FEDERAL COURT OF AUSTRALIA

QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448

MIGRATION – protection visa – applicant refused permanent visa following the grant of two temporary visas – whether Article 1C(5) of the Convention relating to Status of Refugees applies to permanent protection visa applicants previously granted temporary protection visas – whether Tribunal considered fear of persecution from non-government groups – whether Tribunal considered if government could offer protection against non-government groups – whether Tribunal erred in deciding on area of possible return.

Migration Act 1958 (Cth) ss 29, 30, 31, 36, 65

Migration Regulations 1994 (Cth) reg 2.08F Sch 1, items 1401, 1403, Sch 2 subclass 785, 866

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 considered

Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 considered

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

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 considered

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 considered

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 considered

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

Abebe v Commonwealth  (1999) 197 CLR 510 considered

QAAH OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 102 OF 2004

DOWSETT J

11 NOVEMBER 2004

SYDNEY (VIA VIDEO-LINK) HEARD IN BRISBANE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

The APPLICATION

1                     The applicant is a citizen of Afghanistan, of Hazara ethnic background and a Shi’a Muslim.  He was born in 1970 and claims to have entered Australia in September 1999.  On 28 March 2000, he was granted a temporary protection visa, valid for up to three years.  On 17 April 2000, he applied for a permanent protection visa.  On 27 March 2003, the applicant was granted a second temporary protection visa which was to continue ‘… until your application for a Protection (Class XA) visa is finally determined.’  This was a reference to his application for a permanent protection visa.  On 21 November 2003 a delegate of the respondent (the “Minister”) refused that application.  On 3 May 2004 the Refugee Review Tribunal (the “Tribunal”) affirmed the decision.  This is an application for review of that decision.

available visas

2                     Section 29 of the Migration Act 1958 (Cth) (the “Migration Act”) authorizes the grant of visas to travel to and enter and/or to remain in Australia.  Pursuant to s 30 a visa may be either permanent or temporary.  Pursuant to s 31 classes of visa in addition to those prescribed by the Migration Act may be prescribed by regulation.  Section 36 of the Migration Act provides for a class of visa to be known as “protection visas”.  A criterion for the grant of a protection visa is that the applicant is:

‘a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol … .’

Subsection 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class which include the class in s 36. 

3                     The “Refugees Convention” is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951; and the “Refugees Protocol” is the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  I will refer to those instruments  respectively as the “Refugees Convention” and the “Refugees Protocol” and to them collectively as the “Convention”.

4                     Item 1401 in Schedule 1 to the Migration Regulations 1994 (the “Migration Regulations”) provides for a class of visa described as “Protection (Class XA)”.  Within this class are two subclasses, namely subclass 785 (Temporary Protection) and Subclass 866 (Protection).  Prior to 2000 a person could only apply for a Subclass 785 visa if he or she has not been “immigration cleared”.  A person may apply for a Subclass 866 visa only if he or she is “immigration cleared”.  The expression “immigration cleared”, broadly speaking, describes a person’s immigration status in Australia.  The applicant was not, when he applied for his first temporary protection visa, immigration cleared.  He received, on 28 March 2000, a Subclass 785 visa.  This meant that he was thereafter immigration cleared and so could apply for a Subclass 866 visa.  He did so.  I will hereafter refer to a Subclass 866 visa as a “permanent visa” and to a Subclass 785 visa, issued as a Class XA visa, as a “temporary (XA) visa”.  The visa granted on 28 March 2000 was a temporary (XA) visa.

5                     The temporary (XA) visa was introduced in 1999.  At that time such a visa was to continue until the earlier of:

‘(a)      the end of 36 months from the date of grant of the visa; and

 (b)      the day on which an application by the holder for a permanent visa is finally determined.’

6                     In other words, the maximum life of the visa was 36 months.  In 2001 this provision was amended to provide that such a visa would continue until:

‘(a)      if the holder applies for a permanent visa after the temporary visa is granted and before the end of 36 months from the grant – the day on which the application is finally determined; and

(b)       in any other case – the end of the 36 months.’

