SZEMX v Minister for Immigration

[2006] FMCA 1309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEMX v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1309

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 Tribunal properly considered the applicant’s claims made after his arrival in Australia – Tribunal failed to properly consider fear of the Taliban remnants – jurisdictional error – application allowed.

Migration Act 1958, ss.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] FCAFC 136
SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZEMX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2983 of 2004

Judgment of: Nicholls FM

Hearing date: 31 March 2005

Date of Last Submission: 29 June 2006

Delivered at: Sydney

Delivered on: 08 September 2006

REPRESENTATION

Counsel for the Applicant: Mr. C. Colborne

Solicitors for the Applicant: Legal Aid Commission of New South Wales

Counsel for the Respondents: Ms. R. Francois (Ms. T. Wong – Supplementary Submissions)

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent to these proceedings.

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

3. A writ of certiorari issue, quashing the decision of the second respondent.

4. A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.

5. The first respondent pay the applicant’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2983 of 2004

SZEMX

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 1 October 2004 seeking review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 August 2004 and handed down on 14 September 2004 to affirm the decision of a delegate of the first respondent Minister made on 31 March 2004 to refuse a further protection visa to the applicant.

2. The applicant is a national of Afghanistan who came to Australia on
   26 November 1999 and was granted a (Temporary Protection) Visa (“TPV”) on 3 August 2000. On 11 August 2000 he applied to the respondent Minister's Department for a Protection (Class XA) visa. This was refused on 31 March 2004, and the applicant applied for review of that decision on 5 May 2004.

3. The applicant’s claims to protection can be found in his application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 21, particularly in an attached statement at CB 22 to CB 24), in his application for review to the Tribunal (reproduced at CB 87 to CB 90, particularly in an attached statement at CB 91 to CB 92) and in the Tribunal’s account of the oral evidence that the applicant gave at a hearing it conducted with the applicant (the Tribunal’s account of which is reproduced at CB 117.3 to CB 122.8).

4. The applicant’s claims for protection centre around his fear of persecution by the Taliban based on his Hazara ethnicity and his Shi’a Muslim religion. He claimed that in 1998 the Taliban came to his village where they burned the village houses. He claimed that he and his sons were forced to flee to the mountains and the Taliban continued to come to his village to search for weapons and harass and arrest people. He claimed that if he returned to Afghanistan he feared that he would be persecuted on the following four basis:

   1)That the Hazara people in his region (the village of Shekh Ali in Parwan Province) are divided into Sunni and Shi’a Muslims and that the Sunni Muslims, who supported the Taliban, were “against” his people (the Shi’a Muslims) and he feared harm from them.

   2)That the people in his home region are divided into two political groups (the Islamic Party and the Wahdat Party), supported by different ethnic groups. He claimed to fear harm as a result of this on-going conflict.

   3)That the Taliban were still active and powerful in Afghanistan and the interim government was unable to control the “underground” Taliban who continue to “sabotage and attack people”.

   4)That it is “common knowledge” that anyone returning to Afghanistan from a “western” country is assumed to have converted to Christianity, and such people are “traitors of Islam”. He claimed that he feared attack on this basis if he returned.

5. The Tribunal’s “Finding’s and Reasons” are reproduced at CB 129 to CB 136. The Tribunal:

   1)Found the applicant was a national of Afghanistan (CB 129.1).

   2)Noted that the applicant (having been granted a TPV) remains a refugee unless one of the cessation clauses in Article 1C applies (CB 129.6) [See below relating to NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60 (“NBGM”) and the relevant test to be applied].

   3)Accepted that during the war the Taliban conscripted young men to fight in their ranks and engaged in human rights abuses where the Hazara were targeted (CB 130.1). But noted that it was “common knowledge” that the Taliban were removed from power in 2001. As such, the Tribunal articulated the relevant question as being whether “the conditions that led to the granting of a temporary protection visa to the applicant have ceased” (CB 130.2).

   4)Accepted that there were “different” and “conflicting reports” on the likely re-emergence of the Taliban but ultimately found that on the evidence before it the Taliban were no longer in a position to compel people to join their forces or that they were re-grouping, or had risen and regained any form of control (CB 130.6).

