FEDERAL COURT OF AUSTRALIA

W401 v Minister for Immigration & Multicultural Affairs [2001] FCA 1738

MIGRATION - judicial review - Refugee Review Tribunal - refugee sur place - failed asylum seeker from Afghanistan - whether upon return from Australia faces real chance of persecution by reason of failed claim - error of law by Tribunal in failure to properly consider whether there is a real chance of persecution - notorious change in circumstances in Afghanistan since decision of Tribunal - whether discretion of the Court ought to be exercised not to make an order setting aside the Tribunal decision - parties allowed time for further submissions

Migration Act 1958 (Cth) s 476

W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387

W401 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W401 OF 2001

FRENCH J

6 DECEMBER 2001

PERTH

THE COURT ORDERS THAT:

1.         The hearing of the application is further adjourned to 14 January 2002 at 2.15pm to enable the parties to prepare submissions to the Court on whether or not the Court should exercise its discretion to decline to make any order setting aside the Refugee Review Tribunal's decision.

2.         There be liberty to apply.

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

REASONS FOR JUDGMENT

Factual Background

1                     The applicant is a national of Afghanistan of Tajik ethnicity and a Sunni Muslim.  He is twenty-two years old.  He arrived in Australia by boat without lawful authority on 25 March 2001.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 18 April 2001.  On 21 May 2001, his application was refused by a delegate of the Minister for Immigration and Multicultural Affairs.  On 24 May 2001, he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision.  On 21 August 2001, the Tribunal affirmed the decision not to grant the protection visa.  On 30 August 2001, the applicant filed an application for review of the Tribunal's decision in this Court.  He was unrepresented at the hearing of the application. 

Evidence and Claims

2                     A statement by the applicant was lodged in support of his application for a protection visa.  In that statement he said that his mother and four of his five siblings are still in Afghanistan.  His father and one of his brothers have been missing for four and two years respectively. 

3                     During the Russian occupation of Afghanistan, his father was a fighter with the Mujahideen.  When the Russians withdrew from Afghanistan in 1989 his father put aside his weapons and started a spare parts business in Waghjan in Logar Province.  According to the applicant, his father travelled to Kabul about four years ago to buy some spare parts for his business.  He never returned from that trip and his family still do not know what happened to him.  Three years after he had disappeared somebody reported to the Taliban that his father had had weapons.  They started coming to the spare parts shop to put pressure on the applicant to tell them where his father was.  They started demanding payments of thirty five per cent of the family's harvest instead of the usual ten per cent as a punishment.  About two years after his father disappeared, the applicant's brother also disappeared.  He did not know what had happened to him but had heard that he was taken by the Taliban.  In about September 2000 the Taliban came to the shop again asking about the applicant's father.  He was the only person in the shop when they came.  He told them he did not know where his father was.  They became angry and said they would take him to the front line.  However as they were about to take him away some of the village elders came and pleaded with the Taliban.  They listened and left the applicant alone saying they would take him next time they came rounding up young men.  Since that day, according to the applicant, he began hiding whenever he heard that the Taliban were coming. In or about February 2001, the Taliban came to the applicant's house in the afternoon and took him to their office in Mohammad Agha.  He was accused of running away from them.  They wanted to know where his father was.  He said he was detained for three days and beaten with a rubber whip on the first and last day.  On the third day his uncle paid money to have him released.  He was ordered to report back after ten days.  However, he was afraid that the Taliban would detain him again and he decided to leave the country.  His uncle sold the family shop and part of their land to raise money to finance his trip.  As soon as he received the money he left Afghanistan.  His uncle, he said, accompanied him to Kabul and while there he re-introduced him to a smuggler named Ismail. 

4                     The applicant travelled with Ismail to Jalalabad, Torkham and finally to Pakistan.  From Pakistan the applicant flew to Singapore and thereafter to Indonesia where he stayed for about twelve or thirteen days before boarding a boat to Australia.  According to the applicant he did not seek UNHCR assistance in the countries he transited because he was not aware of their presence or the role of their office in those countries.  In addition, he was in the hands of the smuggler who did not allow him to go out of the hotel or house where they were staying so it was difficult for him to get any information about the UNHCR.  He said he feared returning to Afghanistan because he would be arrested, imprisoned or killed upon his return.  In his statement he also said:

"I left Afghanistan illegally and if the Taliban finds out that I have been to Australia they would arrest me upon my return and possibly kill me.  The Taliban will accuse me of running away from them.  Approximately eight months ago the Taliban took my cousin, [Z] to the frontline and I believe they would do the same thing to me if I go back now that I have disobeyed them by not reporting after 10 days as ordered before I was released."

