FEDERAL COURT OF AUSTRALIA

Applicant Z v Minister for Immigration & Multicultural Affairs

[2001] FCA 881

MIGRATION – application for order of review of decision of Refugee Review Tribunal affirming decision of respondent’s delegate not to grant a protection visa – applicant claimed fear of persecution in the form of being press-ganged into Taliban militia to fight fellow Muslims – claimed such persecution was by reason of political opinion – Tribunal rejected applicant’s claims to having a political profile through his father – whether Tribunal erred in law or had fallen into jurisdictional error by not considering whether real chance that applicant as a member of a particular social group (able-bodied Afghan males) might be persecuted, by reason of such membership, by forcible conscription into the Taliban militia to fight in the civil war, there being no evidence of any law of general application.

Migration Act 1958 (Cth), s 476(1)(b), (c) and (e)

Minister for Immigration and Multicultural Affairs v Yusuf and

Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 applied

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Abebe v The Commonwealth (1999) 197 CLR 510 referred to

APPLICANT Z v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

W 230 of 2000

CARR J

11 JULY 2001 

PERTH

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal, made on 15 December 2000, be set aside.

2.         The matter be remitted to the Tribunal, differently constituted, for consideration according to law.

3.         The respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

introduction

1                     Afghanistan is in a state of civil war.  The Taliban, by force of arms, occupy about ninety per cent of the country.  The rest is occupied jointly by other armed Muslim groups known as “the Northern Alliance”.  From time to time the Taliban forcibly “conscript” young able-bodied Afghan males to fight on their side against the Northern Alliance.  I put the word “conscript” in quotation marks (initially) because there is no evidence of any written enrolment, registration, or the like.  Henceforth I shall omit the quotation marks to avoid irritating the reader.  But no change of sense is intended by such omission.  There is also no evidence in this matter of any law of general application in Afghanistan pursuant to which such conscription is carried out.  There is evidence that forcible conscription can be avoided by paying money to the Taliban.  The question in this application is whether the Refugee Review Tribunal erred in law or made a jurisdictional error by not considering whether the applicant, (a young Afghan male who claimed to be a refugee from such forced conscription), was a member of a relevant social group (able-bodied Afghan males) who was likely to be persecuted by forced conscription because of such membership if returned to Afghanistan, and might thereby be entitled to protection in Australia under the Refugees Convention?

2                     The application is for an order of review of a decision of the Refugee Review Tribunal made on 15 December 2000 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of Afghanistan, arrived in Australia on 1 March 2000.  On 2 June 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 9 October 2000 a delegate of the respondent refused to grant him a protection visa.  On 12 October 2000 the applicant sought review of the delegate’s decision by the Tribunal. 

The applicant’s claims and the Tribunal’s decision

3                     The applicant’s claims, in summary, were as follows:

·          that he was an illiterate Pashtun who spoke Farsi and Dari and had planned to leave Afghanistan 3 or 4 years ago, but had not been able to do so until February 2000;

·          his father, who worked as a manager of a rug company, was accused by the Taliban as having been “with” the previous government and had been beaten by the Taliban;

·          the Taliban had come to the applicant’s family home four or five times to take him and his brother to fight for them against other Muslims;

·          the applicant, who worked on the family farm and had been its manager since 1996, claimed to come from the same community, the Selaymankhail, as that of the previous Communist leader Dr Najibullah; the Selaymankhail families were harassed after Dr Najibullah was killed in October 1996;

·          the applicant’s brother fled to Iran in 1996 but several days before the applicant’s departure in 1999, his brother returned.  The fact of that return was reported by Taliban agents and his brother was taken away three or four nights later.  The applicant did not know what happened to him.  The Taliban had beaten his father savagely so that he now has back injuries.  The applicant had hidden in a storeroom in a corner of the house where clover and hay for animals were kept;

·          the applicant’s father was also working as an adviser in the rug factory and all of the applicant’s family members including himself were members of Dr Najibullah’s party;

·          the Taliban considered the family as Communists.  They had “come after” the applicant about seven or eight times and he had gone into hiding;

·          at the hearing before the Tribunal, the applicant repeated his claim that the Taliban had, on several occasions, come to his house and village to capture him and other young people and send them to the front;

·          shortly thereafter, in further oral evidence to the Tribunal, the applicant said that the Taliban did not want to recruit him to fight for them; they would simply take him away and kill him then return his body to say he had been killed at the front.