   5)Found that Article 1C(5) applied in this case and the circumstances in connection with which the applicant was initially recognised as a refugee had ceased (CB 130.7).

   6)Proceeded to examine the applicant’s “new claims” that it summarised as being based on persecution:

   i)At the hands of Mullah Malek Sultan (who had accused him of involvement in the death of his son).

   ii)As he had become “westernised”, and may be perceived as a “convert”.

   iii)As a result of inter-factional fighting.

   iv)By Sunni Muslims, as he is a Shi’a Muslim.

   v)As a Neman tribesman, by other rival tribesmen from the Qaraloq and Karamali tribes.

   7)In relation to the claim of fear of harm at the hands of Mullah Malek Sultan, found that this claim was “far from credible” (CB 131.5). This finding was based on the failure by the applicant to include “this important detail in his statement to the department” (CB 131.6). The Tribunal did not accept the applicant’s explanation for the failure to initially mention this claim as being based on his assertion that the information was not available to the applicant at that earlier time (CB 132.5). Further, as the incident relating to the Mullah’s son was during the Taliban regime, the Tribunal did not find it plausible that the Mullah had not taken steps “to seek revenge against the applicant” at that time (CB 132.6). Further, the Tribunal did not accept the argument by the applicant’s adviser that the applicant was a “simple farmer” with “low level intelligence” and as such it was “dangerous” to suggest that the applicant’s claim lacked credibility (CB 132.8). The Tribunal also found that even if it had accepted the applicant’s claim, the requisite Convention nexus was lacking and, as such, it was of no assistance to the applicant’s case in any event (CB 133.5).

   8)In relation to the claims based on inter-factional fighting, the Tribunal found that the applicant had not claimed to fear persecution as such, but rather, in essence, did not want to return to engage in such fighting (CB 133.8). On this basis the Tribunal found that the claim lacked a Convention nexus. Further, that even if such a nexus could be found, by the applicants “own admission” he was not associated with any political group, or activity, and there was nothing about the applicant’s “profile” or in the “evidence presented” to suggest that he may be drawn into the inter-factional fighting (CB 134.2).

   9)In relation to the claims based on his membership of the Neman tribe, the Tribunal found that although the relationship between the Neman and Qaraloq tribesmen was still “tense”, that independent country information available to the Tribunal suggested that the situation was “stable” and that there had been no “recent security related incidents”. As such, the Tribunal was not satisfied that the applicant faced persecution on his return to Afghanistan on this basis (CB 134.5).

   10)In relation to the claim that he had become “westernised”, and would be perceived as a convert, the Tribunal did not accept this claim on the basis that there was no evidence before the Tribunal that returnees from the “west” to Afghanistan were subject to persecution merely because they had lived in the “west” (CB 135.2). The Tribunal noted that there were instances where people had been subject to persecution where they had engaged in conduct considered to be “anti-Muslim”, but that such conduct was not directed at an individual simply because they returned from the “west” (CB 135.3). Further, the Tribunal noted that although Afghan criminal activities were on the “rise in general”, and that returnees could be subject to such criminal activity, this was no more than other Afghans. On this basis, the Tribunal did not accept that the applicant faced persecution because he had been “westernised” (CB 135.4).

   11)In relation to the claim that he would be persecuted because he is a Shi’a Muslim, the Tribunal recognised that Hazara Shi’as have suffered persecution which was most severe at the time of the Taliban, but noted that independent country reports clearly indicate that with the collapse of the Taliban, Shi’a Muslims were able to “participate in public life in spite of the traditional tensions” (CB 135.7). In addition, the Tribunal noted that the applicant did not claim past persecution in his oral testimony on the basis of his Shi’a belief (CB 135.8). Further, that there was no evidence that pointed to the likelihood of persecution on the grounds of his religious beliefs, and in fact there was evidence that Shi’a Muslims are now able to participate in “normal community life freely”. On the evidence, the Tribunal found that the applicant did not face a real chance of persecution on the grounds of his religious beliefs should he return to Afghanistan (CB 136.5).

   On the basis of these findings, the Tribunal was not satisfied that the applicant is a person to whom Australia owed protection obligations and the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (“the Act”).

