Does the information "set out above" support the findings on claims of threatened persecution by other groups?
22 The earlier section of the reasons to which this conclusion of the Tribunal presumably refers is the reference to the history of marginalisation of the Hazaras under the heading Current Situation of Hazaras, but would also include reference to the background historical introduction which refers to a paper by Barnett R Rubin, August 1998, entitled Afghanistan: Persistent crisis challenges the UN system. That paper in my opinion provides support for the impugned conclusion. It describes changing scenes of civil war and political disintegration in which the various factions in Afghanistan have changed allegiance and from time to time exercised varying degrees of power and influence. The article observes that in the 20 years preceding the article, for most of the period, Tajiks, Uzbeks and Hazaras each had political-military organisations in which they predominated and exercised considerable power in the regions where those ethnic groups predominated. The author says "few areas were homogeneous, however, and despite some localised conflicts, there was no massive ethnic cleansing". The author says that during the Civil War that tore the capital apart from 1992 to 1996 "virtually every group was at one time both the ally and the opponent of every other group, regardless of ethnicity" and that "it is worth bearing in mind, however, that the identity and alignment of actors has continually changed under the impact of regional re-alignments and shifts in control over resources". The article does not paint a picture of those with Hazara ethnicity and Shi'a religion being always in the position of a discriminated minority group. At the time that the report was written, it records that groups, primarily comprised of Tajiks, were part of the Northern Alliance which also included the Hezb-e-Wadhat militia. The article does not suggest that the Tajik groups were persecuting Hazaras or Shi'as because of their ethnicity or religion.
23 I turn to the country reports cited as the source of the information about the history of marginalisation of the Hazaras. The first of those reports, the United States Department of State, Bureau of Democracy, Human Rights and Labor Country Reports on Human Rights Practices, 2000: Afghanistan, February 2001 gives a detailed picture of conditions in Afghanistan at the time and contains many examples of human rights abuses by the Taliban of minority groups, and those who did not share their ideals. The report notes that historically the minority Shi'a faced discrimination from the majority Sunni population but does not single out the Tajik or any other particular group, nor does it suggest that historical discriminations are continuing. Rather, the report suggests that the historical picture has been overtaken by the emergence of the Taliban and its rise to power. The report confirms that the Taliban was guilty of gross abuse not only of Hazaras and Shi'a Muslims but other opponent groups as well.
24 The Immigration and Refugee Board of Canada dated 18 January 1995 provides further information in support of the conclusion expressed by the Tribunal. The report says that the reasons for violent clashes between Shi'ite factions in Kabul in 1994, some of which included troops loyal to Tajik President Burhanuddin Rabbani, remain unknown "although there is some speculation that 'the conflict was triggered by friction among local commanders or due to the policy pursued by the party leadership' (TASS 16 September 1994)". The report contains no suggestion that Tajik persecuted Hazaras or Shi'as because of their ethnicity or religion.
25 The final observation of the Tribunal in the passage relating to the history of marginalisation of Hazaras concludes that past clashes between various militias and political parties are best viewed in the context of the shifting alliances which have characterised recent Afghan political history, not as indicative of any program of persecution of Hazaras by the Northern Alliance or groups allied to the Northern Alliance. The report by Peter Marsden, Afghanistan: Minorities, Conflicts and the Search for Peace, Minority Rights Group, London, p 18, November 2001 to which the Tribunal refers discusses ethnic groups which were influential in the period 1992 to 1996, and refers to a struggle between different groups which affected Kabul in that period. Two of those groups were the Tajik Party, Jamiat-i-Islami led by Ahmed Shah Masoud and the Hezb-e-Wadhat. The report refers to heavy fighting between these two groups, allied with others, which resulted in the death of a large number of civilians, an incident which became known as the Afshar massacre. In the course of the fighting the Hezb-e-Wadhat also suffered atrocities against it. The report supports the conclusion that the harm suffered by the Hazaras and Shi'as in that incident was not by reason of their ethnicity or religion but as a consequence of shifting political alliances.
