SZEOK v Minister for Immigration
[2006] FMCA 1600
•31 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1600 |
| MIGRATION – Refugee – temporary protection visa granted – application for permanent protection visa – Article 1C(5) – change in circumstances in country of feared persecution – Article 1A(2) – whether well founded fear of persecution at the time of application before the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.36, 36(2), 36(3), 36(4), 36(5), 36(6), 36(7), 424A(1) Border Protection Legislation Amendment Act 1999 |
| QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZEOK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3081 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 May 2005 |
| Date of Last Submission: | 15 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms. K. Sant |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Counsel for the Respondents: | Mr. S. Lloyd |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The reference to the first respondent’s title be amended to read “Minister for Immigration & Multicultural Affairs”.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3081 of 2004
| SZEOK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 14 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 August 2004 and handed down on 23 September 2004 to affirm the decision of a delegate of the respondent Minister made on
12 February 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.The applicant is a national of Afghanistan who came to Australia in March 2001 and applied for a protection visa on 18 April 2001. He was granted a (Subclass 785) Temporary Protection Visa (“TPV”) on
22 May 2001. He applied to the respondent Minister's Department for a further protection (Class XA) visa (“protection visa”) on 21 June 2001. This was refused on 12 February 2004. He applied to the Tribunal for a review of that decision on 4 March 2004.Over the relevant time the applicant put forward a number of claims as to his fear of persecution in Afghanistan arising from his circumstances. Essentially, these derive from his association in a number of ways with the Panjsher district in Afghanistan.
The relevant documents reproduced in the Court Book (“CB”) show that the various claims were advanced in:
1)The documents relating to the application for a TPV, including the original visa application dated 15 April 2001 and a statement in support and the delegate’s (“the first delegate”) decision record in relation to the TPV containing a report of an interview with the applicant (CB 1 to CB 76).
2)The protection visa application dated 21 June 2001 (CB 77 to CB 100). See also the delegate’s decision record (“the second delegate”) in relation to this application, particularly at CB 115.
3)The application for review lodged with the Tribunal on 8 March 2004 (CB 129 to CB 132).
4)The applicant’s statutory declaration dated 26 March 2004, given to the Tribunal (CB 142 to CB 150), and other supporting documents (CB 151 to CB 201).
5)A “further [written] statement” to the Tribunal dated 25 July 2004 (CB 205 to CB 206) submitted in response to the Tribunal’s letter of 6 July 2004 (CB 202 to CB 203).
The Tribunal identified the applicant’s claims as set out in its decision record at CB 223.4 to CB 235.7. The applicant (with his adviser present) gave evidence before the Tribunal on 30 June 2004 (and the Tribunal’s account of the hearing in its decision record is reproduced at CB 228.2 to CB 233.2). At the hearing the Tribunal “foreshadowed” that it would write to the applicant “in accordance with section 424A” to invite him “to comment on the inconsistencies in his evidence”. That letter is reproduced at CB 202 to CB 203 and refers to inconsistencies between the information given to the first respondent’s Department, and what the applicant subsequently put to the Tribunal in relation to a number of issues.
The Tribunal’s “Findings and Reasons” are reproduced at CB 235.7 to CB 240.3. The Tribunal made findings in relation to three questions:
A.Whether, with reference to Article 1C(5) of the Refugees Convention, the applicant could no longer continue to refuse to avail himself of the protection of Afghanistan.
The Tribunal found:
a)The applicant was “granted” refugee status because the first delegate of the Minister found that he faced a real chance of being persecuted by the “Taliban for reasons of his race (Panjsheri Tajik)” (CB 236.1).
b)On the basis of the evidence before it, that the Taliban had been removed from power in Afghanistan (CB 236.4).
c)It did not accept that there was any chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future (CB 236.5).
d)It did not accept there was a real chance that the applicant would be targeted by Taliban remnants in Afghanistan because he is a Panjsheri Tajik (CB 236.5).
e)That, because the circumstances in connection with which the applicant was recognised as a refugee had ceased to exist, he could no longer continue to refuse to avail himself of the protection of his country of nationality – Afghanistan (CB 236.6).
B.Whether the applicant had a well founded fear of persecution on the basis of the circumstances for which he had originally been recognised as a refugee and whether protection obligations arose out of ss.36(3) and 36(4) of the Migration Act 1958 (“the Act”), and as it applied to Afghanistan (CB 236.8).
The Tribunal found:
1)As a national of Afghanistan the applicant was able to avail himself of a right to enter and reside in that country (CB 237.3).
2)Having regard to the changed circumstances in Afghanistan, that the applicant no longer had a well founded fear of being persecuted if he were to return (CB 237.4).
C.Whether, as at the date of its decision, the applicant had a well founded fear of being persecuted, pursuant to Article 1A(2) of the Refugees Convention, if he were to return to Afghanistan.
In this regard the Tribunal found:
a)In relation to the applicant’s claims that he would be at risk of persecution by the Mujahideen who were in power in Afghanistan at the relevant time, that it did not accept the claims set out in the applicant’s statutory declaration dated 26 March 2004, regarding his education, his service as a military officer under the (former) communist regime, his membership of the Communist Party, and his belief in a democratic government “separate” from religion. It found they were “not consistent” with the claims the applicant made in connection with his original application (CB 237.6 to CB 237.8).
b)That the applicant “told the truth” when he arrived in Australia, and that he had “resorted to lying” now that circumstances in Afghanistan have changed such that it is no longer sufficient (for the purpose of being recognised as a refugee) for him to claim to be a Panjsheri Tajik (CB 238.3).
c)It did not accept the applicant’s documents (in support of his claims in relation to his circumstances under the communist regime and his education) produced to the Tribunal, as being genuine (CB 238.4).
d)It did not accept that there was a real chance that the applicant would be persecuted if he returned to Afghanistan, because he completed his compulsory military service under the communist regime (CB 238.8).
e)It did not accept that after the fall of the Najibullah regime that the applicant was detained and interrogated in August 1992 (by a commander Tareq). Nor that he was arrested and gaoled by a commander Habib (after he had taken refugee in Panjsher Valley) and accused of being a ‘military communist’ in August 2000 (CB 239.3).
f)Further, it did not accept that there was a real chance that the applicant would be persecuted because commander Habib knows him, or that his family in Kabul have been persecuted as a “Communist family” (CB 239.4).
g)That there was nothing in the evidence available to it to indicate that the situation of Panjsheri Tajiks, in particular, was any different from that of other Tajiks in Kabul (CB 239.5).
h)It did not accept that there was real chance that the applicant would be persecuted because he had refused to join the forces of Massoud (a leader of “freedom fighters” in Afghanistan) in January 2001 (CB 239.6).
i)That even taking into account the cumulative effect of all the circumstances advanced by the applicant’s case, it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he returned to Afghanistan. Further, and consequently, the Tribunal concluded that the applicant did not satisfy the criterion set out in s.36(2) of the Act for the grant of a protection visa (CB 239.8 to CB 240.1).
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 18 January 2005, the applicant put forward the following grounds:
“(1)The Tribunal failed to apply the provision in Article 1C(5) to the applicant in circumstances where as a matter of international law and State practice it is now applied generally.
(2)The Tribunal erred in purporting to apply Article 1C(5) in that:
a)It failed to consider the applicant’s claim that he had a well founded fear of persecution as a result of refusing to further assist and/or deserting from the Northern Alliance under Massoud in about 2001;
b)It failed to consider whether the circumstances that had led the applicant to have a well-founded fear of persecution as a result of refusing to further assist and/or deserting from the Northern Alliance under Massoud in about 2001 had ceased to exist.
(3)Alternatively, it erred in taking into account its determination as to whether his fear of the Taliban was now well founded in considering a separate and distinct claim in relation to fear of the Northern Alliance.
(4)The Tribunal erred in purporting to apply Article 1C(5) in relation to the applicant’s claim regarding the fear of the Taliban in that it:
a)Failed to identify the circumstances which had given rise to a well founded fear of persecution on the part of the applicant, namely a fear arising from the beliefs and attitudes of the Taliban;
b)Applied the wrong test in only or primarily considering the danger posed by the Taliban as a governing power or political movement;
c)Failed to consider whether there had been a such a material change in the beliefs and attitudes and the risks posed by the Taliban that those circumstances had relevantly “ceased to exist”, and
d)Failed to assess whether the changes, which had occurred as a result of the decrease in power of the Taliban, constituted a substantial, effective and durable change in the relevant sense.
(5)The Tribunal erred in purporting to apply Article 1C(5) in that it failed to consider whether there was any unjustifiable refusal on the part of the applicant to avail himself of the protection of his country of nationality.
(6)The Tribunal failed to consider whether the government of Afghanistan was both willing and able to provide the necessary level of protection to the applicant against threats of persecution by non-State agents, including the Taliban and the Northern Alliance.
(7)The Tribunal erred in failing to consider whether the Taliban and/or al-Quaeda posed a threat to the applicant on a Convention ground and ignored evidence that there was a real risk that either or both could do so.
(8)The Tribunal erred in determining the eligibility of the applicant for a further protection visa by reference to s 36(3) of the Migration Act 1958, in circumstances where that provision of the Act had no relevant operation.
(9)Alternatively, the Tribunal erred in purporting to apply s 36(3) in that:
a)It failed to consider whether the country of which the applicant is a national could provide effective protection: and
b)It failed to consider the risk of persecution by the Northern Alliance.
(10)The Tribunal erred in ignoring evidence, which it accepted, that the applicant had refused to further assist and/or deserted from the Northern Alliance under Massoud in about 2001.
(11)The Tribunal erred in finding there was no real chance of persecution if the applicant returned to Kabul as a result of the fact that the applicant had refused to further assist and/or deserted from the Northern Alliance under Massoud in about 2001 in that:
a)There was no evidence to support such a finding;
b)No consideration was given to the existence and/or effectiveness of any protection that might be offered by the Afghan government;
c)The Tribunal failed to consider evidence before it as to changed circumstances where that evidence was capable of supporting a finding that the Northern Alliance posed an increased risk to the applicant, including an increased risk in Kabul.
