SZEJU v Minister for Immigration - [2005] FMCA 772

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEJU v MINISTER FOR IMMIGRATION

[2005] FMCA 772

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 474

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242

Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111
Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12
W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAC 103
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Applicant:

SZEJU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2808 of 2004

Delivered on:

1 July 2005

Delivered at:

Sydney

Hearing date:

9 May 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Solicitors for the Applicant:

Ms S Stanton of Brett Slater Solicitors

Counsel for the Respondent:

Mr R Beech-Jones

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2808 of 2004

SZEJU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 July 2004 and handed down on 17 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 27 February 2004 to refuse to grant the applicant a protection (Class XA) visa.

Background

The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEJU”.
The applicant, who claims to be a citizen of Afghanistan, arrived in Australia on 7 October 1999. On 17 November 1999 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-32) (“CB”). The applicant was granted a subclass 785 (Temporary Protection) visa on 20 December 1999 on the basis that he was a person to whom Australia had protection obligations under the Refugee Convention. On 3 April 2000 the applicant applied for a further protection (Class XA) visa (CB pp.52-76). On

27 February 2004 the delegate refused to grant a further protection visa (CB pp.89-100) and on 4 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.101-104).
The applicant claimed he was of Hazara ethnicity and of the Shi’a faith. He is a married man from a village near Behsud in Maidan Province. The applicant claimed his area was controlled by the Wahdat Party who had issued him with an Identity Card. He claimed that his brother had fought in the Wahdat militia and lost a leg while doing so. The applicant stated that the Taliban had come to his area about fifteen months previously (July 1998) prompting all young able bodied males (including the applicant) to flee to the hills. He stated that the Hazaras believed that the Taliban would conscript them to fight and the Taliban searched the houses, taking weapons and demanding “taxes” which they took in money or kind – furniture, food and other belongings. The applicant claimed the Taliban also arrested Wahdat Party members and came to his home about 20-30 times during the year he spent hiding in the Jangalak mountains. He stated that he returned home occasionally when news indicated that the Taliban were not in or near the village (CB p.138).
The applicant claimed that after a year hiding in the mountains he could no longer continue to make intermittent trips home because food was running out. The applicant stated that his brother located a smuggler who was prepared to take the applicant out of the country. After paying the smugger a large sum of money the applicant claimed he was taken to Pakistan in a truck filled with livestock and then travelled by plane to Indonesia and by boat to Australia (CB p.138).

The Tribunal’s findings and reasons

The Tribunal noted that the applicant had not raised concerns as to his ethnicity and nationality either on the applicant’s arrival in Australia or in the intervening four and a half years. His language and testimony at the hearing raised no doubts that he was, as he claimed, from the village of Haqdad in Markazi in the Wardak Province in Afghanistan. The Tribunal accepted the applicant is a citizen of Afghanistan and assessed his claims against that country. The applicant was recognised by Australia as a refugee in December 1999 on the basis of the circumstances then prevailing in Afghanistan. Therefore, for the purposes of the Convention, he remained a refugee in relation to those circumstances unless one of the cessation clauses in Article 1C applied. The Tribunal noted that the provision that was relevant to the facts of this case was Article 1C(5). The Tribunal therefore considered whether, in accordance with Article 1C(5) of the Convention, the applicant could no longer avail himself of protection because of circumstances in connection with which he was recognised as a refugee had ceased to exist (CB p.145).
The Tribunal found that the Taliban had been removed from power in Afghanistan and did not accept that there was more than a remote chance of the Taliban re-emerging as a viable national political movement in Afghanistan in the reasonably foreseeable future. The applicant’s new claims principally concerned political rivalries in his village and district and the harm caused to those who returned from western countries because they were targets for robbery and extortion (CB p.146).
The Tribunal noted that independent evidence, provided by the applicant and that found by the Tribunal from other sources, needed to be considered carefully. The applicant’s evidence was based on his own experience from Afghanistan, a country which he had left nearly five years previously and with which he had no direct communication either through his family or friends since his departure. The Tribunal relied heavily on information supplied by the UNHCR, either their bulletins or their answers to questions specifically posed by the Tribunal. Other sources of information included news stories from major press agencies with reporters in situ and material from academics, international human rights agencies, various aid agencies and diplomatic sources (CB p.147).
The Tribunal accepted that the applicant was a Hazara and a Shi’a and was in grave danger of persecution at the hands of the Taliban when he left his village in 1998. However, the Tribunal was satisfied that the conditions in Afghanistan had changed substantially since the applicant had left the country. The Tribunal noted that the independent evidence did not suggest that the applicant would face Convention related dangers if he were to return to his former district where, to the best of the applicant’s knowledge, his family were still living. The Tribunal acknowledged that Afghanistan is a country still recovering from the effects of many years of civil war combined with the effect of a devastating drought and that there were still many difficulties involved in travelling through and living in Afghanistan (CB p.150).
The Tribunal noted that the UNHCR had recently described the situation in the applicant’s region as relatively stable and safe and noted there were no reports of conflict between the Hazaras and any other groups since the end of the Taliban era. It noted that the applicant had not claimed any distinguishing characteristics about himself which may make him a target for adverse treatment but rather had relied on his ethnicity and religion and other characteristics (such as being a returnee from a western country and being apolitical) which he shared with many others. The Tribunal was not satisfied that there was any real chance of harm amounting to persecution that would befall the applicant in the reasonably foreseeable future (CB p.151).