26 I have reached the conclusion that the information "set out above" therefore provides support for the conclusions of the Tribunal under the heading Other Claims - Findings.
27 The first ground of challenge to the Tribunal's decision therefore fails.
28 The second challenge concerns the allegation of actual bias. Central to the submissions in support of this contention is the statement in the third paragraph of the Tribunal's summary of available information under the heading Current Situation for Hazaras that the Tribunal has been unable to locate any reports which support the applicant's contention that he would be at harm of persecution, whether by Taliban, Tajik or other group, by reason of his Hazara ethnicity or Shi'a religion. It is submitted that this statement is wholly unjustified in light of country information supplied to the Tribunal by RACS in support of its pre-hearing submission referred to earlier in these reasons.
29 Counsel submits that reports cited by RACS support the applicant's contention that there was a well-founded basis for his fear of persecution notwithstanding the apparent overthrow of the Taliban. As the Tribunal has said that it was "unable to locate" any reports to that effect, it is contended that the Tribunal had pre-judged the issue, failed to properly approach its task, failed to make its decision in good faith, and failed to make findings based on evidence.
30 The allegation of actual bias therefore rests on inference to be drawn from the reasons for decision and an apparent error therein. An applicant alleging actual bias arising from pre-judgment carries a heavy onus of clearly establishing the basis for that allegation. The applicant must establish that the Tribunal approached its task with a pre-determined view on the issue in question, and was not open to persuasion to another point of view. I discussed the difficulties which confront an applicant making such an allegation which is based on inferences to be drawn from the reasons for decision in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (judgment delivered 30 May 2002). I shall not repeat what I there said. In my opinion it will be a rare and exceptional case where the demonstration of factual error or wrong headedness in published reasons for decision will, without more, give rise to an inference of actual bias on the part of the decision maker.
31 In this case it is necessary to understand exactly what is being conveyed by the statement of the Tribunal which is attacked. The statement must be understood in context. The Tribunal's decision was made on 7 February 2002, and that is the critical date at which the Tribunal was required to assess whether there was a real chance of persecution as claimed by the applicant. It is well established that events in the past may "often provide … a reliable basis for determining the probability - high or low - of their recurrence": Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. But in assessing the significance of past events arising in the history of Afghanistan the Tribunal was faced with fundamental changes that had already occurred in Afghanistan following 11 September 2001, and which were forecast to occur as the result of the establishment of the Interim Authority and the involvement of the international community through the United Nations. The passage from the Tribunal's reasons which is attacked must be understood as referring to an inability to find information suggesting a likelihood at 7 February 2002 of persecution of the applicant by groups sympathetic to the Taliban, or by other ethnic, religious or political groups. It will be noted that in the paragraph preceding that under attack the Tribunal has cited information from BBC Monitoring International Reports, 28 December 2001 that Karim Khalili, the leader of the Hezb-e-Wahdat, had addressed a large rally of the Shi'a ethnic Hazara minority in Kabul supporting the Interim Authority. A fair reading of the reasons for decision indicate that the Tribunal considered this event as being of considerable importance. On that basis other country reports about the historical marginalisation of the Hazara, and about events and perceptions at points in time several weeks earlier, had to be modified and reassessed.
32 Some of the reports referred to by RACS speculate on the possibility of further action by remaining Taliban forces, and on the possibility that many Taliban have surrendered to join opposition forces including some of the Pashtun warlords who supported the Taliban. However, on the other information already reviewed, it was open to the Tribunal to discount that speculation, and to make findings upon the reports that the Taliban had been effectively ousted and that the establishment of the Interim Authority would provide protection sufficient to remove a real chance of ethnic or religious persecution.
33 One of the reports referred to by RACS was a BBC report of 15 November 2001 which stated that Hazara people had suffered racial discrimination in the past, and included the following statement:
"It is not just the Taliban who have shed Hazara blood. A leading component of the Northern Alliance, forces built up by the late Ahmed Shah Masoud, a Tajik, fought Hezb-e-Wadhat at various times in the mid 1990's."