FEDERAL COURT OF AUSTRALIA

NBGV v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 690

MIGRATION – applicant had held a temporary protection visa – application for a protection visa refused by delegate of the respondent – applicant claims to fear persecution en route to home district – whether Tribunal erred in not considering the particular route the applicant would take to his home district in Afghanistan – consideration of country information – whether Tribunal properly considered the possibility that the applicant would be persecuted as a ‘secularised Afghan’ – claim as both non-practising Muslim and one who had or was perceived to have abandoned Islam – difference between non-practising and abandonment – activities contrary to Islam – applicant’s claim to have abandoned Islam not considered – jurisdictional error 

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 424(1)

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Minister for Immigration & Ethnic Affairs v Guo (1991) 191 CLR 559

Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578

NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263

NAGV v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 213 ALR 668

NBEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 161

NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S134 of 2002 (2003) 211 CLR 441

Tharmalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 537

NBGV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

NSD690 of 2004

BENNETT J

2 JUNE 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  A writ of certiorari issue to quash the decision of the second respondent made on 13 April 2005.

2.                  A writ of mandamus issue directing the second respondent to determine the applicant’s application to it according to law.

3.                  The first respondent pay the costs of the applicant.

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

REASONS FOR JUDGMENT

1                     By a further amended application under s 39B of the Judiciary Act 1903 (Cth), the applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 13 April 2004 and handed down on 11 May 2004.  The Tribunal affirmed a decision of a delegate of the first respondent (‘the delegate’) refusing an application by the applicant for a Class XA (Protection) visa.

Facts

2                     The applicant is a citizen of Afghanistan.  He arrived in Australia in October 1999 and applied for and, on 28 March 2000, was granted a Subclass 785 (Temporary Protection) visa.  The applicant was granted a temporary protection visa on the basis that he had a well-founded fear of being persecuted for reasons of his race (Hazara) and his religion (Shia).  On 27 April 2000, he applied for a Class XA (Protection) visa.

3                     It was submitted before the Tribunal that the applicant feared persecution for reasons of his actual or imputed political opinion, race, religion (on the basis that he was not practicing or had abandoned Islam) and membership of a particular social group, secular Muslims in Afghanistan.

4                     The applicant is a Shia Muslim and is from the Hazara ethnic group.  From 1991 to 1999, he worked in his elder brother’s bookshop in a region of Afghanistan.  The applicant gave evidence to the Tribunal that the bookshop sold religious books, school books and some English teaching books. 

5                     The applicant claims that his elder brother had been one of the committee members of the Hezb-e-Wahdat in his village.  Before the Taliban took over the applicant’s village, it was controlled by the Hezb-e-Wahdad.

6                     Three months after the Taliban had taken control of the applicant’s district they rounded up four Hezb-e-Wahdat committee members in the area including the applicant and the applicant’s brother.  The applicant claims he was beaten but was released after he denied any involvement in the Hezb-e-Wahdat.  His brother has not been released.  The applicant claims that the Taliban closed down the bookshop, saying that selling books was against Islam.  The applicant claims that the Hezb-e-Islami had arrested him five times because he was involved in teaching people English and because the Hezb-e-Wahdat were against the Hezb-e-Islami.  It would also seem that the applicant and his family were believed by Hezb-e-Islami to be members of the Nasr faction of Hezb-e-Wahdat who were particular enemies of Hezb-e-Islami.

7                     When the applicant applied for his temporary protection visa, he claimed that the surrounding villages were also controlled by people from the Hezb-e-Islami, who persecuted members of the Hezb-e-Wahdad and the Nasr faction.

8                     In support of his protection visa, the applicant also claims that he fears that he will be persecuted if he returns to Afghanistan because he is Hazara and that the area from which he came was surrounded by other ethnic groups, in particular Pashtun and Tajik people.  He states that although it was said that the Taliban were no longer in control of Afghanistan, they were Pasthuns and the Pashtuns are still in power.