7                     This means that if the holder of a temporary (XA) visa applies for a permanent visa within the 36 months following its grant, it will continue in force until that application is finally determined.  In the absence of such an application, a temporary (XA) visa continues for a period of 36 months.  It seems that no transitional provisions were made with respect to temporary (XA) visas which had been granted prior to the amendment.  Such visas therefore expire after 36 months or after any application for a permanent visa has been finally resolved, whichever is the earlier.  Thus an applicant’s temporary (XA) visa might expire before his or her application for a permanent visa had been determined.  He or she would then be an illegal immigrant.  To remedy this shortcoming, a new class of visa, “Protection (Class XC)”, was introduced in 2002.  Only a person:

۰               to whom reg 2.08F applies; and

۰               who, pursuant to subreg 2.08F(2), is taken to have applied for a Protection (Class XC) visa,

is eligible to receive such a visa.  Regulation 2.08F provides:

‘(1)      Subregulation (2) applies to a person only if:

(a)        the person holds a Subclass 785 (Temporary Protection) visa that was granted before 19 September 2001; and

(b)        the person is in Australia but is not in immigration clearance; and

(c)        the visa has not been cancelled; and

(d)        within 36 months after the date of grant of the visa, the person makes, or has made, an application for a Protection (Class XA) visa; and

(e)        the application has not yet been finally determined.

(2)        The person is taken also to have applied for a Protection (Class XC) visa on the later of:

(a)        the day when he or she makes, or made, the application mentioned in paragraph 1(d); and

(b)        1 November 2002.’

8                     Protection (Class XC) has one subclass, namely “785 (Temporary Protection)”:  cl 1403, Sch 1 Migration Regulations.  In other words it “shares” that subclass with Protection (Class XA).  I will hereafter refer to a Subclass 785 visa, granted as a subclass of Class (XC), as a “temporary (XC) visa” to distinguish it from a temporary (XA) visa.  The regulations relating to Subclass 785 have been amended to reflect their application to both Protection (Class XA) and Protection (Class XC) visas by adopting a new par 785.511 in 2003 which prescribes the duration of such visas as follows:

‘Temporary visa permitting the holder to remain in, but not re-enter, Australia until:

(a)       for the holder of a Subclass 785 (Temporary Protection) (Class XA) visa:

(i)         if the holder applies for a Protection (Class XA) visa after the temporary visa is granted and within 36 months after the grant – the day when the application is finally determined or withdrawn; and

(ii)        in any other case - the end of the 36 months; or

(b)        for the holder of a Subclass 785 (Temporary Protection) (Class XC) visa – the day when the application mentioned in paragraph 2.08F(1)(d) is finally determined or withdrawn.’

9                     As I have observed, the applicant received his temporary (XA) visa on 28 March 2000 and made his application for a permanent visa on 17 April 2000.  By virtue of subreg 2.08F(2) he was deemed to have applied for a temporary (XC) visa on 1 November 2002.  His temporary (XA) visa expired on or about 27 March 2003 and on that date, he was granted a temporary (XC) visa.  On 21 November 2003 his application for a permanent visa was rejected.  This decision  effectively terminated the applicant’s temporary (XC) visa.  The decision was affirmed by the Tribunal on 3 May 2004.  That latter decision is the subject of the present proceedings. 

ENTITLEMENT TO A Protection visa

10                  A protection visa, whether it be in Class XA or Class XC, and whether it be permanent (Subclass 866) or temporary (Subclass 785) may only be granted if the Minister is satisfied that Australia owes protection obligations to the applicant under the Refugees Convention.  (See Migration Act, s 36 and Migration Regulations, Schedule 2, Items 785.22 and 866.22(1).)

11                  Section A(2) of Article 1 of the Convention relevantly provides that a “refugee” is any person who:

‘… 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; … .’

12                  The various motives for persecution referred to in section A(2) are frequently described as “Convention reasons”, a usage which I will adopt.  States which accede to the Convention incur obligations to refugees as so defined.  Sections C, D, E and F of article 1 prescribe exceptions to the general application of the Convention.  As was pointed out by von Doussa J (Moore and Sackville JJ concurring) in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 552-553, s 36 of the Migration Act prescribes that entitlement to a protection visa depends upon the existence of protection obligations owed to the relevant applicant by Australia under the Convention.  Whether Australia owes such obligations to a particular person is to be determined, having regard to all of article 1, including the various exceptions. 

13                  von Doussa J also pointed out that subs 36(2) and s 65 of the Migration Act (dealing with the grant of visas) are the primary provisions which give effect to Australia’s obligations under the Convention.  Australia’s protection obligations to refugees entail, among other things, not returning them to countries in which they fear persecution.  In many cases, that involves their being granted rights of residence in Australia.  Those rights are conferred and regulated by the system of protection visas which is described above.  The Minister, his or her delegates, the Tribunal and the Courts must all primarily apply the Migration Act and the Migration Regulations, not the Convention.  It is at least possible that the relevant sections of the Act do not fully implement the Convention.  For present purposes I accept that any regulation which is inconsistent with the Convention, to the extent that it has been introduced into domestic law by s 36, will be invalid.  No such argument has been mounted in this case.  For present purposes I also accept that the Migration Act and the Migration Regulations should, if possible, be construed so as to be consistent with Australia’s obligations under the Convention.  There has been no suggestion that any inconsistency presently arises.

