BKO15 v Minister for Immigration

[2019] FCCA 776

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKO15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 776

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – invalid s.438 certificate – failure to disclose causing no practical injustice – whether the Tribunal considered persecution falling short of violence – whether the Tribunal failed to consider the applicant’s claims about his imputed political opinion of support for Hezb-e-Wadhat.

Legislation:
Migration Act 1958, ss.91R, 438

Cases cited:
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; (2016) 343 ALR 97; (2016) 71 AAR 169; [2016] FCAFC 183

Applicant: BKO15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1637 of 2015

Judgment of: Judge Riley

Hearing date: 13 July 2017

Date of last submission: 11 December 2017

Delivered at: Melbourne

Delivered on: 28 March 2019

REPRESENTATION

Counsel for the applicant: Min Guo

Solicitors for the applicant: WLW Migration Lawyers

Counsel for the first respondent: Andrew Yuile

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

1. The decision of the Refugee Review Tribunal made on 24 June 2015 in matter number 1406147 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3. The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1637 of 2015

BKO15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal, as it was then known.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa. 

2. Judgment in this matter was reserved pending the judgment of the High Court in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3. That judgment was handed down on 13 February 2019.

3. Following the judgment being handed down in SZMTA, the parties were asked if they wished to file any further written submissions. Both the applicant and the Minister replied saying that they did not.

The applicant’s claims

1. The applicant is an Afghan citizen of Hazara ethnicity and Shia religion.  He claimed that:

   a)he was born in 1954 in a village about 20 or 30 minutes from Kabul;

   b)he and his wife have four adopted children;

   c)he faced persecution from the Taliban, Pashtuns and Sunnis in the Kabul area because he was a Hazara Shia and because of his imputed political opinion of support for Hezb-e-Wadhat;

   d)he was attacked, taken prisoner, interrogated and beaten by members of the Etihad-i-Safaat party in 1992;

   e)in or around 1996, the Taliban came to power in Afghanistan;

   f)the applicant left Afghanistan with his family in 1996, when he was 42 years old;

   g)they lived in Pakistan, without any legal entitlement, until the applicant left Pakistan in early 2012 and eventually arrived in Australia;

   h)the applicant only returned once to Afghanistan between 1996 and 2012, and he only went to Kandahar for one week to obtain a Pakistani visa for his wife, who needed heart surgery in Pakistan;

   i)his family remains in Pakistan;

   j)if he returned to Afghanistan, he would be at risk of being kidnapped, tortured and killed as a Hazara Shia; and

   k)he would be unable to subsist.

The Tribunal’s reasons

1. The Tribunal did not accept the applicant’s claims about being taken prisoner and beaten.  The Tribunal did not accept that Hazara Shias faced systematic discrimination and persecution in Afghanistan.  The Tribunal did not accept that the applicant faced a real chance of harm because of the general security situation in Afghanistan.  The Tribunal considered that the applicant would be able to subsist in Kabul. The Tribunal did not accept that the applicant faced a real risk of harm as a returnee from the West.

Material relied upon

1. The applicant relied upon:

   a)the affidavit affirmed by Eleanor Jane Danks on 30 June 2017;

   b)the affidavit affirmed by Coenraad van der Westhuizen on 10 July 2017; and

   c)paragraphs 1, 2 and 5 of, and annexure A to, the affidavit affirmed by Michelle Elizabeth Stone on 2 June 2017.

2. The Minister relied upon the whole of Ms Stone’s affidavit.

Ground 1

1. The first ground of review in the application filed on 17 July 2015 and amended on 11 December 2017 (“the application) is:

   The Tribunal deprived the Applicant of procedural fairness in failing to disclose the existence of a section 438 certificate, such certificate also being invalid.

   Particulars

   (a)The certificate was invalid because the information it purported to relate to was not ‘given’ to the Department, nor given ‘in confidence’.

2. The Minister accepted that the s.438 certificate issued in this case is invalid. Its existence was not disclosed to the applicant until after the Tribunal had made its decision on 24 June 2015. Indeed, the certificate was not disclosed to the applicant until 2 June 2017, after the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081.