Application for review of the Tribunal’s decision

On 13 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 3 May 2005 the applicant filed an amended application which contained the following grounds:
1)The Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision to affirm the decision of the respondent not to grant the applicant a protection visa; and
2)The Tribunal erred in law in arriving at the decision to affirm the decision of the respondent not to grant that applicant a protection visa.
Particulars (as to each order sought and each ground above)
(i)Subparagraph 65(1)(a)(ii) of the Migration Act 1958 (the Act) required the respondent in respect of the applicant’s primary application for a Protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or the regulations made thereunder were satisfied;
(ii)the Act at the time of the applicant’s review application to the Tribunal required the Tribunal to review the decision of the respondent and to that end the Act vested the Tribunal with powers and discretions conferred by the Act on the respondent;
(iii)the said application for a permanent Protection visa had been made to the respondent by the applicant on or around 3.4.00. It was rejected by a decision of the delegate of the respondent on 27.2.04. On 4.3.04 the applicant sought review by the Tribunal. On 23.7.04 the Tribunal made a decision to affirm the decision of the respondent. That decision was infected with error and consequently the Tribunal acted contrary to law, resulting in a constructive failure to exercise jurisdiction;
(iv)the applicant claimed that if he returns to his village in Afghanistan ‘he would then be forced to join [the] militia [of the Wahadat Party]’ or in the alternative ‘pay off the commander (which he cannot afford to do)’ (CB 139.9). The independent country information before the Tribunal did not contradict this claim (see CB 143.10). The Tribunal did not make a finding as to whether the applicant had a well-founded fear of persecution on the basis of this claim. In these circumstances, the Tribunal fell into jurisdictional error;
(v)The applicant expressed fear of ‘the Taliban [who] were resurgent’ (CB 141.7). There was evidence before the Tribunal that Wardak Province, in which the applicant’s district of Behsud II or Markazi Behsud was located, was ‘a stronghold for the Taliban’ (CB 143.5 and 145.1). Further, the Tribunal appears to have accepted that there were remnants of Taliban in Afghanistan who were dangerous (CB 146.2) and ‘resurgent groups of Taliban militants’ (CB 147.1). The Tribunal found that the ‘chance of [the Taliban] becoming a force that is able to take control of the country again is remote’ (CB 146.5). The Tribunal also noted that the applicant’s district in Wardak Province ‘has not suffered from … fighting by resurgent Taliban forces’ in recent periods. However, in light of the applicant’s claims and the independent country information before the Tribunal, the Tribunal failed to consider the possibility that in the reasonably foreseeable future the Taliban could extend their influence in Wardak Province to the applicant’s district, in which case the applicant would probably have a well-founded fear of persecution. In these circumstances, the Tribunal fell into jurisdictional error;
(vi)the applicant claimed that if he returns to his village in Afghanistan, he would face extortion as a returnee from the West (CB 141.10). The Tribunal failed to consider whether this claim gave rise to the applicant having a well-founded fear of persecution for reason of membership of a particular social group. . In these circumstances, the Tribunal fell into jurisdictional error;
(vii)as the purported decision of the Tribunal was infected with error, the Tribunal did not have the jurisdiction to make such a decision and failed to exercise its jurisdiction. Consequently the purported decision was not a ‘decision’ for the purposes of the definition of a ‘privative clause decision’ under s474 of the Migration Act 1958 and therefore was not such a privative clause decision.”

The Law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs (“Dranichnikov”).

The proceedings

The applicant sought leave to rely upon an amended application filed on 3 May 2005. As the respondent raised no objections leave was granted. A Court Book containing the relevant documents in this matter was filed and served on the parties on 28 October 2004.