(12)Tribunal erred in purporting to apply s 36(2), after considering the application of s 36(3).
(13)The Tribunal erred in its approach to the grant of a protection visa in that it did not consider whether Australia had protection obligations in relation to the applicant by considering the whole of Article 1 of the Refugees Convention 1951 as amended.
(14)The Tribunal erred in failing to take into account the applicant’s past experiences in Afghanistan in determining whether he had a well-founded fear of persecution.
(15)The Tribunal erred in that it did not determine whether Australia had protection obligations to the applicant, taking his past experiences of persecution as a starting point.
(16)The Tribunal erred in finding that the documents produced by the applicant and supporting his previous membership of the Communist Party of Afghanistan and military service were not genuine in that:
a)If failed to take into account that the photographs were of the applicant when he was younger and therefore supported his claim that the documents were old as claimed by the applicant, although in good condition;
b)It exceeded its expertise in making an assessment of the age and/or genuineness of the documents;
c)There was no evidence to support its finding that the documents were not genuine; and
d)The finding was manifestly unreasonable for the reasons set out above.
(17)The Tribunal erred in finding that the applicant was not a member of the Communist Party of Afghanistan in that it failed to take into account his knowledge of the party.
(18)The Tribunal ignored evidence that former members of the Communist Party were at risk of persecution and failed to consider whether there was a real risk of persecution to the applicant because of his membership or other involvement with the former Communist regime.
(19)The Tribunal erred in that it failed to take into account evidence that the applicant’s level of education was higher than he had initially claimed, including a language analysis that indicated he was educated, in circumstances where it rejected his claims for protection on the basis of recent invention and accepted his earlier version of events.
(20)The Tribunal erred in that it failed to take into account evidence from an expert psychologist capable of explaining the discrepancies in the applicant’s different accounts.”
At the hearing before me Mr. S. Lloyd appeared for the respondents and Ms. K. Sant appeared for the applicant. Ms. Sant submitted that the applicant did not press ground one above. The Court also has before it the court book of relevant documents filed by the first respondent and the affidavit of Elizabeth Biok, a solicitor employed by the applicant’s solicitors, affirmed on 18 January 2005, annexing a Transcript (“T”) of the hearing the Tribunal conducted with the applicant on 30 June 2004.
Following the hearing before the Court both parties filed supplementary submissions concerning the operation of Article 1C(5) of the Refugees Convention with reference to QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 (“QAAH of 2004”). Ms. Sant for the applicant sought that the Court follow the findings in QAAH of 2004 as, in her (respectful) view, the approach taken by the Full Court in relation to the cessation clause in that case “is correct”, and establishes that the Tribunal erred in the case before me. Mr. Lloyd submitted, in reply, that this case is “readily distinguishable” from QAAH of 2004. He argued that the Tribunal, in this case, relied upon s.36(3) in addition to Article 1C(5) as an alternative basis, in reaching its conclusion.
The Court however agreed to the respondent’s request to defer Judgment in this matter pending the outcome of the Full Court consideration of NGBM v Minister for Immigration and Multicultural and indigenous Affairs [2006] FCAFC 60 (“NBGM”). The applicant was content to await the outcome of this matter as sought by the respondent.
Following the handing down of the Judgment of the Full Federal Court in NBGM the Court provided a further opportunity to both parties to make any further written submissions. Both parties did so.
Mr. Lloyd, for the respondent, filed further submissions on 14 June 2006. He submitted that the majority Judgement in NBGM upheld the approach that the Tribunal took in this case, which was the assessment of whether the applicant had a well founded fear of persecution for a (Refugees) Convention reason at the time of its decision. Mr. Lloyd referred, in his submissions, to the majority decisions in NBGM, of Mansfield and Stone JJ. who agreed with Black CJ. With reference specifically 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.”
In this regard I note:
Mansfield J. at [59]:
“For those reasons, I would dismiss the appeal. In the circumstances I agree with the observations of the Chief Justice at [25] of his reasons for judgment. I also agree that the parties should be given an opportunity to make such submissions as to the costs of the appeal as they may be advised.”
Stone J. 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.”
The respondent’s submission was that in the matter before me the Tribunal decided that, at the time of the making of its decision, the applicant did not have a well founded fear of persecution for a Convention reason and that this complied with the approach to be taken according to the majority in NGBM. In light of this the Court should not further delay its Judgment.
Ms. Sant’s submissions in reply sought that the Court should further delay its Judgement pending the High Court's consideration in QAAH of 2004 (special leave to appeal granted from QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 145 FCR 363) as it continues to be the “leading authority”, on the proper construction and application of Article 1C(5) of the Refugees Convention. Specifically, the submission was that the Tribunal did not clearly consider whether a durable change in circumstances had been established. On the issue of the proper construction of s.36(3) of the Act, Ms. Sant submitted that the Chief Justice’s view at [25] in NBGM cannot be relied upon to elevate a minority decision on the “broader principle” of s.36(3), into a majority binding decision. The applicant submitted that the reasoning of Allsop J. in NBGM, with whom Marshall J. agreed, is to be preferred and should be followed.
In a matter on appeal from this Court 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 in NBGM, did not follow 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.”
I follow the approach of Branson J., 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. Further, Ms. Sant asks this Court, in effect, to accept a submission that disregards the specific conclusions from part of the Judgement of the Chief Justice in NBGM in circumstances where both Mansfield and Stone JJ. were in express agreement. Therefore, I accept the respondent’s submissions in this regard and proceed to hand down Judgment in this matter. The issue for this Court now is whether any error can be discerned in what the Tribunal did in reaching its conclusion that the applicant did not have a well founded fear of persecution for a Refugees Convention reason if he were to return to Afghanistan as at the time of its decision, or in the reasonably foreseeable future.
The applicant's complaints in this regard are set out in the amended application. Grounds 1 to 6, as confirmed in the applicant's written submissions, relate to Article 1C(5). Ms. Sant advised that the applicant no longer pressed ground 1. To the extent that the remainder however are relevant to the question of a well founded fear of persecution for a Convention reason if the applicant were now to return to Afghanistan, then I considered the following:
1)The applicant complains that the Tribunal failed to consider the applicant’s claim that he had a well founded fear of persecution as a result of refusing to further assist, and/or deserting from, the “Northern Alliance under Massoud” in 2001.
a)I should just note, at first, that the applicant's complaint in the context of Article 1C(5) is that the Tribunal failed to consider whether the circumstances that had led the applicant to having a well founded fear of persecution had ceased to exist.
b)In the context of a well founded fear of persecution, as at the time of decision, the applicant's position can be seen as being that this claim was contained in his statement lodged with his protection visa application, and that in particular, as reproduced at CB 35.7, the applicant had claimed that he would be harmed by “Ahmed Shah Massoud forces” if he returned.
c)Further, that this claim was also noted by the first delegate, as set out in her decision record relating to the TPV application (CB 71.4).
d)While the first delegate certainly acknowledged that this was a claim put forward by the applicant, on any fair reading of the decision record, I cannot see that the TPV was granted as a result of this claim. The first delegate’s reasons are reproduced at CB 71.5 to CB 75.4. The first delegate’s findings centred on the applicant's fear of harm from the Taliban based on his “race”, as a Panjsheri Tajik. While the delegate did refer to the Northern Alliance, and commander Massoud, in her decision record, the successful decision for the applicant was clearly made in the context of Tajiks from Panjsher being targeted by the Taliban for a number of reasons, including, and because, the leader of the Northern Alliance (commander Massoud, who was opposed to the Taliban) was a Tajik from Panjsher.
e)While the applicant therefore may have initially made a claim to fear harm, in part, because he would be targeted by the Northern Alliance, it was clearly the claim to fear harm by the Taliban that led to the delegate granting the TPV to him.
f)In terms of any consideration in relation to Article 1C(5), I agree with Mr. Lloyd that it was not necessary to deal with this matter in that context. The issue remains however as to whether the Tribunal looked at this in the context of whether the applicant had a well founded fear if he were to return to Afghanistan following the Tribunal's decision.
g)The Tribunal was clearly alert, as demonstrated in its account of the applicant's evidence, to the fact that the applicant had put forward this claim. At CB 224.2 the Tribunal records that the applicant had said that he had been asked by a group led by Massoud “to go to war against the Taliban, but he had refused”, and that he had further said “if he returned to the Panjsher district Massoud would kill him”.
h)The Tribunal dealt with this claim when in its “Findings and Reasons” at CB 239.6 it said:
“… I do not accept that there is a real chance that he would be persecuted because he refused to join the forces of Ahmad Shah Massoud in January 2001 if he returns to his home in Kabul now or in the reasonably foreseeable future.”
i)To the extent that the applicant complains that the Tribunal failed to consider the claim that he feared harm from the Northern Alliance, and Massoud, as it relates to the question of a well founded fear of persecution, this complaint is not made out.
2)I agree with submissions by Mr. Lloyd that it is not entirely clear what is meant by what is set out at ground 3 in the applicant's amended application.
a)It appears however, and in particular following, and drawing on, submissions made by Ms. Sant at the hearing, that what is meant is that the Tribunal did not consider the claim to fear harm from the Northern Alliance as separate to the claim to fear harm from the Taliban. That, in effect, the Tribunal's determination in relation to the claim to fear harm from the Taliban was relied upon to deal with the claim to fear harm from the Northern Alliance.
b)On a plain reading of the Tribunal's decision record I do not agree that the Tribunal dealt with this claim in that fashion. While the applicant's initial claim was that as a Panjsheri Tajik he feared harm from the Taliban, it is clear that this claim was broadened (with the passage of time and change of circumstances) to a claim to fear harm because of his Panjsheri Tajik origins and ethnicity, from other ethnic groups, and because of his claims, particularly as they emerged at the hearing before the Tribunal, “that as a former communist” he would be at risk on return to Afghanistan (CB 230.7 and CB 231.4).
c)In my view the Tribunal dealt with this claim as separate to the claim relating to the Taliban, and in the context in which the applicant himself had put it forward. That is, that he feared harm because he had refused to join the forces of Massoud. To the extent that this claim was made as a separate claim by the applicant it was dealt with on this basis by the Tribunal. The Tribunal accepted (at least by clear implication) the truth of this claim and dealt with it as it was required to do. The Tribunal recognised the applicant as a Tajik, and that as a Tajik, he was safe from persecution in Kabul, including for the reason emanating from the claim relating to the forces of Massoud. It ultimately found that if the applicant returned to his home in Kabul he would not face a real chance of persecution because he had refused to join the forces of Massoud (see CB 239.5 to CB 239.6). This complaint also does not succeed.