5                     In addition to the written submission in support of the original application for a protection visa, the Tribunal had before it record of an interview with an immigration officer shortly after the applicant's arrival in Australia and a record of an interview with an officer of the Department in connection with the application for a protection visa.  It also had before it the written submissions in support of the application for review and the oral evidence which it heard on 10 July 2001. 

6                     On 31 July 2001, the Tribunal wrote to the applicant drawing attention to aspects of his evidence which differed between the interviews, his application and his evidence at the hearing.  He was invited to comment on the inconsistencies or to provide any additional information.  He did so on 2 August 2001. 

Tribunal's Findings and Reasons

7                     The Tribunal was satisfied that the applicant is a national of Afghanistan, that he was of Tajik ethnicity and was a Sunni Muslim although he did not rely on ethnicity or religion as grounding his claimed fear of persecution.  However, his adviser's submission to the Tribunal did raise his ethnicity as a factor which could lead him to face harm in Afghanistan.

8                     The Tribunal identified a number of difficulties with aspects of the applicant's evidence.  It referred to the claimed disappearance of his father and brother.  It accepted that while those disappearances would have been terrible if they occurred as he claimed, it appeared they had no implications for his safety because his evidence was that it was not until about three and a half years after the disappearance of his father that the Taliban started to show any interest in asking him where his father was.  The evidence did not indicate that his father's disappearance was connected to his past political activity or that the Taliban was interested in the applicant's father for this reason.  Had it been, the Tribunal considered that the Taliban would probably have come looking for weapons or his father earlier.  Similarly, it did not consider that the evidence indicated that the disappearance of his brother two years ago was because of any political reason or that it involved the Taliban.  Had it done so it would not have been so long before further adverse attention was paid to the applicant and other members of the family.

9                     The suggestion that the Taliban began to harass and abuse the applicant when he was old enough to be regarded as a threat, being a person who would want to take revenge for the loss of his family members, was seen to be very improbable.  The Tribunal did not accept that the Taliban would be monitoring the circumstances of individual families nor speculating on how surviving members might respond. 

10                  The applicant's evidence about the Taliban seeking to take him away was not consistent.  In his application for a protection visa and his evidence to the delegate, he had indicated that the Taliban threatened to take him to the front line and had been deterred only by the pleas of the elders.  At the hearing his evidence was they had not attempted to take him away when they came to his shop and the only time they did so was when they took him into custody apparently about two months before he lodged his application for a protection visa.  The evidence at the hearing about whether the applicant saw him at the house was said to be confusing and not convincing.  He said at the hearing that they had never seen him at the house, then said that once on their last visit he had been seen and this was the time when he was taken away and detained.

11                  The evidence about the involvement of the village elders was found not to be convincing.  However the Tribunal did not consider that the Taliban would have been dissuaded from searching the applicant's house by the intervention of elders if they seriously believed there were weapons there.  And in relation to the incident when he was taken to the Taliban office in Mohammad Agha he said that after being released the Taliban told him to report back in ten days.  He said also that they wanted to detain him again and kill him.  Not surprisingly, the Tribunal considered such a scenario rather unlikely.  In response to the invitation to comment on inconsistencies in his evidence the applicant said that the Taliban were coming to his house and shop to threaten him, torture him and beat him with the butt of a gun and that if he made a mistake then it should not be taken into account.  When they saw him they asked about his father's whereabouts and about weapons but they didn't always see him.  The Tribunal concluded from the overall character of the applicant's evidence about his encounters with the Taliban that the account he had given was not accurate.  The evidence did not indicate the Taliban had concerns about the applicant's father's past activities with the Hezb-i-Islami nor that the Taliban came to the shop and home as claimed.  The Tribunal was not satisfied that his brother's disappearance indicated that he was at risk of persecution for any Convention reason.  It did not accept that he was detained and treated as claimed because of anything to do with his father or the whereabouts of weapons.  Moreover it did not accept that he would upon return to Afghanistan be accused of running away from the Taliban and not reporting after ten days as instructed. 