9                     He also claims that he fears persecution as a Shia Muslim because the Sunni majority wants the Shia religion ousted from Afghanistan.

10                  On 12 May 2003, the applicant sent a letter to the Department of Immigration & Multicultural & Indigenous Affairs saying that he had spoken to his brother-in-law who told him that in 1999 a man called Rahmattolah Sarwari, a commander of Hezb-e-Islami who had also worked with the Taliban, had come to the applicant’s uncle’s house asking for the hand of his cousin (who had been engaged to the applicant) in marriage.  The Tribunal describes this claim in the following way:

‘The [applicant] said that his uncle had told this man that his daughter was engaged to the [applicant] but this man had threatened that he would tell the Taliban that the [applicant] and his brother were members of the Hezb-e-Wahdat and that they kept weapons belonging to the Hezb-e-Wahdat in his uncle’s house. The [applicant] said that his uncle had refused but a few days later Rahmattolah Sarwari had returned and killed the [applicant’s] uncle, the [applicant’s] younger brother, Ezattolah (who he said had been living with his uncle) and the [applicant’s] cousin, his fiancée. The [applicant] said that Rahmattolah Sarwari and his superior, Bashi Habib, were under the leadership of the Hezb-e-Islami and Gulbuddin Hekmatyar.’

11                  The applicant says that Rahmattolah Sarwari was one of the commanders of the Hezb-e-Islami in his village.  The applicant claims that Rahmattolah Sarwari who is still in Afghanistan, had thought that since the applicant was in Australia he had converted his religion and therefore that Rahmattolah Sarwari could marry the applicant’s fiancée.  The applicant states that Rahmattolah Sarwari and his associates still have weapons and power and that there is no government control or administration in his home area.  He claims to fear being killed by them and that, as a Hazara person, he will be in danger everywhere he goes.

12                  The applicant claims to fear persecution en route to his home town, Jaghori, from Kabul. It is argued that there is only one available route to Jaghori from Kabul.  On this route, according to findings made by the Tribunal, is the road on which the leader of Hezb-e-Islami has made his headquarters.  A map of the region was tendered, by consent, in support of this claim.

Application for review

13                  In his original application for review, the applicant sought review on the following grounds:

‘1.        The second respondent (hereafter ‘the Tribunal’) failed to lawfully exercise its jurisdiction in finding that Article 1C(5) of the Refugees Convention applied to the applicant.

Particulars

(a)       The Tribunal failed to ask the questions which, in the circumstances of the applicant’s case, it was obliged to ask before making a finding that Article 1C(5) applied to the applicant, those questions being:

                        i.          Whether the applicant was in any danger whatsoever                                   from the Taliban, and as relevant to this,

ii.                  Whether the Taliban’s ideology had changed so that they did not consider Hazaras as heretical.

iii.                Whether the Taliban had ceased to exist as a force capable of persecuting the Hazara population of the applicant home area, and

 2.        The Tribunal misconstrued and misapplied section 36(3) of the Migration Act, 1958, in that it incorrectly considered that this sub section applied to the applicant’s country of nationality, rather than to a third country only (i.e. a country other than the applicant’s country of nationality and Australia).

 3         The Tribunal asked itself the wrong questions and applied the wrong test in considering whether the applicant could return to his home area.

            Particulars

(a)               The Tribunal erroneously asked itself whether the applicant faced a real chance of persecution for a Convention reason in transit from Kabul.

(b)               The Tribunal should have asked itself whether it was reasonable in all the circumstances for the applicant to attempt to return to his home area.

 4.        The Tribunal failed to conduct a “review” in terms of section 414 of the Migration Act.

            Particulars

(a)               The Tribunal failed to address a discreetissue put to it as to whether the applicant faced a well founded fear of persecution at the hands of the Taliban; that being that engaging in his normal occupation of being a bookseller and English teacher would identify the applicant as a person of western orientation in sympathy with the coalition occupying Afghanistan, and so make him a target of the Taliban.’