3)Ground 4 asserts error in the way the Tribunal applied Article 1C(5) in relation to the applicant's claim regarding the fear of the Taliban. In light of what I have set out above it is not necessary to further consider this specific claim.
4)The applicant’s stated fifth ground of complaint is that the Tribunal was in error in applying Article 1C(5) in that it failed to consider whether there was any “unjustifiable refusal” on the part of the applicant to avail himself of the protection of his country of nationality.
a)The applicant's position in relation to this complaint is that if there is no effective protection offered by the government of Afghanistan, then there could be no question of his availing himself of such protection. This complaint arose out of the general complaint that, for the purposes of Article 1C(5), the Tribunal did not properly consider the changes that have occurred in Afghanistan.
b)However, to the extent that this complaint may be relevant to the issue arising under Article 1A(2), the Tribunal determined that it was safe for the applicant as a Tajik to return to Kabul. In these circumstances the Tribunal found that the applicant did not have a well founded fear of persecution if he were to return to Kabul. Any unwillingness on the part of the applicant to return to Afghanistan, and any possible question as to whether this refusal was “unjustifiable” on the part of the applicant, is only relevant if the Tribunal had found that a well founded fear for a Convention reason did exist. The Tribunal found that in relation to Tajiks returning to Kabul, it was safe to do so. In these circumstances, any further or separate consideration of the issue of state protection was unnecessary. The Tribunal’s finding of safety for Panjsheri Tajiks in Kabul subsumed the issue of protection by the state, in that it was addressed when the Tribunal considered whether the fear was well-founded.
c)It would have been in this context that the question now put forward by Ms. Sant as being a relevant question that was ignored by the Tribunal, would indeed have been relevant. The Tribunal's conclusion however that the applicant did not have a well founded fear for a Convention reason makes it unnecessary for the Tribunal to have considered the question of the “justifiability” of the refusal, on the part of the applicant, to avail himself of protection in Afghanistan.
d)Further, the Tribunal’s conclusion (as stated, and in context) could also be seen, as Mr. Lloyd submits in his written submissions, in any event, as covering the issue of whether any refusal by the applicant was not “justifiable” in the Convention sense.
5)The applicant's sixth ground of complaint is whether the government of Afghanistan was both willing and able to provide the necessary level of protection to the applicant, and specifically, in relation to threats of persecution by non-state agents such as the Taliban and the Northern Alliance.
a)The concept of state protection arises from, and needs to be seen in the context of, Article 1A(2) of the Refugees Convention, and is referenced to an applicant who is unable or unwilling to avail himself of the protection of his country.
b)With reference to Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [21], the ability or willingness of a state (in this case Afghanistan) to protect its nationals could relate to any of three parts of the consideration of the question arising out of Article 1A(2):
(i)Whether the fear is well founded.
(ii)Whether the conduct that gives rise to the fear is persecution.
(iii)Whether the relevant person (an applicant) is unable, unwilling to avail himself/herself of the protection of the home country.
c)However, as Article 1A(2) clearly reveals, such inability or unwillingness is linked to having a well founded fear of being persecuted for one of the Convention reasons. The willingness and ability of the relevant state to provide the necessary level of protection is relevant as to whether a well founded fear of persecution for a Convention reason has been established. The absence however of such a (well founded) fear, or more particularly the absence of a real chance of persecution for a Convention reason in any particular part of the country in question, makes the consequent need to further consider adequate or effective state protection unnecessary.
d)
In my view this is what has occurred, in the case before me, with the Tribunal's finding that as a Panjsheri Tajik the applicant would be “considered safe in Kabul”.
This complaint also does not succeed.
The applicant's stated seventh ground of complaint is that the Tribunal erred in failing to consider whether “the Taliban and/or Al-Quaeda” posed a threat to him on the basis of a Convention related ground. Further, that the Tribunal ignored evidence that there was a real risk that either, or both, could do so. Ms. Sant’s submission was that, despite its findings at CB 236 that the Taliban regime had been removed from power in November 2001, the remnants of the Taliban continued to exist in Afghanistan. She submitted that the Tribunal, in finding that the Taliban no longer existed as a political movement, and was not it a position to become a significant political organisation again, failed to take into account, or deal with, evidence that was before it.
Ms. Sant asserted that the Taliban, even in its “remnant” form, could still be a threat to the civilian population and that it was still targeting its enemies. She relied on WAHK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 12 (“WAHK”) as authority for the proposition that a Tribunal must properly deal with the threat posed by the Taliban in circumstances where it had been removed from power, where their remnants were still active and targeting parts of the population, and in circumstances where the (central) government, or local governments, in Afghanistan were not capable of protecting the applicant.
The complaint can be summarised as, first, that this Tribunal was in error in ignoring evidence that suggested that the Taliban were still a threat. Second, that this Tribunal's approach was to focus “exclusively” on the Taliban as a “government”, or a political organisation, and because of that emphasis “it dismissed the fact” that there were still active Taliban remnants. This caused it to fail to deal with evidence that showed that the Taliban (in its latest iteration as “remnants”) was still a threat to the applicant. Its failure to deal with that issue, according to Ms. Sant, was an error amounting to a failure to exercise its jurisdiction.
The evidence that Ms. Sant submitted the Tribunal failed to take into account is as set out at pages 22 and 23 of the applicant’s written submissions of 3 May 2005 (see paragraph 65). This included evidence:
·That the central government in Kabul did not have a great deal of power in the provinces (CB 256).
·That the Taliban still existed in rural areas, and that there continued to be “attacks by radical fundamentalist forces” (CB 257).
·That the Taliban remnants sometimes “threatened, robbed, attacked and occasionally killed local villagers, political opponents, and prisoners” (CB 244).
·That the situation in Afghanistan was very unstable and that conflicts might reignite (CB 258).
This evidence is variously contained in a report on Afghanistan from the US Department of State for 2002, and a report from the Danish Immigration Service on Afghanistan, also from 2002 (see generally CB 244 to CB 263).
Following his arrival in Australia, the applicant in 2001 put forward in his original application for protection, that his fear of returning to Afghanistan was that he would be killed by “the Taliban authorities and Ahmad Shah Massoud forces” (CB 35.7). At that time, understandably, given that the Taliban was in power, and given the relevant circumstances that he had put forward, it was clear that it was at least the Taliban, as the dominant authority in Afghanistan, from whom the applicant feared harm. It was for this reason as set out in the decision record (CB 74) of the first delegate, at that time, that the applicant was given a TPV:
“… I am satisfied that there is a real chance that the applicant could suffer persecution if it were to return to areas of Afghanistan controlled by the Taliban, particularly as members of his extended family are “freedom fighters” with Masood. The Taliban currently holds 90% of Afghanistan (B28).” (CB 74.4)
The applicant’s protection visa application was considered by the second delegate of the respondent Minister in February 2004 (CB 112 to CB 117). The applicant had not responded to letters from the Minister’s Department seeking further information relevant to his claims. At CB 115.7 the second delegate relevantly reports on this issue in his decision record:
“At the time of decision the applicant has not responded to the letter inviting him to submit further information relevant to his application, and he has not submitted any new claims. Consequently, his application will be decided on the basis information currently held in the Departmental file relating to the applicant.”
The applicant's claims therefore at the time of consideration of the protection visa application by the second delegate, were seen as being a fear of the Taliban regime. As the Taliban were seen to be no longer in power in Afghanistan this was essentially the reason for the refusal of the protection visa application (see in particular CB 115 to CB 117).
The applicant’s relevant claims in relation to his application for a protection visa therefore appear initially in his statutory declaration of March 2004 which was submitted to the Tribunal following the application for review (CB 142 to CB 150). In this statement the applicant put forward claims not previously put forward, including a fear of harm arising from his substantial claim to being a senior member of the Communist Party, and that he had served in the army under the communist regime. While there were references to the Taliban this was clearly, and essentially, in the context of his circumstances as it related to the Taliban when in power in Afghanistan. The applicant's claim to fear the Taliban, as at 2004, certainly makes reference to harm claimed to have been suffered from the Taliban when in power (that is, past harm). As at the time of that statutory declaration (of March 2004) the applicant put forward as the persecution that he had suffered from the Taliban in the past as arising not only because he was a Panjsheri, but also (and this was a “new” claim) because he had been a member of the Communist Party (CB 150.3):
“The Taliban persecuted me and as my life was in danger not only because I was a member of the communist party but also because I was a Panshiri”.
But in terms of his return to Afghanistan in the foreseeable future the only relevant reference in his statutory declaration is at (the last numbered) paragraph 74 (CB 150):
“I cannot live in any part of Afghanistan because Taliban has some control in some provinces and people who similar ideology with Taliban also can harm me as I have an opposed political opinion to them.”
For the most part the applicant’s claims to fear harm if he were to return to Afghanistan as at March 2004 (and as set out at paragraphs 67 to 74 - CB 150) relate to his communist past, his “Panshiri ethnicity”, “other ethnic groups” who “consider Panshiries as their enemies” and from “commander Habib”. The fear of the Taliban was expressed with reference to the Taliban in the past, and as to why they persecuted him (paragraph 68), and for the future, as to why he could not “live in my part of Afghanistan because the Taliban has some control in some parts” (paragraph 74).
At the hearing that the Tribunal conducted with the applicant on
30 June 2004, and with reference to both the Tribunal's account of what occurred at hearing with the applicant (CB 228.2 to CB 233.1), and the transcript of the hearing provided as an annexure to the affidavit of Elizabeth Biok, I cannot see that the applicant provided any further express articulation of a fear of the Taliban as they existed after they had been removed from power in Afghanistan. Nor was there anything further put forward by the applicant either in his response (CB 205 to CB 206) to the Tribunal's letter of 6 July 2004 (CB 202 to CB 203) (“the s.424A letter”) or otherwise.
