SZEMM v Minister for Immigration

[2006] FMCA 1302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEMM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1302

MIGRATION – Refugee – application for a permanent protection visa – temporary protection visa previously granted – permanent protection visa refused – approach to determining whether Australia has protection obligations to appellant – Articles 1C(5) and 1A(2) of the Refugees Convention – whether the Tribunal properly considered the applicant’s claims made after his arrival in Australia – Tribunal found to have considered the applicant’s claims – no reviewable error – application dismissed.

Migration Act 1958, ss.36, 36(2), 36(3)
Convention Relating to the Status of Refugees 1951, Articles 1A(2), 1C(5)

NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363
NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448
SWMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1605
SVYB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 15
Minister for Immigration and Multicultural and Indigenous Affairs v SWZB [2005] FCA 53
SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZEMM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2965 of 2004

Judgment of: Nicholls FM

Hearing date: 24 March 2005

Date of Last Submission: 22 June 2006

Delivered at: Sydney

Delivered on: 8 September 2006

REPRESENTATION

Counsel for the Applicant: Mr. C. Colborne

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondent: Ms. V. Hartstein

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The name of the respondent Minister be amended to read “Minister for Immigration and Multicultural Affairs”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2965 of 2004

SZEMM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 29 September 2004 seeking review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 August 2004 and handed down on 7 September 2004 to affirm the decision of a delegate of the first respondent Minister made on 12 March 2004 to refuse a further protection visa to the applicant.

2. The applicant is a national of Afghanistan who came to Australia on
   18 December 1999 and was granted a temporary protection visa on
   24 August 2000. On 31 August 2000 he applied to the respondent Minister's Department for a further protection visa. This was refused on 12 March 2004 and he applied for review of that decision on
   22 March 2004.

3. By way of amended application, drafted with the assistance of the applicant's solicitors, the Legal Aid Commission of New South Wales, and filed on 13 January 2005, the applicant put forward the following:

   “The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by failing to –

   1.properly construe and apply Article 1C(5) of the Refugees Convention.

   2. address the question of whether the interim Government of Afghanistan was able or willing to provide effective protection, for the purposes of Article 1C(5), to the Applicant;

   3. address the question of whether the changes in Afghanistan were substantial, effective and durable;

   4. properly construe section 36(3) of the Migration Act 1958 and find that it had no application to the Applicant’s case; and

   5. address the Applicant’s claims that he still feared the remnants of the Taliban and the Pashtoon, Tjlk and fundamentalist generally.”

4. At the hearing before me Ms. V. Hartstein appeared for the respondents, and Mr. C. Colborne appeared for the applicant. I had before me written submissions drafted by Mr. Colborne and filed for the applicant, and the respondent’s written submissions drafted by
   Ms. Hartstein. Following the hearing the applicant, with the consent of the respondent, requested that the Court delay handing down Judgment in this matter pending the decision of NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60 (“NBGM”). The Court agreed. Following the handing down of this Judgment the Court provided an opportunity to both parties to make any further written submissions. Both parties did so, Mr. G. Johnson having drafted the respondent’s subsequent submissions.

5. Mr. Colborne for the applicant sought that the Court should further delay its Judgement pending the High Court's Judgement in both QAAH (special leave to appeal was granted from QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363 (“QAAH”)) and NBGM (special leave to appeal sought). The High Court heard argument on 19 and 20 June 2006. The first respondent opposed any further delay. 

6. No date has been set by the High Court to hand down Judgement on the special leave to appeal in QAAH or in relation to NBGM (no special leave as yet). Given the time that this matter has already been before this Court for some time and given that no date is yet available for the High Court Judgement, it is not appropriate that there be any further postponement in handing down Judgement in this matter.

7. At the hearing earlier before the Court, Mr. Colborne, with reference to grounds one to four of the amended application, submitted that as against the relevant authorities at that time (Emmett J. in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373, Dowsett J. in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448, Selway J. in SWMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1605, Finn J. in SVYB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 15 and Minister for Immigration and Multicultural and Indigenous Affairs v SWZB [2005] FCA 53) the Court would find against the applicant. As set out in the applicant's first set of written submissions (at paragraph 4) the applicant sought to reserve his position pending the outcome of the appeal to the Full Federal Court in NBGM.

8. The applicant's position now (as expressed through Mr. Colborne in written submissions) is that the Tribunal failed to properly construe and apply Article 1C(5) of the Refugees Convention. Specifically, in that it did not ask whether a durable change in circumstances had been established with clarity. What was described as “the remaining issue” related to the proper construction of s.36(3) of the Migration Act 1958 (“the Act”). The applicant submitted that the reasoning of Allsop J. in NBGM at [205] to [212], with whom Marshall J. agreed, is more persuasive than the reasoning of Black CJ., and Mansfield J. (at [12] to [22] and [41] to [58]) and that it should be followed.

9. The respondent’s supplementary submission in reply was that the majority Judgement in NBGM provided that a Tribunal would have asked the “right question” if it asked itself whether the applicant had, at time of its decision, a well founded fear of persecution in Afghanistan for a Convention reason. This was so regardless of the correct construction of Article 1C(5). With reference to the Tribunal's decision record, the submission was that the Tribunal did examine whether the applicant, at the time of its decision, had a well founded fear of persecution in Afghanistan for a Convention reason. Further, that this was the “right question” to address. In this regard, the respondent referred to the Tribunal’s decision record (reproduced in the Court Book (“CB”), particularly at CB 140.0 to CB 140.3, CB 163.1 to CB 163.5 and CB 166.9 to CB 167.2).

10. In NBGM Black CJ. stated at [25]:

    “The members of the Full Court have reached differing conclusions both as to the outcome of the appeal and as to the reasons for the outcome. As a majority would dismiss the appeal, that will be the order of the Court. Given the practical importance of the case, I think it appropriate to observe that whilst there are two lines of reasoning leading to the majority conclusion that the appeal should be dismissed, there is a common conclusion about the task to be performed by the decision-maker on an application for a permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa. The majority would agree that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the applicant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason. The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s 36 requires.”

    Mansfield J. specifically agreed with these observations at [59] and Stone J. stated at [149]:

    “Since writing the above I have had the opportunity to read, in draft, the reasons of the Chief Justice and I specifically note my agreement with his Honour’s comments in paragraph 25 concerning the task to be performed by the decision-maker in relation to an application for a permanent protection visa in the circumstances indicate…”

11. As to which of the two lines of reasoning should be followed,
    Mr. Johnson for the respondent has referred the Court to the Judgement of Branson J. in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 (“SZECG”), handed down after the Full Court Judgement in NBGM. In SZECG, on appeal from this Court, her Honour rejected the submission that she should adopt the approach preferred by Allsop J. in NBGM on the issue of the interaction of Article 1C(5) and s.36(3) of the Act. Specifically, and relevantly, her Honour held at [14] to [15]:

    “[14] I conclude that to accept the above submission would be to disregard [25] of the reasons for judgment of the Chief Justice in NBGM. Both Mansfield and Stone JJ expressed agreement with this paragraph. In [25] the Chief Justice noted that the majority of the Full Court agreed that, in considering an application for a protection visa, the decision-maker must be satisfied that, at the time the decision is made, the appellant then has a well-founded fear of persecution for a Convention reason.

    [15] The Tribunal was not satisfied that at the time of its decision the appellant had a well-founded fear of persecution for a Convention reason. It was therefore not open to the Tribunal to be satisfied that the appellant was entitled to a protection visa whatever the operation, if any, of Art 1C(5) of the Convention in respect of the appellant.”

12. The conclusion of Branson J., formed on a matter on appeal from this Court, is clearly binding and I follow that decision. I am unable to accept Mr. Colborne’s submission that, in effect, disregards the reasons for Judgement of the Chief Justice in NBGM in circumstances where both Mansfield and Stone JJ. were in agreement.