14                  At the hearing on 29 March 2005, I granted the applicant leave to file an amended application.  The amended application repeated grounds 1, 2 and 3 of the original application.  Ground 4 was amended deleting the particulars in (a) and replacing them with the following:

‘(b)      The Tribunal addressed the issue of whether the applicant had a well founded fear of persecution from individuals in the Hezb-I-Islami but failed to address the claim put before it, to the effect that the applicant feared persecution from that organization as a whole.’

The amended application also contained two new grounds:

‘5.        The Tribunal failed to ask questions and consider issues in the circumstances of the case it was required to consider.

            Particulars

(a)               Failing to consider the route which the applicant would have to take to return to his village, and if it is the road upon which the headquarters of the Hezb-I-Islami is located.

(b)               Failing to consider whether the applicant has a well-founded fear of persecution whilst returning.

 6.        The Tribunal failed to comply with s 424(1) of the Migration Act in that it failed to have regard to information which it obtained, being information on the danger to secular Muslims in Afghanistan.’

15                  At the hearing, the applicant’s counsel, Mr Karp, asked for and was granted leave to file a further amended application.  In the further amended application, there is only one change – the following particular is added to ground four:

‘(c)      The Tribunal erred in restricting its consideration of whether the applicant has a well founded fear of persecution because he is a secular Afghan (i.e. one who does not attend Mosque, drinks alcohol, teaches English and watches videos) to whether he would be so persecuted for having resided in a western country. The Tribunal should have considered whether he faced a well founded fear of persecution for reason of his non attendance as Mosque and other conduct marking him as a “bad Muslim” in the words of the Tribunal.’

Submissions

16                  The first two grounds of appeal in the further amended notice of appeal were not the subject of argument.  Mr Karp stated at the hearing that: ‘the applicant makes submissions on these issues formally to preserve his rights should there be an appeal’.  Mr Karp did not ask me to make findings on these two grounds.  He acknowledged the decisions of other judges of the Court against the propositions he advanced (NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 per Emmett J; NBEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 161 per Jacobson J).

17                  In the applicant’s written and oral submissions made before the hearing (‘the first submissions’), the following errors on the part of the Tribunal are asserted, in summary:

(a)        The Tribunal failed to deal with the applicant’s claims.

(b)        Hezb-e-Islami – The Tribunal’s finding that the applicant’s faction, Hezb-e-Wahdat, is “in control” of the district in which the applicant lived does not lead to a conclusion that the applicant does not have a well-founded fear of Hezb-e-Islami.

(c)        The road to Jaghori – In deciding that the applicant did not have a well-founded fear of persecution in Afghanistan as a whole, the Tribunal would necessarily have to consider whether he feared persecution by Hezb-e-Islami on his way back to Jaghori.  In finding that the applicant could, without fear of persecution, return to his district in Afghanistan, the Tribunal should have considered what route the applicant would take and whether there was any possibility that he would be persecuted en route.  Mr Karp tendered, by consent, a map of the district through which the applicant would have to travel and submitted that this map indicated that the headquarters of the leader of the Hezb-e-Islami was on the only road to the applicant’s district. In support of this submission Mr Karp cites: Tharmalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 537 (‘Tharmalingam’) per Lindgren J and Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 (‘Sameh’)(Full Court).

(d)        Non practising Muslim – The applicant claims to fear persecution on the basis that he does not practice Islam strictly.  The Tribunal’s consideration of this issue was restricted to the perception of the applicant by reason of his residence in the West.  It did not address, on this issue, evidence of other of the applicant’s activities which are or are perceived to be contrary to Islam.  In Afghanistan, the applicant was arrested five times because he had not been to Mosque, he showed videos and gave English lessons. There was also evidence that the applicant had not been attending Mosque in Australia; mixes with friends of different backgrounds and visits churches and a Buddhist temple; drinks alcohol on social occasions with members of a social club and with soccer team-mates.  The submissions note the applicant’s statement in a statutory declaration that was before the Tribunal that ‘I am also afraid that I will be persecuted because I have lived in a western country and because I am not a strict Muslim’ (emphasis added)