3. The certificate was not included in the court book, but was provided to the court as annexure A to the affidavit of Ms Stone.   The document referred to in the certificate, being folio 112 of the departmental file, was contained in exhibit MES1 to Ms Stone’s affidavit.  It was provided to the court in an envelope that was physically delivered to the registry in accordance with the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67].

4. Section 438 of the Migration Act 1958 (“the Act”) relevantly provided that:

   (1)This section applies to a document or information if:

   (a)     the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

   the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

   (2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

   (a)must notify the Tribunal in writing that this section applies in relation to the document or information; and

   (b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

   (3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

   (a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

   (b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

   (4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

5. The applicant objected to folio 112 being admitted into evidence.   The Minister argued that it should be admitted into evidence because an examination of folio 112 would show that it could have made no difference to the Tribunal’s decision, and, consequently, the Tribunal’s failure to disclose it could not have produced any practical injustice.

6. The applicant argued that folio 112 should not be admitted into evidence for the reasons stated in MZAFZ, and argued that MZAFZ was binding on this court.

7. In MZAFZ, the provision in question was s.438(1)(a) of the Act whereas in the present case, the relevant provision is s.438(1)(b) of the Act. However, there was no suggestion that anything turned on that distinction.

8. In MZAFZ, the Minister argued that the certificate was valid.  However, Beach J found that it was not.  In the present case, the Minister conceded that the certificate was invalid.  Again, it was not suggested that anything turned on that distinction between the present case and MZAFZ.

9. Since the submissions were made in this case, the High Court has handed down its decision in SZMTA.  That decision makes clear that the question in cases such as this is whether the failure to disclose the certificate or the documents it covered could have caused any practical injustice.

10. I have examined folio 112.  It is a very bland and bureaucratic checklist.  I am satisfied that its non-disclosure could have made no difference to the Tribunal’s decision and could have produced no practical injustice.  Consequently, this ground is not made out.

Ground 2

1. The second ground of review in the application is:

   The Tribunal did not consider whether the Applicant’s fear of discrimination by Pashtuns and Sunni Muslims could amount to ‘persecution’ as defined by section 91R of the Migration Act 1958 (Cth).

2. At the time of the applicant’s protection visa application, s.91R of the Act relevantly provided that:

   (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b)the persecution involves serious harm to the person; and

   (c)the persecution involves systematic and discriminatory conduct.

   (2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill‑treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (3)    ...

3. The Minister accepted that the applicant made a claim of persecution falling short of violence.  The Minister noted that, at page 2 of a submission dated 11 July 2013 to the delegate (CB74), the applicant’s migration agent said:

   The applicant also fears on return to Afghanistan that he and his family would face economic hardship, threats to his capacity to earn a livelihood and the denial of basic services that would either cumulatively or separately would (sic) threaten his capacity to subsist.

4. The Minister also accepted that the claim was made in a submission dated 11 June 2015 from the applicant’s migration agent to the Tribunal (CB160-161) in the following terms:

   The 2013 UNHCR Guidelines state:

   Hazaras have also been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse. Pashtuns are reportedly increasingly resentful of the Hazara minority, who have historically been marginalized and discriminated against by the Pashtuns, but who have made significant economic and political advances since the 2001 fall of the Taliban regime.  Nevertheless, Hazaras have accused the Government of giving preferential treatment to Pashtuns at the expense of minorities in general and Hazaras in particular. Hazaras are also reported to continue to be subject to harassment, intimidation and killings at the hands of the Taliban and other AGEs …

   (footnote omitted)

5. The applicant noted that, in addition:

   a)the applicant claimed in paragraphs 30 and 32 of his statement of claims dated 4 December 2012 (CB34):

   30.Religious discrimination continues to exist against Hazaras because of our beliefs as Shia Muslims.  Hazaras living as a part of a minority in an area in particular would be targets of groups who are against our religious beliefs and believe that as Shia Muslims we are not real Muslims.