Ms. Sant submitted that the Tribunal failed to give proper consideration as to whether the Taliban continued to pose a relevant threat to the applicant because it only made general findings about the Taliban as a governing body, and not as a non-state agent which could threaten the applicant even after it had been removed from power. The submission was that the fact that the Taliban had been removed from power did not mean that the applicant no longer had a well founded fear, and that it would still be possible to fear the Taliban for good reason even when no longer in government. I do not accept Ms. Sant's submission as to the failure to give proper consideration. The Tribunal clearly dealt with the applicant's claims as they were presented by the applicant.
The issue of the Taliban was clearly raised by the Tribunal at the hearing it conducted with the applicant (see T6.3). The Tribunal acknowledged that remnants of the Taliban still existed in Afghanistan. However, the Tribunal put to the applicant that it had independent information before it that the targets of the Taliban remnants were “currently coalition and government security forces and international aid workers”. The Tribunal, albeit focused on the issue (at that point of the hearing) of whether the original circumstances in relation to which the applicant had been granted a TPV still existed, sought specific comment from the applicant as to the situation relating to the current threat posed by the Taliban, clearly in context, in its iteration as the remnants of the Taliban. The applicant's response (see T6.5) is that he wanted to provide the Tribunal with “new information”. This was the new claim raised by the applicant (that he feared harm as a former member of the communist regime, and also because he refused to join Massoud’s forces - these will be dealt with separately below) which subsequently was one of the subjects of the s.424A letter sent by the Tribunal.
The issue however is that in relation to any fear of harm from the Taliban remnants, the applicant, despite opportunity and the presence of his then adviser at the hearing, made a number of claims, but put forward no detail to support the general assertion made, amongst others in the statutory declaration of March 2004, that with reference to his return to Afghanistan he could not live in any part of Afghanistan because the Taliban had control in some provinces.
In my view, the Tribunal therefore clearly dealt with the applicant's claim as it can be said to relate to a fear of Taliban remnants as at the time of its decision in the way that the applicant himself put before the Tribunal. That is, that the Taliban were still in control in some provinces in Afghanistan. I cannot see that there was any specificity from the applicant beyond, at least by implication, that he continued to fear the remnants of the organisation which had persecuted him in the past on the basis, as he initially put, that he was a Panjsheri Tajik and subsequently, because of his communist past. When read as a whole the Tribunal's “Findings and Reasons” reveal that in terms of the harm and fear of persecution faced by the applicant if he were to return to Afghanistan immediately, or in the foreseeable future from the time of the making of its decision, that remnants of the Taliban continued to exist in Afghanistan (CB 236.3). The Tribunal did not accept on the evidence before it that there was a real chance that the applicant would be targeted by the Taliban remnants remaining in Afghanistan because he was a Panjsheri Tajik (CB 236.6). This was clearly an important finding. Ultimately, at CB 239.6, it found that Tajiks were considered safe in Kabul and that there was no evidence before the Tribunal to indicate that the situation of Panjsheri Tajiks was different from that of other Tajiks in Kabul. Nor did the Tribunal accept that there was a real chance (in dealing with the applicant’s “new claim”) that he would be at “systematic risk” because of any claimed previous association with the communists (CB 238.8).
The Tribunal dealt with the issue of Taliban remnants in the way that the applicant himself put this issue (to the extent that it can be said that it was clearly articulated). Further, I cannot see that there was anything else in the applicant's circumstances to require the Tribunal to deal with this issue in any way other than the way it did. I cannot see that this is a situation where a claim, or even an integer of a claim, can be said to have impliedly arisen from the applicant's circumstances such as to have required the Tribunal to have addressed it. The Tribunal accepted the applicant's claim that the Taliban remnants were still active in parts of Afghanistan, but found that as a Panjsheri Tajik (the basis of his fear of the Taliban initially) the applicant would not be targeted by remnants of the Taliban, and in any event he would be safe if he were to return to Kabul.
Nor do I accept Ms. Sant's submission that the Tribunal “ignored” evidence which could have supported a different outcome.
The Tribunal does not have to refer, in its decision record, to every piece of evidence before it, and nor is jurisdictional error made out merely because there was evidence that might have supported a different conclusion. But in any event, the Tribunal’s decision record, and the transcript, reveal that the Tribunal, albeit in different contexts, made direct reference to both the Danish Immigration Service Report (T8.3), and specifically to information indicating that the Taliban had been removed from power (T6.3 and CB 229.4) with reference to the US State Department Report. The weight that the Tribunal chose to give to independent information before it is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). Nor clearly is it now for the Court to make findings of fact that may have otherwise assisted the applicant.
I should also note that Ms. Sant sought to rely on WAHK as authority for the proposition that it is not sufficient to deal in general terms with an applicant's individual fear of persecution, and that what is required are findings related to the personal position of the particular applicant. In this regard, I accept Mr. Lloyd's submissions that in that case (and particularly at [22]), the Court was concerned with a situation where the only possible finding open to the Tribunal was that the applicant did have a well founded fear of persecution for a Convention reason in Afghanistan, and that what followed was the need for the Tribunal to ask itself whether the applicant was able to obtain adequate state protection. It was a failure as the Tribunal did not ask the question in this context, and merely relied on a general finding that Pashtoons did not control the then interim government of Afghanistan (and thus did not pose any problem to an Hazara such as the applicant in that case).
The case before me presents a very different situation in that there is a clear and express finding by the Tribunal that the circumstances that led to the applicant’s recognition as a refugee were no longer in existence. That is, the Taliban was no longer in control of 90% of Afghanistan. The Tribunal clearly found (CB 236.5) that the applicant did not have a well founded fear of persecution from the Taliban, or from any other group, for any Convention reason. All these findings were clearly open to the Tribunal on what was before it, and the Tribunal gave reasons for these findings. In these circumstances I cannot see that the applicant's complaint that the Tribunal ignored evidence can succeed or that there was a need for any examination of the question of state protection in the way considered necessary in WAHK. In all therefore, this ground of complaint does not succeed.
The applicant’s eighth stated ground of complaint is that the Tribunal was in error in determining the applicant’s eligibility for a protection visa by reference to s.36(3) of the Act in circumstances where the applicant says that provision had no relevant operation. The applicant’s position is that the real question to be determined by the Tribunal arose from s.36(2) and this was whether Australia had protection obligations to the applicant pursuant to the Refugees Convention. The submission was that this question could only be considered by looking to the Convention itself.
Further, Ms. Sant submitted that s.36(3) was introduced by the Border Protection Legislation Amendment Act 1999 and was directed to prevent “forum shopping” by protection visa applicants. That is, with s.36(3) to s.36(7) in mind, to include, relevantly, the considertion of third countries in respect of which an applicant has rights of entry and residence.
In subsequent written submissions, Ms. Sant argued that the “correct” application of s.36(3) was not considered in QAAH of 2004, but did arise in NBGM. In that case the approach taken by Black CJ. and Mansfield J. is that s.36(3) (to s.36(5)) is not confined to “third countries”, and that their Honours would have dismissed the appeal on that basis.
Ms. Sant submitted that this Court is not bound by the reasoning of Black CJ. and Mansfiled J. in NBGM on the issue of the application of s.36(3) (s.36(4) to s.36(5)) and that the reasoning of Allsop and Marshall JJ. in that case should be preferred and followed.
I do not agree with Ms. Sant’s submission that what the Chief Justice expressed at [25] of NBGM “creates a difficulty for any Judge at first instance” [paragraph 19 of the submissions of 15 June 2006]. Whatever the differing views about s.36(3) what I relevantly draw, with respect, from [25] of NBGM is that the question to be addressed by a decision maker, in this case by the Tribunal, (in a situation where an applicant for a protection visa has previously been granted a TPV, and the circumstances supporting this grant have changed) is the question mandated by s.36. That is, if as at the time of decision the applicant has a well founded fear of persecution for a Convention reason.
As I have already referred to above, as Branson J. concluded in SZECG, with specific reference to the interaction between Article 1C(5) and s.36(3) of the Act, the submission to Her Honour that she should prefer the approach of Allsop and Marshall JJ. would be to disregard what the Chief Justice said at [25] and with whom Stone and Mansfield JJ. expressly agreed.
In the matter before this Court, the Tribunal considered the application of Article 1C(5) to the applicant’s circumstances and in addressing the question of whether the applicant had a well founded fear of persecution as at the date of its decision on the basis of the circumstances in relation to which he had been originally recognied as a refugee, concluded that s.36(3) would apply, irrespective of Article 1C(5), and that Australia did not have protection obligations towards the applicant on the basis of the circumstances that led to his initial recognition as a refugee.
But the Tribunal also considered the question which the majority in NBGM agreed was the mandatory question (in the context of s.36). At CB 237.5 the Tribunal stated:
“Nevertheless, as I indicated to the Applicant in the course of the hearing before me, it is still necessary for me to consider for the purposes of Article 1A(2) of the Convention whether, having regard to the situation in Afghanistan as at the date of the decision, the Applicant has a well-founded fear of being persecuted for one of the five reasons set out in the Convention (but for reasons unrelated to the circumstances in connection with which he was originally recognised as a refugee) if he returns to Afghanistan now or in the reasonably forseeable future.”
What follows in its decision record is the Tribunal’s analysis of the applicant’s then current claims, as clarified before it, and as assessed in the context of the situation as it existed at the time of its decision. In all therefore, I do not accept Ms. Sant’s invitation to, in effect, disregard what three Judges of the Federal Court agreed was the question the Tribunal needed to answer. This ground does not succeed.