Cessation

14                  One other aspect of article 1 of the Convention is relevant for present purposes.  Section C (the “cessation clause”) provides relevantly:

‘This Convention shall cease to apply to any person falling under the terms of Section A if:

…

(5)       He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

…’

It may be of importance to note that the cessation clause operates to terminate obligations owed to refugees, not to create such obligations.

grounds of review

15                  In the Tribunal and before me, the matter has proceeded upon the basis that the Tribunal had to determine whether or not, in the present case, the cessation clause had been engaged so as to terminate Australia’s protection obligations to the applicant.  This problem arises in the following way.  The applicant’s protection (XA) visa was granted in 2000 upon the basis that he had a well-founded fear of persecution for a Convention reason in Afghanistan at the hands of Taliban, which organization was then in de facto control of much of the country.  However, by the time at which he was granted the temporary (XC) visa, (27 March 2003), the American-led invasion had removed Taliban from that position.  Nonetheless it remained active in some areas.  This appears to be the factual basis upon which the Tribunal and the parties have proceeded to date.

16                  The applicant did not actually apply for a temporary (XC) visa; he was deemed to have done so.  He therefore did not put any information before the Minister to demonstrate any relevant well-founded fear as at March 2003.  Nevertheless, he was granted a temporary (XC) visa, apparently without any actual consideration of the changes in Afghanistan since 2000 or whether the current circumstances justified a different, well-founded fear, sufficient to entitle him to a protection visa.  The applicant submits that, as s 36 and the regulations prescribing the criteria for a temporary (XC) visa require that Australia owe him protection obligations as a condition precedent to the grant of such a visa, it must be conclusively assumed that the Minister was satisfied as to the existence of such status at the time of granting the temporary (XC) visa.  He alternatively submits that the Minister may not now deny that such obligations existed at that time.  The applicant submits that in either case, it must also be accepted that the circumstances as at March 2003 were sufficient to justify the grant of a protection visa and that he continues to be a person to whom Australia owes protection obligations until those circumstances change in the way contemplated by the cessation clause.  It is said that s 36 recognizes that protection obligations continue until the cessation clause is engaged.  Thus a protection visa may, and should, be granted upon the basis of a prior determination that the applicant was a refugee and without further enquiry, provided that there has been no change of circumstances sufficient to engage the cessation clause.  The effect of the submission must be either that a temporary (XC) visa continues until the cessation clause is engaged, despite the statutory limit on its life, or that there is some obligation to grant a new visa without reference to current circumstances.

17                  The applicant then submits that the Tribunal found that circumstances had changed since the grant of the temporary (XA) visa in 2000 but did not consider whether the circumstances which existed in March 2003 (when the temporary (XC) visa was granted), had changed.  This is said to involve an error of law going to jurisdiction and is the first ground of review.

18                  The second ground is that the Tribunal failed to consider whether the applicant presently holds a well-founded fear of persecution for a Convention reason from Taliban or any other group, against which the government of Afghanistan could not, or would not defend him.

19                  Thirdly, it is submitted that the Tribunal failed to consider the consequences for the applicant, were he to return to an area of Afghanistan other than Parwan province from which he came.

20                  Fourthly, it is submitted that the Tribunal’s decision was based on no evidence and/or was “Wednesbury unreasonable”

CESSATION CLAUSE, australia’s PROTECTION obligations AND PROTECTION VISAS

21                  As I have said, a protection visa may only be granted to a person to whom Australia owes protection obligations, that is a refugee as defined in the Convention.  Three decisions of the High Court establish that for the purposes of the Migration Act, refugee status is to be determined having regard to the position at the time at which the determination is made.  See Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302 (per Mason, Deane and Dawson JJ); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386-7 (per Mason CJ), 398-9 (per Dawson J), 405-406 (per Toohey J), 414 (per Gaudron J) and 431-433 (per McHugh J); and Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343at [29] (per Gleeson CJ and McHugh, Gummow and Hayne JJ).  This suggests that notwithstanding the determination in March 2000 that the applicant was a person to whom Australia owed protection obligations, the Minister was obliged to re-address that question before granting the temporary (XC) visa and in considering the application for a permanent visa.  Obviously, that inference is inconsistent with the applicant’s argument.  In Mayer and Chan the High Court was considering a section which differed substantially from s 36.  Pursuant to the relevant provision, a person was entitled to a permanent entry permit if the Minister had determined that he or she had the ‘status of refugee within the meaning of the Convention’.  In Thiyagarajah von Doussa J (at 552-555) considered that the change in wording of the legislation (adopting s 36) had substantial consequences. 

