a finding that any fear which the appellant in fact had was not well founded. Accordingly, the failure to make a finding as to the appellant's subjective fear is of no relevance."

In my view, those comments apply equally to the Tribunal's approach in this matter. 16 However, for the reasons given, in my view the Tribunal did address the subjective element of the applicant's claim to have a well-founded fear of persecution. It accepted that the applicant fears persecution from each of the groups he identified as actual or potential wielders of power in Afghanistan. It found in each case that fear was not well-founded. I am therefore not persuaded that the Tribunal fell into the first jurisdictional error asserted on behalf of the applicant. 17 The second jurisdictional error asserted on behalf of the applicant is that the Tribunal failed to address his claim that he faced persecution if he were to return to Afghanistan by reason of his membership of a social group. The social group was identified as "young orphan males" in Afghanistan. 18 In the passage of its reasons for decision under the heading "Humanitarian Concerns" referred to at [10] above, the Tribunal expressed its concern that, because the applicant is so young and most of his immediate family are either dead or missing, there were humanitarian considerations relevant to whether he might safely return to Afghanistan. The Tribunal urged the respondent to consider "the applicant's plight" in the context of those humanitarian concerns. It was contended that those findings of the Tribunal recognised the applicant as a member of a particular social group, namely young orphan males, that he has a subjective fear of persecution if he were to return to Afghanistan by reason of his membership of that social group, and that owing to such fear he is unwilling to avail himself of the protection of Afghanistan. Reliance is placed upon what Gaudron J said in Miah [64] - [65] as follows: "However, the concluding words of the Convention definition direct attention not to the question whether the country is able and willing to provide protection, but to whether the individual is unable or his or her fear is such that he or she is unwilling to avail himself or herself of its protection … Hence, the second important matter to be discerned from the Convention definition: because the definition postulates that an individual may be able to avail himself or herself of protection but, because of the nature of his or her fear, be unwilling to do so, the fact that the country concerned is able and willing to provide protection is not necessarily determinative of the question whether an applicant's fear is well-founded."

19 The respondent contended that, if the observations of Gaudron J in Miah to which the applicant's counsel referred mean that a genuinely held unwillingness by an applicant for a protection visa to avail the applicant of available protection of the country of nationality by reason of a fear of persecution, even if that fear has no objective foundation, may give rise to a well-founded fear of persecution within the meaning of Article 1A(2) of the Convention, those observations are not consistent with the decision of the High Court in Chan, or the decisions in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, or Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14. Reference was made in particular to the observations of Gummow J in Eshetu at 658 where his Honour said: "It is established by what was said by Mason CJ, Dawson J, Toohey J and McHugh J in Chan that the Convention definition of 'refugee' involves mixed subjective and objective elements. In particular, there must be a state of mind, a fear of being persecuted, and a basis for that fear which is well founded. Without a real chance of persecution there cannot be a well-founded fear of persecution and the objective facts are not confined to those which induced the applicant's fear. The view of Gaudron J in Chan that, if the experiences of the applicant produced a well-founded fear of being persecuted, 'then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality' does not represent the view of the Court in Chan."

That passage is submitted to reflect the view of the High Court. 20 I do not need to resolve that issue, assuming in favour of the applicant that the observations of Gaudron J in Miah go so far as the applicant contends. 21 That is because, in my view, the issue as to whether the applicant is a member of a particular social group as he identified; and that he has a well-founded fear of persecution if he were to return to Afghanistan by reason of his membership of that social group, was not a matter ventilated before the Tribunal. In Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681, the Full Court affirmed a decision of the Tribunal where the ground of review sought to be ventilated involved the making of a case which the visa applicant had not articulated before the Tribunal. The Full Court cited with approval the observations of Wilcox J in Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13] to the following effect: "… in common with other members of the Court, I have also said that it is no part of a Tribunal's function to make good a case claimed by the applicant. Still less would it be part of a Tribunal's function to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim."

