WAEP v Minister for Immigration & Multicultural & Indigenous Affairs

The Tribunal's findings and reasons 9 On the basis of its acceptance of the appellant's claims, the Tribunal found that the Taliban would have imputed to the appellant a political belief of opposition to the Taliban's rule (arising from his association with his brother-in-law). The Tribunal accepted that adverse attention by the Taliban for such a reason at the time of his departure gave rise to a real chance of persecution by the Taliban authorities in Afghanistan at that time. 10 The Tribunal also accepted that under Taliban rule Hazaras in general faced at least some degree of risk of arbitrary adverse attention by the Taliban by reason of their ethnicity and religion (as Hazaras and Shias). Implicitly this acceptance, in my view, amounted to an acceptance that at the time of his departure from Afghanistan, in April 2001, the appellant faced a real chance of persecution also by reason of ethnicity and religion. 11 But the Tribunal then turned to the question whether the appellant on return to Afghanistan in the circumstances current at the end of January 2002 had a well-founded fear of persecution with a real chance of persecution for a Convention reason then or in the reasonably foreseeable future, bearing in mind the extent and nature of the recent changes in Afghanistan. 12 The Tribunal reviewed independent country information concerning the removal of the Taliban from power. The Tribunal said that it was satisfied that the Taliban had been effectively eliminated as a political and military force in Afghanistan (notwithstanding ongoing mopping up operations) and no longer governed or administered Afghanistan. It referred to the fact that Hazaras held five portfolios in the new Afghan government which had been welcomed by the leader of the powerful Hazara Shia Hezb-i-Wadhat party and militia. 13 The Tribunal reasoned that historical marginalisation of Hazaras in Afghanistan, particularly in the late 19th and early 20th century, and subsequent friction and even conflict with other ethnic groups, did not of itself mean that an individual Hazara now faces a real chance of persecution for a Convention reason. The Tribunal said that this was particularly so in the absence of claims of any particular difficulties encountered by the appellant's family or village other than at the hands of the Taliban. 14 The Tribunal said that there was nothing in the current materials which persuaded it that Pashtuns and Taliban were interchangeable terms or that Pashtuns generally were engaged in ongoing persecution of Hazaras. It noted that despite the current media spotlight on Afghanistan there had been no report or suggestion of any persecution of Hazaras since the fall of the Taliban. The Tribunal had been unable to locate any reports of mistreatments of Hazaras, Shias or Hezb-i-Wadhad supporters (as Hazaras, Shias or Wadhat supporters) by the Northern Alliance or any other group. 15 The Tribunal drew in its conclusions in the following terms: 'The Tribunal is not satisfied that the Applicant would face a real chance of persecution from the Taliban or others on return to Afghanistan. Nor has the Applicant made any specific claims that he or his family have experienced persecution by other than the Taliban. The defeat and elimination of the Taliban constitutes, for persons in the situation of the Applicant who claim to have been targeted by the Taliban, such a fundamental change in circumstances that the Tribunal is satisfied that the Applicant does not have a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan. The Tribunal does not accept that there is a real chance that the Applicant would be persecuted now by the Taliban, whether by reason of his ethnicity or religion or in relation to his brother-in-law's alleged past dealings with an anti-Taliban commander or for selling a shop without Taliban consent. The Tribunal is satisfied that there is no real chance that in the foreseeable future the Taliban will persecute Hazaras by seeking to conscript their young men for front-line duty. The Tribunal does not accept that there is a real chance that the Taliban will return to power in Afghanistan in the reasonably foreseeable future.'

the decision at first instance 16 The appellant filed two applications for an order of review in respect of the Tribunal's decision. Both were filed on or about 7 February 2002 and both were transferred to the Federal Magistrates Court on 3 May 2002. It does not appear from the papers whether those applications were consolidated, heard together, or heard one after the other. There was apparently only the one set of orders comprising the decision of 24 April 2003 referred to above. 17 The appellant was not represented in the proceedings before the Federal Magistrates Court. His grounds of review in the first application, in summary, were as follows: '…RRT didn't pay deep consideration to my case. I can't return to my country because I am Hazara ethnicity group and Shia Muslim… there is an error in RRT decision. Actually my life is in danger in Afghanistan unfortunately RRT didn't consider my problem in my country…' 18 In the second application the appellant stated: 'I am Hazara ethnicity group and Shia Muslim unfortunately RRT didn't consider my problem in my country because still have Pashtoon government and I can't trust to this government and still have Taliban fighter group, particularly province of Orozgan still have Taliban governors and still have lot of weapons there in the and of any groups.' 19 His Honour correctly observed, under the principles explained in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, he had jurisdiction, notwithstanding the privative clause provisions of the Migration Act 1958 (Cth) ("the Act") to review the Tribunal's decision for jurisdictional error. 20 His Honour said in his reasons that he had read the Tribunal's decision "carefully - and somewhat anxiously, having regard to the period of time and developments in the law …" since the matter came before him, but said that he was unable to identify any basis upon which the Tribunal's decision could be interfered with. He said that it was apparent from an examination of the Tribunal's decision that it gave careful consideration to the appellant's assertions and concerns. 21 His Honour then applied Hickman principles [R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598] noting that the Tribunal had acted in good faith, its decision was reasonably capable of reference to the power given to it, its decision related to the subject matter of the legislation and there could be no suggestion that any relevant constitutional limits were exceeded. In his opinion, there could be no suggestion of bias (whether actual or apprehended). Further there was no apparent breach of procedural fairness which could amount to jurisdictional error. The appellant had given evidence before the Tribunal and was represented. It was not suggested that the appellant did not understand the proceedings in which he was involved. The Tribunal clearly understood the appellant's case.

