FEDERAL COURT OF AUSTRALIA

SCAM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 964

MIGRATION – application under s 39B of the Judiciary Act – asylum seeker a young illiterate person from Afghanistan brought up as worker on a subsistence farm in a small village who fled and travelled alone to Australia – fear of persecution by the Taliban because of his Hazara ethnicity and Shi’a religion – visa application refused because of fundamental changes brought about by the defeat of the Taliban – whether the Refugee Review Tribunal erred in ignoring whether the applicant is unable or his continuing fear is such that he is unwilling to avail himself of the protection of the country of his nationality – application dismissed. 

Re Minister for Immigration and Multicultural Affairs;  ex parte Miah (2001) 179 ALR 238 applied

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied

Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 followed

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR l611 cited

Minister for Immigration and Multicultural Affairs v Khawar (2002) 76 ALJR 667 cited

Mileva v Canada (Minister of Employment and Immigration) (1991) 81 DLR (4^th) 244 cited

Adan v Secretary of State for the Home Department [1998] 2 All ER 453 cited

SCAM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 61 of 2002

von DOUSSA J

ADELAIDE

6 AUGUST 2002

THE COURT ORDERS THAT:

1.                  Application dismissed.

2.                  Applicant to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal made on 16 January 2002 which affirmed a decision of the respondent’s delegate not to grant a protection visa to the applicant.

2                     The applicant arrived in Australia on 18 April 2001 by boat from Indonesia.  He claimed to be a refugee from Afghanistan who had fled that country by reason of fear of persecution by the Taliban on the basis of actual or imputed political opinion arising principally from his Hazara ethnicity and Shi’a religion. 

3                     The Tribunal’s decision is a privative clause decision within the meaning of s 474 of the Migration Act 1958 (Cth) (the Act) and the scope for judicial review of the Tribunal’s decision is therefore limited by s 474(1) which provides:

“(1)     A privative clause decision:

(a)               is final and conclusive;  and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court;  and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

4                     Counsel for the applicant contended that s 474 does not extend to a privative clause decision where the Tribunal has committed a jurisdictional error, and such an error is alleged in respect of the impugned decision. 

5                     The Tribunal accepted, at least in its essential aspects, the personal history given by the applicant when he arrived in Australia.  He arrived without any identification documents.  He said that he was born and lived all his life in a farming village in the Oruzgan Province of Afghanistan.  He said that he had been born in 1981 (and was therefore about nineteen years of age when he arrived).  He said that he was unmarried.  His parents and siblings remained in Afghanistan.  He said he had completed two years of religious studies at a local mosque but otherwise was uneducated, and had spent his time assisting his parents on the family farm.

6                     The applicant said that the Taliban came to his village when he was thirteen.  In accordance with their practice of taking the oldest male in the house, they took his father and beat him.  His father was taken three times by the Taliban.  Others in the village were also beaten.  On one occasion the applicant was taken and put to forced labour.  Thereafter he avoided further attempts to conscript him into forced labour or military service by hiding in the mountains, although he would return to the family home at night time.  He said he was targeted by the Taliban as he was the oldest son in the family. 

7                     The applicant’s father was concerned about the applicant’s safety.  One evening his father informed him that if he would leave Afghanistan, his father would arrange smugglers.  The applicant apparently agreed, for shortly afterwards one evening when he returned from the mountains, he was introduced to smugglers, and left with them. 

8                     The applicant, in statements to the respondent’s delegate and to the Tribunal, described a dangerous trip to Australia.  He expressed uncertainty about the fate of his family and described difficulties that he experienced in Australia with sleeping.  His account gave a general picture of a lonely and anxious young man who missed his family, who was worried about their fate, and who was worried about his future.

9                     The claims for refugee status made by the applicant, and on his behalf, asserted that the Taliban had targeted his father and himself for reasons which included suspicion that his father was a member of the Sepah Party which opposed the Taliban.  He feared that if he were to return to Afghanistan he would be persecuted by the Taliban, that persecution being partly for the imputed political opinion of his father, partly because the Taliban is primarily Pashtun, and because the Taliban is Sunni whereas he and his family were Hazara Shi’a.