6. At the hearing before me Mr. Colborne appeared for the applicant and Ms. Francois for the respondent. Subsequent to the conclusion of the hearing, on 11 August 2005, the Court was contacted by the solicitors for the applicant requesting, in light of recent Full Federal Court decision in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 (“QAAH”) (relating to the proper application of Article 1C(5) of the Convention Relating to the Status of Refugees) that the handing down of Judgment in the matter be delayed in order for the parties to make submissions on this issue. Further to this, on 19 August 2005, the Court was contacted by the solicitors for the respondent, seeking that Judgment not be handed down until the determination of NBGM, which had yet to be heard in the Full Federal Court but was likely to directly impact on the case. Judgment was deferred.

7. With the handing down of NBGM both parties were given the opportunity to submit further written submissions on the issue. As such, I now have before me:

   A.     For the applicant:

   1)The original application, filed 1 October 2004.

   2)The affidavit of James Dagnall, a solicitor in the employ of the applicant’s solicitor, affirmed 28 September 2004, annexing a copy of the Tribunal’s decision.

   3)An amended application, filed 11 January 2005.

   4)The affidavit of James Dagnall, a solicitor in the employ of the applicant’s solicitor, sworn 30 March 2005, annexing a copy of the transcript of the hearing that the Tribunal conducted with the applicant.

   5)A further amended application, filed at the hearing on 31 March 2005.

   6)Written submissions, filed 22 March 2005.

   7)Supplementary written submissions, filed 29 June 2006

   B.     For the respondent:

   1)Written submissions, filed 30 March 2005.

   2)Supplementary written submissions, filed 21 June 2006.

8. In supplementary submissions for the applicant, received 29 June 2006, 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) and NBGM, in respect of which the High Court heard argument on 19 and 20 June 2006. 

9. 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, and given that no date is yet available for the High Court’s Judgement, it is not appropriate that there be any further postponement in handing down Judgement in this matter.

10. In essence, Mr. Colborne for the applicant submits that in relation to the proper construction of Article 1A(2), 1C(5) and s.36 of the Act, that NBGM is not persuasive, and that QAAH should be followed.  
    Mr. Colborne 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 the Chief Justice, and Mansfield J. (NBGM at [12] to [22] and [41] to [58]) and that it should be followed. He referred to Stone J.’s Judgment and submitted that in NBGM, although a member of the majority, her Honour’s Judgment turned on the question posed by Article 1C(5), and on that issue the other members of the Court agreed with the majority in QAAH.

11. The respondent’s position is that, in short, while both NBGM and QAAH are the subject of proceedings before the High Court that have yet to be determined, this Court is bound by the decision (of the majority) in NBGM.

12. 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 indicated…”

13. As to which of the two lines of reasoning should be followed, I note the Judgement of Branson J. in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 (“SZECG”) which was handed down after the Full Court Judgement NBGM. In a matter 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). 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.”

14. I follow what Branson J. held in SZECG. The conclusion of Branson J. is clearly binding on this Court as it was formed on a matter on appeal from this Court. In any event, for reasons which are apparent below, this issue is not determinative in this matter.

15. As indicated, the applicant’s application was filed in this Court on
    1 October 2004. The applicant filed an amended application on
    11 January 2005 and on the day of the hearing, 31 March 2005, Mr. Colborne for the applicant filed a further amended application. In that further amended application the applicant complains:

    “4.The Tribunal exceeding 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)address the Applicant’s claims that he feared Convention related persecution –

    (a)     by underground activities of the Taliban that the interim Government of Afghanistan cannot fully control;

    (b)     by the Pashtun and Tajik ethnic groups; and

    (c)     by Pashtun if he had to travel to his home village from Kabul.

    (5)address the question of whether the Applicant faced a risk of persecution in the reasonably foreseeable future; and

    (6)consider the applicant’s claims cumulatively”.

16. The applicant's first complaint as presented by Mr. Colborne at the hearing, and arising from the further amended application, is that the Tribunal failed to address the applicant's claim that he feared harm because of the activities of the “underground” Taliban.