Notwithstanding the ground stated above (that s.36(3) had no relevant operation), in ground nine of the amended application the applicant asserts that the Tribunal erred when applying s.36(3) in that it failed to consider whether effective protection was available to the applicant. The applicant's complaint in this regard is that the Tribunal did not consider the issue of effective state protection in relation to the applicant if he were to return to Afghanistan. As already set out above the question of effective state protection generally arises in the context of considering whether an applicant has a well founded fear of being persecuted for a Convention reason. The Tribunal did not make a finding of a well founded fear in relation to the applicant. In this sense the consideration of effective protection as a subsequent consideration therefore was not a relevant issue. In any event the Tribunal found (CB 239.5) that “Tajiks are considered safe in Kabul”. As to the complaint the Tribunal failed to consider the risk of persecution by the Northern Alliance, this will be dealt generally below in the context of the “mandatory” question that the Tribunal was required to address.
The applicant's complaint, in claiming to fear persecution by the Northern Alliance, is contained in grounds 10 and 11. It is particularised as a complaint that the Tribunal, in relation to the Northern Alliance under Massoud, ignored evidence that the applicant had refused to further assist and/or had deserted from the Northern Alliance in 2001. Further, that the Tribunal erred in finding there was no real chance of persecution if the applicant returned to Kabul as a result of this refusal and/or his desertion. Specifically, the applicant complains that there was no evidence to support this finding by the Tribunal, that there was no consideration given by the Tribunal about the effectiveness of any protection that might be offered by the Afghan government, and that the Tribunal failed to consider other evidence before it that was capable of supporting a finding that the Northern Alliance posed an increased risk to the applicant, including such an increased risk in Kabul.
The applicant's claim to fear harm at the hands of the Northern Alliance, and specifically from the forces of Ahmad Shah Massoud, was certainly put in his initial statement in support of his application for a TPV (CB 34.8, CB 35.7 and CB 35.9). The first delegate recognised this claim in general terms (CB 71.5):
“He also claims that he will be “targeted” if he returns to the areas of Afghanistan held by the Northern Alliance as he refused to fight with them.”
As set out above, the TPV decision turned on the first delegate’s satisfaction (CB 74.4) that there was a real chance that the applicant would suffer persecution if he were to return to areas of Afghanistan controlled by the Taliban (90% of Afghanistan). However, the first delegate’s subsequent rejection of the possibility of the applicant’s relocation to areas of Afghanistan, held by the Northern Alliance at that time, was that it was not reasonable, or safe, for him to return to those areas, not for the reason that he had deserted, or that he had refused to fight with them, but because of current fighting and drought in the areas held by the Northern Alliance (CB 74.7).
The applicant's statutory declaration of 26 March 2004 (submitted to the Tribunal) contains the applicant’s account of relevant events in January/February 2001, following his arrest in August 2000 by a “Mr. Habib”, a local commander with the Massoud forces, who had arrested the applicant for being a “military communist” and who then enlisted the applicant's assistance in training young men to fight the Taliban. The applicant was not “happy to obey those orders” and after a short period he escaped and subsequently left both that area, and then Afghanistan (CB 148 to CB 149). The applicant's claim in this regard was that if he were to return to Afghanistan he would be easily identified as a “Pansheri” and “easily” found as commander Habib knew him. The claim was that he would be persecuted (presumably in context of the statutory declaration as a whole), because of his having escaped from the Northern Alliance, and the training of its recruits.
The Tribunal recorded these claims in its decision record relevantly at CB 226.8. The only reference to the Northern Alliance and Massoud put forward by the applicant at the hearing with the Tribunal is in answer to the Tribunal's question as to why he had “lied” when he first came to Australia. The applicant's response that it had not been his decision to do so. He reiterated his claims that he had escaped from Afghanistan because of problems with the Taliban, and relevantly, “the so-called Mujahideen” (CB 228.9 and T5.2). In context this was probably a general reference that included the Northern Alliance and therefore Massoud. However, it is clear from both the transcript, and the Tribunal’s decision record of what occurred at the hearing, that the applicant's focus, to a large extent, was on his “new” claim that he feared persecution as it arose from his former membership of the Communist Party, and his military activities during the time of the communist regime.
In relation to his fears of not being safe in Kabul the transcript of the Tribunal’s hearing shows that at T9.4 the Tribunal specifically asked the applicant:
“Q:Mr [applicant], in your original application you said that the reason you had left Panjsher valley when you did – the reason you had left Afghanistan when you did was because you feared being forcibly recruited by Ahmad Shah Massoud's forces. Is that not true?
A:Yes.”
The applicant was pressed on this issue because, as the Tribunal's decision record of the hearing, and the transcript, reveal, it had doubts that the applicant was truthful in regard to some of his claims.
The applicant admitted to the Tribunal that he did not say “all the truth at the beginning” (T9.6). At T9.7 the Tribunal asked:
“Q:What I’m putting to you is: I do not accept that, if you returned to Afghanistan now, there is a real chance that you will be persecuted because you refused to join Ahmad Shah Massoud's forces back in 2001.
A:It's danger for me. I find my life in danger in Kabul. That's why I can't go to Kabul. Every single person can sense or feel his own problem.
Q:What do you say that your life would be in danger in Kabul?
A:Because I was a member of the Communist regime and I was persecuted under Taliban regime. The leader that I escaped from a war, from Panjsher – I didn't attend that war. The person that was a commander in our area is now a powerful person in Kabul. He’s got authority.”
In context, the reference to “commander” appears to be a reference to “commander Habib”. The Tribunal specifically turned its mind to this issue, amongst others, and dealt with it as put forward by the applicant. It did not accept that the applicant had been arrested and gaoled by a commander Habib, and did not accept that there was a real chance, if the applicant returned to Afghanistan, that he would be persecuted because commander Habib knew him (CB 239.3). Further, the Tribunal found that as a Panjsheri Tajik he would be safe in Kabul and specifically found:
“I do not accept that there is a real chance that he will be persecuted because he refused to join the forces of Ahmad Shah Massoud in January 2001 if he returns to his home in Kabul now or in the reasonably foreseeable future.” (CB 239.6)
Ms. Sant submits that the Tribunal ignored evidence reproduced at CB 259 under the heading of “People evading military service with the Northern Alliance”, and at CB 261 under the same heading, that indicated that desertion from military service with the Northern Alliance would be considered a serious offence. The applicant complains that as against this the Tribunal had no evidence to support a finding that there was no real chance of persecution if the applicant returned to Kabul as a result of his refusal to further assist and/or his desertion from the Northern Alliance.
The applicant's claimed account of his difficulties with commander Habib were that he had been arrested by him in August 2000 because he had been accused of being “a military Communist”, and that subsequently in January 2001 commander Habib had come to the prison, and it was from there that he had agreed to train young recruits for the Northern Alliance. It is clear that the Tribunal's analysis and subsequent rejection of the claim that he had been arrested and gaoled by commander Habib needs to be seen in the context within which the claim was put to the Tribunal. The claim was linked to, and arose out of, his claimed involvement with the Communist Party, and his claim that he had been a member of the military during the time of that regime. The applicant's claim about commander Habib was intertwined with his later claim that he had been an active military participant during the time of the communist regime (he claimed commander Habib arrested and gaoled him because he was a ‘military communist’ – CB 239.3). The Tribunal's decision record reveals that its relevant analysis flows from, and in this sense is supported by, the transcript of the hearing and what the applicant said in discussion of this issue.
The Tribunal rejected the applicant's claims relating to his military involvement with the communist regime for a number of reasons, but including the finding, previously confirmed by the applicant, that he had originally lied in presenting his claims. The issue of the applicant's claimed desertion from the Northern Alliance, and his claimed involvement with Habib, was clearly tested at the hearing with the Tribunal and it rejected the applicant's claims in relevant aspects for reasons that it gave in its decision record.
Further, at the hearing, as is revealed at T9.7, it was the applicant's own answer in relation to the Tribunal’s question that put the applicant on notice that it did not accept that if he returned to Afghanistan there would be a real chance that he would be persecuted because he refused to join Massoud’s forces in 2001. This formed, partly, the basis for the Tribunal’s focus and ultimate conclusion on whether it would be safe for the applicant to return to Kabul in the context of this claim.
The Tribunal stated:
“What I’m putting to you is: I do not accept that, if you returned to Afghanistan now, that there is a real chance that you will be persecuted because you refused to join Ahmad Shah Massoud’s forces back in 2001.”
The applicant answered:
“It's danger for me. I find my life in danger in Kabul. That's why I can't go to Kabul. Every single person can sense or feel his own problem.”
The Tribunal then, specifically, sought further comment from the applicant as to why his life would be in danger in Kabul. Ultimately, as it put to the applicant, the Tribunal accepted country information that Panjsheri Tajiks were safe in Kabul and it was on this basis that the Tribunal rejected the applicant's claim that he would be persecuted in Kabul. This encompassed the claim that he had refused to join the forces of Massoud in 2001. Clearly there was evidence to support the Tribunal’s finding. This was a finding of fact which is for the Tribunal to make as the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). On the material before me, it was open to the Tribunal to make such a finding and it gave reasons for doing so. I cannot see any error in how the Tribunal approached this issue. It dealt with the applicant’s claim as put by him and gave him the opportunity to address its view that he would not be persecuted by Massoud’s forces. That there may have been independent country information which the applicant now says he would have wanted the Tribunal to have dealt with in a different way does not reveal error in what the Tribunal did. The use of such country information, and of course the weight to be given to it, is for the Tribunal. The further assertion that the Tribunal ignored evidence which it should have used to find for the applicant is not made out. The Tribunal dealt with the claims as put by, as discussed with, the applicant. There was clearly a factual basis to support the Tribunal’s findings. These grounds also do not succeed.
Grounds 12 and 13 take issue with the Tribunal's approach as to how it dealt with the applicant's claims, and in particular that there was error in applying s.36(2) of the Act after it had considered s.36(3), and that there had been a failure to properly consider the whole of Article 1 of the Refugees Convention. As set out above, paragraph [25] in NBGM sets out the relevant question that needs to be addressed by the Tribunal in considering an application for a protection visa where the relevant circumstances have changed since the applicant was granted a TPV.
As the Chief Justice said, the majority in NBGM agreed that s.36 requires the Tribunal to be satisfied, as at the time of its decision, that the applicant has a well founded fear of persecution for a Convention reason.