22                  It is arguable that the requirement that Australia owe protection obligations to an applicant as mandated by s 36 may be satisfied by a prior determination to that effect in the course of considering an earlier application for a protection visa, including a temporary protection visa.  There are passages in  Chan which suggest that refugee status, once established, continues until the cessation clause is engaged.  If so then the s 36 test will be satisfied where there is such a prior determination, and the cessation clause has not been engaged.  However other passages in  Chan suggest that the question for determination is always whether the applicant satisfies the definition of “refugee”.  In my view, those latter passages reflect the true intention of the majority in that case.  The majority of the High Court in Thiyagarajah at [29], seems to have accepted that the propositions in Chan continue to represent the correct approach, notwithstanding the amendment adopting the present s 36.  The decision in Chan depended upon the High Court’s view of the meaning of the Convention, as opposed to the meaning of the relevant provisions of the Migration Act.  For that reason it is hardly surprising that the same approach should prevail, notwithstanding substantial changes to the wording of the legislation, given that the existence of protection obligations continues to be determined by reference to the Convention.

23                  In my view, it follows that the question for the Tribunal in the present case was whether or not, at the time of the decision, the applicant had a well-founded fear of persecution for a Convention reason.  It was not strictly relevant that he had previously applied for and received temporary (XA) and temporary (XC) visas.  In other words it was not necessary to decide whether or not the cessation clause had been engaged as a result of changed circumstances in Afghanistan.  The applicant’s argument to the contrary is that identified by Dawson J in Chan at 398, which argument was, in my view, rejected by the High Court.

24                  It is clear that the Minister, in granting the temporary (XC) visa, did not consider the then current circumstances.  If, in failing so to do, the Minister failed to act in accordance with the relevant legislative provisions and regulations, it may be that the grant of that visa was legally defective.  Even so, that would offer no justification for the grant of a further visa contrary to the relevant legislative provisions and regulations.  I do not wish to be taken as asserting that such grant was in breach of the Migration Act or the Migration Regulations.  Clearly, the temporary (XC) visa was intended to be a solution to a temporary and specific problem.  It was not intended to be, and could not become, a permanent visa.  The decision to grant the temporary (XC) visa was consistent with that intention.  

25                  In my view, the applicant’s entitlement to a permanent visa depended upon the circumstances as they were at the time of the Tribunal’s decision, meaning that it was necessary that he then hold a well-founded fear of persecution for a Convention reason.  His argument to the contrary is without merit.  If I am wrong in my understanding of the decision in Chan, nonetheless, the applicant’s argument would still fail.  The cessation clause will be engaged if ‘the circumstances in connexion with which [the applicant] has been recognized as a refugee have ceased to exist’.  It cannot be sensibly argued that Australia has ever recognized the applicant as a refugee other than in connection with circumstances as they existed in March 2000.  As I understand it, the applicant accepts that those circumstances have ceased to exist.  No recognizable legal basis has been advanced on behalf of the applicant to support the assertion that the grant of the temporary (XC) visa in 2003 raises a conclusive presumption that he was entitled to a visa on the basis of circumstances which then existed.  Those circumstances were never identified or relied upon by the applicant and never considered by the Minister.  The applicant’s argument is without merit.

Well-founded fear of persecution

26                  In the reasons given for the grant of the temporary (XA) visa, it was said that the applicant’s claim was ‘… that if he returns to Afghanistan he fears that the Taliban will kill him because he is of Hazara ethnicity.’  He also claimed to fear persecution because he is a Shi’a Muslim and because of his previous support for the Wahdat Party.  Country information indicated that by 1999 (when the applicant came to Australia) Taliban was in control of most of Afghanistan.  It was further said that:

‘Due to the current situation in Afghanistan, there is no effective government to protect the applicant.  The Taliban are a militant fundamentalist Islamic group seeking legitimacy as a government.  They have taken over control of large amounts of territory in Afghanistan militarily, and have set up their own system of control in those areas.  This control includes the implementation of strict Sharia law, enforced and carried out by the Taliban themselves.  The Taliban have been recognized as the legitimate government of Afghanistan only by Pakistan, Saudi Arabia and the United Arab Emirates, as shown by the UNHCR update paper:

