SCAW v Minister for Immigration & Multicultural & Indigenous Affairs

5 I propose to deal first with the merits of the grounds on which judicial review is sought. Only if one or more of those grounds is made out will it become necessary to consider the scope and operation of s 474(1) of the Act. 6 The applicant arrived in Australia on 4 June 2001, claiming to be a citizen from Afghanistan. He lodged an application for a protection visa on the ground that he is a person to whom Australia owes protection obligations under the Refugees Convention. 7 After considering the claims of the applicant, information that he had supplied in support of them, a language analysis, and country information, the Tribunal accepted the claims made by the applicant about his personal background. It accepted that the applicant is from Afghanistan and was born on an unknown date in 1984 (so that he was aged 16 or 17 when he arrived in Australia); that he had lived all his life in a village in the Waras District, Bamian Province; that he is of Hazara ethnicity and is a Shi'a Muslim; that he is the sole member of his family who came to Australia; that he left behind his father and mother and two siblings aged slightly younger than himself; and that he is illiterate. 8 In his various contacts with the respondent's officers and delegate, and with the Tribunal, the applicant consistently claimed fear of persecution by the Taliban on the basis of his ethnicity and religion, Hazara and Shi'a. He claimed that the Taliban came to his area about a year and a half before he left Afghanistan. He claimed that the Taliban took his father three times. The first time his father came back within a few hours reporting that the Taliban had told him to leave his land as land was for the Afghans and not for Hazaras. He claimed that on the second occasion the Taliban kept his father for a day and beat him to force him to leave his land. On the third occasion they again beat his father seriously injuring his back so that he could no longer work on his farm. The Taliban also took some boys from his village. His father was worried that the Taliban would take the applicant away, and that the applicant would be killed. He says that his father sold his land and the proceeds were used to fund the applicant's departure. 9 It is implicit in the Tribunal's findings that it accepted that the applicant had a subjective fear of persecution by the Taliban because of his ethnicity and religion if he were to return to Afghanistan. However by reason of events which had occurred in Afghanistan between the time when the applicant left, and the date of the Tribunal's decision, 7 February 2002, the Tribunal held that there was no longer any objective basis for these fears. 10 Prior to the conclusion of the hearing by the Tribunal at which the applicant gave oral evidence, the applicant was asked to comment upon recent changes in Afghanistan. This request was responded to on his behalf by the Refugee Advice and Casework Service (Australia) Inc (RACS) which provided summaries of country information and references in support of the submission which it made on the applicant's behalf that: "There remains a real chance that he will be targeted by the remaining Taliban forces and/or those sympathetic to the Taliban for being opposed to the Taliban and fleeing to a western country. Moreover, there is the added risk that he will be harmed as he is Hazara and there has been a historical and significant oppression of this ethnic group by others in Afghanistan. Given the current instability and factional fighting in Afghanistan it is not safe for [the applicant] to return to Afghanistan. His status as a member of a minority ethnic group puts him at risk in Afghanistan from those who are struggling for power, control and revenge."