Applicant’s submissions

Ms S Stanton, Solicitor, appearing for the applicant, filed written submissions which addressed the grounds in the application and contained the following contentions:
a)The applicant claimed that if he returned to his village in Afghanistan “he would then be forced to join [the] militia [of the Wahdat Party]” or in the alternative, “pay off the commander (which he cannot afford to do)” (CB p.139). The Tribunal did not make a finding as to whether the applicant had a well-founded fear of persecution on the basis of this claim. In these circumstances, the Tribunal fell into jurisdictional error. (Wahdat Party issue)
b)The applicant expressed fear of “the Taliban [who] were resurgent” (CB p.141). In light of the applicant’s claims and the independent country information before the Tribunal, the Tribunal failed to consider the possibility that in the reasonably foreseeable future the Taliban could extend their influence in Wardak Province to the applicant’s district, in which case the applicant would probably have a well-founded fear of persecution. In these circumstances, the Tribunal fell into jurisdictional error. (Taliban issue)
c)The applicant claimed that if he returned to his village in Afghanistan he would face extortion as a returnee from the West (CB p.141). The Tribunal failed to consider whether this claim gave rise to the applicant having a well-founded fear of persecution for reason of membership of a particular social group. In these circumstances, the Tribunal fell into jurisdictional error. (Extortion issue)
d)In regard to the Wahdat Party issue, it was submitted:
i)The applicant feared he might be injured or killed in the fighting between factions of the Wahdat Party in his area. Hence the applicant stated that “the Wahdat Party was warring internally” and he “felt that he might get caught up in this internecine warfare (between the two factions led by Khalili and Akbari) and be killed or injured” (CB p.139). Further, at the Tribunal hearing the applicant “drew attention to reports of current conflict between the factions of the Wahdat Party …” (CB p.141).
ii)The applicant feared harm from another group in his area called the Harakat. Hence the applicant stated that he “feared another group, the Harakat, led by Asfi”, a group of Shi’a Pashtuns who “were currently fighting the Wahdat Party for power in the applicant’s area” (CB p.139).
iii)The applicant feared that he would face demands for money as a person returning from a foreign country who was perceived to have money. Hence the applicant stated that “he would be faced with demands for money on his return by the different factions of the Wahdat Party” and “if he refused to comply with these demands he would be killed or injured” (CB p.139) and he feared robbery and violence as a person returning from a western country (CB p.139). Further, at the Tribunal hearing, the applicant “drew attention … to widespread extortion and robbery, particularly against those (such as returnees from the West) who would be perceived as having money” (CB p.141).
iv)The applicant feared that “Pashtuns will target him on the basis of his ethnicity” as he travelled from Kabul to his home village (CB p.139). At the Tribunal hearing the applicant gave more details of this claim (CB p.141).
v)The applicant feared that the Khalili faction of the Wahdat Party, which controlled his village, would “force him to join the Wahdat Party” and would “force [him] to join the militia or alternatively pay off the commanders (which he cannot afford to do)” (CB p.139). The applicant added “that in the pre-Taliban days there had been problems in the area with political parties (Harakat and the Wahdat Party): people were pressured to join one or the other and if they did not they were forced to pay taxes for a defence fund” (CB p.141).
vi)The applicant feared harm from the Taliban which ‘was resurgent” (CB p.141).
e)In relation to the claim in paragraph 14(d)(v) above, being forced to join the militia or pay off its commander, the country information did not contradict this claim. There was no finding in the Tribunal decision that properly responded to the applicant’s claim in paragraph 14(d)(v) above.
f)Forced corruption can constitute persecution: Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs (“Applicant S”) per Gleeson CJ, Gummow and Kirby JJ at [37].
g)Demands of money or extortion can also constitute persecution: Rajaratnam v Minister for Immigration & Multicultural Affairs (“Rajaratnam”). Hence, a demand by the authorities to a person that they be conscripted or pay money to avoid conscription can constitute persecution. There may be a question as to whether the persecution is for a Convention reason. However, the applicant’s complaint in the present case was that the Tribunal failed to consider:
i)whether the threat of conscription or extortion constituted persecution; and
ii)if so, whether the threat was for a Convention reason.
Where an applicant makes a claim and the Tribunal does not deal with the claim, there is jurisdictional error: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (“Applicant WAEE”) at [45] and [47] and Dranichnikov at [24].
h)In regard to the Taliban issue, it was submitted that as noted in paragraph 14(d)(vi) above, the applicant expressed fear of “the Taliban [who] were resurgent” (CB p.141). There was evidence before the Tribunal that Wardak Province in which the applicant’s district of Behsud II or Makazi Behsud was located, was a stronghold for the Taliban. Hence a UHNCR document obtained by the Tribunal in March 2004 stated:
“The Province is also known to be a stronghold for the Taliban …” (CB p.143.5)
Further, the Tribunal appears to have accepted that “there are … remnants of the Taliban [who were] dangerous”, there were “resurgent groups of Taliban militants” and there were credible reports that “the power of [the Taliban] is growing” (CB pp.146-147). The question was whether the Tribunal dealt with the applicant’s claimed fear of persecution by the Taliban.
i)The Tribunal dealt with the issue of the Taliban in two parts of its decision. Firstly, in light of the fact that in 1999 the applicant was granted a temporary protection visa, the Tribunal considered whether, pursuant to Article 1C(5) of the Convention, the applicant “can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of” Afghanistan (CB pp.145-146). The Tribunal noted as follows:
“On the basis of the evidence referred to above I find that the Taliban have been removed from power in Afghanistan. I do not accept that there is more than a remote chance of the Taliban re-emerging as a viable national political movement in Afghanistan in the reasonably foreseeable future, such as to constitute a general threat to particular minority groups. On the basis of all the material before me I find that the circumstances in connexion with which the applicant was recognised as a refugee have ceased to exist for the purposes of Article 1C(5).” (CB p.146)
Secondly, the Tribunal considered whether the applicant was a person to whom Australia had protection obligations for other reasons (CB pp.146-151). The Tribunal stated:
“In reviewing the independent evidence, the Tribunal is satisfied that the situation in the applicant’s home district of Markazi Behsud is, as the UNHCR described it, ‘relatively safe with district authorities and security/police apparatus in place’. This district has a homogenous ethnic Harara population and the applicant is not at risk of persecution there for reason of his race or religion. The district has not suffered from guerrilla attacks or other fighting by resurgent Taliban forces or other militias.
(CB p.149)
An obvious question in light of the country information before the Tribunal which it failed to address was whether, in the reasonably foreseeable future, the power of the Taliban will spread to the district in which the applicant came from, giving rise to a risk of persecution.
j)In Minister for Immigration & Multicultural Affairs v W64/01A French J stated at [37]:
“The Tribunal, in assessing the claims and evidence before it, is required to undertake a process of looking to the future which is the essence of the Chan test.”
In the present case, the Tribunal has not properly looked to the future. In W396/01 v Minister for Immigration & Multicultural Affairs the Full Court stated that the Tribunal did not consider whether “the combination of factors” before the Tribunal might support a claim by the applicant. In the present case the Tribunal had also failed to consider whether, in light of the applicant’s claim and the country information which indicated the resurgence of the Taliban, the applicant faced a real chance of persecution in the reasonably foreseeable future.
k)In regard to the extortion issue, it was submitted that the applicant feared he would face demands for money as a person returning from a foreign country who was perceived to have money. Hence the applicant stated that “he would be faced with demands for money on his return by the different factions of the Wahdat Party” and “if he refused to comply with these demands he would be killed or injured” (CB p.139) and he feared robbery and violence as a person returning from a western country (CB p.139). Further, at the hearing before the Tribunal the applicant “drew attention … to widespread extortion and robbery, particularly against those (such as returnees from the West) who would be perceived as having money” (CB p.141). The Tribunal did not deal with this claim in its findings. More specifically the Tribunal found:
i)“the situation in the applicant’s home district of Markazi Behsud is … relatively safe, with all district authorities and security/police apparatus in place” (CB p.149). However, this finding was limited to the applicant’s fear of his race or religion” (CB p.149).
ii)“there is always a risk robberies will occur” in Afghanistan, but such robberies did not constitute Convention-related harm (CB p.149). However, this finding addressed robberies on the journey from Kabul to local villages, but not on demands for money following the applicant’s return to his local village.
It was submitted that if the Court agreed that the Tribunal did not deal with this claim, then it followed that the Tribunal fell into jurisdictional error.