4                     The Tribunal put various matters, which it regarded as inconsistencies, to the applicant at the hearing.  In its reasons, the Tribunal referred to the applicant’s responses.

5                     The Tribunal devoted some 3½ pages of its reasons to examining country information about Afghanistan and, in particular, the activities of the Taliban. 

6                     Rather than attempt to summarise the Tribunal’s findings and reasons, I set them out in full below.  I have added paragraph numbers to facilitate references, which I make below, to parts of those findings and reasons.

“FINDINGS AND REASONS

1.   I have taken into account that the applicant indicates that he is illiterate when assessing his claims.

2.  Nevertheless, I find that there are major inconsistencies, additions to his story and implausibilities, which lead me to doubt his claims.  Additions include that in his initial statement of February 2000 the applicant did not make any reference to he or his brother being in hiding. He simply said that his father had been beaten as he was with the previous government and that once when the Taliban came they had killed the dog. He also did not want to fight for the Taliban. In his statement of May 2000 he added that his tribal group had been persecuted as they were from the same group as Dr N, and that his brother had worked with his father at the factory. He also said that he himself managed the family farm. He also mentioned for the first time that his brother had fled to Iran and had then been taken by the Taliban when he was arrested on return. He mentioned for the first time in a statement of 12 October 2000, made just before hearing, that all of the family were members of Dr N's party, and considered to be Communists. At hearing he added that his father was personally asked by Dr N to be an adviser at the factory, and that his father was a leader of his tribe, and Dr N personally discussed various tribal and district matters with him.

3  I have considered the applicant's comments, including written comments after hearing, about those inconsistencies. Nevertheless, the fact that he would mention some matters in his initial statement, such as the Taliban killing the family dog, and not mention others, such as his brother being arrested, and the extent of the additions to the applicant's story over an 8 month period, causes me to seriously doubt his later claims.

4.  I accept that the applicant may be of the S tribe. However, I do not accept that people from this tribal grouping are harassed by the Taliban for reason of being associated with Dr N .

5.  As noted to the applicant, the S clan is a different, although related, clan to Dr N's clan of the Ghilzai. There is no indication I have seen from any country information to support the proposition that this clan, or Dr N's direct clan, is now or has been persecuted by the Taliban. Further, when questioned about why the applicant and his family did not move to an area where there were more of his own clan, if they felt vulnerable in their own village, the applicant advised that the clan consisted of large numbers of people of different political opinions. This directly contradicts his assertion that his clan would be persecuted merely on the basis of their tribal or clan association with Dr N. On the basis of country information about Dr N's different clan grouping, and lack of any evidence of such harassment, I am unable to accept that the applicant and his family were singled out on the basis of their clan or tribal association.

6. I accept that the applicant's father may have worked for a company owned by the former regime in Kabul. However, I do not accept that he was harassed for this association in the way the applicant claimed. There is information that initially when the Mujahadeen took over Kabul, many people associated with Dr N's government were harassed or persecuted. Had the applicant's father indeed been so closely associated with the former Dr N's regime in the way he claimed, I consider that he would have been harassed at that time. However, the applicant’s father apparently suffered no such difficulty. Further, I find it implausible that a person such as his father, who was apparently illiterate, and who was one of only two families of his tribe in his village, would become a leader of his tribe when he had such little direct influence over large numbers of this very large tribe, and could become a personal adviser to Dr N. Despite the applicant's claims that he managed to do so because he was older and therefore wise, I do not accept that his age of itself would qualify him for such a position. I further note that this claim was made very late in the process. Given that I do not accept this assertion, I do not accept that the applicant or his family were harassed in the way he claimed and for the reason he claimed. I further do not accept that the applicant's family were members of Dr N's party, given that these claims were made so late in the process, and that the applicant could say very little about what he or his father did in relation to this party. I do not accept that if a person had been a member of a political party, and as committed to the cause as the applicant claimed at hearing he and his family had been, he would not mention this matter in his first interview with DIMA officers as a cause of his harassment, given that he raised other matters about concern with the Taliban regime in that statement.

