SZFTP v Minister for Immigration - [2006] FMCA 1026

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1026

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – cessation of protection – applicant temporarily given protection as a refugee from Afghanistan – whether the RRT correctly applied article 1C(5) of the Refugees Convention and s.36(3) of the Migration Act 1958 (Cth) considered – whether the RRT overlooked relevant material or a relevant consideration or failed to ask itself relevant questions considered – whether the RRT based its decision on a fact unsupported by any evidence considered.

Migration Act 1958 (Cth), s.36

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration v Yusuf (2001) 206 CLR 323
MZWPD v Minister for Immigration [2006] FCA 1095
NBGM v Minister for Immigration [2006] FCAFC 60
QAAH v Minister for Immigration [2005] FCAFC 136

Applicant:

SZFTP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG478 of 2005

Judgment of:

Driver FM

Hearing date:

19 July 2006

Date of last submission:

4 August 2006

Delivered at:

Sydney

Delivered on:

29 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Respondents:

Mr S Lloyd

Solicitors for the Respondents:

Phillips Fox

ORDERS

A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal made on 30 December 2004 and handed down on

28 January 2005.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
The first respondent shall pay the costs and disbursements of the applicant of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG478 of 2005

SZFTP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 28 January 2005. The RRT affirmed a decision of the delegate not to grant the applicant a protection visa. I adopt with minor amendments the following statement of background facts in relation to the applicant, his protection visa claims and the RRT decision on them from the applicant’s outline of written submissions filed on 6 July 2006.
The applicant is an Afghan national of Hazara ethnicity who arrived in Australia undocumented by boat in March 2001 (court book, page 13). He is a Shia Muslim. He applied for a temporary protection visa (sub class 785) on 2 May 2001 (court book, page 1). That was the only visa to which he may have been entitled, having arrived by boat.
In his application to the Department the applicant claimed to come from Norwak in Chil Baghtoo, in Jaghori District of Ghazni Province, Afghanistan (court book, pages 11, 26). In the statement accompanying his application he claimed that the Taliban beat him in the village mosque, and tried to extract 100 lakhs (presumably of Afghanis) from him on the basis of his religion and ethnicity. They also beat his mother. He escaped through a hole in the wall of a toilet and eventually fled to Australia. (court book, pages 26-27).
The applicant was granted his three year temporary visa on the strength of the Taliban being the “ruling” entity and of his being a Hazara and a Shiite Muslim on 20 September 2001 (court book, pages 28-32).
He lodged his application for a sub class 866 permanent protection visa on the 23 October that year (court book, pages 35-57). This was accompanied by the same statement as in the temporary protection visa application (court book, pages 58-59). He was then informed, by letter dated 5 March 2002, that pursuant to the Migration Regulations 1994 (Cth), Sch 2, para 866.228, this application could not be considered for 30 months (court book, pages 61-62).
Some 30 months later, on 29 March 2004, he lodged another statement in which he stated that he feared persecution because:
a)The Taliban continue to exist in strength in Afghanistan, and are still capable of persecuting and killing Hazaras (court book, page 69 [3]-[4]).
b)Some members of the current government are Pashtuns and Tajiks who had massacred Hazaras in Kabul (court book, page 69 [5]).
c)
Hazara factions are fighting amongst themselves. There is no protection for members of minor factions, and the applicant’s father had been a member of the Sepah faction of the

Hezb–e-Wahdat (court book, pages 69-70 [6]).
d)
After his departure the applicant’s father was captured by the Taliban and was forced to work for them. In particular, he was made to announce himself at the doors of private homes.