Respondent’s submissions

Mr R Beech-Jones of Counsel, appearing for the respondent, filed written submissions which contained the following contentions:
a)Each of the grounds of the amended application asserted that the Tribunal did not address in some way or other a particular “claim” said to have been made by the applicant. None of these so-called “claims” were facts or circumstances which the applicant himself had experienced prior to his departure from Afghanistan. It was not and cannot be asserted that the Tribunal failed to address some particular fact or event that the applicant himself had experienced. Instead, the “claims” were fears that he articulated to the Tribunal based upon information he had received concerning the current situation in Afghanistan since his departure (CB p.147).
b)Ground 2 (iv): The Wahadat party issue
The basis for this ground was an assertion that the Tribunal failed to consider a claim by the applicant that if he returned he might be subject to extortion by the Wahdat or forcible conscription into its militia (CB p.139). The applicant who had previously lived in the same area under the control of the Wahdat Party (CB p.138) had not claimed that this had previously happened to him. The relevant finding of the Tribunal revealed that it did consider and rejected these “claims”. Implicit in this approach was a rejection by the Tribunal of there being any evidentiary basis for a suggestion that the applicant would be subject to forcible conscription or extortion beyond previously having to pay “taxes”. The Tribunal considered that there was “no reason” to suggest that the applicant would not be treated as if he had previously. The applicant had not previously been subject to conduct of that kind and the Tribunal did not consider he would be if he returned.
c)Ground 2 (v): Taliban Issue
This ground complained that the Tribunal did not make a specific finding concerning the possibility of the Taliban spreading to the district in which the applicant came from. It was asserted that in failing to do so the Tribunal had “not properly looked to the future” in applying the real chance test. As noted in the applicant’s submissions, the Tribunal expressly found that it did not accept “there is more than a remote chance of the Taliban re-emerging as a viable national political movement in Afghanistan in the reasonably foreseeable future” (CB p.146) and also noted that the district to which the applicant was returning had “not suffered from guerrilla attacks or other fighting by resurgent Taliban forces or other militias” (CB p.149). Further, the Tribunal made an extensive number of findings concerning the relative stability in the region to which the applicant would be returning (CB pp.148-149, 151). In addition, on a number of occasions, the Tribunal referred to the need to consider to the situation in the “reasonably foreseeable future” (CB pp.136, 146; 151). The Tribunal’s findings demonstrated that it was both cognisant of the correct test and it was satisfied there was no appreciable risk of Taliban resurgence even in the area to which the applicant was returning, in the reasonably foreseeable future.
d)Ground 2 (vi): Extortion Issue
The basis for this ground appeared to be an assertion that the reasons of the Tribunal (CB p.149) did not deal with a specific possibility that the applicant would be subject to demands for money on his return to the local village. There were two answers to this: firstly, the Tribunal findings (CB pp.149, 151) revealed that the Tribunal considered that the applicant’s home district was in all relevant respects relatively safe and secondly, the Tribunal’s finding that robberies of persons who were on journeys to home villages would not constitute Convention related harm (CB p.149) was equally applicable to any residual claim that the applicant may have made that he would be subject to demands for money within his local village.