(e)        Country information on secular conduct – The Tribunal failed to comply with s 424(1) of the Migration Act 1958 (Cth)(the Act’) in not taking into consideration the Danish Immigration Service Report (‘the Danish report’) which deals with religious freedom.  That report says, relevantly: ‘The EU’s special representative found that it is the Islamic attitude in general which is dictating guidelines for acceptable conduct in Afghan society today, and that there is an intolerant attitude to secularisation’.  Mr Karp directs me to the following passage of the Tribunal’s reasons which, he says, indicates that the Tribunal did not consider, or misconstrued the Danish report: ‘I put to the [applicant] that there was no evidence of which I was aware that people who did not actively practise Islam were persecuted in Afghanistan today’.

18                  Mr Lloyd, for the respondent, makes the following submissions:

(a)        The Tribunal considered and made express findings rejecting each claim.

(b)        The road to Jaghori – The Tribunal was not obliged to formulate a specific route for the applicant and several routes were available.  The Tribunal did not find that there was only one way back to the applicant’s home district of Jaghori from Kabul and this is confirmed by the map tendered in evidence.  Sameh is distinguishable as Lindgren J dealt with the question of whether the applicant could access a safe third country and was contrary to the decision of the High Court in NAGV v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 213 ALR 668.  In any event, in NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 (‘NABE’) the Full Court said at [68], ‘the claim was not expressly advanced and must emerge clearly from the materials before the Tribunal’.

(c)        Non-practising Muslim – On the issue of secular Muslims, the Tribunal noted the applicant’s claims, including claims that he taught English and did not attend religious meetings and considered the evidence on a cumulative basis but found that there was no evidence of which it was aware that people who do not actively practise Islam are persecuted in Afghanistan.

(d)        Country information on secular conduct – The Tribunal noted the Danish report but preferred the evidence of the Australian Department of Foreign Affairs and Trade (‘the DFAT evidence’) and concluded that the applicant will not be regarded as a member of a particular social group comprised as ‘secularised Afghans’ because he has resided in the West for over four years and was granted refugee status.  In any event, the Tribunal is obliged only to have regard to information that it considers relevant, not to all information it acquires.  It was open to the Tribunal either not to consider this information to be relevant or even to err in its appreciation of what is relevant.  A failure to have regard to a credible piece of evidence on the file is not jurisdictional error (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S134 of 2002 (2003) 211 CLR 441 at [34] – [37]).  Further, ‘If information refers to the “correct” knowledge contained in the document and not the document itself then the Tribunal (on the applicant’s view) never “got” that information.  It got some other information. It was not obliged to have regard to information that it never got’.  The Tribunal did not misunderstand the Danish report – the report should be understood in its ‘overall context of indicating a qualified trend towards secularisation rather than one away from it’.

(e)        Generally, the applicant is, in substance, saying that the Tribunal failed to consider claims not made but which might have been – that is not a jurisdictional error on any view.

The Tribunal’s decision and consideration

19                  The first question before the Tribunal was whether 1C(5) of the Convention relating to the Status of Refugees (‘the Convention’) applied.

20                  Article 1C(5) of the Convention provides:

‘1C. 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 connection 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;

Provided that this paragraph shall not apply to a refugee falling under section A (I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality…’

21                  The Tribunal found that, because the circumstances in connection with which the applicant was recognised as a refugee, namely his fear of the Taliban, have ceased to exist, he can no longer continue to refuse to avail himself of the protection of his country of nationality.  The Tribunal found that article 1C(5) of the Convention applies to the applicant.

22                  The Tribunal then considered whether, as at the date of its decision, the applicant has a well-founded fear of being persecuted on the basis of the circumstances in connection with which he was originally recognised as a refugee if he returns to Afghanistan now or in the reasonably foreseeable future.  The Tribunal found that there was no such well-founded fear and that s 36(3) of the Act applies.