10                  The Tribunal accepted that the applicant and his family had incurred the enmity of the Taliban and accepted that the applicant feared persecution by reason of his ethnicity and religion.  However the Tribunal concluded that the applicant was not a refugee to whom Australia owed protection obligations because of the changed political scene in Afghanistan.  On independent country information before the Tribunal it found that the Taliban was no longer a force in Afghanistan and was no longer in a position to harm the applicant.  The Tribunal concluded that there was no material before it to support the applicant’s claim that elements of the Taliban remained viable in Afghanistan.  The Tribunal also rejected arguments advanced by and on behalf of the applicant that the Interim Authority, though dominated by the Northern Alliance, would impute the applicant with political opinion other than opposition to the former Taliban regime.  The Tribunal held that available information did not indicate any episodes of persecution of Hazaras or Shi’as by the Northern Alliance or by the Interim Authority.  The Tribunal was not satisfied that the applicant was at risk of persecution on the basis of his religion or ethnicity or for any other Convention reason by any political party or grouping in Afghanistan. 

11                  The Tribunal concluded that the defeat and elimination of the Taliban constituted, for persons in the situation of the applicant who were the targeted enemies of the Taliban, such a fundamental change in circumstances that it was satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan.  The Tribunal, however, expressed humanitarian concerns for the welfare of the applicant which the Tribunal considered were amplified by the fact that he is “very young”. 

12                  Written submissions filed in this Court on behalf of the applicant impugned the Tribunal’s decision on the ground that it ignored essential criteria for the grant of a protection visa, namely (a) the subjective element of the applicant’s fear of persecution and (b) whether the applicant’s fear was such that he was unwilling to avail himself of the protection offered by the country of his nationality.

13                  In developing this submission orally, counsel indicated that the first matter was not pressed as a separate ground, but contended that the failure to make findings about the subjective nature of the applicant’s fear of persecution was relevant to the second matter.

14                  A bald allegation that the Tribunal ignored the subjective element of the applicant’s fear of persecution could not succeed as the Tribunal expressly accepted that the applicant feared persecution by the Taliban by reason of ethnicity and religion (at par 39 of the Tribunal’s reasons for decision) as a prelude to its finding that his fear of harm by the Taliban was not well-founded by reason of the fundamental changes which had occurred with the defeat and elimination of the Taliban. 

15                  The second matter which it is alleged that the Tribunal ignored focuses on the willingness of the applicant to avail himself of the protection offered by the country of his nationality. 

16                  To establish that Australia owed him protection obligations, and thus to establish his entitlement to a protection visa, the Tribunal had to be satisfied that the applicant’s circumstances fell within the definition of a refugee contained in Article 1A(2) of the Refugees Convention, as defined in s 5(1) of the Act, namely that:

“ … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”  [bold emphasis added]

17                  The words in emphasis are those stressed by the applicant’s argument.  It is contended that the Tribunal focussed its attention only on whether the applicant was outside of Afghanistan owing to a well-founded fear of being persecuted for a Convention reason, but failed to give any consideration to the second limb of the definition, namely whether the applicant is unable or, owing to such fear, is unwilling to avail himself of the protection of Afghanistan.  Counsel acknowledged that the applicant was able to return to Afghanistan, but argued that the Tribunal failed to consider the essential requirement of whether the applicant is willing to avail himself of the protection.  The concepts of being “unable … to avail himself of the protection of” the country of his nationality, and being “unwilling” to do so are discussed in Minister for Immigration and Multicultural Affairs v Khawar (2002) 76 ALJR 667 (Khawar) at [60] – [73] per McHugh and Gummow JJ. 

18                  Counsel acknowledged that the question of whether a person has a well-founded fear of persecution is one that has both subjective and objective elements, and contended that in this case there was evidence of an objective basis for a continuing ongoing fear which made the applicant unwilling to avail himself of the protection of Afghanistan.  The complaint is that the Tribunal did not consider this evidence, or ask the question whether owing to a well-founded fear the applicant was unwilling to return. 