the appeal and my reasoning 22 The appellant was represented in the appeal by Mr M B Plunkett of counsel. 23 The amended notice of appeal was convoluted and difficult to understand. There were 13 numbered paragraphs of what were said to be the grounds of appeal. Eight of those paragraphs adopted the style of alleging that the Federal Magistrate had erred in law in failing to find various matters. Twelve pages of closely-typed written submissions were filed on behalf of the appellant. No attempt was made in those written submissions to identify the respective grounds to which they related. With a considerable degree of effort, it is possible to distil the appellant's case to the following complaints: A. The Tribunal fell into jurisdictional error by failing to identify correctly the proper legal test for persecution. It failed to consider that the risk of persecution may come from the Taliban in circumstances where the failure of the State to intervene to protect the appellant is due to a State policy of tolerance or condonation of the persecution, or the State is unable to provide the protection of the law and its agencies to the appellant - Grounds numbered 2, 3, 4 and 6. B. The Tribunal failed to consider relevant evidence that was before it, or to take into account relevant factors (the terms "evidence" and "relevant factors" were used interchangeably) and took into account irrelevant factors when it decided that the Taliban no longer pose a threat. Those factors not taken into account were said to be: (i) the ongoing mopping-up operations; (ii) the presence of Taliban in the north of Helmund, being a no-go area with the Taliban mounting road blocks, next to the province in which the appellant lived; (iii) that the situation in Afghanistan was in a state of flux; (iv) the note of caution of the US Vice-President that it was far too early to declare anything like victory; and (v) the volatile situation with lawlessness prevailing - Grounds numbered 5, 7 and 10. C. The Tribunal had no evidence before it of: (i) the "existence of the establishment" of a functioning government; or (ii) any control being exercised by a government anywhere in Afghanistan, let alone in the area where the appellant lived, or any other place where the appellant could live in Afghanistan - Grounds numbered 8 and 9. D. Unreasonableness in the administrative law sense - Grounds numbered 5 and 12. E. Breach of the rules of natural justice - Ground numbered 13. 24 I have not mentioned Ground numbered 11 above because, in my view, it is incomprehensible. It reads: '11. His Honour erred in law in that he failed to find that the conclusion of the Refugee Review Tribunal, that there is no evidence before it, to support the applicant's claim that elements of the Taliban no longer remained viable in Afghanistan, was not open to be found.' 25 I turn to deal with each of the above matters (other than Ground numbered 11).

A. failure to identify the proper legal test for persecution 26 In oral submissions, counsel for the appellant said that the gravamen of this complaint was that the Tribunal failed to consider that the risk of persecution may come from the Taliban in circumstances where the failure of the State to intervene to protect the appellant was due to its inability to provide the protection of the law and its agencies to him. 27 In my view, the Tribunal's reasons show that it was well aware that there may be occasions when it is necessary to consider whether a government has failed or is unable to protect a refugee claimant from persecution. 28 At p 3 of its reasons the Tribunal, in the course of summarising the authorities and relevant statutory provisions on the question of what constituted persecution or serious harm, said this: 'However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.' 29 I accept the respondent's submission that the first issue is whether, at the time when the Tribunal made its decision, the appellant faced a real chance of persecution for a Convention reason. If the appellant did not do so, then the issue of State protection does not arise. 30 The next question is whether the Tribunal fell into jurisdictional error in concluding that it was not satisfied that the appellant would face a real chance of persecution from the Taliban or others on return to Afghanistan. That leads to consideration of the next set of grounds.