7.  I further found the applicant's account of the extent of the Taliban's harassment of himself and his family to be unconvincing. In his statement of 28 May 2000 he indicated that he was the manager of the family farm from 1996. At hearing he indicated that he did not work the farm but leased it out, as he did not want to work it when the Taliban was around.

8.  He further claimed that he was in hiding away from the village for much of the time, and so he did not know which other people in the village the Taliban came for. However, he also indicated that he happened to be at his home when the Taliban came and arrested his brother a few days before the applicant left Afghanistan. I find this strange when he also said that he was able to avoid the Taliban because others would warn him when the Taliban were about to arrive and so he could hide. I further find it implausible that, if the applicant had been sought, as a member of his family, he would escape detection by them in their search of a house, when he was in a storage area which is an obvious place to look for a person hiding. I further do not accept that the applicant's father would be left alone by the Taliban, because of his age, if he were indeed such an influential person in the former Dr N regime, and considered by them to be an enemy. Information about the Taliban is that it is a ruthless and fanatical organisation in eliminating their enemies, and matters such as age or other humanitarian considerations do not seem to be factors in how they treat people they consider to be enemies.

9.  Given that the applicant did not raise the matter of his brother being taken by the Taliban until his second statement in May 2000, I do not accept this claim. I further do not accept that a person who had been fleeing the Taliban, as the applicant claimed his brother had, would personally return to his family home if he were living in a safe third country such as Iran.

10.  I accept that the Taliban may have come from time to time to recruit people for the war effort against the Northern alliance. However, given that I do not accept that the applicant ever held a political opinion of being a supporter of Dr N or of being a Communist, I do not accept that they sought to recruit him for this reason, or that they would falsely kill him and then indicate to his family that he had been killed at the front. Country information is that the Taliban obtains many of its fighters from Pakistan, and that recruitment of local men is intermittent, and that people may pay to avoid recruitment. (see Hunt, L 1999, ‘Afghan Taliban sees offensive as key to total victory’, Agence France Presse, 29 July, (Nexis download, and AsiaNow, Time Asia, Afghanistan Frozen in Time, May 29 2000, vol 156 No 21.) I have seen no information to support that only Hazara are allowed to make such payments.

11.  Having considered all of the information, both individually and cumulatively, I do not accept that the applicant has ever been sought by the Taliban for reason of his political opinion, imputed political opinion, membership of his family, membership of his clan, or for any other Convention reason. I therefore find that the applicant does not have a well- founded fear of persecution for this or any other reason if he were to return to Afghanistan now or in the foreseeable future.”

Application for review

7                     There were three grounds in the amended application.  There was a substantial overlap between the three grounds.  The first ground was that the decision involved an error of law which was said to be an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.  This was particularised, relevantly, as follows.  A correct interpretation of the applicable law required the Tribunal to direct itself to consider whether the applicant had a well-founded fear of being persecuted for reasons of, inter alia, membership of a particular social group.  The Tribunal had found that the Taliban may have come from time to time to recruit people for the war against the Northern Alliance.  The applicant was a young and able-bodied male.  A correct application of the law to the facts as found by the Tribunal required it to consider whether the applicant had a well-founded fear of such “recruitment” and if so, whether “recruitment” in the circumstances (including civil war, the relevant practices of the Taliban and the apparent absence of a law of general application) amounted to persecution.  The Tribunal had failed to consider whether the applicant had a well-founded fear of being persecuted for reasons of membership of a particular social group, namely young able-bodied males.  The second ground was that the Tribunal did not have jurisdiction to make the decision.  The same particulars as summarised above were relied upon in relation to this ground.  By way of further particulars, the Tribunal was said to have identified a wrong issue and asked itself a wrong question and ignored relevant material by failing to ask itself whether the applicant had a well-founded fear of being persecuted for reasons of membership of a particular social group, namely young able-bodied men.  In doing so the Tribunal, so the applicant pleaded, had acted in a way that affected its exercise of power and, as a result, it had exceeded the authority and powers given to it by the Migration Act 1958 (Cth) (“the Act”) and in those circumstances did not have jurisdiction to make the decision.  Ground 3 was that the decision was not authorised by the Act or the Migration Regulations.  This ground was particularised in identical terms to the particulars of Ground 2.

the respective contentions

8                     The applicant pointed to the fact that at the record of his initial interview, in answer to the question “why did you leave your country of nationality?” he had included in his reply the following:

“… because the taliban would come and say to me that I was the son of that person [a reference to his father] and they wanted us to fight for them. Talibans came to the house 4 or 5 times and once they came and killed our dog.  They were coming to take us to fight against our brothers who were Muslim.  We did not want to fight against them.”