19                  The argument was developed by reference to the applicant’s position.  It was said that in his formative years his life experiences occurred in the context of fear and persecution by the Taliban.  He found himself suddenly removed from the security of his family when he left with the smugglers because of increasing risk to his own safety.  It was his first journey beyond his local geographic area.  He had a frightening, dangerous trip to Australia.  In Australia he has suffered loneliness and anxiety about his family and his future, and the view could have been taken by the Tribunal, had it considered the issue, that by reason of his experiences he could not accept that it would now be safe for him to return to Afghanistan.  Counsel argued that on these facts, when properly analysed, the experiences of the applicant constituted the objective basis to well found his continuing fear which made him unwilling to return.  In short, it was said that the Tribunal should have considered - and erred in an essential respect in not doing so - whether the applicant was now by reason of his past experiences too scared and anxious to return. 

20                  In support of this argument, which if correct could apply to a great number of asylum seekers, Counsel relied on the passages from the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs;  Ex parte Miah (2001) 179 ALR 238 (Miah) at [64] and [65] (Miah).  Those passages do lend support to the argument, but greater support is to be found at [68] to [70] of that case and in the following passage in her Honour’s judgment in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 415:

“The definition of ‘refugee’ looks to the mental and emotional state of the applicant as well as to the objective facts.  It is a commonplace, encapsulated in the expression ‘once bitten, twice shy’, that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience.  Although the definition requires that there be ‘well-founded fear’ at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant’s own past experiences.

If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted.  If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality.  To require more of an application for refugee status would, I think, be at odds with generally accepted views as to its application to persons who have suffered persecution … [references omitted].”

21                  In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658 [150], Gummow J pointed out that Gaudron J’s view in the above passage did not represent the view of the Court in Chan.  In Miah at [69] Gaudron J acknowledged that fact but said:

“However nothing that was said in Chan or that has been said in subsequent cases suggests that what I said was wrong.”

The statements of Gaudron J lend support to the applicant’s case.  The statements support the view that if the decision maker finds that past experiences engendered at the time in the applicant a well-founded fear of persecution for a Convention reason, and if the applicant has a genuine continuing fear of persecution were he to return to his country of nationality, then the Tribunal must go further and ask this question :  Are the changed circumstances such that the fear of a reasonable person in the position of the applicant would be allayed?  If the answer is no, then a continuing well-founded fear ought to be accepted. 

22                  It is established by the judgments of Mason CJ, Dawson, Toohey and McHugh JJ in Chan (at 389, 398, 406 and 429 respectively) that the definition of refugee in Article 1A(2) of the Refugees Convention involves mixed subjective and objective elements.  Counsel for the respondent contended that it is clear from the principles emerging from these judgments that both the subjective and objective elements necessary to constitute a well-founded fear must be present at the time when the asylum seeker’s claim for protection is determined – in this case at the date of the Tribunal’s decision:  see also Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.  Counsel relied in particular on the following statements in Chan. 

23                  Dawson J at 396 – 397:

“There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind;  there must be a sufficient foundation for that fear.”

…

It is clear enough that the object of the Convention is not to relieve fears which are all in the mind, however understandable, but to facilitate refuge for those who are in need of it.”

24                  Toohey at 406:

“All that the approach demands is that a determination whether a person has a well-founded fear of being persecuted is a determination whether that circumstance exists at the time refugee status is sought.  If circumstances have changed since the applicant left the country of his nationality, that is a relevant consideration.  In an appropriate case the change (such as a new government) may remove any basis for a well-founded fear of persecution.”

25                  And in the judgment of McHugh J at 429:

“Courts, writers and the UNHCR Handbook agree, however, that a ‘well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified. But are the facts which are to be examined confined to those which formed the basis of the applicant’s fear?  In Sivakumaran the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant’s fear.  The contrary conclusion would mean that a person could have a ‘well-founded fear’ of persecution even though everyone else was aware of facts which destroyed the basis of his or her fear.

The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur.  As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a far-fetched possibility of persecution must be excluded.  But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded’ for the purpose of the Convention and Protocol.” 