   …

   32.I fear that my family and I would be targeted by the Taliban and members of the Pashtun and Sunni Muslim communities that live around my area in Kabul.  Members from these groups continue to discriminate against Hazaras and Shia Muslims due to their hatred of our religious beliefs.

   b)an Amnesty International report referred to in a submission dated 11 July 2013 to the delegate (CB78) said that Hazaras continued to face widespread daily discrimination and [e]quality for Hazaras, in practice is not being upheld in the community;

   c)a Tribunal decision referred to in the same submission (CB78) referred to a UNHCR report which noted ongoing ethnic based discrimination in areas of access to services, education and employment.  The Hazaras are given as an example and it is noted they continue to face “some degree of discrimination”; and

   d)in a report entitled On return to Kabul of Members of the Hazara Minority in Afghanistan 3 February 2014 by Professor Maley, which was submitted to the Tribunal by the applicant during the Tribunal hearing (paragraph 42 of the Tribunal’s reasons for decision), and which was reproduced as annexure EJD-2 to the affidavit affirmed by Eleanor Jane Danks on 30 June 2017, Professor Maley said at paragraph 8:

   Elderly Hazaras are equally vulnerable if returned to a place where they lack social networks.  Unemployment in Kabul is already high, and there is virtually no chance that an Hazara man in his 60s without networks on which to draw would have any hope of securing even the most menial forms of employment.  If such a person were returned to Kabul in the winter, he would most likely freeze to death in the street.

6. The applicant was 61 years old at the time of the Tribunal’s decision.  He claimed, and the Tribunal apparently accepted, that he had not been in Kabul for about 20 years (paragraph 27 of the Tribunal’s reasons for decision).

7. The applicant argued that the Tribunal considered whether the applicant was at real risk of serious harm but only through the lens of whether he was at real risk of being a victim of violence.  The applicant noted that the Tribunal dealt specifically with questions of violence in paragraphs 34 to 67 of its reasons for decision.  The applicant submitted that the Tribunal then purported to consider, under the heading, Ability to subsist in Kabul, the applicant’s claims falling short of violence as follows:

   68.    The Tribunal has considered a specific circumstance for the applicant. He has provided evidence that his wife is unwell, she suffers from a heart condition which requires regular medical assistance. She is presently being treated by doctors in Pakistan, including regular check-ups with specialists in Karachi. The applicant stated that he told his wife of the refusal (the department decision) two days prior to the Tribunal hearing, which caused his wife to have a ‘heart attack’, though this was not conveyed in the medical material provided. The Tribunal accepts that the applicant’s wife has a medical condition. The applicant stated he needed to stay in Australia to pay for [his] wife’s medical services. The applicant stated that this was one of his major concerns. The Tribunal noted that this may be a reason, should the Tribunal refuse his protection visa application, for the applicant to request Ministerial Intervention in the circumstances.

   69.    The applicant asked the Tribunal to take into account the impact any refusal would have on the applicant’s wife if he was to tell her he had been refused. The Tribunal noted that it could not take such considerations into account when considering the protection visa claims of the applicant.

   70.    The Tribunal noted that the applicant has a long history of employment. The Tribunal noted that the applicant had left Kabul and established himself in Quetta as a tailor, and made his livelihood in that way. The Tribunal notes that tailoring was a highly transferrable skill and could provide employment opportunities for the applicant on return to Kabul. The Tribunal noted that IOM provided assistance for returnees to Kabul as well.

   71.    The Tribunal noted IOM advice that amounts of US$700 cash and US$1300 in goods and establishment assistance was available for returnees to Afghanistan to assist them to establish themselves on return. The Tribunal considers that the applicant has the opportunity, skills and ability to establish a commercial business in Kabul. The Tribunal considers that the applicant will be able to establish a business that would support him in Kabul.