“… Despite the fact that the Taliban control at least 90 percent of the territory of Afghanistan, only Pakistan, Saudi Arabia and the United Arab Emirates recognize the Taliban as the legitimate government of Afghanistan.  (US Institute of Peace October 1998, 3).” ’

27                  Taliban had established de facto governmental institutions, including Islamic courts and religious police.  There was substantial evidence of atrocities committed by Taliban, particularly against Hazara men and boys.  Clearly, Taliban’s de facto control of almost all of Afghanistan and the opportunities such control offered for the persecution of Shi’a Hazara were substantial aspects of the applicant’s original claim.  All of this pre-dated the terrorist attacks on New York and Washington DC in 2001 and the subsequent invasion of Afghanistan by American-led forces, resulting in the removal of Taliban from its de facto governmental role.

28                  The Tribunal considered the operation of the cessation clause in those circumstances.  It accepted that Taliban remained active in parts of Afghanistan but concluded that it was no longer a ‘coherent political movement’ and that there was no real chance of its ‘re-emerging as a governing authority’ in the foreseeable future.  The Tribunal concluded that there had been such a change of circumstances that the applicant could no longer refuse to avail himself of the protection of the Afghanistan government in connection with his original claim to fear persecution at the hands of Taliban.  As I have said, I do not consider that the Tribunal was obliged to address this question, but the conclusion makes it clear that the applicant had no claim to refugee status based upon Taliban’s prior position as the de facto government of Afghanistan.  As I understand the applicant, he accepts that the change in circumstances since 2000 was sufficient to justify the Tribunal’s view. 

29                  The applicant now asserts a continuing fear of persecution at the hands of Taliban and other groups, including Sunni Hazara (as opposed to Shi’a Hazara), Pashtuns and Tajiks.  He claims that there has been a long history of hostility towards Shi’a Hazara and that there is still no stable government in Afghanistan, capable of offering protection from persecution based on race (Hazara), religion (Shi’a), politics (the Wahdat Party) or membership of a social group.  The social group is said to be either:

‘Afghans who have returned to their village/local area after a long absence’;

or

‘Afghans who are Hazara who have returned to their village/local area after a long absence.’

30                  The applicant claims to have been born in the province of Parwan, about four-and-a-half hours from Kabul by car.  It seems that he and his family have lived in that province for many years, and that his family continues to do so.  He has also lived in Kabul.  The majority of people in Parwan are Sunni Hazara.  There are also Pashtuns and Tajiks.  The Sunni Hazara supported Taliban.  I infer that they still support its remnants.  The applicant claims that he and his father-in-law supported the Wahdat Party which had opposed Harakat before Taliban assumed control, and that he fears persecution because of such support.  He also claims that he will be persecuted if he returns to Afghanistan because people will expect him to have money.  He produced a document, said to be a warrant for his arrest dated in or around 1998/1999.  He said that it had been issued as a result of local animosity towards him.  He was unable to identify the source of such animosity but attributed it to historical opposition to Shi’a Hazara.  During the hearing before the Tribunal, he also claimed that he had been persecuted by other groups such as Jamiat, Sepah, Nasr and Wahabi. 

31                  The Tribunal accepted that Shi’a Hazara had faced discrimination from the majority Sunni population and that Hazara in some places, such as Kabul, ‘… are once again marginalised politically, economically, socially and culturally.’  However it also observed that ‘… while differences in the treatment of various groups exist to a greater or lesser extent in many societies, persons who receive less favorable treatment are not necessarily victims of persecution.  It is only when the consequences of such treatment is of a ‘substantially prejudicial nature … ’.’  The Tribunal then referred to s 91R of the Migration Act and concluded:

‘That said, while there are instances of Hazaras being subject to harm amounting to persecution in areas within Afghanistan in the years prior to the Taliban coming to power, based on all the evidence considered in this decision, I am not satisfied that all Hazaras in Afghanistan would have had in the past a real chance of being subject to harm amounting to persecution for the mere fact of being Hazara prior to the Taliban coming to power.’

32                  The Tribunal then concluded that the discrimination to which the applicant claimed he and his family had been subject was not sufficient to constitute persecution for the purposes of the Convention.  It was not satisfied that there was a real chance that the applicant would be persecuted for reason of his being Shi’a Hazara.