Reasons

I adopted the applicant’s submissions that the three grounds of review were most conveniently identified as issues that involved the Wahdat Party, the Taliban and extortion. I will deal with the issues in that format.
The Wahdat Party issue of the applicant’s amended application was that the applicant claimed that if he returned to his village in Afghanistan he would then be forced to join the militia of the Wahdat Party or, in the alternative, pay off the commander, which he could not afford to do. In the applicant’s written submissions at paragraph 15(d)(i)-(vi), the elements of this fear were further expanded to include the applicant being involved in internecine warfare resulting in death or injury, the Harakat, demands for money as a person returning from a foreign country, being targeted by Pashtuns on the basis of ethnicity, the Khalili faction of the Wahdat Party forcing him to join the militia or paying its commanders to avoid service and the resurgence of the Taliban.
The solicitor for the applicant submitted that the independent country information before the Tribunal did not contradict this claim. On this basis the applicant claimed the Tribunal did not make a finding as to whether the applicant had a well founded fear of persecution on the basis of his claim and consequently the Tribunal fell into jurisdictional error.
The applicant’s claim in paragraph 11 of his statement of 23 March 2004 stated:
“If I return to my village I will be expected to join the party (the Wahdat) and I do not want to. The Wahdat is controlled by all of the commanders who I have spoken about who supposedly work under the name of Kahlili. I fear that they will force me to join the party at gunpoint. This has been happening for many, many years. I will have no choice. I fear that they would use any other means as well, to make me join the party.” (CB p.110)
The applicant also stated at paragraph 12:
“If I return, in addition to being forced to join the party, I will be forced to join the army for the Wahdat and to fight against my wishes. If I don’t join the army I will have to pay money to the commanders of the party.” (CB p.110)
The reasons for the decision of the Tribunal revealed that the issue was raised at the hearing:
“The Tribunal put it to him that he had not feared persecution in his village (or his country) prior to the Taliban, and given that the situation in his village had returned to its pre-Taliban state, there was no reason that he could not resume his life there. The applicant contended that if he went back, he would face ‘thousands of disasters’. He noted that in the pre-Taliban days, there had been problems in the area with political parties (Harakat and the Wahdat party): people were pressured to join one [or] the other, and if they did not, they were forced to pay ‘taxes’ for a ‘defence fund’. The applicant said he joined neither party and therefore was forced to pay ‘taxes’. In his view, this situation was no doubt continuing.” (CB p.141)
The applicant submitted that it was evident from this paragraph that the applicant was in the past pressured to join one of the parties, that he refused and that he was forced to pay extortion money. The applicant’s claims to the Tribunal were that if he returned he would be forced to join the party at gunpoint, to join the army or to pay the commanders of the party. The applicant further submitted that the country information did not contradict this claim. Hence a UNHCR report obtained by the Tribunal in March 2004 stated:
“Is there any evidence of forced conscription in either district?
Answer: We are unable to confirm or deny this.”
The closest finding by the Tribunal was as follows:
“The applicant made no claim that he had a political profile … When he lived in the village, he accepted that the Wahdat Party was the local force … Like other villagers, he resented having to pay ‘taxes’ demanded of him by the party, and did not volunteer to join its militia … He made no claims, nor does the evidence suggest, that he suffered any adverse treatment for reason of his political views (or lack of them) or that he was singled out in any way from other like-minded villagers. The same people appear to have resumed power in the applicant’s village as were in control prior to the Taliban. If they treat the applicant in the same way as they did previously – and there is no reason to suggest otherwise – then the applicant need not fear Convention-related persecution.’ (CB p.149)
The applicant claimed the Tribunal did not implicitly deal with his claim to the extent required of it by law. In the applicant’s submissions the applicant clearly said that if he returned to his home town in Afghanistan he faced a threat, that he must face conscription into the Wahdat party and its militia, or in the alternative face extortion demands. The applicant relied on Applicant S that such threats constitute persecution. It was submitted that the threats facing the applicant were persecution and the essential and significant reasons for his fear was his membership of a particular social group such as able bodied men or men returning from the West. The solicitor for the applicant relied on the decision of Applicant S per Gleeson CJ and Gummow and Kirby JJ at [37]:
“The Minister made two related submissions regarding the issue of persecution. First, the Minister submitted that forcible recruitment by the Taliban does not amount to persecution under the Convention, because, although there may be a foreseeable risk of harm, the critical element of enmity or malignity is absent; the regime merely sought to harness the valued resource of those capable of fighting rather than inflict harm upon the individuals conscripted. Those conscripted, so it was submitted, may die or suffer harm in the fighting, but the purpose of the regime is not to rid itself of young men. This submission should not be accepted.”
It was submitted that demands for money or extortion could also constitute persecution: Rajaratnam per Moore, Finn and Dowsett JJ at [46]:
“As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason: see eg Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 at 645-646. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a Convention reason. The extorted party may have been chosen specifically as the target of extortion for a Convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.”
Where an applicant makes a claim and the Tribunal does not deal with the claim, there is jurisdictional error: Applicant WAEE per French, Sackville and Hely J at [45]:
“… If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.”
It was then stated at [47]:
“…Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In the High Court decision of Dranichnikov per Gummow and Callinan JJ at [24]:
“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord [the appellant] natural justice.”
The applicant contended that the Tribunal failed to consider the issue of whether the threat of conscription or extortion constitutes persecution and whether the threat was for a Convention reason.
Counsel for the respondent submitted that in paragraph 11 of the applicant’s statement (CB p.110) relating to the expectation of joining the Wahdat party, the applicant expressed the view that: “I do not want to”. The applicant also stated in paragraph 12:
“I have heard from my contacts in Australia that the political parties in the area are gathering together armies, not just in my area but in other areas too, to fight. If I return, in addition to being forced to join the party, I will be forced to join the army for the Wahdat and to fight against my wishes. If I don’t join the army I will have to pay money to the commanders of the party.” (CB p.110)
The applicant stated that in the past people were expected to join the party and he had heard that if he returned he would have to join the army and be conscripted. In the pre-Taliban days, there had been problems in the area with the Wahdat party in that people were pressured to join one or the other. Those that did not join the party or the militia were forced to pay taxes for a defence fund. The applicant said he joined neither party and therefore was forced to pay taxes.