I respectfully agree with those observations. It is difficult to see how the Tribunal could commit jurisdictional error by failing to address a claim which was not articulated before it in any form. 22 In this matter the applicant's statements in support of his application for a protection visa, and on review to the Tribunal, as well as his arrival interview on 16 May 2001 identified his fear if he were to return to Afghanistan as being a fear of the Taliban. In support of his application to the Tribunal, the applicant through his migration agent in a lengthy submission of 17 September 2001 concluded with the submission that the applicant faces a real chance of persecution if returned to Afghanistan based upon his political connections, his ethnicity and his religion. The applicant's letters to his migration agent of 13 October 2001 and 21 and 28 November 2001 were passed to the Tribunal. The general thrust of those letters is that the applicant fears returning to Afghanistan because of what might happen to him because of his Hazara ethnicity, whether from the Taliban if still in power or if its power is resurrected or from other groups who might be, or come into, power in Afghanistan. That was the claim which the Tribunal identified and addressed. The applicant's migration agent made a further detailed submission to the Tribunal on 30 November 2001, dealing with the consequences of the Taliban no longer being in control in the applicant's province of Oruzgan, and by 6 December 2001 enclosing some further published information about the state of affairs in Afghanistan. That letter conveniently identifies what, in my judgment, was the ongoing claim before the Tribunal: "I consider that these articles further underline the problematic, long term, political situation in Afghanistan. Hazara will not be safe from persecution if returned there. Our submission canvassed the issue of thousands of Taliban members being freed to join their tribes and their warlords who now hold control in many areas in Afghanistan."

23 Counsel for the applicant identified, in the applicant's letter of 21 November 2001 (and repeated almost verbatim in his letter of 28 November 2001) the following passage: "I am alone, without any guardience (sic) my father was killed and I have no idea of the whereabouts of my family and I have accepted them dead … When I had my father with an authority the Hezb-e-Wahdat Party used to respect us but now the party will not consider me because they only consider the power and I am a powerless orphan that is why they will consider me nothing … I request you that I am an orphan without a guardian. I need help. Please kindly give me good news …"

24 I do not think that passage in that letter articulates as a claim to the Tribunal of the nature now contended for. In its context, particularly having regard to the applicant's earlier documents, and those from his migration agent, and the course of the hearing before the Tribunal as it described in its reasons, that passage does not confront the Tribunal with a claim to refugee status on the basis now put. The Tribunal cannot there be found to have committed jurisdictional error by not addressing a claim which it was not called upon to address. In fact, as its recital of the course of the hearing reveals, the Tribunal was at pains to ensure that it fully understood the applicant's claims and addressed them. 25 There are other reasons why, in my judgment, that claim must fail. Firstly, in my judgment, it is doubtful whether the applicant by identifying himself as a young orphan Hazara male brings himself within the meaning of a "particular social group" in Article 1A(2) of the Convention. The persecutory conduct itself cannot define the particular social group for the purposes of the Convention: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, especially per McHugh J at 263 - 264. See also Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14. The social group "young orphan males" in Afghanistan is identifiable only because the applicant fears disadvantage within the Afghanistan community, but there was no material placed before the Tribunal upon which it could be shown that such persons are selectively the subject of disadvantage, compared to any other persons in the community. The applicant's vulnerability, as he expressed it, does not derive from any selective discrimination within Afghanistan of persons belonging to that group. 26 Secondly, it was contended that the relevant persecution was the inactivity or inability of the Afghanistan government to protect the applicant from significant hardship, to provide him with access to basic services, or to provide him with a capacity to earn a livelihood. It was not put to the Tribunal that those detriments, which the applicant might suffer, were as a result of any positive action on the part of the Afghanistan authorities, nor was it shown or asserted that the applicant would suffer those detriments by reason of conduct of a non-state agency which was tolerated or condoned, or the consequence of some systematic discriminatory implementation of the law, by the authorities in Afghanistan. As I understood the contention, it was not put that the feared detriments as expressed by the applicant were a consequence of any active conduct on the part of any person, whether a non-state entity or the state, but were purely the consequence of the feared failure or inability on the part of the Afghani government to protect the applicant from those consequences. However, it was not suggested to the Tribunal, nor is there any material before the Tribunal upon which it could be shown, that even accepting the Afghani government did not have the ability to protect the applicant from those detriments, the state had the motivation of selectively precluding him from such benefits by reason of his membership of a particular social group and that other members of the community received those benefits: cp per Gleeson CJ in Khawar at [31]. There is no asserted motivation on the part of the Afghani authorities, or any other entity, to discriminate against the applicant by precluding him from social and like benefits because of his status as a young orphan male. 27 Indeed, there is no basis upon which the applicant presented to the Tribunal, or could have presented to the Tribunal, a claim that as a member of a particular social group he faces a particular form of persecution by reason of any discriminatory conduct on the part of any person (cp McHugh and Gummow JJ in Khawar at [83]). The applicant's claim about the detriment he might suffer by reason of his position in Afghani society, on his own claims, would be due to an alleged systemic failure of the provision of support services to the community generally, rather than by reason of his membership of a particular social group. 28 Accordingly, I am not satisfied that the second alleged jurisdictional error on the part of the Tribunal is made out. In my judgment therefore the application must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.