1. The applicant raised this fear in his statement (18 February 2003) in support of his protection visa application (CB 68 to CB 69 – see paragraph 10):

   “Third, the Taliban, are still very active and powerful in Afghanistan. Even in Kabul, the interim government is not able to fully control the activities of the underground Taliban. In the outlying villages, the Taliban is still operating underground, sabotaging and attacking people. I am afraid that if I return to Afghanistan, the Taliban will soon find me and they will kill me”.

2. I should note, particularly in light of the illumination provided by SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 as to what may constitute “information” put before the Tribunal for the purposes of the review, that the applicant resubmitted his original statement, attached to his application for a protection visa, to the Tribunal for the purposes of review (CB 87 to CB 90 with the attachment at CB 91 to CB 92). The statement is headed “Statement in Support of Protection Visa Application”. The applicant states in his application for review (CB 89):

   “The protection visa was incorrectly refused as not enough weight was placed on the fear of being persecuted for reason of religion and political opinion in Afghanistan.

   Due to circumstances set out in the enclosed statement and as a result of these events, I am unable to return to my country, for fear of persecution”

3. In any event, Mr. Colborne submitted that the Tribunal did note this particular claim, as shown in its decision record, when it outlined the applicant’s claims and evidence with specific reference to “the statement of 18 February 2003” at CB 116.6. The Tribunal reproduced paragraph 10 of the applicant's statement of claims in its decision record in identical terms. He also submitted that the applicant (according to the Tribunal’s account of what the applicant said at the hearing before it) made further reference to the Taliban and its supporters in the context of being asked as to whether he had any other reasons for fearing the situation upon his return (CB 121.8).

4. The essence of Mr. Colborne's submission was that the applicant clearly put to the Tribunal, relevant in time to the making of the Tribunal's decision, and any possible return of the applicant to Afghanistan at that time, that one of the things that he feared (even after the removal of the Taliban as the “de facto” government) was that the Taliban were still active and powerful in Afghanistan, that they were still operating “underground”, and that he was afraid that if he returned to Afghanistan the Taliban and would find him and would kill him

5. His submission was, in looking at the Tribunal's decision record, that while the Tribunal clearly set out that the applicant was making this claim (CB 116.6), the Tribunal did not deal with this claim under the heading of “New Claims” made by the applicant. He argued this was significant as it was in this part of the Tribunal’s “Findings and Reasons” that it focused on the latest set of claims made by the applicant. Further, that notwithstanding that the Tribunal had earlier identified the fear of the “underground” Taliban, the Tribunal did not deal with this as a new claim. He submitted that the only part of the Tribunal’s “Findings and Reasons” where it dealt with this was under the heading of “persecution by the Taliban” and in the context of considering whether, pursuant to Article 1C(5) of the Convention, the circumstances that gave rise to his fear of the Taliban continued to exist in Afghanistan as at the time of making of its decision. Specifically, Mr. Colborne’s submissions were that the claim relating to the fear of the Taliban, as originally put by the applicant, was a different claim to the fear as put before the Tribunal as at the time of its decision when it should have given consideration to the fear of the remnants of the underground Taliban. He submitted that the Tribunal dealt with the issue as it related to the claim as first (and at an earlier time) presented, but did not deal with the relevant issues that flowed out of the “later” claim.

6. In response, Ms. Francois submitted that the Court must read the Tribunal's decision as a whole, and the structure of the decision is important in understanding “what in truth” it considered. In this context she submitted:

   1)As set out at CB 114.8 the Tribunal commenced its “analysis” of the applicant's evidence when he first came to Australia and noted that the applicant's sole claim at that time was a fear of the Taliban. This was because, as he indicated:

   “I am Hazara and Shi’a. The Taliban persecute Hazara and Shi’a people and cannot accept Shi’a people”

   2)A link had therefore been established, in the context of the applicant's claims, between religion and the Taliban.

   3)This was the essence of what the applicant had first put as his claim to protection on arrival in Australia.

   4)At CB 115, the Tribunal set out why the applicant was first given a TPV and noted this was because of a recognised persecution by the Taliban of the Shi’a (religious) minority, and Hazaras.