   72.    The Tribunal has considered the guidance as provided by the High Court in the case of MIBP v SZSCA [2014] HCA 45. This case is relevant as it discusses the reasonableness of expecting the applicant to remain in Kabul, with the majority of the Court determining that the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there. The applicant’s personal circumstances can be distinguished to the circumstances of the applicant in SZSCA, in that in the SZSCA case the applicant had some claim to be a truck driver, which potentially could require the applicant in that case to be required to drive outside of Kabul. In the present circumstance, the applicant’s employment history suggests that he will be able to establish a business in Kabul, where he would be able to manage and maintain that business without the need to leave the city for employment purposes. The Tribunal considers that the applicant will be able to establish a business that would reasonably operate within the city of Kabul, and not require the applicant to travel outside of Kabul, where he claims he is at risk of harm. The Tribunal considers that it is reasonable in the sense of being practicable that the applicant remain in Kabul to re-establish his life, employment and family opportunities.

   73.    The Tribunal discussed the provision of services in Kabul. The Tribunal noted country information that the Hazara population in Kabul has developed education and health services in the last decade. The applicant is no longer in the market for education services, however health services may be required. The 2014 DFAT report on Hazaras makes the following observation.

   3.28  In Kabul, public health care is free but demand for services is high. Better quality services are provided by private practices. The Hazara community operates a number of good private medical facilities that offer a range of basic and specialist services. Medical facilities in Kabul have improved significantly since 200120

   20    Department of Foreign Affairs and Trade, DFAT Thematic Report Afghanistan, Hazaras in Afghanistan and Pakistan, 26 March 2014

   74.    The Conditions in Kabul report provides some further information on health care.

   Health care

   2.19 The health care system in Afghanistan has improved greatly since 2001. Basic public health care is free, but demand for public health care continues to exceed supply. Medical facilities in the public system, while still basic, tend to be better in Kabul than in other areas of Afghanistan. Better quality services are provided by private practices, but many residents cannot access these services because of their high cost.

   2.20 In addition to primary health care services, a number of specialist services are available, including emergency services, cardiac care and pathology laboratories. Kabul lacks some specialist treatment options for chronic, complex and life-threatening conditions. As a result, relatively wealthy patients often choose to travel abroad for specialist treatment. Most, however, cannot afford to do this and the high morbidity and mortality rates in part reflect the lack of access to specialist care.21

   75.    The Tribunal considers that the applicant’s wife would be able to access services in Kabul for her health condition, should she return there. The Tribunal does not consider that the applicant’s wife would be denied medical treatment because of her race or religion. The Tribunal notes in particular that Hazaras have established medical services that can assist the Hazara population.

   76.    Further, noting the applicant’s capabilities, the Tribunal considers that the applicant has the capacity to earn money in Kabul to pay for the medical treatment of his wife. The Tribunal does not accept that the need to earn money to pay for medical treatment for the applicant’s wife constitutes a reason for the applicant to be provided with a protection visa. While his earning capacity in Kabul may be less than in Australia, the Tribunal does not accept that this gives rise to a claim for protection. The Tribunal considers that this entails a humanitarian consideration that is more appropriate for the Minister to consider after an appropriate request is made.

   77.    The Tribunal does not accept that the applicant will not be able to subsist in Kabul. The Tribunal does not accept this claim. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason

   78.    The Tribunal has considered the totality of the applicant’s circumstances as a Hazara Shia from Kabul, and who will be returning to Afghanistan having spent time in Pakistan and a Western country, namely Australia, all imputed political opinions, and the assumed wealth that he might be assumed to bring with him. However, even taking into account the cumulative effect of these circumstances, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for one or more of the Convention reasons if he returns to Afghanistan, by the Taliban, Daesh, criminal gangs or any other insurgent group. The Tribunal does not accept on the evidence before it that the applicant has a well-founded fear of being persecuted for one or more of the Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future.

   21 DFAT Thematic Report Conditions in Kabul 3 October 2014

1. The applicant argued that the Tribunal made it clear that it was only considering violence when it said in its conclusion on this topic in paragraph 78 of its reasons for decision that the applicant did not face a real chance of being persecuted by the Taliban, Daesh, criminal gangs or any other insurgent group.