9                     Further, in a statement submitted on behalf of the applicant in support of his application for a protection visa (a statement which formed part of the material before the Tribunal) the applicant said this:

“The Taliban would come to the house and tell my father that if he were a true Muslim, he would send me and my brothers to fight for them.  My brothers and I would hide when they came, as we greatly feared them, and my father would try and stop them from entering the house.  I did not wish to fight for them, as it would mean fighting my Afghan brothers.  I felt that I could not possibly kill anybody if I went to the front line – I would rather kill myself.”

10                  The applicant acknowledged that in its findings and reasons the Tribunal had rejected a number of claims made by him.  Those rejected claims included claims that he and his family had been singled out on the basis of their clan or tribal association and that they had been harassed because the applicant’s father had in the past worked for a company owned by the former Kabul regime.  The applicant also acknowledged that the Tribunal had found that the applicant’s account of the extent of the Taliban’s harassment of himself and his family was unconvincing. 

11                  However, the applicant referred to the paragraph which I have numbered 10 above as showing that the Tribunal had accepted that the Taliban may have come from time to time to recruit people for the war effort against the Northern Alliance (but not because he held the political opinion claimed by him), that such recruitment of local men was intermittent and that people may pay to avoid recruitment.

12                  The applicant relied upon the recent decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf and Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 and in particular the following passage in the reasons for judgment of McHugh, Gummow & Hayne JJ at [82] with whom Gleeson CJ agreed:

“The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

13                  The applicant submitted that although considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration, the essential question was whether the decision-maker has properly applied the law.  On the facts as found by the Tribunal, the applicant submitted that the Tribunal had erred in law by failing to consider whether the coming of the Taliban from time to time to the applicant’s home to recruit people for the war effort gave rise to a well-founded fear on his part of being persecuted by reason of membership of a particular social group, namely able-bodied young men.  Failure to consider that matter also meant that the Tribunal did not have authority or jurisdiction to make the decision.

14                  The respondent submitted that the findings and reasons of the Tribunal were clearly based on its assessment of the credibility of the applicant.  The respondent contended that the Tribunal had made a finding “… on a higher level of generality” i.e. it did not accept that the applicant had ever been sought by the Taliban for a Convention reason.  At the hearing counsel for the respondent varied that submission by saying that the words “for a Convention reason” were redundant and asserted that the Tribunal did not accept that the applicant had ever been sought by the Taliban.  Accordingly, so the respondent submitted, it was “unsurprising” that the Tribunal did not accept that the Taliban sought to recruit him or that they would falsely kill him and indicate to his family that he had been killed at the front.  The respondent referred to Yusuf in the reasons of McHugh, Gummow and Hayne JJ at [91].  Finally, the respondent submitted that the grounds of review were nothing more than a disagreement with the Tribunal’s view of the merits of the case.

my reasoning

15                  The passage relied upon by the respondent in Yusuf at [91] was in the following terms:

“Further, in rejecting the argument that the two attacks it accepted had occurred could give rise to a well-founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan.  This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion.  That being so, it is not demonstrated that the Tribunal made some error of law.  It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question.”

16                  I do not accept the respondent’s submission that the above reasoning applies to the present matter.  It is sufficient to focus on paragraphs numbered 10 and 11 above of the Tribunal’s reasons.  They are of course to be read beneficially.