13. Therefore, the case before me remains, as Mr. Colborne initially described at the hearing in this matter, focused on the only “live” issue between the parties, derived from ground five of the applicant’s amended application. Namely, that the Tribunal failed to exercise its jurisdiction by failing to properly address the applicant’s claims that he still feared the remnants of the Taliban and the Pashtoons, Tajik and fundamentalists generally in Afghanistan.

14. In relation to addressing the “right” question, with reference to s.36 of the Act, and bearing in mind what was stated by the majority of the Full Court in NBGM, I note that the Tribunal said at CB 140.3:

    “Thus, for example, if a previously recognised refugee no longer has a well-founded fear of being persecuted in his or her country of nationality for one or more of the Convention reasons, and has not taken all possible steps to avail himself or herself of a right to enter and reside in that country, s.36(3) will apply, irrespective of the operation of the cessation clauses.”

    In its “Findings and Reasons” at CB 163.2:

    “Even if the Tribunal were wrong in its conclusion about the application of Article 1C(5), the Tribunal finds that the applicant is not a person to whom Australia has protection obligations in relation to the circumstances in connection with which he was recognised as a refugee, because of the operation of s.36(3) of the Act.”

    At CB 166.9:

    “The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution for a Convention reason in Afghanistan.

    Conclusion

    Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

15. In all the circumstances therefore, the Tribunal did identify the “right” question to be posed. The issue now for consideration by this Court is whether the Tribunal properly answered this question in relation to the claims set out in ground five of the applicant’s amended application.

16. Mr. Colborne pointed to the applicant’s statement of 14 June 2004, submitted to the Tribunal in writing in support of his application for review. This is reproduced at CB 114 to CB 118. He particularly referred to the statement at CB 118.5:

    “I still have fear from remnants of the Taliban, Pashtoons, Tajiks, Nasris and the Muslim fundamentalists who are waiting to harm anyone who had association with the foreigners.”

17. The complaint is that the Tribunal did not, or did not properly, deal with these claims. There was no disagreement between the parties as to the relevant legal principle to be applied in relation to this complaint. Clearly, if it could be shown that the Tribunal had not dealt with any of the applicant claims, then that would amount to jurisdictional error on the part of the Tribunal. The parties agreed at the hearing before the Court that the critical issue in the case before me was how the Tribunal dealt with the applicant's claims in this regard.

18. A threshold issue however, is to ascertain exactly what the applicant's claims were as they culminated ultimately before the Tribunal. Since the applicant’s arrival in Australia in December 1999, he had put forward a number of claims of fear of harm if he were to return to Afghanistan. In particular, the various claims can be seen in a number of the written applications and statements made to the respondent's Department and to the Tribunal, at a number of interviews with the employees of the first respondent, and at the hearing before the Tribunal. It is not necessary at this point to examine in detail the development of the various aspects of the applicant's claims other than to note that the Tribunal itself sought to identify these claims and set out this process in its decision record at CB 140.4 to CB 149.8.

19. The Tribunal's record, which remains unchallenged in this regard, outlines the applicant's claims in his:

    1)Interview on arrival on 29 December 1999 (CB 140.5).

    2)Original visa application dated 15 May 2000 (CB 140.8).

    3)Further protection visa application dated 31 August 2000 (CB 142.5).

    4)Letter in support from the applicant dated 1 March 2003 (CB 142.5).

    5)Interview with the first respondent's delegate on 24 February 2004 (CB 144.5).  

    6)Application for review lodged with the Tribunal on 22 March 2004 (CB 147.7).

    7)Further written statement from the applicant to the Tribunal dated 24 June 2004 (CB 147.9).

    8)Evidence given by witness on behalf of the applicant on 4 August 2004 (CB 149.8).

20. The applicant put forward various claims over a considerable period of time to both the respondent's Department and the Tribunal. Claims were put by the applicant, on the applicant's behalf, and through the evidence of a witness at the hearing before the Tribunal. In these circumstances the Tribunal was, in my view, entitled to seek clarification from the applicant as to the exact, and current, nature of his fear of harm if he were to return to Afghanistan. As the Tribunal stated in its decision record (in the part of its record that related what had occurred at the hearing it conducted with the applicant) at CB 152.4:

    “The Tribunal said that, since he was originally granted a temporary protection visa, the applicant had made a number of other claims about reasons why he would be in danger in Afghanistan even after the Taliban government was deposed. Recently, however, he had explicitly abandoned some of these claims, and had implicitly abandoned others. It therefore had found it difficult to be certain exactly what the applicant was now claiming. The Tribunal asked the applicant to state briefly each element of his current fears.”

21. The applicant, with the benefit of his adviser present, is reported by the Tribunal, at CB 152.5, as stating:

    “The applicant said that, first, he had spoken out against the Wahdat party at some meetings in Australia.  He had described Wahdat as fundamentalists who support the supremacy of Mullahs, and had opposed such fundamentalism.  Because word of his opposition would have returned to Afghanistan, he would be at risk of persecution by Wahdat were he to return.  Second, he said he feared Taliban remnants, Tajiks, and fundamentalists generally.  Third, he feared he would be regarded as an “infidel,” because he had been in a western country.  Further, he had been accused of abandoning Islamic practices, and was known to consume alcohol, so he would be punished for this. Finally, he said that his political opinion was different from those of the fundamentalists, so they would kill him if he were to return.  He said that, if he did not have a genuine fear, he would not have remained away from his family for so long.”

22. The Tribunal's record of what occurred at the hearing continues with the Tribunal reporting that it sought to confirm with the applicant that he had abandoned other claims previously made. Ultimately, what is clear from the Tribunal's record is that the extract quoted above represents the applicant’s summary of claims before the Tribunal at the hearing. In the absence of any other material before me showing that any subsequent submissions were made at the hearing before the Tribunal, they remain the latest account of the applicant's claims available for consideration by the Tribunal. The applicant, with the benefit of legal advice before the Court, has not put any evidence before the Court challenging the Tribunal's account of what occurred at the hearing.

23. The applicant's claims therefore, at that point, can be seen as being a fear of harm from:

    1)Remnants of the Taliban.

    2)Tajiks;

    3)The Wadhat Party (an Hazara Party); and

    4)Fundamentalists generally.

    The fear of harm in relation to these groups arose from his belief:

    1)That he would be regarded as an infidel because he had been in a western country.

    2)That as had been accused of abandoning Islamic practices and was known to consume alcohol, he would be punished for this.

    3)That his political opinion was different to the fundamentalists and they would kill him for this reason if he were to return to Afghanistan.

1. In relation to the claim of fear of harm from the remnants of the Taliban, Mr. Colborne submitted that the applicant had put this claim to the Tribunal in his written statement of 14 June 2004 (CB 114 to CB 118, in particular at CB 118) and that he repeated this statement, in similar terms, during oral submissions at the hearing before the Tribunal. 

2. In looking at how the Tribunal dealt with this claim Mr. Colborne referred to:

   1)The Tribunal's decision record under the heading of “Findings and Reasons”, at CB 162.6. Here the Tribunal looked at the “circumstances in connection with which the applicant was recognised as a refugee” as relevant to Article 1C(5) of the Refugees Convention.

   2)The finding that while the Taliban were removed from power (relevant to whether the circumstances under which the applicant was granted a temporary protection visa had ceased to exist) the Tribunal accepted that remnants of the Taliban remained active, particularly in the applicant's home province (Wadhat) (CB 162.7).

   3)The Tribunal’s consideration of the situation as it existed at the time of its decision. In this regard the Tribunal found at CB 162.8:

   “…there is no likelihood that it could return as the governing authority of the country or otherwise be in a position to exercise control in the manner it did at the time the applicant left Afghanistan, for example by entering Hazara areas with impunity, and demanding weapons.”

   4)The Tribunal’s consideration of the situation as it related to the Taliban again taking control as it had previously. That in relation to the current and future situation, the Tribunal did not address the applicant's claim that he feared remnants of the Taliban because he had lived in a foreign country (and would be regarded as an infidel). Further, that they were active in his home province.