The Tribunal clearly turned its mind to this issue. In its decision record at CB 237.5, after having made reference to s.36(3), it said:
“Nevertheless, as I indicated to the applicant in the course of the hearing before me, it is still necessary for me to consider for the purposes of Article 1A(2) of the Convention whether, having regard to the situation in Afghanistan as at the date of this decision, the Applicant has a well-founded fear of being persecuted for one of the five reasons set out in the Convention (but for reasons unrelated to the circumstances in connection with which he was originally recognised as a refugee) if he returns to Afghanistan now or in the reasonably foreseeable future…”
The fact that the Tribunal addressed its mind to the operation of s.36(3) does not of itself detract from its enunciation and subsequent consideration of the correct question that it also needed to answer.
The Tribunal considered the applicant's claims as they related to the Taliban as at the time of its decision. It considered the claims as they arose from his “desertion” from the Northern Alliance and association with it, and it considered all the new claims that the applicant had put before it. In all therefore, this complaint is not made out.
Grounds 14 and 15 in the amended application assert that the Tribunal failed to take into account the applicant's claimed “past experiences of persecution” as a starting point for its enquiries. In submissions Ms. Sant relied on Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 as authority for the proposition that the starting point for the Tribunal's inquiry as to whether an applicant has a well founded fear of persecution is the relevant situation when the applicant fled his country of nationality. The applicant's position is that the only change that had occurred between the time of the applicant leaving Afghanistan and as at the time of the Tribunal's decision, was that the Taliban were no longer in power and were not considered to be a viable political movement. The Taliban (remnants) still remained in parts of Afghanistan, and that the applicant “could hardly be reassured” that the Taliban remnants were only targeting coalition, government security forces, and international aid workers. Further, the submission was that there was nothing in the findings of the Tribunal to have “reassured” the applicant as to his position in relation to his fears of commander Massoud and the Northern Alliance forces. This was said to be reinforced by what is alleged to be the Tribunal's failure to address the issue of whether the government of Afghanistan could offer him effective protection from either the Taliban, or the Northern Alliance.
In relation to the fear of the Taliban, the Tribunal's analysis, as shown in its decision record, clearly started with the applicant's past experiences which derived from his being a Panjsheri Tajik. In all the circumstances, I cannot see that the applicant, in relation to the Taliban, progressed his claims beyond where they had existed when he came to Australia. The claims essentially were, and these had been accepted by the first delegate, that as a Panjsheri Tajik he had been persecuted by the Taliban who were in power in Afghanistan. As at 2004, at best, the applicant's claims in relation to the Taliban, and as advanced by the applicant, were that the Taliban still existed in parts of Afghanistan and would harm him. Ms. Sant asserts error on the part of the Tribunal in that there was no evidence that the Taliban had changed its attitudes, or beliefs, and that the applicant could not be “reassured” by the fact that Taliban forces that remained in Afghanistan were targeting coalition and government security forces and international aid workers. This was particularly so as it was submitted that there was an absence of any change to the beliefs and attitudes, that had made him a target in the first place.
Whether there was evidence as to any change in Taliban attitudes is not, in my view, directly, or at least initially, relevant to the issue that the Tribunal needed to address, nor is any “reassurance” to the applicant. The question for the Tribunal was whether, on an objective basis, the applicant could be said to have a well founded fear of persecution by the Taliban in Afghanistan if he were to return at the time of the Tribunal's decision, or in the foreseeable future.
The Tribunal clearly addressed the applicant's Taliban related experiences, and found that on independent information before it, the Taliban was no longer in control of Afghanistan, to the extent that it had been when the applicant left. The Tribunal then addressed the extent of the applicant's claims as they related to the Taliban and that was whether as a Panjsheri Tajik (the context within which the past harm was relevant) the remnants of the Taliban in Afghanistan would target the applicant. The Tribunal accepted country information that the applicant would not be targeted by the remnants of the Taliban as these remnants were now targeting government and international forces and foreign workers, and that in any event as a Panjsheri Tajik the applicant could return safely to Kabul. The test clearly is not the reassurance of a person in the applicant's position, but whether the Tribunal could be satisfied that there was a real chance of harm based on a well founded fear of persecution for a Convention reason. The Tribunal clearly addressed this issue in relation to the Taliban as presented by the applicant's circumstances and what he himself put to the Tribunal.
It made a finding which was open to it on all the material before it. Having arrived at that conclusion it was clearly not necessary for the Tribunal to go on and consider any further the issue of effective state protection. The issue of fear of the Taliban was clearly considered in the context of substantial change in the relevant circumstances in Afghanistan and, ultimately, in the circumstances presented at the time of decision.
In relation to the claims to fear harm from Massoud, his forces and the Northern Alliance, I do not accept the submission that the Tribunal failed to address the relevant circumstances, as put forward by the applicant, whether in the context of “past harm” or otherwise. Relevantly, the applicant also claimed that he had been detained by commander Habib, who was aligned with Massoud’s forces, and subsequently had been coerced into assisting with the training of recruits for the Northern Alliance. The Tribunal recorded the applicant's claims in this regard. It found, for reasons already set out, and referred to above, that he had not been arrested and gaoled by commander Habib. The Tribunal did not accept that there was a real chance that if the applicant returned to Afghanistan, as at the time of the decision, or in the reasonable foreseeable future, that he would be persecuted because he was known by commander Habib. In any event, the Tribunal found that as a Panjsheri Tajik he would be safe if he returned to his home in Kabul. This finding was made particularly in the context of the claim to have refused to join the forces of Massoud. The Tribunal appears to have accepted that he was known by commander Habib, while not accepting that he had been gaoled by him. The Tribunal clearly took into account the applicant’s claimed past experiences and, ultimately, for reasons that it gave, decided against the applicant. I can see no error in what the Tribunal has done in this regard.
Ms. Sant took me to independent country information (CB 59 and CB 261) which she said was before the Tribunal, and which she said supported a claim that desertion from the Northern Alliance would be considered a serious offence. The submission (in this regard linking grounds 14 and 15 with grounds 10 and 11) was that there was no evidence to show that the power of the Northern Alliance had been reduced, in contrast with the situation of the power of the Taliban, and that this further required an analysis of the effectiveness of state protection and the involvement of the Northern Alliance with the state as it existed at the time of the Tribunal's decision. I do not accept this submission for the same reasons as set out relevantly above (see paragraphs 46 to 56 and 63).
The amended application also complains (ground 16) that the Tribunal was in error in finding that the documents put forward by the applicant which supported his claim to have been a member of the Communist Party in Afghanistan, aspects of his military service, and his fears generally relevant and arising from this time of his life, were not genuine.
The applicant's complaint in this regard is that it was “manifestly unreasonable” for the Tribunal to have found that the documents were not genuine, particularly as the Tribunal failed to take into account that photographs produced by the applicant of when he was younger, would have supported his claim. Ms. Sant argued that the Tribunal did not have expertise in making an assessment of the age and/or the genuineness of the documents, and that there was no evidence to support its finding that the documents were not genuine.
In recounting the evidence before it the Tribunal recorded (at CB 225.8) that the applicant had provided (to the Tribunal) a statutory declaration dated 26 March 2004 (CB 142 to CB 150), and recorded the applicant's claims from that declaration in some detail. Essentially, the declaration contained new claims relating to the applicant's assertion that he had been a member of the Communist Party, and had undertaken military service during the time of the communist regime, and that (as at March 2004) he feared persecution if he were to return to Afghanistan because of his past involvement with the Communist Party, the communist regime, and the military. This declaration was provided to the Tribunal by way of covering letter from the applicant’s then adviser which the Tribunal received on 10 May 2004 (CB 139).
At the same time the applicant's adviser provided a number of documents which, relevantly with translations, are reproduced at CB 153 to CB 170. The Tribunal made reference to these documents in its recounting of the applicant’s evidence. It noted (at CB 227.8) that the applicant representative provided a number of documents (one from a general medical practitioner stating that the applicant was suffering from depression), but relevantly, documents purporting to confirm that the applicant had completed “Year 12 at the military school in 1981”, that he had “attended the Military University from 1981 to 1983”, that he had attended a “military officer’s course between November 1986 and May 1987”, and that he had become “a member of the Communist Party of Afghanistan in September 1987”. How the Tribunal dealt with these documents does need to be seen in the context of how it dealt with the “new” claims which the documents were said to support.
The Tribunal clearly raised these “new” claims, as made in his statutory declaration, with the applicant at the hearing that it conducted with him (CB 228.2 and T6.5). The Tribunal had doubts about the applicant's claims in this regard and it put those doubts to the applicant at the hearing. The Tribunal specifically put to the applicant (CB 228.6 and T7 to T10) that it found it “a little” difficult to accept that he was a member of the Communist Party who had served in the Afghan army under the former communist regime, and in particular noted that the applicant had not raised this concern in his original protection visa application, and that it was put forward “when circumstances in Afghanistan had changed” (CB 228.7) [His military service during the communist regime and relevant education was subsequently the subject of a letter from the Tribunal to the applicant – CB 202 to CB 203, that complied with the requirements of s.424A(1) as explained in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and illuminated by SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2)].
The Tribunal's account of this exchange at the hearing appears at CB 228 to CB 232.5, which accords with the transcript of the hearing (T6.5 to T10.3). Clearly, the applicant and his adviser were made aware of the Tribunal's doubts about this set of the applicant's claims, and relevantly about the genuineness of the documents. At CB 232.5 the Tribunal records:
“The Applicant’s representative said that he accepted that some documents from Afghanistan could be forged but he submitted that the Applicant's documents were genuine.”
This is with reference to T11.9.