17                  In the first sentence of paragraph 10 the Tribunal expressly accepted that the Tribunal may have come from time to time to recruit people for the war effort against the Northern Alliance.  It made no express finding that the people sought included people in the area where the applicant lived, or specifically included the applicant.  But it is difficult to see why it expressed such acceptance unless its finding was to be thus extended.  In the second sentence of that paragraph the Tribunal said that “given that”, (i.e. because) it did not accept that the applicant ever held a political opinion of being a supporter of Dr N or of being a Communist, it did not “… accept that they [the Taliban] sought to recruit him for this reason, [my emphasis] or that they would falsely kill him and then indicate to his family that he had been killed at the front”.  The latter wording on its own might at first be regarded as elliptical in that it does not clearly state whether the Tribunal found that the Taliban had not sought to recruit him at all, or whether its finding was that the Taliban had not sought to recruit the applicant by reason of his political opinion.  [In the next three sentences of the paragraph the Tribunal can be seen to have recognised that the “recruitment” of local men is in fact forced conscription which may be avoided by payment of money.]

18                  In my view, when one reads the whole of the Tribunal’s findings and reasons (and in particular the whole of paragraph 10) it is clear that the Tribunal accepted that the Taliban had sought to recruit the applicant for the war effort against the Northern Alliance, but that it did not accept that this was because he held a political opinion.  The Tribunal gave absolutely no consideration to the questions:

·          whether able-bodied Afghan men comprised a particular social group of which the applicant was a member;

·          whether forcible recruitment by the Taliban of such persons to fight on the Taliban’s side against the Northern Alliance amounted to persecution by reason of membership of that particular group within the meaning of the Convention;

·          whether despite the fact that people may pay to avoid such recruitment, such extortion could amount to persecution within the meaning of the Convention; and

·          whether there was any evidence that the Taliban were acting pursuant to a law of general application.

19                  I do not consider that the conclusion drawn in paragraph numbered 11 above amounts to a finding at a higher level of generality which would excuse the Tribunal from having to ask the above questions.  In fact it can be seen by the Tribunal’s express reference to

“… for reason of his political opinion, imputed political opinion, membership of his family, membership of his clan, or for any other Convention reason.”

that the Tribunal had either failed to realise the significance, or decided that there was no significance, in the existence of able-bodied Afghan men as a particular social group.

20                  At the hearing, counsel for the respondent submitted that the Tribunal’s finding, in paragraph numbered 6 above, that it did not accept that the applicant or his family were harassed in the way he claimed and for the reason he claimed, amounted to a finding that the Taliban had not sought forcibly to recruit the applicant.  In view of the Tribunal’s later findings on the question of “recruitment”, to which I have referred immediately above, I do not accept counsel’s submission.  On a fair reading of the Tribunal’s reasons, at paragraph 6 it was rejecting the so-called “additions to [his] story” such as the attack on his father and the abduction of his brother.  Even if counsel’s submission were correct, the Tribunal’s finding was as to the non-occurrence of a past event of forced recruitment, not whether there was a real chance of forced recruitment of the applicant if returned to Afghanistan.  When one takes into account the Tribunal’s later findings on the matter of forced recruitment, this is not a case where the Tribunal can be said to have made such strong findings against the applicant as to relieve it from applying the real chance test – as to which see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 and Abebe v The Commonwealth (1999) 197 CLR 510 at [84]-[85].

21                  Counsel for the respondent submitted that there was no information before the Tribunal to suggest that the Taliban imposed forced conscription on persons for reasons not related to the political opinions of those persons.  But the very report referred to by the Tribunal in paragraph 10 of its reasons (which was in evidence before it and is reproduced at page 63 of Exhibit A1) contains evidence of widespread forcible conscription of Afghans between the ages of 22 and 39 with the observation “… for the well-heeled there is a choice of sending a son to fight or paying a tax.”  Further similar evidence can be seen at pages 62, 66 (in the findings of the primary decision-maker), 95 (an observation in a decision by the Refugee Review Tribunal Member Ms Margret Holmes in RRT decision No N98/25567, and 96-97 (a report published by the Danish Immigration Service).

Conclusion

22                  In my view, by failing to consider the matters to which I have referred at paragraph [18] above, the Tribunal had made an error of law within the meaning of s 476(1)(e) of the Act by incorrectly applying the law to the facts as found by it.  The error was also, in my view, one which amounts to a jurisdictional error of the type referred to in Yusuf.  The decision is thus reviewable under s 476(1)(b) and (c).  The Tribunal’s decision will be set aside and the matter will be remitted to a differently-constituted Tribunal for decision in accordance with the law.  The respondent should pay the applicant’s costs.

A/g Associate:

Dated:              11 July 2001