11 In its reasons for decision the Tribunal set out a brief historical background of the current situation in Afghanistan which covered events up until 11 September 2001. That summary was taken from the reasons for decision of another Tribunal member in another matter, but the sources from which the summary was drawn were identified and were considered by the Tribunal in this instance. The Tribunal then summarised country information relating to the current situation in Bamian Province from which the applicant came, and the current situation for Hazaras having regard to discrimination suffered by them in the past. The Tribunal summarised that information and identified the source material. In order to discuss the arguments presented to this Court it is necessary to set out those summaries in full. 12 The determination of the applicant's claim for recognition of status as a refugee must be determined on information existing at the date of the determination, vis 7 February 2002: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 and re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at [66]. It was therefore correct for the Tribunal to take into account country information available up to that date. 13 The Tribunal specifically addressed the present situation in the Bamian Province. On that topic it made the following findings: "Current Situation in Bamian Province The information available to the Tribunal states that the province of Bamian is no longer held by the Taliban (indeed, the Taliban no longer controls any territory in Afghanistan). The Bamian Province is under the control of the Hezb-e-Wadhat militia, which is part of the Northern Alliance. The leader of the militia in Bamian Province is Karim Khalili who belongs to the Hazara ethnic group. Beaumont, Peter, Ahmed, Kamal, Vulliamy, Ed, Burke, Jason, Stephen, Chris, Judah, Tim & Harris, Paul 2001 'Battle for Afghanistan - The Rout of the Taliban - Six weeks of bombing. A week of battles across Afghanistan …' Observer, 18 November (2001) p 2 state that: A day later Hazara militia, who had been holed up in the high mountains of central Afghanistan for several years, emerged from their hideouts to descend on the panicking Taliban forces. The central province of Bamian surrendered to them, as did the vital town of Pol‑e‑Khomri, which straddles the road from Mazar to Kabul. According to the United Nations High Commissioner for Refugees (UNHCR), up to 5,000 Afghan refugees are returning to Afghanistan daily from Iran and Pakistan. The UNHCR reported on 26 December 2001 that: These are the highest regular returns since conditions changed dramatically in Afghanistan and surrounding countries in the wake of the September 11 attacks in the United States and subsequent military campaign against Afghanistan's Taliban leadership and the Al Qaida network. In the last two months an estimated 60,000 persons have gone home, though there is also a continuing exodus of several hundred civilians into Pakistan daily. (United Nations High Commissioner for Refugees (UNHCR) 2001, 'The Number of Afghan refugees returning home rises steadily', 26 December, UNHCR News Stories http://www.unhcr.ch/cgi-bin/texis/vtx/print?tbl=NEWS&id=3c29b7222 (7 January 2002). According to news reports, Hazaras are among these refugees, some of which are returning to Bamian Province."

14 The Tribunal also summarised country information regarding the situation for Hazaras. The Tribunal said: "Current Situation for Hazaras Since the successful conclusion of the United Nations negotiations in Berne, a broad-based Interim Authority has been set up, to govern for six months until a traditional Loya Jirga (council of elders) can be held and, ultimately, a new Constitution adopted. That authority is headed by a Pashtun moderate, Hamid Karzai, and the interim Cabinet features a number of Hazara and other Shi'a members ('New Afghanistan Cabinet Members', FWN Financial via COMTEX in Reuters Business Briefing, 5 December 2001; BBC News, Guide to Afghan deal, 5/12/2001, www.news.bbc.co.uk/hi/english/world/south_asia/newsid_1693000/1693304stm; 'Afghan powerbrokers: Who's who'. BBC News, 19 November 2001, www.news.bbc.co.uk/hi/english/world/south_asia/newsid_1615000/165824.stm). Thousands of people from the Hazara (Shi'a) ethnic minority have staged a rally in Kabul to support the interim government of Afghanistan and its leader Hamed Karza. [The different spelling of his name reflecting the relevant country information report.] The Hazara ethnic minority leader Karim Khalili (who is the leader of Bamian Province) addressed those present at the rally. According to witnesses, Planning Minister (listed as Deputy Chairman for Planning), Haji Mohammad Mohaqeq and Commerce Minister Sayd Mostafa Kazemi (Hazara representatives) of the Afghan interim government were present at the rally. (Voice of the Islamic Republic of Iran, Mashhad, in Dari 0330 gmt 28 Dec 01, BBC Monitoring International Reports, BBC Monitoring Central Asia 28/12/2001). Despite the comprehensive reporting on the situation in Afghanistan, from a number of different perspectives and by non-government organisations in addition to the world's press, 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 the Taliban, the Tajik or any other group, by reason of his Hazara ethnicity, or Shi'a religion. There have been some reports of the indiscriminate killing by Northern Alliance forces of captured Taliban fighters, but these incidents are irrelevant to the applicant's claims. There is a history of marginalisation of Hazaras in Afghanistan's history, particularly in the late 19th century and early 20th centuries, and since that time there has been friction and episodes of conflict between Hazaras and other ethnic groups. However, that information does not support the submission of the applicant of a pattern of persecution of the Hazara by other ethnic groups except the Taliban which when it was in power systematically discriminated against Hazaras and other Shi'a Muslims (in relation to which, see United States Department of State, Bureau of Democracy, Human Rights and Labor Country Reports on Human Rights Practices, 2000: Afghanistan, February 2001). A more accurate analysis is that all the armed groups, and most of the political parties, in Afghanistan have fought each other at some point, including the involvement of Hazara militias, and occasionally there have been violent clashes between different Hazara militias or parties (such as, for example, between Wahdat and the Harakat-e-Islami in Kabul in May and September 1994: Immigration and Refugee Board of Canada, AFG19334.E - Afghanistan: Updates to Response to Information Request AFG12597 of 18 December 1992 regarding the current circumstances of the Hazaras and the Wahdat movement, 18 January 1995). These clashes between the 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 (see Marsden, P. Afghanistan: Minorities, Conflict and the Search for Peace, Minority Rights Group, London, p 18, November 2001)."