The inconsistencies in the applicant's various sets of claims, in particular between the TPV application and what he subsequently put in his statutory declaration, and then said at the hearing with the Tribunal, were specifically put to the applicant for comment in the letter that the Tribunal sent to the applicant after the hearing (see also CB 232.8 to CB 234.5). In its decision record at CB 233.7 the Tribunal reports on the specific reference to military service between 1985 and 1987, as put in his TPV application, yet the inconsistent reference in his statutory declaration that after graduating from military University in 1983 he had gone to Kandahar to work with the logistics division of the Afghan army. The issue of his claimed participation in the army at that time was specifically drawn to his attention, as were further inconsistencies (CB 234.3) between his original claim that he had never been a member of a political party, and his subsequent claim that he had been a member of the Afghan Communist Party. The Tribunal clearly put to the applicant that this information was relevant because the discrepancies went to the issue that the matters in the statutory declaration were “a recent invention intended to improve the chances of his application for a further protection visa being successful” (CB 203.4 and CB 234.6).
It is clear that at the hearing the Tribunal discussed the applicant's documents with him (noting of course that the adviser was present – see T5 and T6). The Tribunal clearly told the applicant that some of his documents (“Tazkera” [or ID card] and driver’s licence) were probably genuine (T5.5), but that it had concerns about some of his other documents (T5 and T6).
The Tribunal's findings in relation to the documents as set out at CB 238.4 are:
“I consider that the reality is that the Applicant told the truth when he first arrived in Australia and that he has resorted to lying now that circumstances in Afghanistan have changed and it is no longer sufficient for him to claim to be a Panjsheri Tajik. As I indicated to the Applicant in the course of the hearing before me, I do not accept the documents he produced the Tribunal are genuine. The Afghan Communist Party membership card which he produced is brand new, even though it purports to be issued in 1987. The covers of the educational documents are old but the documents pasted inside the covers are new. The Applicant said that they did not supply the covers with the certificates but I consider that the documents relating to the Applicant have been pasted inside old covers in an attempt to make them appear to be genuine documents.”
To be properly understood, the Tribunal’s finding in relation to these documents clearly needs to be seen in the context within which it was made. The Tribunal formed the view that the applicant “resorted to lying” when he made his subsequent claims, and that the “true” situation was reflected in his claims as originally made. The Tribunal put this to the applicant at the hearing, and it subsequently put this issue, that is, the inconsistency between his original claims and his subsequent claims, in writing to him, explained the possible relevance to its decision and gave the applicant an opportunity to comment, which he subsequently took up (CB 205 to CB 206). The Tribunal's rejection of the documents as genuine clearly needs to be seen in that context. The Tribunal complied with its obligation to act fairly towards the applicant both through what it put to him at the hearing and subsequently in writing.
But in any event, and relevantly on any plain reading of the Tribunal’s decision record, the Tribunal did not reject the applicant’s “new” or more recent set of claims only because of the documents. The Tribunal had other clear reasons for doing so. Rather, in my view a plain reading of the Tribunal’s decision record reveals that the circumstances attendant on some of the documents were not such as to cause the Tribunal to change its view that the applicant had “resorted to lying” when he subsequently made his “new” claims. This is not a situation where the documents were the one critical element in making an adverse credibility finding as to the applicant’s claims. This set of claims was rejected as “lies” for other reasons. The “appearance” of the documents however was such as to cause the Tribunal not to accept them as genuine and thus capable of counter-balancing its view that the applicant had “resorted to lying” in putting forward “new” claims (CB 238.5). Given that, the documents (that is the Communist Party membership card and some educational documents) were not such as to cause the Tribunal to change its view of the credibility of the applicant’s “new” claims.
Further, the applicant’s complaint now that the Tribunal exceeded its level of expertise in making its assessment of the age of the documents is not in my view made out. The Tribunal's observations as to the state of the documents are not such as would have required any “special” expertise. They were observations as to whether the documents were “old” or “new” from the “look” of the covers. While clearly appearances can be misleading, I cannot see that it was not within the province of the Tribunal member as a lay person in this regard, to make observations as to the appearance of the documents. The Tribunal did not purport to use any investigative or “scientific” devices (microscope, computer enhancements etc) where such expertise would have been necessary.
The applicant's claim that there was “no evidence” to support the Tribunal's finding that the documents were not genuine ignores the clear finding by the Tribunal that what the applicant subsequently put to it as the “new” claims were as a result of the applicant resorting to “lying”, given that circumstances in Afghanistan had changed such that it was no longer sufficient for the applicant to rely on his claims deriving from his status as a Panjsheri Tajik to be successful in being granted a protection visa. A plain reading of the Tribunal's decision record reveals that the Tribunal clearly rejected the applicant's relevant claims in his statutory declaration of 26 March 2004 (CB 237.8) on the basis of the inconsistency between these claims and what was originally put to the first respondent’s Department. The Tribunal's concerns, both as to this significant, from the Tribunal's perspective, inconsistency, and its concerns about the documents, were clearly put to the applicant at the hearing and he was given an opportunity to comment. Further, the inconsistency between the different sets of information and claims was put to the applicant in writing for the purposes of s.424A(1), and the applicant was given the opportunity, which he exercised, to respond in writing.
At the hearing before me Ms. Sant sought to provide photographs to the Court, which were said to be the originals of the photographs which were part of, and related to, the documentation provided by the applicant to the Tribunal. This was said to be not for the purpose of the Court making any finding in relation to the documents, but for the purpose of the Court being able to determine that the Tribunal's finding in relation to the documents was “manifestly unreasonable”. In all the circumstances however, even if unreasonableness or illogicality were available as a ground of review, and even if unreasonableness in the “Wednesbury” sense were to be considered (unreasonableness of the kind recognised in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), this is not made out on the material before me. Nor for that matter could I see that the production to the Court of these photographs would assist the Court in reaching any view that the Tribunal had acted unreasonably or that its analysis was infected with a lack of reason.
To the contrary, on what is before me, and as set out above, the Tribunal acted reasonably in all the circumstances. It had formed doubts as to the credibility of the applicant's “new” claims for reasons which it gave. It put those doubts both to the applicant and his adviser at the hearing, and then subsequently in writing. Opportunities were therefore provided to the applicant in circumstances where he had been given an understanding as to the relevance to its decision of what the Tribunal was considering. On what is before me the Tribunal was entitled, and it was open to it, to make the findings that it did. Nor did the Tribunal purport to act as an expert document examiner. It was clearly open to the applicant to provide expert evidence as to the genuineness of the documents. Despite having been given the opportunity he did not do so.
Nor in his letter responding to the Tribunal's request for comment (pursuant to s.424A(1) of the Act) did the applicant make any reference to these documents (CB 205 to CB 206) in supporting his “new” claims. In fact, the applicant agreed that he had not disclosed the information (to which the documents were said to relate) originally.
He gave as the explanation that he had been told to act in this way by “the smuggler” (CB 205.4) who had brought him to Australia.
The Tribunal clearly took this explanation into account (CB 238.1), but notwithstanding this, came to the view that the subsequent “new” claims were as a result of the applicant having to resort to “lying”.
The applicant was given every opportunity by the Tribunal to provide an explanation for his actions. It was always open to the applicant to provide further argument specifically in support of the genuineness of the documents, which he now says support the truth of his later claims. I cannot see that the Tribunal acted unreasonably, or for that matter unfairly, in the way that it dealt with this issue. This ground does not succeed.
The applicant also complains (grounds 17 and 18) that the Tribunal erred in the finding that he was not a member of the Communist Party of Afghanistan, because it failed to take into account his knowledge of the party. This issue was important, in the applicant’s view, because he now says the Tribunal ignored evidence that former members of the party were at risk of persecution in Afghanistan, and failed specifically to consider whether there was a real risk of persecution to the applicant because of his membership of, or other involvement with, the former communist regime.
To the extent that this complaint relies on how the Tribunal dealt with the documents put to it by the applicant, then that aspect has been dealt with above. What remains of the applicant's complaint is that the Tribunal was in error in finding that the applicant was not a member of the Communist Party in that he had demonstrated knowledge of that party such that it went to corroborate his claim to have been a member.
As already referred to above, the applicant's claims to fear persecution on return to Afghanistan based on his former membership of the Communist Party, and his activities attendant on that membership (that is, his military service) were put forward for the first time in the statutory declaration of March 2004 which the applicant gave to the Tribunal. In its decision record the Tribunal clearly understood that the latest set of claims from the applicant were that he could not return to Afghanistan because he had been a senior member of the Communist Party, and that he had therefore been persecuted by the Mujahideen when they had been in power (CB 206.9).
The applicant complains that the Tribunal erred in failing to take into account the applicant's knowledge of the Communist Party of Afghanistan. On what is before me, I cannot see that the applicant provided any further information about the Communist Party of Afghanistan, the nature of which would have caused the Tribunal some additional obligation to have given further consideration to this issue.
If what is meant by the submissions on behalf of the applicant now is the “knowledge”, or the assertions, that are set out in the applicant’s statutory declaration of March 2004, and the statements that he made at the hearing with the Tribunal, then I cannot see any failure on the part of the Tribunal to have properly dealt with such information.
The applicant in his case before this Court has not been specific about what knowledge of the Communist Party of Afghanistan he now says corroborated his claim to have been a member of the party (beyond reference to the documents discussed above). If this is a reference to what is contained in the statutory declaration, or what he said at the hearing with the Tribunal, then I cannot see that the applicant's complaint in this regard rises above a request for impermissible merits review by the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
On arrival in Australia the applicant made no mention of his Communist Party involvement, and in fact stated that he had not been a member of a political party. When, subsequently, he put forward a “new” set of claims that were inconsistent with what was in his TPV application, and contradictory in relation to the issue of membership of a political party, the Tribunal, as referred to above, wrote to the applicant and specifically set out its concerns about what the applicant had done, and significantly set out the relevance to the issue of the credibility of this latest set of claims. The applicant gave an explanation for what he had done, which, for the reasons that it gave, the Tribunal did not accept. In these circumstances it was open to the Tribunal on what had been put before it to find that the applicant had not been a member of the Communist Party, and had not served as an officer under the communist regime (CB 237.7). The Tribunal accepted that the applicant had completed his compulsory military service during the time of the communist regime, and in this regard (CB 238.8) found that, based on independent evidence available to it, there would not be a real chance of persecution because of this if he were to return to Afghanistan. I accept the respondent’s submission that these were findings of fact for the Tribunal.