   5)The Tribunal’s failure to deal with the applicant's claim to fear remnants of the Taliban which was separate to the previous claim that he feared the Taliban, as they were when in power. Mr. Colborne submitted that the Tribunal did not address what might happen in the future, in relation to whether remnants of the Taliban may pose a threat to the applicant.

   6)Paragraph 18 of the respondent’s written submissions:

   “In order to qualify under the Convention, persecution must have an official quality, in the sense that it is official or officially tolerated or uncontrollable by the authorities of the country of nationality (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). In this case the Tribunal has specifically found that the Taliban no longer has that type of control and is no longer uncontrollable.”

   7)The Tribunal’s decision record, at CB 162, to which the last sentence of the respondent’s submissions referred. The Tribunal stated at CB 162:

   “Independent evidence cited above, which the Tribunal accepts, indicates that the Taliban were removed from power in Afghanistan by mid-November 2001.  The Tribunal accepts that remnants of the Taliban remain active in Afghanistan, and particularly in Wardak province.  However, the independent information cited above indicates the Taliban no longer exists as a coherent political movement controlling or governing significant areas.  While the armed Taliban remnants may cause security problems for the Government, for international (mainly US) troops engaged in combating them, and for representatives of aid agencies perceived to be supporting the Government, it is now nearly three years since the Taliban was removed as the Government of the country, and the Tribunal finds that there is no likelihood that it could return as the governing authority of the country or otherwise be in a position to exercise control in the manner it did at the time the applicant left Afghanistan, for example by entering Hazara areas with impunity, and demanding weapons.”

3. Mr. Colborne’s submission was that the respondent’s position that the Tribunal had addressed this claim properly, was not a fair inference from what the Tribunal had stated (as reproduced above). In its decision record the Tribunal was not saying that the Taliban (now its remnants) was “uncontrollable”, but that they were no longer in a position to exercise the power they did when they were the “de facto” government. The essence of the complaint is that the applicant made the claim to fear the remnants of the Taliban after the Taliban were removed from government, and that this fear was in circumstances where the Taliban (remnants) were particularly active in his home province, and he feared the remnants especially as he had been in contact with foreigners and that the Tribunal did not deal with this claim. 

4. Nor in his submission, did the Tribunal's statements at CB 153.7 show that the Tribunal properly addressed the applicant's claims in this regard. This was with particular reference to the respondents written submissions at paragraph 17 which states:

   “The Tribunal said it was aware of problems with Taliban remnants and that there are US troops actively engaged in seeking them out and attacking them (CB 153.7), but found there was no likelihood of the Taliban being able, in the foreseeable future, to exercise any kind of governmental authority in the country, such that it could enter villages with impunity and arrest people, inspect records, demand weapons etc. In particular, it does not appear that the applicant, were he to return to his home district would face persecution by the Taliban because of his tribal group or religion (CB 153.8) (CB 162.6-8 eight).”

5. Mr. Colborne’s submission was that what the Tribunal set out at CB 153 was not a finding that dealt with the applicant's claim to fear Taliban remnants if he were to return to his home district. Rather, it was a “proposition for the purposes of discussion during the hearing”.

6. Ms. Hartstein in response submitted that:

   1)There was agreement that the issue for the Court was the way the Tribunal dealt with the applicant's claims.

   2)The Tribunal's “Findings and Reasons” should not be relied upon in part, with isolated passages looked at on their own. For meaning to be discerned, it is necessary to look at the Tribunal decision record as a whole and to draw meaning in that context. Further, that in presenting its findings in relation to each aspect of the claims, the Tribunal does not need to continually repeat its findings in relation to each aspect or particular.

   3)The applicant's latest set of claims as reported by the Tribunal, at CB 152, were put in a generalised way. The applicant “lumped” a number of groups together and then made general claims in relation to these groups. For example, from his claims that his political opinion was different from those of the fundamentalists and that he had been accused of abandoning his Islamic practices, it was left to be inferred that this related to all of the groups from which he feared harm. The point here was that the Tribunal dealt with the claims, in some respects, in the same “generalised” way in which the applicant put his claims.

   4)Specifically in relation to the remnants of the Taliban, a fair reading of the Tribunal's decision record shows that the Tribunal, relying on independent country information, accepted that remnants of the Taliban remain active in Afghanistan (CB 162.7), and that these remnants may cause security problems for the government, international troops and representatives of aid agencies. Further, these were groups to which the applicant could not be said to belong. A finding therefore that the remnants of the Taliban remain active, is a finding that they are really only an issue in relation to those other groups, and not an issue in relation to Hazara, such as the applicant, as the applicant would be returning to an Hazara controlled area.

7. Further, she submitted that when the Tribunal's account of what occurred at the hearing (the only account put before the Court now) is read in conjunction with the Tribunal’s relevant findings, the following can be seen:

   1)At CB 153.5 the Tribunal records what it discussed with the applicant in relation to his Taliban related fears, in particular at CB 153.6, where it indicated that it was aware of the problems with Taliban remnants in Afghanistan as at the time of the making its decision.

   2)At CB 135.7 it is clear that this discussion (as reported in the decision record) with the applicant took place in the context of the applicant's earlier claims that he would be persecuted by the Taliban (who were the “de facto” government of the country at the time) because of his Hazara race, and his Shi’a Muslim religion. This was reflected in the applicant’s earlier successful claim for a temporary protection visa. But the Tribunal, in looking at the current situation, stated that “in particular” it did not appear that the applicant, were he to return to his home district, would face persecution by the Taliban (in the relevant context: the remnants of the Taliban) because of his Shi’a religion, or because he was an Hazara.

   3)At CB 153.8 the Tribunal recorded, specifically in relation to the issue of the applicant’s return to his home district and persecution by the Taliban because of his religion or ethnicity, that the applicant had responded to the Tribunal that there had been an incident where Kuchis (Pashtoon nomads as the Tribunal records at CB 153.8) had attacked Hazaras. Importantly, the Tribunal records that the applicant said he believed that:

   “‘Pashtuns’ and ‘the Taliban’ were one and the same.”

   4)At CB 154.2 the Tribunal reports its discussion as it related to the applicant's claims of drinking alcohol, gambling and his public utterances in Australia, all of which would make him at risk if he were to return to Afghanistan.

   5)At CB 155.1 the Tribunal records that it put to the applicant that it had drawn together a number of reports about the situation of the Hazaras that showed that while individual Hazara may be the victims of criminal attacks, Hazaras as a group were not at risk of persecution just because they were Hazaras, “and therefore also as Shi’as and likely to support Hazara political parties.”

   6)At CB 155.2 the Tribunal reported that it told the applicant that it had “specific information” in relation to the security situation in his home district and his village which indicated that this district was inhabited only by Harazas and was relatively secure.

   7)At CB 155.3 the Tribunal raised with the applicant the need to decide whether he was a “supporter” of the Wahdat party as he initially claimed, or that he was now one opposed to its ideology as he was now claiming.

   8)At CB 156.7 to CB 162.3 the Tribunal set out independent country information to which it had regard.

   Ms. Hartstein submitted that when the Tribunal came to set out its “Findings and Reasons”, these must be read in the context of what was discussed at the hearing, particularly as the applicant clarified his latest claims at the hearing. Further, that they must also be read in the context of the independent country information to which the Tribunal said it had regard. 

8. I agree with Mr. Colborne that when looking at the passage of the Tribunal's “Findings and Reasons” quoted from CB 162.7 (see paragraph 25.7 above), that it is not a fair reading of this passage to say that what was presented was that the Taliban are “no longer uncontrollable”.

9. However, as Ms. Hartstein correctly, in my view, submitted, the task for the Tribunal was to make findings in relation to this applicant. In giving sense to what the Tribunal has done, the Tribunal's decision record, and in particular its “Findings and Reasons”, needs to be read in a holistic way. In particular, the individual parts need to be looked at in context of the whole to discern meaning. Nor does the Tribunal, as also submitted by Ms. Hartstein, need to continue to repeat findings already made in relation to each and every aspect of the claims, as these findings may relate to a number of such (particularly interrelated) aspects.