   5)At the hearing with the applicant (as borne out in the Tribunal's account of what occurred at the hearing: relevantly CB 122, and in the relevant and corresponding parts of the transcript) the Tribunal referred to the United Nations Human Rights Commission report for 2002, dealing with the type of people who would be persecuted if they were to return to Afghanistan at the time of the Tribunal's decision. The submission was that the only group that was possibly relevant to the applicant was “certain ethnic groups in areas where they are in the minority”.

   6)This needs to be seen in light of, and linked to, the actual report, of which the relevant part is reproduced at CB 148.

   7)This part of the report deals with “ethnic minorities” and links to that part of the Tribunal's discussion with the applicant at the hearing as the only possible, relevant group in connection with which harm could arise.

   8)In particular, Ms. Francois pointed to the report at CB 148.5:

   “There is now significantly less discrimination against Hazaras. H… (not readable from the copy in the Court Book) largely stabilised, and there is no apparent problem for Hazaras… (not readable). UNHCR expects a significant increase in the return of Hazaras ov… (not readable) closely monitor developments in returns from Quetta.51”

   [The respondent may consider that it is of benefit, if she is going to seek to rely on certain documents before the Court, that they be presented in a complete and readable form: the entire document reproduced from CB 138 to CB 157 is affected. Similarly, no meaning can be discerned from the document at CB 177 – see also paragraph 25 of this Judgment].

   9)That when the Tribunal came to consider this applicant's particular claims of persecution as an Hazara and a Shi’a (not only from the Taliban but from others), that this was all part of the background that the Tribunal had considered, and specifically put to the applicant at the hearing. She submitted this was clearly part of the “thoughts” that were going through “its head” in consideration of this material.

   10)That the “Findings and Reasons” should not be read solely as amounting to the Tribunal's consideration of the applicant’s claims, and that clearly the Tribunal gave consideration to the issue in question.

   11)The Tribunal had this information before it [as referred to above], and the applicant did not fit the profile of someone who would be targeted (as part of an ethnic minority) and that this was the “central focus” that ran through the applicant's current claims.

7. Ms. Francois’s submission, therefore, on behalf of the Minister, was that the Tribunal did not fail to consider the applicant's claims as they related to the remnants of the Taliban. She submitted that it did deal with this issue and that this was evident, implicitly, in the way the Tribunal considered the issue and made its findings. With this submission in mind, Ms. Francois referred the Court to the Tribunal's decision record, in particular, at CB 130.5:

   “On the evidence, the Tribunal is of the view that even though there may be remnants of Taliban still organising themselves in Afghanistan in opposition to the established government, the Taliban is not now in a position to compel people such as the applicant to join their forces. While independent country reports indicate that the Taliban may be regrouping and are active in the provinces of Zabul, Paktia and Khost, the Tribunal notes that there is no indication that the Taliban has risen and regained any form of control in the Ghazni area where the applicant lived with his family before he came to Australia.”

8. The applicant did not live in, or come from, the “Ghazni area” as the Tribunal asserts. As the Minister’s delegate was able to correctly identify (see CB 79.5 and the application for a protection visa – CB 9.7) the applicant came from “Shekh Ali, Shoukh-e-Parsa in Parwan province.”

9. Ms. Francois provided an enlarged version of one of the two maps reproduced at CB 177 which was before the Tribunal and which showed the administrative divisions of Afghanistan. The document reproduced at CB 177, apart from being upside down in the Court Book, is clearly not readable to the unaided, or even spectacle assisted, eye. However, and unfortunately, in this regard I can only agree with Mr. Colborne that even the enlarged version is still largely unreadable, and required further magnification.

10. In any event, Ms. Francois submitted that the reference to Ghazni in the Tribunal's decision record is clearly an error and the Tribunal had referred, in other parts of its decision, to the applicant’s correct village and district. The essence of her submission was that the Tribunal did look thoroughly at the totality of the information behind its decision, and did not find anything that indicated “an underground Taliban”, or the regrouping of the Taliban such that there was any regaining of any level of control. The Court was invited to find that on a beneficial reading of the Tribunal's decision record, the Tribunal was required to consider, and did consider, whether or not there was an “underground” Taliban. Further, that the concept of “underground” involves an organised group of people who are in some way active. The submission was that the Tribunal dealt with this in the extract at CB 130.5 as quoted above.