12                  There were said to be other aspects of the applicant's claims which led the Tribunal to doubt his truthfulness but these were not the main reasons why it was unable to accept the claims as accurate.   In this respect the Tribunal referred to the applicant's evidence about his mother telling him how old he was.  It also found his evidence about having to pay additional tax under the Taliban not to be convincing.  However, it was accepted that he may have known little about such matters as a young man apparently not involved in the family farm.  He claimed that the Taliban demanded that the family pay thirty five per cent of the harvest rather than the usual ten per cent.  This was a punishment because the Taliban wanted to kill him.  The Tribunal did not find this plausible. 

13                  The Tribunal also considered whether the applicant's religion or ethnicity would give rise to a well-founded fear of persecution if he returned to Afghanistan notwithstanding his evidence that he had not had significant problems because of his religion or ethnicity in the past.  It also considered whether there was any real chance that he would be sent to the front line by the Taliban if he were to return to Afghanistan.  There was no information to indicate a real chance that the applicant could face persecution on account of his religion.

14                  The Tribunal referred to independent evidence that the Taliban had arrested many Tajik people suspected of sympathising with opposition forces.  It also noted, however, that a large number of Tajik people were returning to Afghanistan and it did not believe that so many would be doing so if they faced a real chance of persecution although it was recognised that the more restrictive policies of neighbouring countries discouraging Afghans from remaining as refugees therein was a significant factor in people's decision to return.  The Tribunal's assessment of the evidence was that a Tajik person would not today be at risk simply because of ethnicity if returned to a place where they had social links.  It was considered that there was no more than a remote chance that the applicant would be of interest to the Taliban because of his ethnicity if he were returned to Afghanistan.

15                  The Tribunal was mindful of independent evidence which indicated that forcible recruitment had occurred although the extent of the practice was far from clear.  The applicant claimed to have lived for some six years under the Taliban rule from when he was sixteen or so until he was 22.  For a number of years he was of an age where he could undertake military work and there was no credible evidence that the Taliban took any interest in him.  In the event the Tribunal was unable to be satisfied that there was anything more than a remote chance that the applicant would be sent to the front line by the Taliban if he were to return. 

16                  On the question of return as a failed asylum seeker, the Tribunal said:

"There is no independent information of which I am aware to indicate that the applicant would face persecution because he may return from a western country where he has sought asylum.  There are many people returning to Afghanistan and I do not consider that there is anything about the applicant which would single him out for adverse attention by the Taliban.  I do not consider that the applicant's return to Afghanistan from Australia gives rise to a real chance that he would face persecution."

17                  The Tribunal recognised the very difficult circumstances faced by people returning to Afghanistan.  Such factors might justify consideration of the applicant's circumstances on humanitarian grounds, but the Tribunal would have no role in that regard.

The Application for Review

18                  The application for review disclosed no grounds cognisable as such within s 476 of the Migration Act 1958 (Cth).  The stated ground was:

"I am an Afghan citizen belongs to Tajik ethnic.  Because my Father was a member of Hezb-i-Islami in Afghanistan he himself and my brother was missing for about 4 years my father and 2 years my brother.  Therfor I was prescuted as many times I was taken to their (ineligible) and presecuted there." (sic)

19                  The applicant also prepared a written submission to the Court which was handwritten in English although I assume it was with the assistance of an interpreter.  In any event, the submission was directed entirely to the merits of the Tribunal's findings of fact and did not disclose any basis upon which this Court could interfere with the Tribunal's decision.

The Returned Asylum Seekers Point

20                  In the course of the hearing, I raised with counsel for the Minister the Tribunal's determination in relation to the risks faced by the applicant as a failed asylum seeker returned to Afghanistan.  The Tribunal's determination that there was no real chance of persecution upon the applicant's return to Afghanistan from Australia appeared to be based upon:

(a)        the absence of independent information to the contrary effect;

(b)        the fact that there were many people returning to Afghanistan and that there was nothing about the applicant which would single him out for adverse attention by the Taliban.