2. The Minister argued that the Tribunal did consider the relevant claims in paragraphs 68 to 78 of its reasons for decision.  The Minister acknowledged that much of the reasoning in that part of the Tribunal’s reasons for decision related to the illness of the applicant’s wife.  However, the Minister submitted baldly that the Tribunal’s reasoning on this point was sufficient. 

3. The Minister also submitted that the applicant originally framed the claim as a capacity to subsist.  However, it is open to an applicant to develop a claim.  It is incumbent upon the Tribunal to consider all of an applicant’s claims, whether those claims were raised at the outset or not.

4. The Minister also submitted that the court should not pedantically scrutinise the Tribunal’s reasons for decision and supported that submission with reference to the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6. It is obviously true that the court should not construe the Tribunal’s reasons for decision with an eye keenly attuned to the perception of error. However, it is a basic function of the Tribunal to consider each of the applicant’s claims.

5. I do not accept that the Tribunal only considered the question of violence in paragraphs 68 to 78 of its reasons for decision.  The Tribunal expressly considered:

   a)in paragraph 70, that:

   i)the applicant had a long history of employment;

   ii)he was established in Quetta as a tailor;

   iii)tailoring is a highly transferable skill;

   iv)tailoring could provide employment opportunities for the applicant in Kabul; and

   v)the International Organization for Migration (“IOM”) provided assistance for returnees;

   b)in paragraph 71, that:

   i)the IOM made available to returnees US$700 in cash and US$1300 in goods to assist with re-establishment;

   ii)the applicant had the opportunity, skills and ability to establish a commercial business in Kabul; and

   iii)the applicant would be able to establish a business in Kabul that would support him;

   c)in paragraph 72, that the applicant would not need to travel outside the relative safety of Kabul;

   d)in paragraph 75, that the applicant’s wife would be able to access health services in Kabul, and would not be denied such services because of her race or religion;

   e)in paragraph 76, that the applicant would be able to earn money to pay for his wife’s medical treatment; and

   f)in paragraph 77, that the applicant would not be unable to subsist in Kabul.

6. It is true that, in paragraph 78 of its reasons for decision, the Tribunal considered whether the applicant would be persecuted by the Taliban, Daesh, criminal gangs or any other insurgent group.  However, this issue was obviously in addition to the questions relating to subsistence that the Tribunal had already addressed.  Paragraph 78 of the Tribunal’s reasons for decision was not a summary of its conclusions in relation to those questions. That paragraph addressed an additional point.

7. All in all, I am not persuaded that this ground is made out.

Ground 3

1. The third ground of review in the application is:

   The Tribunal did not consider the Applicant’s claim or [a] component integer thereof, namely, that he feared persecution by reason of his imputed political opinion that he was a Hezb-e-Wadhat supporter.

2. The applicant said in his written submissions that any consideration of the applicant’s claim of his imputed support of Hezb-e-Wadhat was entirely missing from the Tribunal’s reasons for decision. 

3. The applicant noted that the claim was raised at paragraphs 10 to 14 of the applicant’s statement of claims dated 4 December 2012 (CB32) in the following terms:

   10.    Around four years before I left Afghanistan there was increasingly violent infighting being carried out in Kabul between different political factions.  At this time, the governing party of Showra-i-Nezaar was working in coalition with the Eithad-i-Safaat against the Hezb E Wadhat.  The Hezb E Wadhat was a Shia Muslim party.  All three of these groups were fighting against one another for power over Afghanistan.

   11.    My family and I had not been involved in supporting any of these factions.  However, many Hazaras at the time were being targeted on the basis that they were seen to support the Hezb e Wadhat.

   12.    In around 1371 (around 1992 in the Western Calendar), some members of the Etihad-i-Safaat party attacked me and took me as their prisoner.  I was taken by the men to a committee office for the Eithad I Safaat near an intersection called Qamber.  While held at the committee office I was subjected to interrogation and was beaten throughout the time I was held.  Based on what was said to me by the men I understood that I had been targeted because I was Hazara and so they believed due to this that I had been supporting the Hezb E Wadhat.