15 Written submissions filed before the hearing in this Court on behalf of the applicant by the Refugee Advocacy Service of South Australia include contentions that the Tribunal failed to consider how the changed situation would personally affect the applicant in the area in which he lived in the Bamian Province and, by this failure, the Tribunal failed to exercise its function at all. That broad submission cannot be accepted. Before making its decision the Tribunal sought comment from the applicant as to how the changed circumstances would affect him, and the Tribunal received the submissions from RACS which was specifically directed to the applicant's situation. In the passages from the reasons for decision which are set out below, it is clear that the Tribunal was alive to the need to consider the position of the applicant personally, and did so. This submission was only faintly pressed in oral argument. Rather, Ms Brown who appeared as counsel for the applicant, contended that findings made by the Tribunal were not justified by the country information on which they were said to be based. 16 To understand this argument it is sufficient to extract from the Tribunal's conclusions the following two critical summaries: "Claims against the Taliban - Findings … I accept the independent information set out above that the Taliban is no longer a force in Afghanistan. It is clear from the independent information that the Taliban forces have been defeated, the Taliban regime has been disbursed and its leadership eliminated from positions of power or influence in Afghanistan generally and in the Interim Authority specifically. The Taliban is no longer in a position to harm the applicant as it was before the applicant's departure from Afghanistan when it controlled Afghanistan. … Other Claims - Findings The Tribunal does 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 ethnic grouping, such as the Tajik. The independent information which I have set out above indicates that this group, unlike the Taliban, did not persecute Hazaras or Shi'as because of their ethnicity or religion, and that the harm suffered by Hazaras and Shi'as at the hands of this group was not by reason of their ethnicity or religion but as a consequence of the constantly shifting political alliances which have characterised recent Afghan history … " [Emphasis added].

17 In support of the first ground on which the Tribunal's decision is challenged, counsel contended that each of the two critical findings that were unsupportable resided in these summaries. Counsel relied on the words which have been emphasised. In a careful and detailed argument counsel sought to demonstrate that each finding was not justified by information "set out above", i.e. in country information reports identified by the Tribunal. 18 It is convenient to deal with this ground of challenge before turning to the allegation of actual bias.