When the door was opened the Taliban would barge in and “raid” the homes, in particular committing sexual assaults on women. As a result members of his family were accused of siding with the Taliban, and they were assaulted when the Taliban departed. They fled to Iran (court book, page 70 [7]-[9]).
e)He would also be persecuted for his sojourn in Australia, which would lead to his being accused of associating with foreigners and even conversion to Christianity. The applicant is sure that one former refugee applicant had been killed because he had returned from Nauru (court book, page 70 [10]).
f)Nor does the applicant believe in religion any more. He does not go to the Mosque, or pray or fast, and he drinks alcohol (court book, page 70 [11]).
These claims were repeated in an interview with an officer of the Department of Immigration on 1 July 2004 (court book, pages 79-81).
The application was rejected on the 30 July 2004 (court book, pages 89-103). The applicant applied for review on 12 August 2004 (court book, pages 105-109). He was invited to an oral hearing pursuant to s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) on 15 October 2004 (court book, page 111).
Prior to that hearing on 4 October 2004 the applicant lodged a further statutory declaration in which he elaborated on his current problems in Afghanistan. In particular, he explained the actions of his father who was forced to assist the Taliban, and his rejection of Islamic belief and rituals (court book, pages 116-118). This was followed by a detailed, albeit generic, submission on the current situation in Afghanistan by the applicant’s solicitor dated 8 October 2004 (court book, pages 129-210).
At the RRT hearing the following exchange occurred as to the applicant’s fears stemming from his father’s forced cooperation with the Taliban (transcript, page 11):
INTERPRETER:   The Taliban were collecting taxes from me and they were beating me and they detained me and that's why I fled the country.
PRESIDING MEMBER:   I understand that and that is why, I think - and that would be known locally, and therefore it's hard to see that the local people or your neighbours would suspect you of being a Taliban supporter, or that they would harm you for that reason on return.
INTERPRETER:   They will harm me because of my father.
PRESIDING MEMBER:   But not because they think that you are a Taliban supporter, but because their families have been harmed as a result of your father's activities.
INTERPRETER:   Yes.
PRESIDING MEMBER:   If it's because of what he did and not because they regard him or you as having some political opinion, then it's not for a convention reason or covered by the convention.
INTERPRETER:   Okay.
PRESIDING MEMBER:   That's what I have to - one of the things I have to think about and it may be something that your adviser may wish to address in a subsequent submission.
The RRT member returned to that issue at page 15 of the transcript, suggesting that the solicitor may wish to look at it from the standpoint of a “particular social group” (lines 20-32).
Various other pieces of correspondence, including submissions, were exchanged before the RRT decision was handed down.

The RRT decision

After stating the claims and evidence, and citing a number of sources (court book, pages 267-70) the RRT identified the, “Circumstances in connection with which the applicant was recognised as a refugee” as being that Afghan Hazaras were subject to persecution by the ruling Taliban (court book, page 271.2)
It then referred to the current situation in Afghanistan, being that the Taliban were removed from power in Afghanistan in 2002, and that although remnants of the Taliban remain active, it no longer exists as a “coherent political movement”. The RRT did not accept that the Taliban could re-emerge as governing authority in Afghanistan in the reasonably foreseeable future, or otherwise be in a position to persecute Hazaras as it had done at the time that the applicant had left Afghanistan. It conceded that the Taliban were targeting aid workers, government officials and international forces, but was of the opinion that this did not of itself give rise to a real chance of persecution for a Convention reason (court book, page 271). Therefore, said the RRT, Article 1C(5) applies (court book, page 271.7).
The RRT reached the same conclusion regarding s.36(3) of the Migration Act – that the applicant did not have a current well-founded fear of persecution for a Convention reason and had not taken all possible steps to avail himself of the protection of Afghanistan.
The RRT moved on to consider the applicant’s new claims, three of which are relevant to this proceeding.
First, it considered the claim that the applicant would be in danger because of his father’s activities in assisting the Taliban. Despite some difficulties with the facts, the RRT was:
…prepared to accept for the purposes of this decision that some such incident did occur on at least one occasion, and that the family affected wish to take revenge on the Applicant’s father and that this may flow on to difficulties for the Applicant himself on return to their village. (court book, page 273.7)
It then addressed the question of whether such “difficulties” would be for a Convention reason. It thought that the context – that given the problems that the family had had with the Taliban they would not be thought of as willing collaborators, and would not be identified as Taliban supporters. In the circumstances the RRT was satisfied that the animus directed at the applicant’s father and which may affect the applicant himself by extension, would not be for reason of political opinion.
Secondly, the RRT examined the claim that he had spent three years in Australia, had drunk alcohol and had forgotten how to pray. It stated:
The Applicant does not claim to have converted to Christianity or to be anti-Islamic. The Tribunal is aware of no evidence (and does not accept) that Afghan fundamentalists (whether Taliban or other) regard persons who have sought asylum in Western countries such as Australia as Christian converts or have been targeting them for that reason … . Material provided by the Applicant’s adviser related to converts or others promoting views actively opposed to Islam. The Tribunal does not accept that the Applicant would be in this position or that he would be persecuted simply because he does not attend the mosque. The Tribunal is not satisfied that the Applicant’s beliefs and practices are now such that he would be persecuted for that reason on return. Nor is it claimed that any belief or innate characteristic compel the Applicant to drink alcohol on return. (court book, pages 276 – emphasis added)
Thirdly, at court book, page 276. 7 the RRT summarised the claim that the applicant faced danger as a member of a particular social group categorised three ways. What these categories have in common is that they rely on the posited member having returned from abroad. On this issue the Tribunal accepted:
… the adviser’s submission that extortion would be directed at people who are perceived to have money, and this would include (although it is clearly not confined to) persons returning from overseas in general and Western countries in particular. However, this does not of itself reveal a Convention-related motive or equate to persecution for a Convention reason.