33                  The Tribunal had sought objective information which might suggest ongoing persecution of Hazara in Parwan.  It found none.  It recognized that the absence of such information might be attributable to circumstances other than absence of persecution.  However it noted that various non-government organizations were operating in the applicant’s home district of Surkh Parsa within Parwan.  The Tribunal considered that, given the presence of these organizations, it was likely that information concerning any difficulties of the kind suggested by the applicant would be available.  The Tribunal was aware of the possible weaknesses in this line of argument, but nevertheless acted upon it as it was entitled to do.  This finding effectively led to the rejection of virtually all of the applicant’s claims.

34                  The applicant had claimed to fear persecution because he had lost the protection of his father and elder brother and because others might expect him to be worth robbing.  The Tribunal concluded that such conduct would not be persecution for a Convention reason.  In particular, neither group (people without family protectors or people who might have money) was ‘… cognisable in Afghanistan for the purposes of the Refugee Convention.’  The Tribunal was not satisfied that the applicant might face persecution because of his earlier support of Wadhat, his race or religion.  The applicant also claimed to fear persecution because it would be thought that during his time in Australia, he had lived a life of ‘drugs, alcohol gambling and poker machines’.  The Tribunal found nothing in the country information to support this fear.  It also found no evidence to suggest that such a group was ‘cognisable in Afghanistan for the purposes of the Refugee Convention’.

35                  The applicant was given an opportunity to comment upon the Tribunal’s draft reasons.  Further submissions were made on his behalf.  He claimed that his family was aligned with Sepr Islami, a Shi’ite Hazara political group which had become a faction of the Hezbe Wahdat Party, headed by Akbari.  His family also had previously supported Haji Nader, a progressive Hazara who had been killed in 1981 by fundamentalist Hazara.  He claimed that ‘Shi’a Muslims from the Turkiman valley area who belonged to Sepr Islami had not been represented since 1981 … and that people [with(his political allegiance] continued to suffer discrimination and persecution’. 

36                  The Tribunal was not satisfied that the applicant or Shi’a Hazara generally had well-founded fear of persecution for a Convention reason in Parwan prior to the Taliban coming to power.  It was also not satisfied that the applicant or his family had suffered harm amounting to persecution prior to his coming to Australia, with the exceptions of his brother who had been beaten and the applicant, himself, who had been detained on one occasion.  The Tribunal considered that none of the country information satisfied it that such political alignment as was claimed by the applicant would give rise to a well-founded fear of persecution.

37                  The applicant claimed that he ‘holds progressive anti-fundamentalist, secular views and believes in the separation of powers of religion and state’ and that his ‘family is already known in his area to be progressive thinkers and believers in religious tolerance and equality’.  He claimed that such views were ‘against Sharia Law and Islamic principles’, that he had always held these views and that they had strengthened whilst he has been in Australia.  The Tribunal interpreted this as a claim to hold views opposed to Islam.  It was not satisfied that he held such views, nor was it satisfied that there was any reason to believe that he would express them in such a way as to attract adverse attention were he to return to Afghanistan. 

38                  The applicant claimed that a major Taliban base was situated in Baghlan province, a neighbouring province to Parwan.  The Tribunal found nothing in the country information which supported  this assertion. 

39                  The applicant also claimed that his ‘unconscious behaviour after living a significant number of years in Australia’ would make him more readily identifiable and lead to a real chance of danger from fundamentalists and Mullahs in Afghanistan.  The Tribunal was unable to locate any country information which demonstrated that this might be so.  It did not consider that such fear was fear of persecution for a Convention reason.  Although there was evidence of lawlessness, of incidents of persecution of Shi’a Hazara in other Afghan provinces and of general security concerns and sexual violence against young Afghan males (without reference to ethnicity or religion) in Parwan, the Tribunal considered that this evidence did not advance the applicant’s case that he feared persecution for a Convention reason in Parwan.

40                  The applicant asserted that any peace in Afghanistan might be short-lived and that there might be renewed conflict and persecution in Parwan.  The Tribunal acknowledged that Afghanistan was in a state of flux but was not satisfied that the applicant had a well-founded fear of persecution in the reasonably foreseeable future.