   13.    The men searched my body during the interrogation as I believed they were looking for documents confirming I was a member of Hezb E wadhat, like a membership card.  The men initially did not believe me when I tried to tell them that I was not a supporter or member of the Hezb e Wadhat and I became very fearful that I was going to be killed during the time I was held.

   14.    I was kept all day at the office until the men agreed to release me.  When I was leaving the office three men who were outside approached me and started to beat me.  I ran away and then the men started to shoot at me.  I believed that if I had not been able to run off at …[this] time that these men would have killed me.  After escaping I noticed that I had many bruises and cuts from the beatings I had sustained during my interrogation.

4. The applicant also noted in his written submissions that the claim was expressed in the applicant’s adviser’s submissions dated 11 July 2013 to the delegate (CB73-4) in the following terms:

   ·In around 1992, the Applicant was abducted by members of the Ethihad-iSafaat faction. At the time of his … [abduction], the Ethihad-iSafaat had been involved in a conflict with a rival faction, the Hezb e Wadhat, for power in Afghanistan.  Many Hazaras in the Applicant’s area were being targeted at this time on suspicion they were supporting the Hezb e Wadhat.  While detained by the Ethihad-i-Safaat the Applicant was interrogated and beaten as they tried to obtain from him information confirming his membership with the Hezb e Wadhat.

   ·The Applicant was subsequently released by the Ethihad-i-Safaat but on leaving their office was approached by three men who started to beat him.  The Applicant fled from the men as they started to shoot at him. …

5. The applicant also noted that the topic was addressed during the Tribunal hearing in the following terms[1]:

   APPLICANT:     I have mentioned in my case before that before the Taliban came into power there was a conflict going on among organised Muslim groups, and at that time I was caught and I was bashed and I was tortured because of being Hazara.

   MEMBER:Yes I understand that, that back in 1995, I mean this is years and years ago and the Hezb-e-Wadhat is no longer a military force, it only exists in a political sense now. I mean these are some people, in your application you say these are some people who thought you were a member of Hezb-e-Wadhat, and you weren't even that. We're talking about violence that happened 20 years ago and I would perhaps have some difficulty accepting that you would have any difficulty arising out of the violence that occurred to you twenty years ago, and would have any effect on you now or in the reasonably foreseeable future.

   [1] Annexure EJD-1 to the affidavit affirmed by Eleanor Jane Danks on 30 June 2017, page 4 line 22 to page 5 line 2.

6. The Tribunal addressed this claim in paragraphs 27 to 33 of its reasons for decision, which are as follows:

   27.    The applicant has made one claim regarding his own experience in Kabul in the early to mid-1990s, the actual date varying from his statement (1992) to the hearing (1995/96 – just prior to his departure from Kabul).  His other claims revolve around his religion, race, his being outside of the country, including in a …[Western] country, return as a failed asylum seeker, and an imputed political opinion arising out of his race religion and being in a western country.

   28.    With respect to his personal claim in Kabul, the applicant claimed that he would be harmed by the individuals who harmed him in this incident in the 1990s.  The applicant’s evidence as presented was that they took him and beat him because they believed that he was a member of the Hezb-e-Wadhat, which was not correct, as he had never been a member of any organisation.  The applicant also claimed he was targeted because he was Hazara.  The applicant claimed that these men had his Taskera, were now influential in the government, and would seek him out and harm him if he returned to Kabul, as he had escaped from them.  The applicant stated he had anxiety thinking about them.

   29.    The Tribunal does not accept this claim by the applicant.  The applicant’s claims about when this incident occurred provides some concern, he has moved from his initial date (1992) in his statement to one more closely linked to his departure from Kabul (1995-6). The applicant had previously stated that this incident did not cause him to leave Kabul, it was the arrival of the Taliban in 1996 which precipitated this move.  The applicant was unable to name who these people were, and had no knowledge of their activities in the present day.  The applicant has no knowledge of where they are, and his claim that they involved in the government is pure speculation on his part, as he has not been in Kabul since 1996.  The Tribunal noted that after this incident, if it took place in 1995, the applicant remained in Kabul for 5 months, in a different location.  The applicant confirmed that these men had his Taskera, though they did not find him at that time.  The Tribunal questioned why they would seek him out now, so many years later, when they could not find him at the time. 