21                  Although not mentioned in this part of the reasons there was earlier reference by the Tribunal to independent country information relevant to this question.  The Department of Foreign Affairs and Trade reported in 1995 that Afghans who fled to Western countries were not at that time at risk upon return.  In 1993 the Canadian Immigration and Refugee Board's Research Directorate advised that there were no known reports of such people facing difficulties since the demise of the Russian-backed government.  And this year officials from the United Nations Special Mission to Afghanistan were not aware of any edict from the Taliban that Afghans who had gone to Western countries seeking asylum should be killed on their return.

22                  It may be said that reliance upon country information dating back to 1993 and 1995 respectively is questionable.  Reliance upon such old information might in some cases indicate a failure to undertake any contemporaneous risk assessment.  The statement from the United Nations Special Mission indicated an absence of any edict by the Taliban to the effect that return asylum seekers would be executed.  This does not, however, take the matter very far.  In the event the Tribunal seems to have relied upon the absence of information to negative any risk to returnees from Western countries.  It is difficult to take that conclusion seriously.  The essentially negative evidence certainly did not support the conclusion that there was no real chance of persecution if the applicant were to be returned to Afghanistan.

23                  It is fair to say that this was not at the forefront of the applicant's case as presented to the Tribunal.  Nevertheless it is clear that he had made refugee sur place claims.  So much was acknowledged by the delegate in the record of decision rejecting the initial application for a protection visa.  There it was said:

"The applicant has also made sur place claims.  He states that as he left Afghanistan illegally he will be of interest to the Taliban on his return.  However, country information advises that in the last couple of years thousands of Afghans who left Afghanistan illegally have returned to

Afghanistan.  There is no indication that they have suffered reprisals from the Taliban because of the manner in which they departed Afghanistan."

24                   In W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387, I set aside a decision of the Tribunal given on 9 April 2001 for its failure to address the question whether there was a real chance that by reason of being a failed asylum seeker in Australia, the applicant in that case would face persecution upon his return to Afghanistan.  Counsel for the Minister in this case seeks to distinguish it from W124 on the basis that there was evidence in the earlier case of the opinion of Dr William Maley, Associate Professor of Politics at the Australian Defence Force Academy and an acknowledged expert on Afghanistan.  In that case Dr Maley said, inter alia, that to the best of his knowledge not one Afghan asylum seeker from Australia, Tajik or otherwise, had been returned to Afghanistan.  He also expressed the view that the Taliban would regard a returnee from Australia in a different light to a returnee from Pakistan.  Returnees from Pakistan tended to be ethnic Pashtuns whose earlier return was blocked by such obstacles as anti-personnel mines in ancestral properties.  An Afghan returned from Australia would be scrutinised with vastly more attention and could well experience harassment. 

25                  Given the potential importance of sur place considerations affecting applicants from Afghanistan seeking protection visas, it is difficult to accept that the Tribunal could not have undertaken a somewhat less sanguine approach to the assessment of that risk than it appears to have done in this case.  As in W124, the application of general country information relating to returnees to Afghanistan generally in the assessment of contemporary risks facing returnees from Australia suggests a failure actually to consider whether there is a real chance of persecution for a person returned as a failed asylum seeker from Australia.

26                   

Utility of Relief

27                  I am satisfied that the Tribunal has committed a reviewable error of law in relation to its real chance assessment on the sur place claim.  However, the notorious fact is that the Taliban has, since the Tribunal's decision, been largely overthrown in Afghanistan and there is a real question whether I should exercise my discretion not to set aside the Tribunal's decision and remit the matter for reconsideration.  This is an issue which was not canvassed with the parties and, as a matter of procedural fairness, I consider that they should have an opportunity to comment on the question whether there is any utility in making the orders that the applicant seeks.  As this, I think, is the first time that this situation has arisen it might be useful if the applicant were to have the benefit of legal advice in relation to it.  Given that the exercise of discretion is in the nature of a test case issue, this may be a suitable case for the assistance of the Legal Aid Commission.  In the circumstances I propose to stand the matter over until mid-January to enable the parties to consider their positions and the applicant to obtain some legal assistance on this question of the exercise of the discretion. 

Associate:

Dated:              December 2001