Does information "set out above" support a finding that the Taliban is no longer a force in Afghanistan? 19 The information "set out above" includes that which is summarised under Current Situation in Bamian Province, and the first two paragraphs of the information under Current Situation for Hazaras. 20 In my opinion, the information there identified supported the finding which the Tribunal made as to the fate of the Taliban. The first paragraph of the summary under Current Situation in Bamian Province is not attributed to any particular country information reports. However the article by Peter Beaumont and others, Observer, 18 November 2001 describes the surrender of the central province of Bamian to the Hazara militia shortly after the fall of Mazar on 9 November 2001. It commences with the observation: "Battle for Afghanistan - THE ROUT OF THE TALIBAN - Six weeks of bombing. A week of battles across Afghanistan. Now the Taliban appear crushed, brutally swept from their prized strongholds …"

The article goes on to describe in detail the fall of the Taliban up to the date of the article. Another article published in the Washington Times, dated 31 December 2001, from which the Tribunal extracted the information that Hazara refugees have been tentatively returning to the area (although that source of information was not expressly identified in the summary) reports that: "With the final fall of the Taliban this month, families that fled to the high mountains or refugee camps were tentatively returning to the region, their possessions bundled on donkeys. But many villagers are still traumatised and, most of all, their children are afraid."

21 The BBC Monitoring International Reports, 28 December 2001 referred to by the Tribunal under the heading Current Situation of Hazaras confirms that Karim Khalili (the leader of the Hezb-e-Wahdat militia in the Bamian Province whose troops led the capture of the central town of Bamian) is reported as saying to the thousands of people from the Hazara (Shi'a) ethnic minority whom he addressed in Kabul (presumably close to that date) that "the war has ended in Afghanistan", and expressed happiness over the Taliban's downfall and the freedom of the Hazaras to participate in the fate of their country. These sources, and the plain inference arising from information in the BBC news report of 5 December 2001 about the Interim Authority, to which reference is also made, support the Tribunal's conclusion.

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."

The Tribunal was entitled to treat this information as a reference to the events between 1992 and 1996 as reported on by Peter Marsden: see above at par 25. Those were the events which the Tribunal had analysed and concluded were not the result of any program of persecution of Hazaras by groups allied to the Northern Alliance, but a consequence of shifting alliances in the struggle for the control of Kabul after the collapse of the Soviet backed government. 34 After citing country reports, the RACS submission said: "It is further submitted that although the situation has recently changed in Afghanistan, one should not disregard the historical perspective of at least one hundred years of oppressive treatment of the Hazara minority by the other groups in the country. In the past the only surety was that the Hazaras would be on the receiving end of this treatment and the oppressor was a matter of whom was ascendant at that particular point in time. Given that the country is ruled by an interim government with a six-month mandate, and despite all the good will spoken, it is respectively submitted that it is highly unlikely that the Hazaras will find their circumstances greatly improved, rather it will be a continuation of the historical situation."

The Tribunal on the information before it was entitled to conclude that recent events justified putting the historical perspective to one side, and relying instead upon the expressed opinion of the leader of the Hazara ethnic minority as expressed at the rally at the end of December 2001. On that approach, as at the date of the determination, the Tribunal was entitled to hold that the reports cited by RACS did not support claims that there was a real chance that the applicant would be persecuted by reason of his ethnicity or religion by any group if he were to return to Afghanistan. 35 I am not persuaded that the Tribunal misstated the position when it said that it was unable to locate any reports which supported the applicant's claims. I think the view expressed by the Tribunal was an open one as at the date of the determination. However even if that conclusion was not a fair one to be drawn because it under-estimated the risks that historical enmity for the Shi'a ethnic Hazara minority would again surface, such an error is not one that would fairly or reasonably give rise to an inference of actual bias on the part of the Tribunal. 36 In my opinion the second ground on which the Tribunal's decision is attacked is not made out. 37 For these reasons I consider the application must be dismissed. The occasion to consider the operation and scope of s 474 of the Act does not arise. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate: Dated: 4 July 2002 Counsel for the Applicant: Ms G Brown Solicitors for the Applicant: Refugee Advocacy Service of South Australia, Inc Counsel for the Respondent: Ms S Maharaj Solicitors for the Respondent: Sparke and Helmore Date of Hearing: 21 May 2002 Date of Judgment: 4 July 2002