10. On a plain reading of the Tribunal's decision record, in relation to the Taliban, the Tribunal clearly found that based on independent evidence the Taliban were removed from power in Afghanistan by mid-November 2001, but that remnants of the Taliban remained active in Afghanistan. It further found that the Taliban no longer existed as a coherent political movement controlling or governing significant areas, and that while armed Taliban remnants may cause problems for certain groups (this was the reference to government and international troops and representatives of aid agencies) there was no likelihood that the Taliban could return as the governing authority of the country or otherwise be in a position to exercise control in the manner that it did at the time the applicant left Afghanistan. In particular, the Tribunal gave as an example that the Taliban were no longer in a position to enter Hazara areas with impunity and demand weapons. This can be seen in the Tribunal's findings at CB 162.7.

11. Had the Tribunal stopped there, and if this was the only part of its decision record relevant to the issue, it may have been the case that the applicant's complaint in this regard could have been made out. But the Tribunal clearly did more. It should be noted that the Tribunal's statement that the Taliban would not be in a position to exercise control in the manner that it did at the time the applicant left Afghanistan is put in the context of the current (as at the time of decision) alternative circumstance, and the likelihood of what would occur in the reasonably foreseeable future, in relation to the Taliban returning as the governing authority of the country. The Tribunal explains this by reference to the Taliban at an earlier time being able to enter Hazara areas with impunity and that this was no longer, and would no longer be, the case (CB 162.7).

12. A holistic reading of the Tribunal's decision record reveals that the Tribunal saw the applicant's claims, in this regard consistent with how the applicant himself had presented them, as based on the fact that he was an Hazara (with a Shi’a Muslim faith) and as such could not return to Afghanistan with safety. But in particular, he could not return to his home district for, amongst other reasons, fear of the Taliban (in context remnants of the Taliban, which it had been accepted were still active in parts of Afghanistan). In my view, a fair reading of the situation is that the applicant's fear of the Taliban remnants (as he put to the Tribunal at the hearing and as recorded at CB 152.7) must be seen, and did arise, in the context of what the applicant had also said about his fear of the Taliban which was set out at CB 152.4:

    “The applicant said that he had needed to support Wahdat in order to survive, but, for the Taliban, it was enough that he was a Hazara and a Shi’a.”

13. I accept the respondent's submission that the Tribunal's findings cannot be seen as standing separate and alone and that each finding should not be seen in isolation. The applicant's fear of the Taliban when he left Afghanistan clearly derived, at least in great part, from his being an Hazara. While the applicant gave the Tribunal a number of other reasons to fear harm if he were to return to Afghanistan as at the time the Tribunal's decision, the issue of his being an Hazara returning to Afghanistan, in circumstances where remnants of the Taliban were still active, remained a live issue for consideration by the Tribunal. Simply, and in short, Mr. Colborne’s submission is that the Tribunal did not address its mind to the issue of the fear emanating from the active Taliban remnants in Afghanistan.

14. In looking at the Tribunal's decision record as a whole however, I accept the respondent's submission that when it came to deal with the applicant's fear of harm if he were to return to Afghanistan in the reasonably foreseeable future, the Tribunal found that as an Hazara, the applicant could return to his home area, because it was an Hazara area under the security control of Hazaras and that there was no likelihood that the Taliban (or what was left of the Taliban) could enter Hazara areas with impunity, as had occurred in the past. Given that the applicant continued to be an Hazara it was open to the Tribunal, on what was before it, to find that as an Hazara the applicant could return in safety to an “almost exclusively Hazara district” (CB 165.2). In context therefore, such a finding clearly included, and was mindful of, the situation that Taliban remnants remained active in Afghanistan as at the time of the Tribunal's decision. However, the Tribunal went on to find that there was no likelihood that the Taliban remnants would emerge as the governing authority of Afghanistan, as they had been in the past, nor likewise that there was any likelihood that they could enter Hazara areas with impunity. In my view, it is clear that the Tribunal disposed of the fear of harm arising from Taliban remnants with its finding that as an Hazara the applicant could return to a district which was almost exclusively Hazara, under the security control of Hazaras, and the Taliban remnants could not enter such an area with impunity.

15. Having found that the applicant could return to his home district, the Tribunal also looked at, and rejected, the situation that the applicant would be at risk by other Hazaras (CB 165.2). It then, at CB 165.3, went on to say:

    “The independent evidence also indicates that UNHCR have received no reports of any difficulties faced by Hazaras as such, in the applicant’s district, and that there have been no reports of “post-Taliban” conflicts between Hazaras and other ethnic groups and that security in the district is relatively stable.”

16. It is significant to note in relation to the above, that at the hearing with the applicant, when the Tribunal was seeking to clarify the exact nature of the applicant's claims, the Tribunal reports that it told the applicant that it was aware of problems with Taliban remnants in Afghanistan, and general instability in the country, but commented that there were US troops who were actively engaged in seeking out Taliban remnants and attacking them. While it accepted that there were continuing problems, it suggested that there was no likelihood of the Taliban in the foreseeable future being able to exercise any governmental authority in the country, such that it could enter villages with impunity, arrest people, inspect records, demand weapons etc. Particularly in relation to the applicant, the Tribunal said at CB 153.7:

    “In particular, it did not appear that the applicant, were he to return to his home district would face persecution by the Taliban because of his Shi’a religion or because he was a Hazara”.

17. It is true, as Mr. Colborne submitted, that this is not a finding by the Tribunal. This extract appears in that part of the Tribunal's decision record dealing with its discussion with the applicant as to his fears. But what is clear from this extract of the Tribunal's account of what occurred at the hearing, and what surrounds it, is that the Tribunal was focused on the issue of the mistreatment of Hazaras by the Taliban when they had been the de facto government of Afghanistan. The decision record reveals that the Tribunal was aware of the current problems with Taliban remnants and that it needed to consider this (along with other claims) in the context of whether the applicant would be at risk of Convention related persecution were he to return to his home village (CB 153.5). Having clearly understood the applicant's claim in this regard (as being that he feared Taliban remnants and could not return to his home village or indeed anywhere in Afghanistan) the Tribunal found that the applicant could return with safety to his home village, in relation to the various iterations of the applicant’s claims to fear harm. This was clearly in context of the decision record as a whole, as an Hazara returning to an Hazara controlled district. This was a district which the Taliban as at the time of the Tribunal’s decision, could not enter with impunity.

1. The Tribunal’s relevant finding at CB 165.2 (that he would not be at risk if he were to return to his home district) was based on UNHCR evidence that there were no reports of any difficulties faced by Hazaras in the applicant's district (CB 161). While the Tribunal does specifically refer to other relevant issues in this regard, and makes no specific reference in this part of its decision record to Taliban remnants (CB 164.6 to CB 165.6 – including the finding at CB 165.2), the plain words in the Tribunal's decision record, with reference to the information it relied on, were that “the independent evidence also indicates that UNHCR have received no reports of any difficulties faced by Hazaras as such, in the applicant's district…” (CB 165.3). The words are plain in their meaning. In contrast to what the Tribunal had earlier found, the evidence before the Tribunal, as reported by the Tribunal, was that there were “no reports of any difficulties faced by Hazaras” in the applicant’s home area. The applicant continued to be an Hazara. Previously, Hazaras in the applicant’s home area faced difficulties from the Taliban (that is why the applicant said he left). At the time of the Tribunal’s decision, the information before the Tribunal was that the applicant’s home district was “about exclusively” Hazara and under their control (CB 162.2) and that there were no reports of “conflicts between Hazaras and other ethnic groups and that security in the district is relatively stable” (CB 165.3). I cannot see, when looking at the Tribunal’s record as a whole, that this country information could be said to exclude reference to the Taliban, nor importantly, that the Tribunal’s finding did not encompass what was left of the Taliban as at the time of its decision.