11. Ms. Francois conceded that the Tribunal does not address the issue of “underground Taliban” or Taliban remnants “squarely”, but that the decision must be given a beneficial reading, without an eye attuned to error. Further, that when read in the context of independent country information reports, and keeping in mind that the applicant's hometown Shekh Ali is in a central province, that there was nothing in the information before the Tribunal that indicated that there were any active “underground” Taliban in those central provinces.

12. She submitted that to give the Tribunal’s decision record a beneficial reading does require “trundling” through the independent country information reports, but that this was what the Tribunal did. To properly understand the Tribunal’s statement at CB 130.5, the statement needs to be considered in the context of that information. The Tribunal found that the Taliban was not in control, and it could not find anything to support the finding that the Taliban were active, and therefore the applicant’s fears based on the activity of the Taliban were not well founded. Further, that while the Tribunal did not explicitly address the issue of the “underground” Taliban, in looking at the material that was before the Tribunal, its finding was broad enough to encompass that claim. 

13. The essence of the respondent’s submission therefore was that on a beneficial reading, with reference to the background information available to the Tribunal, the Tribunal understood the applicant's claims and, implicitly, addressed these claims. It dealt with the claims in the context of religious persecution, in addition to dealing with the question of whether the Taliban were active in the applicant’s area. It also dealt with what would make this applicant a target, and could not find that he had a particular profile that would make him a target. The essence therefore, in Ms. Francois submission, of the Tribunal's finding in this regard, was that the Tribunal found that religion is not an issue for the applicant any more and the Taliban were not in control. The Tribunal was unable to find evidence that the Taliban was relevantly active. She submitted therefore, in relation to the applicant's claims to fear the Taliban for reasons arising from religion and his ethnic group, that both were dealt with by the Tribunal.

14. It is clear that when the applicant first arrived in Australia his claims to protection, which were accepted, was that as an Hazara and a Shi’a he feared the Taliban who were in control of Afghanistan at that time. The immediate reason for leaving his country was that his village had resisted the Taliban when they occupied the area, and the Taliban had searched for weapons, harassed people and taken young people away. That, therefore, he fled to the mountains, and remained in hiding for some time. This is clear in the submission made on the applicant's behalf by his then migration agent, reproduced at CB 22 to CB 24. The date of this document is 5 February 2000.

15. Three years later, on 18 February 2003, the applicant provided a statement in support of his subsequent protection visa application, reproduced at CB 68 to CB 69. This statement was then also submitted to the Tribunal with his application for review. The thrust of the statement was that the Taliban were still very active in Afghanistan, and that in outlying villages they were “operating underground”. He claimed that he was afraid that if he returned to Afghanistan the Taliban would find him and kill him.

16. In its decision record the Tribunal recognised that in his statement of February 2000, the applicant’s fear was that as an Hazara and Shi’a the Taliban would harm him, and that this specifically arose out of his fear of the Taliban coming to his village. He claimed that he left because of a fear of harassment, and in his statement of 18 February 2003 the applicant repeated his claims that he would be killed by the Taliban because he was an Hazara and a Shi’a Muslim.

17. Further, there was also a clear recording of the applicant's claim (which in the circumstances was a “new claim”) that the Taliban, notwithstanding that they had been removed from the “de facto” control of Afghanistan, were still very active and powerful, and that the interim government was not able to fully control the “activities of the underground Taliban”. Further, that they still operated in outlying villages and that the applicant was afraid if he returned the Taliban (in its “underground” iteration) would find him and would kill him.

18. I agree with Ms. Francois's submission that any given part of a Tribunal's decision record should not be read in isolation with an eye attuned for error. It is clear that the Tribunal understood the original basis on which the applicant was granted protection in Australia and clearly recorded the applicant's subsequent statement as to the state of his claims as at February 2003.

19. Ms. Francois invites the Court to draw an inference, based on country information before the Tribunal, that the Tribunal did consider all the applicant's claims. Further, and relevantly, in relation to the Taliban as set out in the applicant's statement of February 2003, and notwithstanding that there is no express statement or finding in this regard, that a finding can be inferred if the Court takes a beneficial reading of what the Tribunal has presented in its decision record.