41                  Many of the applicant’s criticisms of the Tribunal’s reasons are based upon the assertion that they lack evidentiary support.  In addressing that question it is important to keep in mind the nature of the case which he had advanced.  He asserted ongoing lawlessness and absence of governmental protection for those who fear persecution for Convention reasons.  He also argued that there were various reasons why he, either personally or as a member of his family group, might be persecuted by any of a wide range of other groups in the area.  Most of the applicant’s claims were very general in nature and quite diffuse.  In so describing his case, I do not overlook the fact that he identified a small number of past incidents concerning him and/or other members of his family.  The Tribunal appears not to have accepted all of this evidence.  The applicant feared many groups but offered little objective evidence of past persecution by them or of grounds for fearing future persecution.  The country information concerning his province revealed no support for his case.  The Tribunal considered that, given the presence of non-governmental organizations in the area, there would have been reports of incidents of the kind which the applicant claimed to fear, had they occurred.  In the absence of such reports, it was not willing to act on his claims as being sufficient to establish a well-founded fear of persecution for a Convention reason.  It should be kept in mind that the applicant’s information concerning current conditions in Afghanistan was, at best, second-hand.

Lack of government protection

42                  The applicant asserts that the Tribunal failed to apply the test prescribed by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.  This submission probably means that the Tribunal failed to consider the possibility that the applicant feared persecution by non-governmental agencies against which the government of Afghanistan was incapable of protecting him.  The criticism appears to depend, at least in part, upon the Tribunal’s finding that Taliban was no longer the de facto government of Afghanistan.  Nonetheless it is clear that the Tribunal was aware that the applicant was claiming fear of persecution from the remnants of Taliban and other non-government groups.  As I understand the Tribunal’s reasons, it found no reports of such persecution in the Parwan area, by Taliban or other groups.  It found evidence of some discrimination, for example, in Kabul, but concluded that it did not amount to persecution.  The Tribunal appears to have dismissed the applicant’s claims to fear persecution by any group in the Parwan province upon this basis.  It cannot be said that the Tribunal failed to understand the claim made by the applicant or to dispose of it in accordance with law. 

FEAR OF PERSECUTION IN other parts of afghanistan

43                  It is submitted that there was ‘… no analysis by the Tribunal as to whether the appellant could return to any other area in Afghanistan … ’.  In support of this submission, the applicant refers to the decision of the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.  The submission reflects a misunderstanding of that decision.  In that case the applicant feared persecution in a particular area of India.  The Tribunal purported to dispose of such fears upon the basis that he could return in safety to other areas.  The present case appears to have proceeded upon the basis that the applicant would return to Parwan, the area with which he had affinity, in which he was born and in which his family resides.  He claimed to fear persecution in that region.  As far as I can see, there was no suggestion that he might return to any other area.  The submission is misconceived.

no evidence;  “Wednesbury unreasonableness”

44                  It is also submitted that ‘[t]he Tribunal based its decision on no evidence and was Wednesbury unreasonable’.  The first aspect of this submission focuses upon the Tribunal’s observation that ‘… the most recent country information … indicated the Wahdat Party and Jamiat are controlling Surkh Parsa’.  Surkh Parsa is that part of Parwan province in which the applicant and his family resided and presumably, in the case of his family, in which they continue to reside.   The Tribunal suggested to the applicant that the various groups whom the applicant claims to fear, including Tajik, would not have a real chance of harming him because of ‘their lack of control’ in that region.  The applicant submits that Jamiat is predominantly Tajik, and that Tajik therefore has a capacity to harm him because of its shared control of the region.  This submission boils down to a dispute as to the meaning of the expression “lack of control” and as to the nature of the “shared control” enjoyed by Jamiat and Wahdat in Surkh Parsa.  The Tribunal appears to have concluded that “shared control”, in effect, meant “no control” insofar as concerns the capacity to persecute a group of which the applicant is a member.  The applicant, on the other hand, asserts that “joint control” implies “some control” and presumably a capacity to persecute.  The argument is partly semantic and partly factual.  The extent of the shared control has not been identified;  nor have the limitations imposed by such shared control upon any capacity to persecute.  It may be significant that the applicant and his family have some historical affiliation with Wahdat, Jamiat’s co-partner in power.  In any event, it is unlikely that this aspect was of any great significance to the Tribunal.  As I understand its reasons, the significant issues were the absence of any reports of persecutory conduct in the region and its apparent unwillingness to act on the applicant’s claims in the absence of such reports.