In his own words the situation in the post Taliban era was continuing.
In the Tribunal’s “Findings and Reasons” the following observation was made:
“The independent evidence needs to be considered carefully – that provided by the applicant, and that found by the Tribunal from other sources. The applicant’s evidence is his own experience from Afghanistan, a country which he left nearly five years ago. He has not had any direct communication from any family or friends since his departure: his one piece of indirect news, passed by a relative in Iran, is that his family stayed in its village during the Taliban years and is still there in the post-Taliban era. The applicant is not literate in Farsi and hence his information comes from radio broadcasts in his own language (as provided by SBS) and through information shared by members of the Hazara community in Sydney.” (CB p.147)
The applicant made various claims about what is happening with the Wahdat party: (CB p.149). The Tribunal found:
“The applicant made no claim that he had a political profile, or indeed, that he took – or intended to take in future – any active role in politics. When he lived in the village, he accepted that the Wahdat Party was the local force: it was the party which issued ID cards and the like. Like other villagers, he resented having to pay “taxes” demanded of him by the party, and did not volunteer to join its militia (unlike his brother, who was badly wounded in its service). He made no claims, nor does the evidence suggest, that he suffered any adverse treatment for reasons of his political views (or lack of them) or that he was singled out in any way from other like-minded villagers. The same people appear to have resumed power in the applicant’s village as were in control prior to the Taliban. If they treat the applicant in the same way as they did previously – and there is no reason to suggest otherwise – then and the applicant need not fear Convention-related persecution.” (CB p.149)
The Tribunal considered that there was no reason to suggest that the applicant would not be treated as he had previously and that previously he had not been subjected to conduct of that kind. The Tribunal, therefore, did not consider that the applicant would be so treated if he returned.
The respondent submitted that this raised two issues, namely:
a)Firstly, to the extent that the relevant fear was of conscription, that was not what the applicant had said happened in the past and the Tribunal rejected any evidentiary foundation that it would occur if the applicant returned; and
b)Secondly, to the extent that the applicant’s claim was of a fear of either being pressured to join a party or to pay what was called “taxes”, the Tribunal rejected the contention that they were Convention related persecution.
The Tribunal found that there was no evidentiary basis for a suggestion that the applicant would be subject to forcible conscription or extortion. The Tribunal accepted that the applicant may be subject to paying taxes but this was not a new imposition as this situation had existed prior to the arrival of the Taliban. The Tribunal formed the view that the applicant could be subject to conditions not substantially different from the conditions he had experienced in the pre-Taliban era (CB p.149).
In respect of the Taliban issue (Ground 2) the applicant expressed fear of resurgent Taliban. It was submitted by the applicant that there was evidence before the Tribunal that the Wardak province in which the applicant’s district of Markazi Behsud was located, was a stronghold for the Taliban. It was submitted that the Tribunal appeared to have accepted that there were remnants of the Taliban in Afghanistan who were dangerous and there were resurgent groups of Taliban militants. The Tribunal found that the chances of the Taliban becoming a force that was able to take control of the country again was remote. The Tribunal also noted that the applicant’s district in the Wardak Province had not suffered from fighting by resurgent Taliban forces in recent periods. However, it was submitted, in light of the applicant’s claims and the independent country information before the Tribunal, the Tribunal failed to consider the possibility that in the reasonably foreseeable future the Taliban could extend its influence in the Wardak Province to the applicant’s district, in which case the applicant would probably have a well-founded fear of persecution.
The solicitor for the applicant submitted that in relation to Article 1C(5) of the Refugee Convention the Tribunal found that there was only a remote chance that the Taliban would re-emerge as a viable national political movement in Afghanistan in the reasonably foreseeable future (CB p.146). However, it was submitted that the Tribunal failed to consider whether the applicant’s claim to fear persecution in the future by a resurgent Taliban as a guerrilla force in his particular area was well founded. The applicant claimed the Kuchis (nomadic Pashtuns) were not a problem but the Taliban were because there were resurgent. He said that Gulbudin Hekmatyar were currently in collusion with the Taliban and had support in the Wardak Province. This was particularly dangerous as Hekmatyar had announced a jihad against Hazaras and against the Karzai Government (CB p.141).
The applicant submitted that the Tribunal was still to make an assessment of whether there was a real chance that the Taliban would emerge as a terrorist force in the applicant’s regional area. This was particularly so in light of the fact that there was evidence before the Tribunal, which it accepted, that the Taliban is emerging as a force in Afghanistan once again and the evidence that the province that the applicant is from is a Taliban stronghold. The Tribunal noted that:
“… it is not contradictory to reconsider these claims in relation not to the de facto Taliban government of the time, but to resurgent groups of Taliban militants or other groups who might hold the same antipathies”. (CB p.147.1)