2. It is also important to note in this regard, again in the context of the Tribunal seeking to clarify with the applicant the exact nature of his fears, and the source of the fear of harm, that at the hearing the Tribunal specifically stated that if the applicant were to return to his home district he would not face persecution by the Taliban (CB 153.7). In this regard the applicant is reported as stating (CB 153.8) that he had heard “in the last few days” of an incident in which there were attacks by “Kuchis [Pashtun nomads] on Hazaras in a place called Kajaw south of his area”. It is clear therefore that at the hearing, when confronted with the issue of fear of persecution by the Taliban (that is Taliban remnants in his home district) the applicant's response was to equate Kuchis, who were particular types of Pashtoons, with the Taliban. The Tribunal also reports at CB 153.8:

   “He said he believed that “Pashtuns” and “the Taliban” were one and the same.” 

3. In its decision record at CB 165, the Tribunal clearly dealt with this aspect of the applicant's claims. To the extent that the applicant equated Kuchis with Pashtoons, and Pashtoon with the Taliban, the Tribunal dealt with this issue when it found that there had been no reports of conflict between Hazaras and “other ethnic groups” in the applicant’s home area. Further, that the applicant's area was not inhabited by Pashtoons, was under the security control of Hazaras and as such it considered that the applicant's chance of coming into conflict with the Kuchis (whom the applicant saw as Pashtoons and equated with Taliban) so remote as to be negligible. The Tribunal therefore clearly dealt with this aspect of the applicant's express claim relating to Kuchis to the extent that the Kuchis could be seen to be, given what the applicant himself said, part of the Taliban remnant problem.

4. In all therefore, at the hearing with the Tribunal, the Tribunal discussed with the applicant its awareness of problems with Taliban remnants in Afghanistan, and also put to the applicant that with particular reference to his circumstances it did not appear that were he to return to his home district he would face persecution by the Taliban because of his Shi’a religion or because he was an Hazara. The applicant's response was to refer to an incident of attacks by Kuchis on Hazaras (in place actually south of his area) and told the Tribunal that Pashtoons and Kuchis were one in the same and that is that Kuchis were Pashtoon nomads and were equated with the Taliban. The Tribunal clearly dealt with this detail of the applicant's claim and on a plain reading of its decision record as a whole, found that in the applicant's district (and for that matter in relation to the road into the applicant's district) there were no reports of any difficulties faced by Hazaras as such, no reports of any post Taliban conflict between the Hazara and other ethnic groups, and found specifically that the applicant's area was not inhabited by Pashtoons (which the applicant himself had equated with the Taliban). Further, that his home area was under the security control of Hazaras, and that the chance that the applicant would come into conflict with Kuchis (a branch of Pashtoons equated with Taliban) was so remote as to be negligible. In all therefore, I accept the respondent's submission that the Tribunal did deal with the applicant's claim as clarified and put by the applicant himself, to fear harm from post-Taliban remnants, and clearly found that as an Hazara (and as a Shi’a Muslim) he could return in safety to his home district. 

5. The second issue of complaint as submitted by Mr. Colborne is that the Tribunal did not deal with the applicant's claim to fear harm from Pashtoons and Tajiks. As the foundation for this complaint, Mr. Colborne again referred to the applicant’s written statement set out at CB 118, where following the stated fear relating to remnants of Taliban, the applicant stated that he also had fear from Pashtoons and Tajiks. Mr. Colborne's submission was that the Tribunal only dealt with one aspect of this claim, namely the aspect relating to the Kuchis, but that it did not deal with the applicant's claim in respect of Pashtoons. As I understood it, the issue of complaint was that Kuchis are only one part of the broader Pashtoon group, and in dealing with the Kuchis the Tribunal cannot be said to have dealt with the entire Pashtoon claim generally.

6. Mr. Colborne further referred to independent country information before the Tribunal, which the Tribunal itself referred to in its decision record (CB 161.6), to the effect that the Pashtoons and Tajiks inhabited a number of districts in the applicant’s province. In particular he referred to UNHCR advice reproduced by the Tribunal in its decision record at CB 161.6:

   “There are also a number of uncontrolled commanders, whose allegiances are unclear that are operating in the Province [the Wardak province]. The Province is also known to be a stronghold for the Taliban and Hezb-e-Islami.”

7. It is important to note, as I have already set out, that over time the applicant made a number of different claims as to his fear of persecution in Afghanistan. At the hearing the Tribunal properly sought to clarify with the applicant the exact nature of his latest set of claims. In this regard, in light of the Tribunal’s account of what occurred at the hearing, and with relevant reference to CB 152, it is clear that the applicant made no mention of “Pashtoons” in his list of groups from whom he feared harm. These groups were listed as the Wahdat party, Taliban remnants, Tajiks and fundamentalists generally. While the applicant may indeed have made such a key claim relating to Pashtoons in the past, at the critical part of the hearing before the Tribunal, where the Tribunal had already put to the applicant that there was some uncertainty and difficulty in ascertaining exactly what he was currently claiming, and where the applicant, with the benefit of an adviser present, made a response, there is nothing to show that the applicant responded that he feared Pashtoons, with any specific reference to Pashtoons. There is, of course, a specific reference to the fear of persecution from Tajiks, if he were to return.

8. In my view, the Tribunal did deal with the applicant's claim to fear persecution on return from Tajiks. For that matter (even though not part of the applicant's latest specific list) it did deal with Pashtoons, to the extent that they were seen as equivalent to the Taliban, or rather that the Taliban was an iteration of the Pashtoons, when it made its findings to which I have already referred to at CB 165.

9. Similarly, as in relation to remnants of Taliban, the applicant's claim in relation to Tajiks (and even as it may be said to relate to Pashtoons) must be seen in the context of this fear arising out of the enmity that the applicant's Hazara ethnicity and Shi’a Muslim religion engendered in these other ethnic (and to the extent relevant, religious) groups. Again, the Tribunal found that the applicant's own district is almost exclusively an Hazara district under the control of people associated with the Wahdat party (with which the applicant was connected and previously had said he supported). I note that, incidentally, the Tribunal had previously (at CB 164.9) rejected the applicant's later claim that he and his family had been adversely regarded by powerful Hazara groups. The Tribunal accepted the independent evidence available to it that the applicant's district (as distinct from the province within which this district was found) is almost exclusively an Hazara district. Further, it found that if the applicant were to return to his home district, he would not be at risk of persecution for a Convention reason by other Hazaras (CB 165.2).

10. Mr. Colborne submitted that the finding that the applicant's home district is almost exclusively an Hazara district under the overall control of people associated with the Hazara party, was made in the context of fear of harm from other Hazaras, and therefore does not apply in dealing with the fear of harm from other groups (to which the Tribunal referred in the subsequent paragraph beginning at CB 165.3). Mr. Colborne would be correct if the first paragraph at CB 165 was looked at in total isolation. Clearly, the Tribunal states there that the applicant would not be at risk of persecution for a Convention reason by other Hazaras, and the reference to the almost exclusively Hazara district is contained in that paragraph. But again, as I have set out above, the Tribunal's decision record does need to be read as a whole and not dissected and read only in part, paragraph by paragraph. It is quite clear that when this paragraph (the first at CB 165 containing the finding that the applicant's district is almost exclusively Hazara) is read with the following paragraph, what the Tribunal has clearly found is (based on other independent evidence before it from the UNHCR indicating that there were no reports of any difficulties faced by Hazara as such in the applicant's district, and that there had been no reports of “post Taliban” conflicts between Hazara and other ethnic groups) that security in the district is relatively stable. Given that the applicant comes from an almost exclusively Hazara district, and in particular that there is independent evidence which the Tribunal accepted that there had been no reports of any difficulties faced by Hazara with other ethnic groups in the applicant’s home district, and that security in the district is relatively stable, the only, and it must be said, plain and obvious, reading of what the Tribunal has done, is to have dealt with the applicant's claim to fear harm as it may arise from Tajiks, Pashtoons and indeed any other ethnic group. These are the plain words used by the Tribunal. The Tribunal's finding that the independent evidence before it was that the applicant's district was almost exclusively an Hazara district does not cease to be the case merely because the Tribunal’s analysis has moved on to another paragraph and a different aspect of the applicant’s claim.