The judicial review application

The applicant relies upon an amended application filed in court by leave on 19 July 2006. That application raises the following grounds:
1.The Tribunal committed jurisdictional error by misunderstanding the meaning and effect of Article 1C(5) of the Refugees Convention, asking the wrong questions, failing to ask the right questions and in failing to test the applicant’s claims against the statutory criteria.
Particulars
a)The Tribunal erroneously considered that cessation of refugee status in Article 1C(5) was established when a person who had been recognised as a refugee no longer had a well founded fear of persecution for the reason for which he has been so recognised.
b)The Tribunal should have held that the cessation of refugee status in Article 1C(5) was established only when the danger to the applicant, stemming from the reasons for which he or she was recognised as a refugee, and also those circumstances stemming from and surrounding such recognition, had ceased to exist.
c)The Tribunal erroneously interpreted Article 1C(5) as being satisfied in circumstances where there had simply been,
a)      a change of political power in Afghanistan, and
b)      a change in the balance of military power in Afghanistan.
d)The Tribunal should have asked itself and considered whether,
i)       The Taliban have changed their ideology and beliefs to the extent that Hazaras are no longer considered to be heretics, and
ii)      (ii)     The Taliban are still militarily capable to attacking Hazaras.
2.The Tribunal purported to apply sub section 36(3) of the Migration Act in circumstances where, on its proper construction, that sub section has no application.
3.The Tribunal, on the information before it and on the facts which it found as to the applicant’s father’s assistance to the Taliban, failed to consider whether the applicant faced a well founded fear of persecution for reason of a particular social group being comprised of his father’s family.
4.The Tribunal failed to consider according to law the applicant’s claim to have a well founded fear of persecution for reason of his secular beliefs and activities.
5.The Tribunal based its decision on a fact of which there was no evidence.
Particulars
a)The Tribunal stated that, “Material provided by the Applicant’s adviser related to converts or others promoting views actively opposed to Islam”, whereas,
b)That material related to people who engaged in non Islamic and secular activities, and was not limited to converts of people promoting views opposed to Islam.
6.The Tribunal failed to ask itself relevant questions, those being,
a)whether the applicant belongs to a “particular social group” comprised of ‘Afghans (or Afghan Hazaras) who have returned from the west after a long absence’, or ‘secularised or westernised Afghans’, and if so,
b)whether he would be persecuted as a member of that “particular social group”.

The evidence

I accepted as evidence in this proceeding the court book filed on 5 May 2005 and the affidavit of Elizabeth Biok made on 3 July 2006 and filed on the same day. The affidavit of Ms Biok introduces a transcript of the hearing conducted by the RRT on 15 October 2004.

Submissions

Mr Karp, on behalf of the applicant, made the following written pre‑trial submissions:
The Article 1C(5) and s.36(3) issues
On these issues this case is materially identical to NBGM v Minister for Immigration [2006] FCAFC 60. In that case s 36 Migration Act was held by the majority to require consideration of whether an applicant had a current well founded fear of persecution for a Convention reason. Although that majority was comprised of two minorities (i.e. the opinions of Black CJ and Mansfield J on s 36(3) Migration Act, and Stone J who was alone in her interpretation of Article 1C(5) of the Refugees Convention), the actual decision in NBGM is binding on this Court (TPC v Abbco Iceworks Pty Ltd (1994) 52 FCR 96, 113F per Burchett J[1].
On 19-20 June 2006 the High Court heard NBGM’s special leave application, which was agued as if it was an appeal concurrently with the substantive appeal in Minister for Immigration v QAAH. The applicant formally and protectively submits that the majority of the Full Court in NBGM was wrong.
(ii)The activities of [the applicant’s] father on behalf of the Taliban
[1] Black CJ (at 99), Davies J (at 99) and Gummow J (at 130) agreed with Burchett J.
The part of the Tribunal hearing extracted at para 9 above clearly raised the issue of whether the applicant’s father’s activities put him in danger of persecution for reason of membership of a particular social group being his family. As stated above the Tribunal itself raised the issue (at transcript p. 15), and although it must be said that [the applicant’s] solicitor did not pursue that issue in written submissions (e.g. at CB 234), nor did the solicitor abandon it.
The Tribunal’s failure to consider the “particular social group” issue demonstrates jurisdictional error. While an administrative decision maker is under no duty to consider a factual case that is not put (e.g. Dranichnikov v Minister for Immigration (2004) 77 ALJR 1088; NABE v Minister for Immigration (2004) 144 FCR 1), it is the Tribunal’s duty to apply the law to the facts. If the facts raise a legal issue not canvassed by the applicant, it remains the Tribunal’s duty to assess that issue (Minister for Immigration v Sarrazola (2001) 107 FCR 184 at [42] and the authorities there cited).
Nor does s 91S, referred to by the Tribunal at hearing, assist the Minister. The persecution of [the applicant’s] father was quite plainly because of his ethnicity and religion, and therefore that section does not apply.
(iii) Secularisation
The section of the Tribunal decision [extracted at paragraph 19] above does not address the relevant part of [the applicant’s] claim. That claim is that,
·    He has lived in a western country,
·    He has lost his belief in Islam,
·    He does not pray any more,
·    He does not fast,
·    He drinks alcohol.
It is only in the combination of these factors that the claim emerges, and that claim is that claim is to the effect that [the applicant] has ceased being a religious Muslim, has abandoned his religion and has become secular. The Tribunal’s approach, in the extract at paragraph 18, is to take some of the component parts of the claim separately. It conveniently ignores the claims that [the applicant] no longer fasts and does not pray, in the mosque or anywhere else, and its failure to deal with the factual claim as put is jurisdictional error (see e.g. Htun v Minister for Immigration (2001) 194 ALR 242 at [42]).
Moreover, the sentence [highlighted in the extract at paragraph 19 above] is demonstrably incorrect. Information provided by the applicant’s solicitor especially at CB 163-6 and 176 refers specifically to secularisation of Afghan society and describes the theological vice gripping that society. The Tribunal has relied on a statement for which there is no evidence to ground an integral part of its decision (VOAO v Minister for Immigration [2005] FCAFC 50; SFGB v Minister for Immigration [2003] 77 ALD 402).
(iv) Extortion
The part of the Tribunal’s decision extracted at paragraph 19 above is infected by jurisdictional error because the Tribunal fails to realise that if a person,
a)is a member of a “particular social group” (that is a group identifiable by a common characteristic (not being a shared fear of persecution) which distinguishes the group from society at large (Applicant S v Minister for Immigration (2004) 217 CLR 387), and
b)is persecuted because he is identified as a member of that “particular social group”,
he is being persecuted for reason of his membership of the “particular social group” whether or not others are being persecuted in the same way.
In this case the Tribunal was diverted from the path of legality by its finding that others perceived to have money would also be the targets of extortion. As a result it simply failed to ask itself the relevant questions – whether the applicant belongs to a “particular social group” so described, and whether he would be persecuted as a member of that “particular social group”.