However, the applicant submitted that the Tribunal did not go on to address the issue of whether the applicant had a well founded fear of persecution as a result of the resurgence of the Taliban as a real force in the applicant’s area in the foreseeable future.
Counsel for the respondent took the Court to the independent information concerning the relative risks in various parts of Afghanistan and in particular to the following passage:
“The Tribunal also referred to the independent evidence indicating that there [were] no recent (post-Taliban) reports of conflict between Hazaras and other ethnic groups in Behsud, although there may be tensions when the Kuchis (nomadic Pashtuns) return. The applicant said that Kuchis were not the problem: the Taliban were – and the Taliban was resurgent. He said that Gulbudin Hekmatyar, currently in collusion with the Talbian, had lots of supporters in Wardak Province and this was particularly dangerous, as Hekmatyar had announced a jihad against Hazaras and against the Karzai government. He said that Hekmatyar’s group, Hizb-I Islami, was very dangerous and could not be controlled by government security forces, which were ineffective against party militias across the country.”
(CB p.141.2)
The Tribunal resolved the issues raised by the independent material by simply finding that it considered that the Taliban had been removed and the area that the applicant came from was relatively safe which implicitly rejected a contention that there was any realistic risk of the Taliban being active there. The Tribunal reached that conclusion in dealing with Article 1C(5) concerning the Taliban’s position nationally as follows:
“On the basis of the evidence referred to above I find that the Taliban have been removed from power in Afghanistan. I do not accept that there is more than a remote chance of the Taliban re-emerging as a viable national political movement in Afghanistan ….” (CB p.146.2)
The Tribunal then dealt with the province of Wardak:
“Wardak Province is made up of a number of districts and the independent information indicates that the eastern part of the province – that is, close to Kabul – is much more volatile and dangerous. The districts in the eastern part have mainly Pashtun and Tajik populations …”. (CB p.148.2)
The Tribunal then made the following observation:
“In reviewing the independent evidence, the Tribunal is satisfied that the situation in the applicant’s home district of Markazi Behsud is, as the UNHCR described it, ‘relatively safe, with district authorities and security/police apparatus in place’. This district has a homogenous ethnic Hazara population and the applicant is not at risk of persecution there for reason of his race or religion. The district has not suffered from guerrilla attacks or other fighting by resurgent Taliban forces or other militias.” (CB p.149.2)
The respondent submitted that there was a clear structure of the Tribunal understanding that the applicant had a concern about the resurgent groups of Taliban militants. The Tribunal referred to the evidence, it noted there was a problem in the eastern part of the province, including the Taliban activity there. The Tribunal then considered the applicant’s area, it concluded that it was safe, noting there was no report of resurgent Taliban forces. The respondent submitted that it was quite clear from this part of the Tribunal’s decision that it understood what the applicant’s claims were about the Taliban militants and it accepted they were not active in the applicant’s area.
It was submitted by the respondent that the other issue to be resolved was whether the Tribunal was considering the position in the reasonably foreseeable future. The respondent submitted that if the Tribunal decision was read as a whole it was quite clear the Tribunal understood that was the fundamental question that had to be resolved. The respondent submitted that there were three instances where that relevant test was correctly referred to. The first of those was located in the boiler plate sections at the beginning of the Tribunal’s reasons (CB p.136 [6]). Then the Tribunal considered the Article 1C(5) question (CB p.146 [6]) and finally in the summation of its reasons the Tribunal again referred to the correct test being the reasonably foreseeable future (CB p.151).
In respect of the extortion issue (Ground 3), the applicant claimed that if he returned to his village in Afghanistan he would face extortion as a returnee from the West. The applicant claimed the Tribunal failed to consider whether this claim gave rise to the applicant having a well-founded fear of persecution for reason of membership of a particular social group. In paragraph 4 of the applicant’s statement of 23 March 2004 he stated:
“I fear returning to my country for a number of reasons. One of them is that if I return to home, I will be shot or robbed because