23                  Finally, the Tribunal considered whether, as at the date of the decision, the applicant had a well-founded fear of being persecuted for a Convention reason for the purposes of article 1A(2) of the Convention:

‘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.’

24                  The Tribunal considered the various aspects of the applicant’s claims, which were relied upon in the alternative:

• Persecution as a Hazara and as a Shia Muslim by Pashtuns and Tajiks
• Persecution on the basis of membership of Hezb-e-Wahdat and persecution by members of Hezb-e-Islami who controlled the neighbouring areas around and the road into the applicant’s village in the Jaghori district of Ghazni province
• Persecution by Rahmattolah Sarwari and his superior Bashi Habib who were in Hezb-e-Islami and associated with the Taliban
• Persecution as a secular Muslim, being someone who had lived in a Western country
• Persecution as an Afghan and as a Hazara who had returned to his village after a long absence
• Persecution on the basis that the applicant is perceived as a secular Muslim, that he was not practicing and had abandoned Islam

Persecution as a Hazara and a Shia Muslim by Pashtuns and Tajiks

25                  The Tribunal considered the claim that, as a Hazara and a Shia Muslim, the applicant would be in danger because the Jaghori district was surrounded by Pashtuns.  The Tribunal accepted that Hazaras continued to suffer discrimination but found that it fell short of persecution.  It put to the applicant that Shia Muslims faced discrimination from the majority Sunni population but that the situation of Shia Muslims ‘was generally good’.  It also noted that most of the inhabitants of Jaghori were Hazaras.  The Tribunal referred to country information that the Jaghori district is under the control of the Hezb-e-Wahdat and also information that there were no reports of Jaghori inhabitants being ill-treated by other ethnic groups, despite being bordered by Pashtun and mixed Hazara and Pashtun districts.

26                  The Tribunal considered country information and the applicant’s claims and did not accept that there is a real chance that the applicant will be persecuted by Pashtuns or Tajiks because of his ethnicity as a Hazara if he returns to his home in the Jaghori district now or in the reasonably foreseeable future.  The Tribunal reasoned that, generally, although the Hazaras continue to suffer discrimination, it is not such as to amount to persecution.  There was no jurisdictional error in this finding.

27                  The Tribunal also considered whether the applicant would face persecution as a Shia Muslim.  The Tribunal relied on and accepted country information which said that the situation of Shia Muslims is ‘generally good’.  That was a finding open to the Tribunal.

Membership of Hezb-e-Wahdat and persecution by members of Hezb-e-Islami who controlled the neighbouring areas around the applicant’s home district in the Jaghori district of the Ghazni province

28                  The Tribunal accepted that the Hezb-e-Islami is still present in Jaghori.

29                  The Tribunal accepted the applicant’s history and his fear of Hezb-e-Islami and of Rahmattolah Sarwari and Bashi Habib.  He noted that  Bashi Habib, the head of Hezb-e-Islami, had a base on the road running through Moqor and Qarabagh districts but not in Jaghori.  The applicant told the Tribunal that that base was a checkpoint to collect money from passing vehicles.

30                  Given the association of the applicant’s family with the Hezb-e-Wahdat and the control of Jaghori by that group, the Tribunal did not accept that there is a real chance that the applicant would be persecuted by the Hezb-e-Islami or Bashi Habib or Rahmattolah Sarwari if he returns to Jaghori now or in the reasonably foreseeable future.  The Tribunal rejected the claim of persecution for real or imputed political opinion.  That finding was open to the Tribunal.

31                  The Tribunal accepted that the applicant would have to travel through Kabul to Jaghori on insecure roads.  It did not accept that any danger on the roads from those collecting money was due to a Convention reason or that there is a real chance that the applicant will be persecuted for a Convention reason in the course of returning from Kabul to Jaghori.

32                  In the considerable detail of the Tribunal’s decision, there is no reference to a claim by the applicant that there is only one route from Kabul to Jaghori and that this is the route on which Bashi Habib has his base.  If no such claim were made, there can be no criticism of the Tribunal for not addressing the number of routes to Jaghori.