26                  In my opinion it is implicit in these passages that the real chance of persecution necessary to meet the objective element of the definition of refugee must be present at the time when the claim for refugee status is determined.  I consider it follows that where the threat of persecution that caused an asylum seeker to hold a well-founded fear at the time of departure from the country of nationality has in the meantime evaporated, and the circumstances pertaining in the country have so changed that there is no longer a real chance that the asylum seeker would risk persecution for a Convention reason if he or she were to return, any persisting fear of persecution held by that asylum seeker does not have the objective quality of being well-founded. 

27                  I am unable to reconcile this interpretation with the view of Gaudron J in Chan and Miah referred to above.  I consider that I am bound to follow the majority view expressed in Chan, and to decline to follow the view of Gaudron J. 

28                  The interpretation which I adopt is consistent with the objective of the Refugees Convention which is to provide protection from real risk of persecution.  Moreover, the interpretation which I adopt gains support from a consideration of the structure of the definition in Article 1A(2) (set out at [16] above).  The definition has two components:  the first concerning the requirement that the refugee be outside the country of nationality, and the second concerning the inability or unwillingness of the refugee to avail himself of the protection of that country.  The requirements of both limbs of the composite definition must be present at the time when the determination of refugee status is made under the Act.  In the first limb the requirement of a well-founded fear of persecution will be met only when both the subjective and the objective elements that constitute a well-founded fear are present.  The requirement in the second limb of the definition, in a case where the claim for protection is based on an unwillingness to avail himself of the protection of the country of his nationality, is an unwillingness “owing to such fear”.  “Such fear” is grammatically, a reference back to the well-founded fear referred to in the first limb of the definition, and the words impose the same requirement that there must then be present both the subjective and the objective elements that constitute the well-founded fear which satisfies the first limb.

29                  This interpretation of Article 1A(2) is also supported by overseas authority.  In Mileva v Canada (Minister of Employment and Immigration) (1991) 81 DLR (4^th) 244  the Federal Court of Appeal of Canada considered a case of an applicant for recognition of refugee status who came from Bulgaria.  She made her claim on arrival in Canada on 18 December 1989, but before the claim was determined substantial political changes occurred in Bulgaria.  The statutory provisions in the Immigration Act, RSC 1985 (Can) for relevant purposes closely reflect the definition of a refugee contained in Article 1A(2) of the Refugees Convention.  Pratte JA, with whom Desjardins JA concurred, said at 248:

“The fact that the political situation existing in a claimant’s country of origin has developed in such a way as to remove the reasons causing him to fear persecution is obviously a fact relevant to the question of whether that person can validly maintain that he is a Convention refugee.  The question raised by a claim to refugee status is not whether the claimant had reason to fear persecution in the past, but rather whether he now, at the time his claim is being decided, has good grounds to fear persecution in the future.”

And Marceau JA at 256 said:

“ … whatever the circumstances a person must be considered a refugee only if the fear of persecution which caused him to flee his country has continued to be objectively reasonable despite the political changes that have taken place in the meantime.”

30                  In the United Kingdom, the House of Lords in Adan v Secretary of State for the Home Department [1998] 2 All ER 453 (Adan), considered the application of Article 1A(2) of the Refugees Convention in the case of an asylum seeker who had fled from Somalia fearing persecution by the government for Convention reasons.  Before his application was determined there was a change of regime in Somalia.  The Secretary of State refused the application, and the matter found its way to the highest court where the Secretary of State’s decision was upheld on the ground that it was necessary, under Article A1(2), for the applicant to have a current well-founded fear of persecution for a Convention reason, at the time when his claim was determined, in order to be recognised as a “refugee”.  Lord Slynn of Hadley said at 454 – 455:

“The first matter to be established under the article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution.  That well-founded fear must, as I read it, exist at the time his claim for refugee status is to be determined;  it is not sufficient as a matter of the ordinary meaning of the words of the article that he had such fear when he left his country but no longer has it.  Since the second matter to be established, namely that the person ‘is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’ (art 1A(2)), clearly refers to an inability or unwillingness at the time his claim for refugee status is to be determined, it seems to me that the coherence of the scheme requires that the well-founded fear, the first matter to be established, is also a current fear.  The existence of what has been called an historic fear is not sufficient in itself, though it may constitute important evidence to justify a claim of a current well-founded fear.”