20. In my view, there is a clear difference between a situation where the Tribunal has before it claims and independent country information and, in considering claims in light of the independent country information, draws inferences that support its findings, and a situation where the Court itself is asked to draw such inferences from country information before the Tribunal which in turn would be said to support the Tribunal's ultimate conclusion. It is trite to say that there is a clear difference between a Tribunal making findings of fact, and the Court making findings of fact on behalf of the Tribunal. As has often been set out in authorities findings of fact, including findings on credibility, are for the Tribunal to make as the decision maker “par excellence” (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). The Court clearly cannot engage in merits review of an applicant's claims in the way that is only permitted to the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Conversely, it is not for a Court to make such findings on the basis that it was open to the Tribunal to make such findings, and could have made such findings, based of the information that was before it.

21. In the case before me, even on a beneficial reading, I accept that the Tribunal did not make any clear or express finding in relation to the applicant's claims made on February 2003 to fear the “underground” Taliban. There is nothing to show that the Tribunal’s consideration resulted in any clear finding on this issue, nor indeed is there any clear finding that would support the proposition that consideration had been given to the applicant's claims as put by the applicant in regard to the “underground” Taliban. Nor can I see that any such finding can be inferred from the Tribunal’s decision such as to support the proposition that consideration in a complete sense was given to the applicant's latest claims relating to the remnants, or “underground”, Taliban. I accept that if such a finding could be inferred from a beneficial reading, then it may be that the Tribunal's decision could be upheld on that basis. But it is not the role of this Court to draw such inferences and make such findings that could be said to support the ultimate conclusion come to by the Tribunal, merely because such inferences and findings were available.

22. Notwithstanding that the applicant made a new claim relating to the remnants, or “underground”, Taliban (as opposed to his claim of fearing the Taliban as they were when he left Afghanistan in 2000) the Tribunal did not come to a determination about this claim. Clearly, given the list of “new claims” beginning at CB 130 in its decision record, the Tribunal did not specifically identify this claim as a new claim. This is not at issue. But even on a beneficial reading of its decision record, I cannot see that it properly dealt with this issue elsewhere in its decision record. Nor can I see that the mere fact that it could have dealt with this issue, in the sense that there was independent country information before it to which it referred at the hearing with the applicant, is sufficient to say that it considered the issue in the full and complete sense that in my view is required. I do give the Tribunal's decision record a beneficial reading. For example, for that reason, I am prepared to accept that when the Tribunal referred to “Ghazni” in its decision record at CB 130.6, that it really was referring to the Parwan district and the applicant’s home town of Shekh Ali.

23. Even with a beneficial reading of what the Tribunal has done, I do not agree that it focused on the applicant's claims as put in his statement of February 2003.  Rather, in context of the Taliban, the Tribunal was focused on the applicant's claims as put in February 2000. At CB 129.3 the Tribunal clearly turned its mind to the issue of persecution by the Taliban. It made reference to the applicant's claims when he “first arrived in Australia”, and dealt with these claims. At CB 129.8 it turned its mind to the circumstances in which the applicant was recognised as a refugee, and noted that this was because he faced persecution at the hands of the Taliban. Even on a beneficial reading, what the Tribunal then proceeded to do, before it specifically turned its mind to the “new claims” made by the applicant, was to deal with the situation of the Taliban, based on some independent country information albeit with “different and indeed conflicting reports” (CB 130.3) that established that the Taliban was no longer a political force in Afghanistan. It considered information that supported the proposition that it would not be possible for the Taliban to become a significant political organisation. But, on the other hand, that there were more recent reports that indicated that the Taliban were taking advantage of the persisting instability in Afghanistan to re-establish itself.

1. In my view it is plain that, even on the most beneficial reading, the Tribunal’s consideration was focused on the situation of the Taliban having been in “de facto” control of the whole of Afghanistan, the change in that situation, and the consideration of the likelihood of their re-emergence. However, this focus was on the likelihood of their re-emergence to control Afghanistan as they once had and was not focused on the likelihood of harm to the applicant from the remnants of the Taliban who had gone “underground”. While the Tribunal made reference to “remnants of Taliban” at CB 130.5, in relation to the Taliban still organising themselves in Afghanistan, what it drew from the information before it was that “the Taliban is not now in a position to compel people such as the applicant to join their forces”.