B. failure to take into account relevant factors 31 The appellant's claim was that despite the defeat of the Taliban as a military force, he was still at risk of persecution by elements of the Taliban by reason of his Hazara race and by reason of implied political anti-Taliban opinion. 32 The appellant contended that there was sufficient material before the Tribunal to require it to consider whether the Afghanistan government was able and willing to provide him with reasonable protection from that threat of persecution. That evidence included the five matters which I have set out above, and in particular: · the threat from Mullah Omar and his Taliban fighters in the northern sector of Helmund Province; · the submissions of the appellant's migration agents concerning the possibility that the interim government might not be able to control persecution of Hazaras at a community level. 33 In my opinion the Tribunal did not fall into the error asserted by the appellant. At p 7 of its reasons the Tribunal referred to written submissions, dated 8 January 2002, from the appellant's adviser. Those submissions were made pursuant to a letter from the Tribunal drawing attention to the extent of changed circumstances in Afghanistan and the possibility that the appellant's fear of persecution by the Taliban might no longer be well-founded, and inviting the appellant's adviser to address that issue in his foreshadowed written submission. 34 The Tribunal obviously considered that submission, because, at p 8 of its reasons it said this: 'The submission addressed the current situation in Afghanistan and submitted that there is a significant amount of uncertainty as to the political, socio-economic and military stability of Afghanistan. A news report was cited from mid-December 2001 to the effect that numbers of Taliban fighters have not yet surrendered. It was suggested that Afghanistan is still in such a state of flux that assessment of new developments is highly problematic. Also (it was suggested), many Pashtun Taliban defectors may continue to target their former ethnic and religious opposition. Prevailing lawlessness creates a dangerous situation for returning Afghans, particularly those of Hazara ethnicity. The interim or future elected Government may not have the will or ability to protect Hazaras.' 35 From p 9 of its reasons, it can be seen that the Tribunal again put to the appellant the recent changes in Afghanistan. It said this: 'The Applicant having confirmed that his fear is of persecution by the Taliban, the Tribunal put to him that a lot had happened in Afghanistan since his departure, including the defeat of the Taliban and the installation of an interim government in which a number of portfolios are held by Hazaras. The Applicant replied that he accepted this and welcomed the changes, but that the situation would not be safe until all the ethnic groups had surrendered all their firearms to the authorities. He believed there were still armed Taliban in his area. The Tribunal put to the Applicant that the Taliban is no longer running the government or administration in Afghanistan. The Applicant stated that the same persons who were involved in the Taliban government remained in the new government. The Tribunal put to the Applicant that notwithstanding media attention on Afghanistan there had been no report or suggestion of any persecution of Hazaras since the fall of the Taliban. The Applicant noted that there were continuing reports of arrests of Taliban members, so they had not been eliminated. There had been 1000 Taliban fighters in his province, how could it be certain they had all gone. The Tribunal commented that continuing arrests of the Taliban demonstrated that they were no longer in control; remnants were being mopped up. The issue is not whether all Taliban had been killed but whether the Applicant faced a continuing chance of persecution by them. The Applicant stated that Hazaras had always been oppressed by all governments and did not enjoy any rights.' [Emphasis added] 36 The following extracts from the Tribunal's conclusions demonstrate, in my view, not only that the Tribunal understood the question which it had to decide, but also had material upon which it was entitled to conclude that the appellant would not face a real chance of persecution from the Taliban or others on return to Afghanistan. The passages are as follows: 'However, the question remains whether the Applicant on return to Afghanistan in present circumstances has a well-founded fear of persecution, with a real chance of persecution for a Convention reason now or in the reasonably foreseeable future. The extent and nature of the recent changes in Afghanistan is a matter of public record. On 5 December 2001 there was an agreement between broadly representative Afghan parties that a broad-based Interim Authority would govern Afghanistan from 22 December 2001 and the UN Security Council was requested to deploy a UN-mandated security force to maintain security in Kabul and its surrounding areas and, potentially, in other areas of Afghanistan ('Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions', Annex 1, para. 3). Of particular significance is the unprecedented level of international commitment to rebuilding Afghanistan, and to the establishment of a representative and effective government there. On 7 December 2001 it was reported that the Taliban had lost control of its last stronghold in Afghanistan ('Taliban's Reign In Afghanistan Ends After Surrender of Kandahar', Xinhua News Agency, 7 December 2001): The Afghan Taliban regime, which had been controlling 95 percent of Afghanistan for more than five years, lost its rule in the country after the surrender of its last stronghold of Kandahar on Friday. According to the Afghan Islamic Press (AIP), the Taliban completely transferred power to a tribal council, which comprised a number of tribal elders, Islamic scholars and former anti-Soviet commanders. Haji Bashir, a Nourzai ethnic leader in the new Kandahar administration, told the AIP that their forces have been deployed at all key areas in the city, including airport and military bases. "No Taliban resistance has been reported and the whole city is now under peaceful situation," he said … [Afghan interim leader Hamid Karzai] said Taliban's rule had been finished and they were no longer part of Afghanistan.