45                  The applicant submits that the decision demonstrates “Wednesbury unreasonableness”, and that as the material was inadequate to justify the inferences drawn by the Tribunal, it must be inferred that it applied the wrong test or was not, in reality, satisfied as to the correct test.  I see no basis for drawing these inferences.  The Tribunal looked for country information which might support the applicant’s case and found none.  It drew inferences from the absence of such information, given that non-government organizations were active in the area.  It put to the applicant its concerns arising out of the absence of any such information.  No doubt, care was necessary in drawing inferences from the absence of evidence, but the Tribunal appears to have been aware of the possible weaknesses in its approach.  It was nonetheless entitled to adopt it.  I again point out that the applicant had no first-hand knowledge of current conditions in Afghanistan.  I see no basis for concluding that the outcome was so unreasonable as to bespeak a miscarriage in the process by which the Tribunal reached its decision.  I reject the applicant’s submission that one cannot draw rational inferences from the absence of information.  It is said that the decisions of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-5 and Abebe v Commonwealth  (1999) 197 CLR 510 at 543-4 support the submission.  I see nothing in those decisions which does so.  One may draw inferences from the absence of reports if there is reason to expect that such reports would, in the usual course, exist.  I see no basis for this criticism of the Tribunal’s approach.

46                  The applicant submits that the matters identified in pars 4, 5 and 6 of the application also demonstrate Wednesbury unreasonableness.  Those paragraphs are as follows:

‘4.        Having accepted that the Applicant’s brother was “beaten badly” in 1993 and the applicant was detained by the Jamiat in 1987/8, the Tribunal erred in not finding that the applicant or members of his family were subject to harm amounting to persecution prior to the Taliban coming to power in his district.

5.         That the Tribunal made a jurisdictional error in deciding that the treatment of some Hazaras in his village was not sufficiently serious to constitute persecution for the purposes of the Refugees Convention.

6.         That the Tribunal made a jurisdictional error in deciding that a lack of available information on “trouble” in Surkh Parsa, district in Parwan Province in Afghanistan meant there was no real chance of persecution against the applicant in that area in the reasonably foreseeable future, given the Tribunal accepted that historically the minority Shi’a had faced discrimination from the majority Sunni population and that currently the position of the Hazaras in [e.g.] Kabul has more or less reverted to what it was 30 years ago i.e. the Hazaras are once again marginalised politically, economically, socially and culturally.’

47                  As to par 4, it is difficult to see why incidents which occurred in 1987/1988 and 1993 should, in any event, necessarily lead to an inference that the applicant had a well-founded fear of persecution for a Convention reason in 2004.  The relevant passage appears at pp 15 and 16 of the Tribunal’s reasons as follows:

‘The applicant then claimed the people in his local area from other religious and ethnic groups subject him to ‘cruelty’ prior to the Taliban coming to power in his area.  When asked to explain what he meant by ‘cruelty’ the applicant replied that his brother had been ‘beaten badly’ and his brother’s car had been taken by the ‘Harakat’.  The applicant subsequently explained this had occurred three years prior to the Taliban coming to power.  Country information I had considered indicated ‘the Taliban religious army seized power in 1996’ … .  Accordingly it would appear the injury to the applicant’s brother occurred around 1993 [when this was put to the applicant by Tribunal letter dated 18 march 2004, he did not dispute this date].  Furthermore, around 1987/8 [he was born in 1970], the applicant claimed he was detained by the ‘Jamiat’ and to have only been released after his father had given his captors a parcel of land.  I indicated to the applicant that on this evidence nothing adverse had occurred to him or any member of his family between 1993 and when the Taliban entered his village.  He then claimed he had been subjected to other ‘cruelty’ in the interim.  When asked he claimed that from time to time the ‘control’ of his village had changed hands.  And when in power, both ‘Harakat’ and ‘Wahdat’ had ‘required him to repair their cars without paying him’, had ‘cut trees on his property without paying him’ and had ‘grazed their animals on his land without paying him’.’

48                  It seems that the Tribunal, at pp 22-23 of its reasons, accepted that the applicant’s brother may have been beaten in 1993, that the applicant was detained in 1987-1988 and that these incidents may have amounted to persecution.  However it seems to have shared my view, expressed above, that as such incidents occurred many years ago, and prior to Taliban taking control of the applicant’s village, they offer no real basis for fearing repetition in the future. 

49                  As to par 5, the Tribunal accepted that Hazara had been persecuted in the past.  However it was unwilling to infer that all Hazara, including the applicant, necessarily continue to have a well-founded fear of future persecution for a Convention reason.  The reasons for this conclusion appear above.  They include the nature of such acts, the length of time since they occurred and the absence of reports of such incidents in the relevant region.  These are factual matters and disclose no jurisdictional error.  The issues raised in par 6 are also factual.  Again, no jurisdictional error is demonstrated.

Orders

50                  The application should be dismissed with costs.

Associate:

Dated:              9 November 2004