2. The applicant’s fear of the Taliban had clearly changed in the intervening three years from February 2000 to February 2003. While at first his fear was of the Taliban as they were “in control” of Afghanistan, harassing local people in his area, and who may indeed have been looking to force the applicant and his family to join their forces, by February 2003 the applicant's claim was not based on a fear of the Taliban “in control”, but a fear of the Taliban no longer “in control”, but whose remnants were still engaged in “underground activities”. Despite the Tribunal's reference in its decision record (at CB 130.6 – the part primarily relied on by the respondent now) to independent country reports (indicating that the Taliban may be regrouping, and were active in certain provinces - although none of these were the applicant's province), its focus was clearly still at this point on the likelihood of the Taliban emerging to take control. The Tribunal noted that “there is no indication that the Taliban has risen and regained any form of control in the Ghazni [read as relevant to the applicant’s home district] area where the applicant lived”. Clearly this was not what the applicant was claiming as at February 2003. By that time it was not about the Taliban taking control. It was about “underground” remnants threatening the applicant. While there may have been independent country information before the Tribunal from which it may have been said that an inference could have been drawn that such remnants engaging in “underground” activities would not harm ethnic minorities (of which the applicant was a member), the Tribunal’s consideration was clearly focused on a Taliban having been in control, and the likelihood of them regaining control such as to be able to harm the applicant in that context.

3. That the Tribunal did not fully and properly deal with the applicant's claims as put by the applicant in February 2003 is in my view further evidenced when examining the Tribunal’s consideration of the applicant's claim that he would be persecuted because he is a Shi’a Muslim. The Tribunal concludes at CB 136.3:

   “More important, the Tribunal notes that the applicant, by his own admission is from the Shekh Ali district. The district of Shekh Ali is predominantly Hazara and predominantly Shi’a. In the absence of the Taliban who used their de facto control of the country to enforce their Sunni beliefs in the whole of the country including the district of Shekh Ali, the Tribunal does not accept the claims of the applicant that when he returns home to Sheik [sic: Shekh] Ali which is predominantly Shi’a, he will be subject to persecution as a Shi’a Muslim”.

4. Again the focus, even when looking at the religious aspect of the applicant's claim to fear harm, is on the Taliban as they were when in control of the country compared with the absence of such control as at the time of the decision. As such, the absence of the Taliban and their “de facto control” of the country (to enforce their Sunni believes) meant that the applicant would not face the likelihood of persecution on the grounds of his religion. The focus again, clearly, was on the Taliban, having been in control, but now no longer being in control. It was not on the remnants of the Taliban and their “underground” activities, giving rise to a separate circumstance of fear notwithstanding that they were no longer in “de facto” control of the country as a whole.

5. The fact that the Taliban were no longer in control of Afghanistan was certainly relevant to the situation as it related to the applicant's claims as originally put in February 2000. But to say, as the Tribunal has done, that even though there may be remnants of the Taliban organising themselves in Afghanistan that the Taliban was not now in a position to compel people to do certain things, and were not active in this sense in the applicant's home area, does not in my view show that the Tribunal adequately addressed what the applicant clearly put as his claims to fear harm from the Taliban remnants in February 2003. Taliban in control of Afghanistan is clearly different to Taliban no longer in control. The mere fact that the Taliban had ceased to be in control of the country, while it may address squarely the applicant's claims as of February 2000, does not in my view, even on the most beneficial reading, address the applicant's claims as of February 2003. Nor is it for this Court to make this finding on behalf of the Tribunal, even if it could be said that there was independent country information to support such a finding being made. This is a task for the Tribunal and one which, in my view, was not completed.

6. The Tribunal has failed to address a claim made by the applicant.
   On this basis there is jurisdictional error in what the Tribunal has done, sufficient to warrant the orders being sought by the applicant. I will make the relevant orders and return this matter to the Tribunal for its proper consideration. In these circumstances, it is not necessary to go on and consider the other grounds of complaint raised by the applicant.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  08 September 2006