• The Tribunal is satisfied that the Taliban has been effectively eliminated as a political and military force in Afghanistan (notwithstanding ongoing mopping-up operations) and no longer governs or administers Afghanistan. The continuing economic, political, military and humanitarian commitment of the international community provides a very significant underpinning to the changes in Afghanistan. The Tribunal does not accept that things are essentially unchanged; or that the Taliban hold important positions in the new interim government. Indeed, Hazaras hold five portfolios in the new Afghan government including Planning, Transport, Commerce and Education and the new government has been welcomed by the leader of the powerful (Hazara Shia) Hezb-I-Wadhat party and militia ("New Afghanistan Cabinet Members", FWN Financial via COMTEX in Reuters Business Briefing, 5 December 2001; "Hazara minority supports new Afghan government", Agencia EFE via COMTEX in Reuters Business Briefing, 27 December 2001, CISNET CX60779). There are also non-Hazara Shias in the interim government.

Historical marginalisation of Hazaras in Afghanistan, particularly in the late 19th and early 20th centuries, and subsequent friction and even conflict with other ethnic groups, does not of itself mean that an individual Hazara now faces a real chance of persecution for a Convention reason (particularly absent claims of any particular difficulties encountered by his family or village other than at the hands of the Taliban). Notwithstanding speculation on the basis of historical conflicts, there is nothing in the current material which persuades the Tribunal that Pashtuns and the Taliban are interchangeable terms or that Pashtuns generally are engaged in ongoing persecution of Hazaras. Despite the current media spotlight on Afghanistan there had been no report or suggestion of any persecution of Hazaras since the fall of the Taliban. The Tribunal has been unable to locate any reports of mistreatment of Hazaras, Shi'as or Hezb-e-Wahdat supporters (as Hazaras, Shi'as or Wahdat supporters) by the Northern Alliance or any other group. . . . The Tribunal is not satisfied that the Applicant would face a real chance of persecution from the Taliban or others on return to Afghanistan. Nor has the Applicant made any specific claims that he or his family have experienced persecution by other than the Taliban. The defeat and elimination of the Taliban constitutes, for persons in the situation of the Applicant who claim to have been targeted by the Taliban, such a fundamental change in circumstances that the Tribunal is satisfied that the Applicant does not have a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan. The Tribunal does not accept that there is a real chance that the applicant would be persecuted now by the Taliban, whether by reason of his ethnicity or religion or in relation to his brother-in-law's alleged past dealings with an anti-Taliban commander or for selling a shop without Taliban consent. The Tribunal is satisfied that there is no real chance that in the foreseeable future the Taliban will persecute Hazaras by seeking to conscript their young men for front-line duty. The Tribunal does not accept that there is a real chance that the Taliban will return to power in Afghanistan in the reasonably foreseeable future.'

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] fcafc 231 37 The appellant relied very heavily on this Full Court decision. I accept that there is a substantial degree of similarity between the facts of that case and the facts of the present case. Some of the paragraphs in the two Tribunal decisions were relevantly identical. 38 SFGB claimed that he faced a real risk of persecution if he were returned to his home region in the north of Orozgan Province. The Tribunal found [see par 24 of the Full Court's reasons] that: '(a) As a general statement the Taliban had been defeated in Afghanistan. An interim government had been established. Previous circumstances of religious and political persecution were being addressed; (b) the area where the appellant lived was under the de facto or de jure control of Karim Khalili, a Hazara leader from the adjoining province of Bamian; (c) although there were reports of Taliban/al Qaeda in Oruzgan, those reports refer to areas that are not close to or accessible to the part of the province where the appellant lives; and (d) in any event in recent reports, the US Defence Secretary has reiterated a commitment to "go after" the elements of the Taliban that remain.' 39 As the Full Court pointed out at [25], there was no material to support factual conclusions (b) and (c). The Court noted that there was information which was clearly to the contrary. It referred to two pieces of information which were before the Tribunal. 40 But those pieces of information were published after the Tribunal gave its reasons in the present matter. The first referred to the strength of the Taliban and al Qaeda in Orozgan Province and said that they had dispersed into small fighting forces. The second dealt expressly with the situation in Orozgan, described that situation as uncertain and referred to reported pockets of Taliban and al Qaeda in the northern part of the province. SFGB came from the northern part of Orozgan. The respondent in that case conceded that there was no evidence to support the Tribunal's finding that neither of the pockets of Taliban or al Qaeda were close, or given the harsh terrain, easily accessible to the part of the province in which SFGB lived. In fact the opposite seemed to be the case. On the face of it the area where SFGB came from seemed to be the same area in which there were pockets of Taliban and al Qaeda. 41 I accept the respondent's submissions in this matter that there are significant distinctions [T52-53] between the present case and SFGB. The first is that the information from the two sources referred to above emerged after the Tribunal's decision in the present matter. It was not in evidence before the Tribunal in this matter. Secondly, in this matter there was no evidence that the Taliban were active in Orozgan Province. The evidence relating to the "mopping-up operations" was to the effect that they were taking place in the northern sector of Helmund. Helmund is an adjoining province, but the appellant did not come from Helmund.