I come from Australia, from the West. I have heard many stories about the problems people have returning to Afghanistan and have many friends of friends who had been robbed or shot at.” (CB p.109)
In paragraph 8 of that statement, the applicant further claimed:
“… Many people, including me, left Afghanistan when the Taliban were in control. The people who did not leave know when you return and want to make sure that you are made to pay for it.” (CB p.110)
The applicant also claimed he would face extortion specifically from the Wahdat party and this was recorded in the Tribunal’s decision in the “Claims and Evidence” section as follows:
“The applicant also noted that he would be faced with demands for money on his return by the different factions of the Wahdat Party. If he refused to comply with these demands, he would be killed or injured. He noted that he had seen such extortion previously – for example, in the pre-Taliban days, when men returned from working in Iran, they always had to contend with these sorts of demands.” (CB p.139.2)
The solicitor for the applicant submitted that the above statements clearly showed that the applicant feared persecution in the form of extortion specifically because of his membership of a particular social group being that of returnees from the West. The applicant submitted that the Tribunal dealt with this issue as follows:
“… the applicant’s home district … is … ‘relatively safe’ … and the applicant is not at risk of persecution there for reasons of his race or religion”. (CB p.149)
The applicant then drew the Court’s attention that the Tribunal had restricted itself to reasons of race and religion:
“The Tribunal accepts that there is always a risk that robberies will occur in a country as poor as Afghanistan currently is, but is not satisfied that such robberies constitute Convention-related harm.” (CB p.149)
The applicant submitted the Tribunal failed to deal with the applicant’s claim of being targeted as a result of his membership of a particular social group. It was submitted that it may be possible to review returnees from the West as a particular social group and to find that extortion of a member of that group was persecution for reasons of membership of that group.
The respondent Counsel submitted that no such claim in those terms or anything like it was put to the Tribunal. That is, that there was a social group of persons comprising in some way or other returnees from the West who were at particular risk of extortion. The respondent Counsel submitted the Tribunal was not obliged to engage in an exhaustive formulation of every possible permutation of social group in order to let the applicant’s claim fit into it. It was acknowledged that there was evidence that there was a risk of robbery in the province but these robberies did not constitute Convention-related harm. It was further submitted that when people moved within the province that robbers would be cognisant of who was from the West and who was not. The Tribunal did not address the issue of some particular social group of comprising of returnees from the West because there was nothing before the Tribunal that raised the issue in this matter. The suggestion that robbers were cognisant of who was from the West and who was not amongst the travellers en route from Kabul back to the Behsud district was not supported by the evidence. The Tribunal acknowledged that there was a risk of robbery for all travellers but it did not accept that robbery constituted Convention related harm consisting of a special grouping of those who had been to the West. The Tribunal accepted that the applicant’s village was under the control of the Wahdat and that independent advice suggested that there was a degree of stability in the area. The Tribunal accepted that the applicant may be forced to pay taxes for failing to join the party but it did not accept that the applicant was special in any particular way that would result in him being subject to greater extortion.
The solicitor for the applicant submitted that the applicant was not represented at the Tribunal hearing by a migration agent or any member of the legal profession and, as a result, the applicant would not have been able to elucidate every single element of a claim within the ambit of the Refugee Convention. However, it was acknowledged that the applicant had received assistance with the drafting and preparation of submissions to the Tribunal from a voluntary organisation that was established to assist migration applicants in the preparation of documentation but did not provide migration advice. Whilst the presentation of this material in question may not have been submitted in the same form as by a trained legal practitioner in this jurisdiction, the essential elements of the argument of the applicant in relation to his concern of being subject to a greater level of extortion because of his visit to the West were conveyed. I am satisfied that the essential elements of this argument were conveyed by the applicant and those elements were addressed by the Tribunal in its decision.

Conclusion

For the reasons set out above, I am satisfied that the grounds of the application cannot be sustained and the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 1 July 2005