11. The Tribunal found at CB 165.4 as follows:

    “Given that the applicant’s area is not inhabited by Pashtuns and is under the security control of Hazaras, the Tribunal considers that the chance that the applicant, a shopkeeper, would come into conflict with Kuchis is so remote as to be negligible.”

    This clearly and expressly deals with the one specific sub-group (Kuchis) which the applicant said at the hearing (in response to the Tribunal's questioning) had been active near his district. If found that he would not come into conflict with Kuchis, as the chance of conflict was so remote as to be negligible. But clearly and specifically, with Pashtoons in mind, and with reference to “other ethnic groups that includes Tajiks”, Ms. Hartstein submitted that this finding effectively deals with the applicant's complaints. This is insofar as it had already identified these other ethnic groups (including Tajiks and Pashtoons which were identified by the applicant as being the equivalent to the Taliban or as represented by one sub-group, the Kuchis) put forward as being active against Hazaras near his home area. 

12. As it is often said in cases of this kind, the Courts are not able to engage in merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). It is clearly not the role of the Court to make findings of fact which are the province of the decision maker “par excellence”. The following conclusions are made with this in mind. Relevantly, the Court cannot accept that a finding has relevance to a claim, or any aspect of a claim, unless at least on a beneficial reading, such a connection can be discerned from a reading of the decision record as a whole. The Court cannot make a finding of fact for the Tribunal. Also, the Court must ensure that it does not go to recognising an extension of a finding by the Tribunal which, although may be the logical outcome from the Tribunal’s analysis, does not actually represent what the Tribunal has done.

13. With all this in mind, the issue before the Court now is whether the Tribunal dealt with the applicant's claim that he feared harm from Pashtoons and Tajiks as ultimately put by the applicant and by the circumstances of his case. I am satisfied on the material before the Court that the Tribunal saw the applicant's fear from Pashtoons, as it arose and was clarified at the hearing as being, in one part, the fear of harm from Taliban remnants and, in another part, as refined by the discussion with the applicant (particularly in light of the applicant's response to the relevant question at the hearing (CB 153.8) – the Kuchis). The applicant indicated that the Pashtoon related fear was expressed as a fear of Pashtoon nomads (the Kuchis). It is clear that in its decision record the Tribunal directly dealt with this claim. At CB 165.4 it found that in all the circumstances the chance that the applicant would come into conflict with Kuchis was so remote as to be negligible.

14. I have already set out above that the Tribunal properly and adequately (in a holistic context) dealt with the fear of harm from what remained of the Taliban. To the extent that the applicant equated Pashtoons with the Taliban, this finding was also relevant to, and dealt with, Pashtoons in their iteration of being the Taliban. Finally, and ultimately, the Tribunal’s findings (as set out above in the consideration of the Taliban remnants issue) at CB 165 that the applicant’s home district was “almost exclusively an Hazara district” and that there were no reports of conflicts between Hazaras and “other ethnic groups” are sufficient to deal with any possible residual claim to fear harm in a Pashtoon related sense. This is particularly so given how the applicant himself ultimately outlined his fears when the Tribunal sought clarification of his situation from him at the hearing.

15. The issue remains as to whether the Tribunal dealt with the claim to fear harm from Tajiks. Ms. Hartstein's submission was that the same reasoning that applied to the Tribunal rejecting the applicant's claims based on fear of the Taliban remnants also applied to Tajiks and, for that matter, Pashtoons and the other ethnic groups that the applicant put forward as being sources of the fear of harm. She described all of these groups as being “in the same boat”. I understood this to be a reference, again, to the Tribunal's analysis at CB 165, where it noted that the applicant's district is almost exclusively an Hazara district, that there was no report of any difficulties faced by Hazaras in the applicant's district, and that there had been no reports of any “post Taliban” conflicts between Hazaras and other ethnic groups in the applicant's district. Further, that security in the district was relatively stable.

16. She submitted that this also needs to be seen in the context of how the Tribunal dealt with the applicant's other claims, which in part explained why he would be a target for some of these groups and the motivation for the harm. In essence, her submission was that the applicant had put to the Tribunal that he was an Hazara and that for a variety of reasons, he feared harm by other groups. The applicant claimed:

    1)That he could be regarded as an “infidel” because he had been in a “western” country.

    Ms. Hartstein submitted that the Tribunal, with reference to UNHCR advice, and clearly with general applicability to anyone from whom the applicant said he feared harm, found at CB 165.6:

    “…The Tribunal also accepts the UNHCR advice that those who have returned from western countries are not specifically at risk of criminal activities in Afghanistan.  The Tribunal therefore does not accept that the applicant would face persecution in Afghanistan, because he has lived for a number of years in Australia.”

    2)That the applicant had been accused of abandoning Islamic practices and was known to consume alcohol and as a result he would be punished for this.

    The Tribunal found at CB 166.5 that it did not accept that the applicant was a consumer of alcohol in Australia, and ultimately found that “the applicant would not be at risk of persecution were he to return to Afghanistan on the basis of his having consumed alcohol in Australia” (CB 166.5).

    3)That his political opinion was different to that of the “fundamentalists” and they would kill him for this reason if he were to return to Afghanistan.

    The submission was that the applicant's fear of harm arising out of different political opinion arose, in part, because of ethnic allegiances and enmities, and in part because of the applicant's activities in Australia. The Tribunal’s record of the hearing (at CB 154.5) reveals that it discussed with the applicant, and provided him an opportunity to give details of, “any public utterances he had made of a political nature in Australia”. There was nothing obvious arising from the applicant’s answer that revealed any particular problem of this type with Tajiks in Afghanistan. After considering this issue the Tribunal found at CB 166.8:

    “…The Tribunal finds that, were the applicant to return to Afghanistan in the reasonably foreseeable future, he would not be at risk of persecution because of anything he has said or done in Australia.”

17. Ms. Hartstein's position was that the Tribunal made specific findings in relation to each of the applicant's claims as they related to his return from “the west”, and his activities in Australia, and that the applicant was not at any specific risk as a result of these matters. Further, that in relation to each of the groups in Afghanistan from whom he claimed to fear harm for these reasons (including the Tajiks) they were not in a position to do him any harm either in his home district (CB 165.3), as opposed to other areas in his home province, or on the roads into and out of home district (CB 165 .5). 

18. In relation to the claim concerning Pashtoons and Tajiks, Mr. Colborne submitted that the Tribunal cited information that there had been no reports of recent conflicts between Hazaras and other ethnic groups in the applicant's district, but stated that tensions could be expected on the return of the Kuchis. His submission was that the applicant never claimed to fear Kuchis, but Pashtoons and Tajiks generally (I have already dealt with the issue of Pashtoons and the relationship with Kuchis) and that there was information before the Tribunal that Pashtoons and Tajiks inhabit a number of districts in the applicant's province (CB 161.6). The Tribunal therefore addressed fears relating to Kuchis (which he said the applicant did not make) and did not address the applicant's fear of Pashtoons and Tajiks, which he did.

1. However, it is clear that the Tribunal did refer to evidence regarding the other districts of “Wardak” (the province in which the applicant’s home district is located), which it said were inhabited by Pashtoons and other ethnic religious groups. Given that the Tribunal had already found that the applicant's area was not inhabited by Pashtoons and was almost exclusively an Hazara district (based on evidence which it accepted) it was open to the Tribunal to see the presence of Pashtoons and other ethnic or religious groups in the other parts of the applicant's providence (Wardak) as being relevant to the issue of whether the applicant would be able to return to his home district in safety. It found that he could do so, and that he would not be at risk because of his ethnicity and religion. The Tribunal in this context also accepted UNHCR advice that those who returned from western countries were not specifically at risk of criminal activities in Afghanistan. It did not accept that the applicant would face persecution in Afghanistan because he had lived for a number of years in Australia.