c. no evidence 42 Again drawing upon comments of the Full Court in SFGB at para [28] the appellant contended that the Tribunal in this matter had no evidence before it of the "existence of the establishment" of a functioning government or any control being exercised by a government anywhere in Afghanistan, let alone in the area where the appellant lived. 43 In my view there was such evidence before the Tribunal. First, I refer to the portions of the Tribunal's reasons which I have extracted above at para 36 and against which I have caused asterisks to be placed. 44 Mr Plunkett's point was that there was a significant difference between an agreement to set up a government and the actual setting up of the government. But, in my view, the sources quoted at the points which I have just mentioned, provide evidence that an interim government had been set up which included Hazaras in the five portfolios mentioned. Those sources refer to the "new Afghan government". 45 The report from Xinhua News Agency (dated 7 December 2001), when read with the other sources, entitled the Tribunal, in my opinion, to conclude that the Taliban had been eliminated as a political and military force in Afghanistan. The Tribunal referred to the unprecedented level of international commitment to rebuilding Afghanistan and to the establishment of a representative and effective government there as being "[o]f particular significance". At the first of the asterisked passages the Tribunal expressed the view that the continuing economic, political, military and humanitarian commitment of the international community provided a very significant underpinning to the changes in Afghanistan. In the following paragraph the Tribunal referred to the then current media spotlight on Afghanistan and noted that despite that, there had been no report or suggestion of any persecution of Hazaras since the fall of the Taliban. In my view, that information was sufficient to render it open to the Tribunal to find that there was a functioning government in Afghanistan, that the Taliban had been effectively eliminated as a political and military force and that consequently the appellant would not face a real chance of persecution from the Taliban or others on return to that country. 46 The Tribunal took into account the presence of the Taliban in Helmund. The significance of that evidence and the weight to be attributed to it were matters for the Tribunal. There is no evidence that it overlooked that matter. In fact the evidence is that it did not regard the fact that remnants were being mopped-up as the key question. I refer to the three lines which I have underlined in the extract at para 35 above. 47 As the Tribunal decided that the appellant did not face a real chance of persecution, it was unnecessary for it to consider whether the Afghan authorities were able to protect the appellant from the alleged persecution.

D. Wednesbury unreasonableness 48 In view of my assessment that the Tribunal's conclusion was open to it on the evidence, there can be no question of it having conducted itself unreasonably in the administrative law sense.

E. natural justice 49 Counsel for the appellant submitted that the various grounds were inter-related, including the allegation of a breach of the rules of natural justice. He advanced the natural justice ground on the basis that there was no evidence of either the existence of the establishment of a functioning government, let alone any control anywhere. I have found, for the reasons set out above, that this contention has not been made out. 50 Then it was said that if the Tribunal was purporting to make a decision based on "information of this nature" then it would have done so in breach of the rules of natural justice. The Tribunal could not state that the "extent and nature of the recent changes in Afghanistan is a matter of public record" without identifying its substance so that a response could be given. This was a reference to the second of the sentences which I have set out at paragraph [36] above. 51 In my view, the appellant is not doing justice to the Tribunal's reasons in inferring that it had had access to public material which it had not put to the appellant. First, the reference to the public record can be seen as an introduction to the public record of the matters set out in the immediately following paragraphs of its reasons. Secondly, it is clear from the Tribunal's reasons that it put all these changes to the appellant for his consideration, not simply in a letter pursuant to s 424A of the Migration Act 1958 (Cth), but also at the hearing itself. 52 In my opinion, the natural justice complaint has not been made out.

Conclusion 53 For the foregoing reasons the appeal will be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Solicitors for the Appellant: Messrs Terry Fisher & Co

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 6 November, 15 December 2003