   30.    The Tribunal notes that guidance on assessing whether a fear of harm is well-founded. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.  In MIEA v Guo, the Court said:

   Conjecture or surmise has no part to play in determining whether a fear is well-founded.  A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   31.    The Tribunal has some concerns about the applicant’s claim about what happened to him, with some discrepancies in his evidence as to what happened to him and when it occurred. The Tribunal also has significant concern about why he was attacked in this incident. The Tribunal does note that there is country information about the time prior to the arrival of the Taliban in Kabul, where there was violence between Hazara groups, and between Hazara groups and non-Hazaras. The Tribunal considers it is plausible that the applicant was caught up in this violence as he described sometime in the 1990s, but that he was released after being beaten. The Tribunal notes that the applicant stated he remained in Kabul after the incident, for either 4 years, or 6 months, depending on when the incident occurred. He moved his residence, but was not sought out, despite these people having his Taskera, as he has claimed.

   32.    The Tribunal considers that the applicant’s claim of being harmed now and in the reasonably foreseeable future arising from this incident to be mere speculation, and not one that could be construed as a real chance or a real risk of occurring. The Tribunal considers that these unknown men do not have any interest in seeking out and harming the applicant so long after this incident, or because of his escaping from their beating, or because he is a Hazara, or any imputed support of Hezb-e Wahdat, which the Tribunal noted is now not an armed group. The Tribunal does not consider that the taking of his Taskera in the 1990s would mean that he is at risk of harm on return to Kabul now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant has a profile that would lead to him being sought out by these men on his return, should they still be in Kabul.

   33.    The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of serious harm now or in the reasonably foreseeable future arising out of this experience in Kabul in the 1990s.

   (footnote omitted)

7. The Minster said in his written submissions that the Tribunal had dealt with the claim in paragraph 32 of its reasons for decision, which was responsive to the claim as set out in paragraph 12 of the applicant’s statement of claims.

8. At the hearing, counsel for the applicant said he had nothing to add to his own written submissions on this point.  Counsel for the Minister in oral submissions elaborated slightly on his written submissions.

9. The Tribunal clearly rejected the claim that the applicant faced a real risk of harm from particular unknown men who may have suspected that the applicant was a supporter of Hezb-e-Wadhat.  However, the Tribunal did not deal with the claim that, as a Hazara Shia, other people might consider him to be a supporter of Hezb-e-Wadhat.  The Tribunal rejected the claim that the applicant, so many years later, faced any appreciable risk of harm arising from the incident during which he was beaten and shot at.  However, the Tribunal did not address the claim that other people might impute to the applicant a political opinion of support for Hezb-e-Wadhat. 

10. The applicant’s claim was more general than the particular individuals who had previously assaulted him.  The Tribunal fell into jurisdictional error by not considering that claim.  Ground 3 is made out.

11. It is also noted that, in paragraph 28 of its reasons for decision, the Tribunal misstated the claim.  The Tribunal said at that point that the applicant feared being harmed by the individuals who had harmed him previously. However, the claim extended to others who might harm him for the same reasons as those who had harmed him in the 1990s.

12. In addition, there is an inconsistency in the Tribunal’s reasons for decision.  In paragraph 29, the Tribunal said that it did not accept “this claim”, which meant the whole claim as summarised in paragraph 28 of the Tribunal’s reasons for decision.  However, in paragraph 32 of its reasons for decision, the Tribunal appears to have accepted that the events occurred as described by the applicant.  As these matters were not grounds of review, I take them no further.

Conclusion

1. As one of the applicant’s grounds has been made out, the Tribunal’s decision will be set aside with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:         28 March 2019