2. In all, I do not accept Mr. Colborne's submission that the Tribunal did not address the claim to fear harm from Tajiks and even Pashtoons. The Tribunal found that the applicant was an Hazara who claimed various fears, emanating from various sources, as being applicable if he were to return to Afghanistan. The Tribunal clearly looked at the situation of the applicant as an Hazara, and a Shi’a Muslim, returning to his home district, and found it accepted evidence that the home district was almost exclusively an Hazara district. That the Tribunal immediately applied that finding to the situation that he would not be at risk of persecution by other Hazaras, does not mean that that finding is not also available, and applicable, in its analysis to other situations of claimed harm specifically as to how this relates to Pashtoons, bearing in mind that when specifically asked at the hearing to outline his latest and current fears, he made no mention of Pashtoons. The Tribunal did turn its mind to the situation of the applicant returning to his home district and found, in the context of its earlier finding, that it was almost exclusively an Hazara district, that there had been no reports of conflicts between Hazaras and “other ethnic groups”. The only speculation about any possible increases in tension was in relation to the Kuchis (a sub group of Pashtoons), and the Tribunal dealt with this by finding that if the Kuchis had intended to travel to Hazara areas they would have had the opportunity to do so. Ultimately, the situation was that given that the applicant's area was not inhabited by other groups (by definition therefore not inhabited by Pashtoons) and was under the security control of Hazaras, the chance that the applicant would come into conflict with the only possible identified source of increase in tension was so remote as to be negligible.

3. That the Tribunal's decision record at this relevant part (CB 164.8 to CB 165.6) does not mention Tajiks specifically by name is clear. But what is also clear is that the Tribunal dealt with the applicant's claims as ultimately put by the applicant himself before the Tribunal. This was after specifically seeking clarification from the applicant as to his latest and current claims. Other than the reference to Tajiks in his response to the Tribunal's request that he state the elements of his current fears, there is nothing in the material before the Court now to show that the applicant put anything further, and specifically, in relation to Tajiks. The Tribunal's account of what occurred at the hearing (remaining unchallenged before the Court) shows that the applicant certainly put forward additional considerations relating to the Taliban, and relevant to the Pashtoons and Kuchis, and claimed that Pashtoons and the Taliban control the roads into and out of his area. Further, he certainly put forward concerns about his activities in Australia and how they may be viewed by “fundamentalists” and made claims as to fears of harm arising from the fact that he was returning from a “western country”. But there is nothing specific in relation to Tajiks. It was open therefore to the Tribunal to deal with the reference to Tajiks in the context of “other ethnic groups”. Ultimately, the Tribunal dealt with this claim (as it related to Tajiks) and to other groups when it found at CB 165.5:

   “The Tribunal finds that, notwithstanding that other districts of Wardak are inhabited by Pashtuns and other ethnic/religious groups, the applicant would be able to return to his home district in safety, and would not be at risk because of his ethnicity and religion.”

4. In the context of the Tribunal’s findings as a whole, I did not see this finding as being restricted only to travel to the applicant's home districts. Rather, that other parts of Wardak province were inhabited by Pashtoons, and other ethnic religious groups, was accepted by the Tribunal. I do not see the words “return to his home district” as being limited only to travel, but in context includes his staying in his home district. This is particularly so as the very next two sentences refer to other UNHCR advice that persons who have returned from “western countries” are not specifically at risk in Afghanistan, and the Tribunal did not accept that the applicant would face persecution in Afghanistan because he had lived in Australia for a number of years. It is clear that these findings were related to an ongoing situation, not just the limited situation of the applicant’s travel to his home district. In all therefore, this is sufficient in my view to have dealt with the claim of fear of harm from Tajiks as put by the applicant.

5. Mr. Colborne also submitted for the applicant that the Tribunal failed to deal with the applicant's claim that he feared harm from “Nasris”. Mr. Colborne submitted that, based on country information before the Tribunal (CB 190), the Nasris are an Hazara group that formed an alliance with other Hazara groups to form the Wahdat party. The country information (CB 190) shows that at the time of the Tribunal's hearing with the applicant, and at the time of its decision, that, following conflict and factional splits, the current party known as the Wahdat Party is, in effect, the former Nasri Party.

6. Mr. Colborne’s submission was that in its “Findings and Reasons” at CB 164 .9 the Tribunal dealt with the situation as it related to other Hazaras, and whether the applicant was at risk because of conflict as between the applicant and the philosophy of the Wahdat party and other Hazara parties. His submission was that the Tribunal did not deal with the applicant's claim that he would be at risk from the Nasri because of his association with foreigners. Mr. Colborne submission was that where the Tribunal found at CB 165.2 in its decision that if the applicant were to return to his home district, he would not be at risk of persecution for a Convention reason by other Hazara, this did not include the Nasri, and in particular, did not include the issue that he would be at risk due to the Nasri because of his association with foreigners. Further, Mr. Colborne submitted that the Tribunal's finding at CB 165.5, even if read to mean that the applicant could return to his home district in safety, and would not be at risk because of his ethnicity and religion (as an Hazara of Shi’a Muslim faith) was not sufficient to deal with the issue of whether he would be at risk because he had associated with foreigners.

7. Mr Colborne submitted that the Tribunal's acceptance of UNHCR advice (CB 165.6) was a reference to advice provided to the Tribunal from UNHCR (CB 208) clarifying earlier UNHCR advice which contained discrepancies as to the situation as it related to those returning from the “west” and the protection available to them from criminal activity. The submission was that when the Tribunal's finding is read fairly, in context of the advice, that it was a finding that related to returnees not being targeted for criminal activities specifically because they were returnees. Further, they would not be targeted simply because they were wealthy. The submission was that this does not deal with whether the applicant would be targeted by “fundamentalists” as he had claimed.

8. Again, the starting point for the applicant’s claims that were required to be considered by the Tribunal is the applicant's outline of his then current claims before the Tribunal as reported by the Tribunal in its decision record at CB 152.5. What is clear is that there is no specific reference to Nasris by the applicant in the list of groups from whom he said he feared harm. However, it is common ground between the parties that the Nasris are an Hazara group. This sets the complaint advanced by Mr. Colborne, as stated to be a failure to consider the claim relating to Nasris, as being a complaint that the Tribunal failed to consider the claim to fear harm from a part of the Hazara community – namely the Wahdat Party.

9. Ms. Hartstein’s submission was that the Tribunal rejected the applicant’s claim that he, and his family, were adversely regarded by powerful Hazara groups, whether for political or religious reasons (CB 164.10). Further, that the Tribunal accepted that the applicant would not be at risk of persecution for a Convention reason by other Hazaras (CB 165.2). The submission was that as Nasris are an Hazara group, that this finding by the Tribunal is sufficient to deal with the claim made in relation to Nasris (although the applicant expressed it as a fear of harm from the Wahdat party, which in political terms was the current iteration of the Nasris). Further, Ms. Hartstein’s submission was that the Tribunal dealt with the issue of how those returning from the “west” would be dealt with in Afghanistan. It found that they were not specifically at risk of harm from criminal activities, and that there was no reason to limit this finding only to those who were perceived to be wealthy. Further, that the Tribunal specifically found that the applicant would not face persecution because of his religion, and dealt with the question of whether the applicant would face persecution by fundamentalists, and to the extent that the Wahdat (formerly Nasris) may be seen as fundamentalists, then that disposed of the applicant's claims.