31                  Lord Lloyd of Berwick (with whom Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead agreed) referring to the second limb of the definition of “refugee” in Article 1A(2) said at 458:

“ … the starting point must be the language itself.  The most striking feature is that it is expressed throughout in the present tense:  ‘is outside’, ‘is unable’, ‘is unwilling’.  Thus in order to bring himself within category (1) Mr Adan must show that he is (not was) unable to avail himself of the protection of his country.  If one asks “protection against what?’ the answer must surely be, or at least include, protection against persecution.  Since ‘is unable’ can only refer to current inability, one would expect that the persecution against which he needs protection is also current (or future) persecution.  If he has no current fear of persecution it is not easy to see why he should need current protection against persecution, or why, indeed, protection is relevant at all.

But the point becomes even clearer when one looks at category (2), which includes a person who is (a) outside the country of his nationality owing to a well-founded fear of persecution, and (b) is unwilling, owing to such fear, to avail himself of the protection of that country.  ‘Owing to such fear’ in (b) means owing to well-founded fear of being persecuted for a convention reason.  But ‘fear’ in (b) can only refer to current fear, since the fear must be the cause of the asylum-seeker being unwilling now to avail himself of the protection of his country.  If fear in (b) is confined to current fear, it would be odd if ‘owing to well-founded fear’ in (a) were not also confined to current fear.  The word must surely bear the same meaning in both halves of the sentence.”

The criticism of Lord Lloyd’s speech made in Khawar at [71] – [72] is not directed to the above passage.  Whilst the precise point argued by the applicant in the present case was not raised by Adan, the passages I have referred to from their Lordships’ speeches support the construction that I adopt.  The conclusion that there must be, at the time of the determination of the status of the asylum seeker, an objective element arising from present circumstances in the country of nationality to constitute a well founded fear gains support from the following passage in The Law of Refugee Status (Toronto:  Butterworths, 1991) by Professor James Hathaway at 68 – 69 which is cited by Lord Lloyd in Adan at 459 – 460:

“In the Convention as ultimately adopted, therefore, persons determined to be refugees under earlier arrangements are not required to demonstrate a well-founded fear of being persecuted, and are not automatically subject to cessation of refugee status if conditions become safe in their homeland.

It was the intention of the drafters, however, that all other refugees should have to demonstrate ‘a present fear of persecution’ in the sense that they ‘are or may in the future be deprived of the protection of their country of origin’.  Thus, it was agreed that the first branch of the IRO test which focused on past persecution should be omitted in favour of the ‘well-founded fear of being persecuted’ standard, involving evidence of a present or prospective risk in the country of origin.  The use of the term ‘fear’ was intended to emphasize the forward-looking nature of the test, and not to ground refugee status in an assessment of the refugee claimant’s state of mind.”

32                  In the present case it is accepted that it was open to the Tribunal to find that the circumstances which founded the applicant’s fears of persecution in Afghanistan have been removed by the changes which have happened since the applicant left, to the point where there is no longer a real chance that he would be persecuted for a Convention reason if he were to return.  In my opinion it therefore follows that, at the date of the Tribunal’s decision, there was not an objective basis for whatever continuing fear of persecution the applicant then held.  Given the applicant’s age and life experiences, that he remains fearful is understandable, but such a state of mind, does not quality as a well-founded fear within the meaning of Article 1A(2). 

33                  For these reasons, I conclude that the Tribunal did not fall into error in the manner alleged, and the application must be dismissed.  The occasion to consider the operation and scope of s 474 of the Act therefore does not arise. 

Associate:

Dated:              6 August 2002

Counsel for the Applicant:                     Mr A Collett

Solicitors for the Applicant:                   Hamdan Lawyers

Counsel for the Respondent:                 Ms S Maharaj

Solicitors for the Respondent:                Sparke Helmore

Date of Hearing:                                   24 May 2002

Date of Judgment:                                 6 August 2002