33                  In any event, I have been shown maps that were before the Tribunal and it would seem that there is more than one such route.  That being the case, it is unsurprising that the Tribunal did not consider the issue.  Nor do I regard this as being an issue which clearly ought to have been considered by the Tribunal in the sense considered by the Full Court in NABE.  In NABE, the Full Court held that the Tribunal did not err in failing to consider an unexpressed claim of want of effective State protection against persecution, finding that this claim did not ‘emerge clearly from the materials before the Tribunal’.  Neither the existence of only one route nor a claim to that effect is apparent from the material before the Tribunal.

34                  As to the authorities to which I was referred by Mr Karp, Sameh and Tharmalingam, each of those decisions was made before NABE. Tharmalingam is a decision by a single judge.  To the extent that the principles in that case differ from those expressed in NABE, I must follow NABE.  The applicant drew my attention to Lindgren J’s consideration, in Tharmalingam, of a claim that the Tribunal ought to review cases in the light of those claims which it accepted (at [19]).  The respondent correctly submits, however, that the Tribunal did not go so far as to accept that there was only one route to the applicant’s home district.  The applicant did not show that there was anything more before the Tribunal to suggest that there was only one route to the applicant’s home district.  Accordingly, Tharmalingam is of no assistance.

35                  In Sameh, the Tribunal had refused to grant a visa, partly on the basis that the visa applicant could avail himself of protection in Iraq.  The Tribunal noted, however, that if he were to return to Iraq, he would need to travel through Jordan because of the United Nations embargo then in place and that ‘there are some concerns about returning people to Iraq through Jordan although, there is no mention of what those concerns are.’  The Full Court held that, as a matter of law, the Tribunal was obliged to address the particular circumstances to consider properly whether the applicant had effective protection in Iraq and that a failure to do so involved error of law.  In the instant case, as Mr Lloyd notes, there is no issue regarding transit into Afghanistan.  The issue in this case is transit within Afghanistan, to the applicant’s home district.  Even if Sameh were not distinguishable on this point, again it is not apparent that there was any evidence before the Tribunal that there was only one route to the applicant’s home district.

36                  In these circumstances, I do not find that the Tribunal erred in failing to consider this issue.

Persecution by Rahmattolah Sarwari and his superior Bashi Habib who were in Hezb-e-Islami and associated with the Taliban

37                  The Tribunal accepted most of the applicant’s claims that he had previously been targeted by Hezb-e-Islami and that Rahmattolah Sarwari killed his fiancée, uncle and younger brother in 1999.

38                  The Tribunal made a clear finding that ‘given his family’s association with the Hezb-e-Wahdat and the fact that the Jaghori district is under the control of the Nasr faction of the Hezb-e-Wahdat, I do not accept that there is a real chance that he will be persecuted by the Hezb-e-Islami or specifically by Bashi Habib or Rahmattolah Sarwari if he returns to his home…I do not accept that the applicant has a well-founded fear of being persecuted for reason of his real or imputed political opinion, because of his family’s support for the Hezb-e-Wahdat.’  The Tribunal considered the possibility that the applicant will be targeted by Hezb-e-Islami or Bashi Habib or Rahmattolah Sarwari but, in view of all of the evidence, did not accept the applicant’s claims.  Mr Karp directed me to Minister for Immigration & Ethnic Affairs v Guo (1991) 191 CLR 559 at 595 where Kirby J said: ‘the judge must assess whether a real, as distinct from a purported, exercise of the power has occurred’.  I do not see that the Tribunal’s clearly reasoned findings represent a mere ‘purported’ exercise of the power.

Persecution as a secular Muslim being someone who had lived in a Western country

39                  The Tribunal observed that persons fluent in English were in high demand.  It considered that the applicant could earn his livelihood on his return to Afghanistan by teaching English.