Further, given that the Tribunal rejected the applicant's claims regarding his membership of the Communist Party, it was not necessary for it to then go on and look at evidence that related to what could possibly occur to former members of the Communist Party if they were to return to Afghanistan. The Tribunal dealt with what it found to be the applicant's relevant involvement during the time of the communist regime in Afghanistan. That was, that he had served his compulsory military service during this time. It found, on independent evidence before it, that he did not have a well founded fear of persecution that arose from this circumstance.
The applicant also complains (ground 19) that the Tribunal failed to take into account evidence that the applicant's level of education was “higher” than he had initially claimed. This complaint relies on what was reported from a language analysis conducted in relation to the applicant, which indicated that he was “educated”. This failure is said to be relevant to the Tribunal's rejection of the applicant's claims on the basis that “new” claims were a recent invention.
In essence, this complaint again seeks to take issue with the Tribunal’s finding that it preferred the applicant's original claims as being the “truth”, over the subsequent claims provided in his statutory declaration of March 2004. The language analysis report to which the applicant now refers is reproduced at CB 64. The report, dated 30 April 2001, appears to be part of the material before the first delegate.
The author of the report is not identified, other than by reference to a code number and:
“The analyst who has performed this analysis originates from Afghanistan.” (CB 64.7)
The “expert opinion” provided by the language “analyst” (which self-evidently reveals the purpose of obtaining such an opinion – that is, to the extent that speech is an indicator of an applicant’s origins) is that on listening to a particular tape (which appears to be that of the applicant’s speech) the speech on the tape is “Dari”, and that the speaker has a “language background in Afghanistan” (CB 64.3). In the course of providing an “explanation” for this “expert opinion”, the analyst, amongst other matters, states with reference to the speaker on the tape:
“He seems to be educated.” (CB 64.5)
The complaint is that the Tribunal ignored this evidence which went to the issue of his level of education. Ms. Sant submitted this was relevant, in that the applicant’s initial claims showed him as having a more limited education than that which he subsequently claimed with his “new” claims. The submission now is that the Tribunal failed to take into account this important evidence.
I note that the Tribunal is not required to report on every piece of material before it. The language analysis was clearly, in context, not obtained for the purpose of establishing the applicant’s educational level. Nor, despite specific notice (at the Tribunal hearing and by subsequent letter) from the Tribunal as to its preliminary view of the credibility of his “new” claims, and at hearing with specific reference to concerns about the documents relating, in part, to his educational qualifications, did the applicant make any reference whatsoever to this one phrase in the language analyst’s “explanation”.
Importantly however, the Tribunal did deal with the substance of the applicant’s various (and contradictory) claims in this regard. It dealt with them consistently, and in the context of how these claims emerged at the Tribunal hearing they were explained at the hearing and in subsequent written submissions.
In its decision record, at CB 238.7, the Tribunal makes reference to the applicant's initial claims as to his schooling and education, and then acknowledges the applicant’s claim that during the time of his compulsory military service he worked in an office “because he was educated”. The Tribunal finds that:
“While this might at first sight appear consistent with his subsequent claims regarding his level of education one has to remember that levels of education are relative and that it is notorious that a significant proportion of the population of Afghanistan are illiterate.” (CB 238.7)
The reference in the analyst’s report to the fact that the applicant “seems to be educated” is certainly consistent with the Tribunal’s reference to “subsequent claims regarding his level of education”.
The Tribunal dealt with the substance of the indication (“seems”) in the analyst’s report when it noted that the applicant had claimed a particular higher level of education. But it was open to the Tribunal to find that perceptions of levels of education are relative. The Tribunal’s ultimate finding that the applicant was not as well educated as he claimed to have been is not inconsistent with, or contradictory to, the advice in the language analysis that “he seems to be educated”.
The Tribunal dealt with this claim in its proper context, namely how such levels of education would be viewed in Afghanistan. In the Tribunal’s view the applicant was educated to some degree, which in context is an acceptance that he was educated, but that this was in context of a country which had “notorious” levels of “illiteracy”.
In such circumstances, I cannot see any error in how the Tribunal has dealt with this issue. This ground does not succeed.
Similarly the aspect of this complaint, which asserts that the Tribunal gave no consideration to the “unlikelihood” that an ordinary, uneducated Afghan, who worked as a taxi driver and had not been involved in the Communist Party, would have any real knowledge of that party (to the extent that this is another aspect of what has already been referred to above), does not succeed. In its analysis (CB 238.7) the Tribunal specifically noted that the applicant had worked as a taxi driver in Kabul from 1983 to 1996. It then specifically focused on the issue of “an uneducated Afghan”, the levels of education, and the relativity of levels of education in a country such as Afghanistan.
The applicant's complaint in this regard is also not made out.
The applicant also complains (ground 20) that the Tribunal failed to take into account evidence from an expert psychologist which was capable of explaining the discrepancies in the applicant's different accounts of his claims. Following the hearing with the Tribunal on
30 June 2004, and the Tribunal’s letter of 6 July 2004, the applicant was on clear notice that the Tribunal viewed the “late” emergence of his “new” claims with concern as to the credibility of the claims.
As part of his explanation for the “later” presentation of “new” claims, the applicant put forward a report from a registered psychologist (CB 207 to CB 211). The report makes reference to the applicant’s emotional and psychological situation. The complaint now is that the evidence of the psychologist explained why the applicant was vulnerable, and would have therefore followed the suggestions of the smuggler who brought him to Australia, and explains why he had not raised the “new” claims at an earlier date.
The applicant's explanation as set out in his response (CB 205 to CB 206) to the Tribunal’s request for comment was that he, while travelling to and on arrival in Australia, was under pressure, was subject to lack of concentration and “lost memory”, and was influenced by the smuggler who brought him to Australia in relation to what he should say. He stated he was grateful to this person because he saw him as having saved his life. In short his explanation and plea to the Tribunal was that it should accept as his explanation for not making “a good judgement about what I said in part of my statement” (that is, his initial statement following his arrival), as his psychological circumstances were such that he was “brainwashed by the guide who sent me to Australia”.
With this statement the applicant also provided a report from a “registered psychologist” (CB 207 to CB 211) from the “Chatswood Inner Change Centre for Personal and Professional Development”.
The psychologist met with the applicant and gave a lengthy report of the applicant's claims, and a report of his symptoms. The psychologist's conclusions based on what had been put to her are reproduced at CB 211.I cannot see that the applicant's complaint that the Tribunal failed to take this report into account can be made out on what is before me.
The Tribunal's decision record at CB 235.3 shows that the Tribunal noted and considered the contents of the report. It noted that the psychologist had interviewed the applicant with the assistance of a Dari interpreter, and had recited the applicant's claims, and set out as part of the assessment the applicant’s response to the Tribunal's letter.
The Tribunal also noted one (highly relevant) particular was that the psychologist reported that the applicant had told her that the smuggler had told him to tell Australian authorities that he was illiterate.
The Tribunal’s report plainly shows that it considered the psychologist’s report. The Tribunal in particular noted that the psychologist’s report was for the most part a recitation of the applicant's own claims, and what he said were his experiences. It noted specifically the psychologist’s “professional opinion”, that the applicant’s “military training had had a significant influence on his behaviour”. The Tribunal noted the psychologist’s suggestion that the applicant had found himself with “no other course of action except to obey the smuggler”. The Tribunal stated:
“This begs the question because one of the basic facts at issue is whether the Applicant underwent the military training he claims to have received at all.” (CB 235.7)
The Tribunal again made reference to the psychologist’s report (in its “Findings and Reasons for Decision”) at CB 238.4 and noted the reasons put forward as to why the applicant did not tell “the truth” when he first arrived and that he had done was what the smuggler had told him to do:
“The psychologist suggests that the Applicant told her he had obeyed the smuggler because he had paid the smuggler money and because his military training required him to obey orders.”
It is not a fair, or even a plain, reading of the Tribunal's decision record to say that the Tribunal failed to take into account “evidence” from the psychologist, and that this evidence was capable of explaining the discrepancies in the applicant's different accounts. For a large part the psychologist’s report was a recounting of the applicant's own claims, and the professional opinion in that report was based on an assumption that those claims were true. The Tribunal clearly made reference to the report in its decision record and was, for the reasons set out, not persuaded by the applicant's total set of explanations as to the truthfulness of his subsequent claims. That the “evidence” was “capable” of explaining the discrepancies in the applicant’s accounts does not assist the applicant now. The issue is that it was not such as to persuade the Tribunal which, after all, was the relevant decision maker on this issue. It was open to the Tribunal, in all the relevant circumstances, not to be so persuaded, and it gave reasons for this.
This ground also does not succeed.
In all therefore, the applicant arrived in Australia, claimed to fear harm from the Taliban, who were in power in Afghanistan at the time, and to also fear harm from elements of the Northern Alliance. The applicant was granted a TPV on the basis of his fear of persecution in relation to the Taliban. By the time the Minister's (second) delegate, and the Tribunal, came to consider the applicant's claims in relation to a subsequent application for a protection visa, circumstances in Afghanistan had changed such that the Taliban were no longer in control. The Tribunal then received a new set of claims from the applicant, and rejected those claims as not being truthful. On the most recent relevant authority, that is, the Full Federal Court Judgement in NBGM, the question that the Tribunal needed to address, and answer, is as set out by the Chief Justice at [25] of that Judgement. That is, whether the Tribunal could be satisfied that, at the time of its decision, the applicant had a well founded fear of persecution for a Refugees Convention reason. The Tribunal rejected the applicant's subsequent set of claims as not being genuine, and on that basis could not find that the applicant had a well founded fear of persecution. To the extent that parts of these claims were accepted by the Tribunal it dealt with each of those aspects. In relation to the original claims, the Tribunal found that the Taliban were no longer in control and that as a Panjsheri Tajik the applicant could safely return to his home in Kabul and would be safe from remnants of the Taliban, the Northern Alliance (to the extent the Tribunal accepted some elements of his claim in this regard) and from any other ethnic group. In all, the grounds put forward by the applicant now, with the assistance of legal advice and Counsel, are not made out. This application is dismissed.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 31 October 2006
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