10. At the hearing before the Tribunal the applicant described Wahdat (Nasris) as fundamentalists and that he had opposed such fundamentalism. Further, that because word of his opposition in Australia would have returned to Afghanistan he would be at risk of persecution by the Wahdat Party if were he to return (CB 152.6). The following is relevant:

    1)The Tribunal specifically addressed the relevant issue at the hearing with the applicant (CB 155.3):

    “The Tribunal said that its questions would have indicated the issues which it needed to consider.  It said it needed to decide whether he was a supporter of the Wahdat party, as his initial claims indicated, or one who was opposed to its ideology as he was now claiming…”

    2)The Tribunal reports that the applicant’s adviser explained the applicant’s position as follows:

    “…that the Taliban had found Wahdat material in his home, still remained at the core of his case, but he was saying that he regards Wahdat as fundamentalists and that they, in turn, would regard him as an infidel if he were to return from a western country.  The applicant had given evidence that Wahdat were aware that he was overseas, and he would be targeted for that reason.” (CB 155.8)

    3)The Tribunal's account of what occurred at the hearing continues, however, with:

    “The Tribunal referred to the evidence from UNHCR, cited below, which indicated that returnees per se were not at risk.  The applicant said it was not returnees in general about whom he was speaking but about himself in particular, given the fatwa which was issued against his family.” (CB 155.10 to CB 156.2)

11. In its “Findings and Reasons” at CB 164 to CB 165 the Tribunal sets out that the Nasri became the Wahdat, at least in part. It found that it regarded “his attempt to portray himself as one in conflict with the philosophy of the Wahdat party, and other similar Hazara parties, as another example of a false claim made by him” (CB 164.8). This was in the context of the Tribunal having found the applicant to have made a number of false claims (these are not in relation to the specific issue of complaint brought by the applicant to this Court now).

12. The Tribunal found that prior to his departure from Afghanistan the applicant was a respected village elder, related distantly to the current leader of Wahdat and more closely related to a local Wahdat commander, and was known as a supporter of that party. The Tribunal found that the applicant was not regarded at that time as having unacceptable religious opinions, and rejected his claims that he and his family were adversely regarded by powerful Hazara groups, whether for political or religious reasons (CB 164.9). The applicant, through his adviser, further claimed at the hearing that he was opposed to Wahdat because they were fundamentalists, and that they in turn would regard him as an infidel and presumably harm him if he were to return from a “western country”. The claim in this regard was that he would be targeted by Wahdat because he had been overseas.

13. I agree with Ms. Hartstein’s submission that the use of the term “criminal activities” in the UNHCR advice, which was picked up by the Tribunal in this finding at CB 165.6, does not limit the information in such a way as to exclude the circumstances applicable to the applicant, and in relation to which the Tribunal found that he would not face persecution in Afghanistan. The term “criminal activities” clearly relates to the action that presumably would be taken by those who would seek to harm any person returning from overseas and, in particular, the “west”. Ms. Hartstein’s submission was that if you attack someone because they are wealthy, or wearing “western clothes”, or associated with a “western country”, the attack is still “all criminal activity”. The issue therefore is whether those returning from “western countries” are specifically at risk of harm in Afghanistan, particularly for that reason. In relation to the applicant, therefore, whether or not he was at risk for that reason from the Wahdat (Nasri) must be viewed in the context of the Tribunal having already found that the applicant was not at risk from the Wahdat, a group with which the Tribunal found he was connected and supported. It also accepted UNHCR advice that those who return from “western countries” were not specifically at risk of harm in Afghanistan and this is taking into account that it also found that he was not in conflict with the philosophy of the Wahdat, and the Tribunal had found that he was in fact connected with, and supported, the Wahdat/Nasri.

14. I accept Ms. Hartstein's submissions. The Tribunal had already found it was safe for the applicant to return to his home district, which was an Hazara district, controlled by Hazaras. It also addressed the issue of whether the group of Hazara fundamentalists (the Wadhat) would pose a difficulty for the applicant, and found this would not be the case. It further and specifically turned its mind to whether his activities in Australia would pose a problem.

15. The Tribunal addressed the issue of the applicant, in general, returning from a “western” country and found that he would not be specifically at risk in Afghanistan because of that reason. I do not see the term “criminal activities” being limited to say, for example, an extortion attempt on someone who is perceived to be wealthy because they are returning from a “western” country. The advice itself from UNHCR makes this distinction (CB 208). It says returnees would not be targeted for criminal activities specifically because they were returnees, and then goes on to say that returnees also would not be targeted simply because they are wealthy. When this finding is read in context, with the totality of the other relevant findings made by the Tribunal, it is clear that the Tribunal found that the applicant was not someone who was in conflict with the Wahdat/Nasri, that he would not be at risk of persecution for a Convention reason by other Hazaras (which includes Wahdat/Nasri), and would not be at risk of harm from criminal activities in Afghanistan, simply because he had returned from a “western” country.

16. Further, the applicant himself at the hearing with the Tribunal sought to provide some explanation, and specificity, to the claim made by his adviser on his behalf. At CB 156.1 he is reported as having said:

    “The applicant said it was not returnees in general about whom he was speaking but about himself in particular, given the fatwa which was issued against his family.”

    It is clear therefore that this was why the Tribunal, in its “Findings and Reasons”, turned to consider the applicant's personal circumstances as a returnee in this context. Given what the applicant said, the Tribunal looked at the issue of the situation of the applicant's family. In this regard, the Tribunal rejected his claims that he and his family were adversely regarded by powerful Hazara groups, whether for political or religious reasons (CB 164.10). In the context of what the applicant himself put to the Tribunal at the hearing, the applicant’s own clarification that the Wahdat were aware that he was overseas, and that it was not “other” returnees in general that was the basis of his claim, but his own circumstances, then the Tribunal dealt with that claim as, ultimately, put by the applicant himself.

17. It then further, and additionally, dealt with the more general situation of those returning from “western countries”. The totality of the Tribunal’s analysis reveals that the only fundamentalists who could potentially do harm to the applicant (given the Tribunal’s other findings) were the fundamentalist Hazara group – the Wahdat (Nasri). This is because as Hazaras they were the only group in the applicant’s home district which was almost exclusively Hazara. The Tribunal’s finding that he would not be at risk from other Hazaras, which included the Wahdat, cannot be seen to have been limited as to the claimed reason for the fear. The applicant and his family were not “adversely regarded” by powerful Hazara groups, whether for political or religious reasons (CB 164.9). I cannot see that this finding was limited to exclude a fear emanating from his return overseas. The Tribunal also accepted advice that those returning from the “west” were not specifically at risk of criminal activity – a description of the harm claimed by the applicant. In all therefore, I accept Ms. Hartstein’s submission in relation to this complaint. This complaint also does not succeed.

18. It is clear that the Tribunal sought to clarify at the hearing exactly what the applicant's latest, and most current, claims were. The applicant gave an outline of his fears and with his adviser present provided some detail and clarification. The Tribunal found that the applicant is an Hazara who would be returning to his home district which is almost exclusively an Hazara district, and that the overall control of this district, as opposed to the wider province, was by the Hazara. Further, that the applicant would not be at risk of persecution, for a Convention reason, by other Hazaras. The Tribunal found that there were no reports of any difficulties faced by Hazaras in the applicant's district, and that there were no reports of post Taliban conflict between the Hazaras and other ethnic groups. It found that security in the district was relatively stable, as was travel from Kabul to the applicant's district, and this was not a problem for the local population. The Tribunal also plainly found there was nothing in what the applicant had said and done in Australia that would provide a motivation for persecution in Afghanistan if he were to return in the foreseeable future. On a holistic reading of the Tribunal's decision record, the Tribunal did deal with all of the applicant's claims, as ultimately put by him, both in terms of the fear of harm from particular groups, the Taliban remnants, the Pashtoon, Tajiks, and the Wadhat, who had emerged from the Nasri and fundamentalists generally. It also dealt with the claimed motivation for causing the applicant harm as derived from these various potential sources of harm. Ultimately, and simply, the Tribunal's decision turned on its finding that as an Hazara the applicant could return and live safely in an almost exclusively Hazara district. I can see no failure on the part of the Tribunal in dealing with the applicant's claims as ultimately put by the applicant himself at the hearing before the Tribunal. The applicant’s grounds of complaint are not made out. The application to the Court is dismissed.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  08 September 2006