40                  It put to the applicant that country information stated that people returning from Western countries like Australia were not targeted merely for having resided in the West.  It also put to the applicant that there was nothing in the evidence to suggest either that ‘Afghans who have returned to their village/local area after a long absence’ and/or ‘Afghans who are Hazara who have returned to their village/local area after a long absence’ were cognisable groups within Afghan society or that members of that group were persecuted for reasons of their membership of that group.  If the target were their perceived wealth, that is not a Convention reason.  Having regard to the DFAT evidence, the Tribunal did not accept that there is a real chance that the applicant will be regarded as a member of a particular social group such as “secularised Afghans” because he has resided in the West for over four years or because he was granted refugee status in Australia.  As a finding that the applicant would not be persecuted because he has resided in the West, no error is established.

Persecution as an Afghan and as a Hazara who had returned to his village after a long absence

41                  The applicant also claimed persecution as an Afghan who is Hazara and has returned to his village or local area after a long absence.  The Tribunal considered this claim and concluded that there was nothing in the evidence to suggest that, in either formulation put by the applicant, this constituted a cognisable group within Afghan society or that members of such groups are persecuted for reason of their membership.  That finding was open to the Tribunal.

42                  The Tribunal did not accept that robbers targeted Hazaras or persons returning from Western countries.  In any event, robbery itself is not persecution for a Convention reason.  That finding was open to the Tribunal.

Persecution on the basis that the applicant is perceived as a secular Muslim, that he is not practicing and has abandoned Islam

Non-practising Muslim

43                  The applicant claimed to fear persecution on the basis that he was not practising Islam.  In noting that the applicant’s representative had submitted that the applicant did not pray, did not attend a mosque and did not fast during Ramadan, the Tribunal said that there was no evidence of which it was aware that people who did not actively practise Islam were persecuted in Afghanistan today.  That finding was open to the Tribunal and there is no jurisdictional error in this regard.

Secular Muslim

44                  The Tribunal dealt with the applicant’s claim that, by reason of his residence in the West, he would be perceived to be a secular Muslim or one that had abandoned Islam.  The Tribunal referred to the applicant’s claim that there was an intolerant attitude towards secularisation and that Muslims behaving in a secular manner are in danger of reprisals.  The Tribunal referred to the applicant’s evidence that he had not participated in Muharram meetings for the four years that he had been in Australia, his belief that this had been reported in Afghanistan and his evidence that Rahmattolah Sarwari had said that his family were infidels and that they must be killed.  It noted the evidence to which the applicant’s representative referred ‘regarding an intolerant attitude towards secularisation and evidence that Muslims behaving in a secular manner were in danger of reprisals because non-Islamic or secular conduct is not acceptable in Afghanistan today’.  However, these matters were referred to by the Tribunal in the context of the applicant’s claim that he would be persecuted as a Western returnee who had been granted refugee status in Australia.

45                  The Tribunal also considered a claimed distinction between a person who had been granted refugee status and one who had been unsuccessful and found that the evidence did not support such a distinction.  The Tribunal considered the position of the group of “secularised Afghans” by reason of residence in the West or because of granted refugee status in Australia and did not accept that there was a real chance that the applicant would be regarded as a member of such a group.  The Tribunal gave reasons for this decision and it was open to the Tribunal on the evidence before it.  There is no jurisdictional error in this finding.

46                  However, the Tribunal did not deal with the claim that the applicant would be persecuted as a secular Muslim – not just one who did not actively practise his religion but as one whose behaviour was contrary to the tenets of Islam.  One of the claims made by the applicant was that his behaviour in Australia, such as drinking alcohol, was not just a lack of active practice of Islam, it was also, in effect, proscribed behaviour.  This claim was based on the applicant’s actual activities and practices, not based on the mere fact of Western residence.

47                  The way the Tribunal addressed the applicant’s approach to Islam, which was referred to at various stages in the reasons, can be seen in the following conclusion: ‘I do not accept that the Applicant is perceived by Rahmattolah Sarwari or by anyone else as having abandoned Islam or as being an infidel by reason of his having resided in the West for over four years, nor do I accept that there is a real chance that the Applicant will be perceived as having abandoned Islam or as being an infidel for this reason if he returns to his home area in the Jaghori district’ (emphasis added).

48                  The Tribunal then drew this distinction: ‘There is obviously a distinction between being perceived as a bad Muslim and being perceived as someone who has abandoned Islam altogether’.  However, the Tribunal did not consider the applicant’s claim that he was in the latter category, despite noting the applicant’s claims that he is a ‘secularised Afghan’ and that he ‘was not practising or had abandoned Islam’ (emphasis added).

49                  The Tribunal referred to the applicant’s claim that he did not pray, did not attend a mosque and did not fast during Ramadan.  The Tribunal also noted the applicant’s claim that it was Ashura and he had not participated in Muharram meetings.  The applicant claimed to be a “secularised Afghan”.  This was connected to a claim that Muslims behaving in a secular manner were in danger of reprisals because non-Islamic or secular conduct is unacceptable in Afghanistan today.  The applicant did not limit this claim to his having resided in the West.  Historically, his evidence was that he had not been active in religious practice in Afghanistan and that there had been times when he had not gone to the mosque.  His conduct had changed in Australia, where he enjoyed drinking and had not been attending a mosque at all, apart from memorial services for people who had died. 

50                  The applicant drew a distinction between not practising Islam and abandoning Islam.  This was not just a claim of being considered secular merely because he had lived in Australia and been granted refugee status.  This was secular behaviour per se.

51                  The Tribunal erred in not considering this claim.

Country information

52                  The applicant also claims that the Tribunal misconstrued the Danish report.  The part of the Danish report relied upon by Mr Karp states that:

‘Non-Islamic/secular conduct is not acceptable in Afghanistan today. Depending on the political development, non-Islamic conduct may cause repercussions in the future, first and foremost in Kabul. According to the source, there is no doubt that the intelligence service (Amniat) is keeping an eye on which restaurants are selling alcohol…and which shops are selling controversial videos.’

53                  The Tribunal’s reasons state that it ‘put to the [applicant],[that] there is no evidence of which [it is] aware that people who do not actively practise Islam are persecuted in Afghanistan today’.  In the applicant’s submission, this constitutes a failure to have regard to any information which it gets for the purposes of review in breach of s 424(1) of the Act.

54                  Focussing on one sentence of the Tribunal’s reasons is not helpful in circumstances where the Tribunal has delivered lengthy and thorough reasons.  The Tribunal did refer to and consider the Danish report. It was not obliged to refer to or accept each sentence of it.  The Tribunal’s treatment of the Danish report was not in breach of s 424(1) of the Act.

Conclusion

55                  I have come to the conclusion that the Tribunal properly considered many of the applicant’s claims and came to conclusions that were available to it on the evidence.  The Tribunal accepted the applicant’s history, background and conduct.  It considered the totality of the applicant’s circumstances, individually and cumulatively, and was not satisfied that he has a well-founded fear of persecution for a Convention reason.  The applicant has not established jurisdictional error in respect of his claim relating to the role of Hezb-e-Islami and Hezb-e-Wahdat in or around Jaghori; the fact that the applicant is a Hazara or a Shia Muslim; the treatment of country information; the applicant’s residence in a Western country; or the fact that the applicant had been accepted as a refugee in Australia.

56                  However, the Tribunal failed to consider the applicant’s claim to have a well-founded fear of persecution in Afghanistan by reason of his secular conduct and by reason of being perceived as someone who has abandoned Islam.  That failure amounts to jurisdictional error.Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord natural justice and a constructive failure to exercise jurisdiction (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]).

57                  Accordingly, the matter should be remitted to the Tribunal to deal with this claim.

orders

58                  I propose to make the following orders:

1.         A writ of certiorari issue to quash the decision of the second respondent made on 13 April 2005.

2.         A writ of mandamus issue directing the second respondent to determine the applicant’s application to it according to law.

3.         The first respondent pay the costs of the applicant.

I presently see no reason for the issue of any other writ.

Associate:

Dated:              2 June 2005