Mr Karp expanded upon these submissions orally at trial.
Mr Lloyd, for the Minister, made the following written pre-trial submissions upon which he also expanded upon orally at the trial:
Article 1C(5) and s 36(3)
The applicant’s submissions in relation to these points are formal. It is accepted that unless the High Court overturns the decision of the Full Court of the Federal Court in NBGM v Minister for Immigration and Multicultural Affairs [2006] FCAFC 60, the applicant’s case based on these grounds must fail.
The activities of the applicant’s father on behalf of the Taliban
The applicant claimed to fear harm from other Hazara families because of what his father did on behalf of the Taliban after the applicant had left Afghanistan.
At the hearing, as the applicant has fairly indicated in his submissions, the Tribunal put to the applicant that if he faces harm because of what his father did and not because of his or his father’s political opinions, the harm would not be for a Convention reason. The applicant appears to have agreed with this proposition.
Later, the Tribunal invited the applicant to consider whether he wished to make a particular social group claim in this regard. No such claim was made at any point.
The applicant now says that the Tribunal erred by failing to consider a claim that he was invited to formulate but declined to do so. Neither NABE nor Sarrazola suggest that the Tribunal is under a duty to consider a claim that is invited but not pursued.
In any event, contrary to the applicant’s submission before this Court, it is self-evident that any harm the applicant might face from the Hazaras that his father played a part in harming would not be for reasons of his ethnicity or religion.
As a consequence, given s 91S of the Migration Act, a particular social group claim could have had relevance only if the applicant faced harm by reason of his membership of his family, who faced harm for a Convention reason. The only one posited by the applicant was imputed political opinion. This was considered and rejected by the Tribunal.[2]
[2]     court book, page 274
In these circumstances, the Tribunal implicitly considered and rejected any social group claim based upon membership of his family.
Secularisation
Under this heading, the applicant advances two arguments. First, it is said that the Tribunal failed to address his claims relating to his non-observance of Islamic practices or abandonment if Islam.
At CB 262.9, the Tribunal noted the first form of his claim:
The Applicant stated that while in Afghanistan he was a practising Shia, in Australia he does not care about Islam anymore and does not pray or fast and he drinks alcohol. If he returned he would be called an infidel because he has been in a Western country and people know we do not pray here.
At CB 263.6, the Tribunal fairly[3] summarises his claim made at the hearing:
[3]     See transcript, page 4 (36-42)
Secondly, he has been in Australia more than three years where he had drunk alcohol and had not followed his religion, and if he returns the local Hazaras will say he has abandoned his religion and is non-observant and they will kill him.
At CB 264.9-265.1, the Tribunal summarises a discussion of this claim that occurred at the hearing:
The Tribunal queried how persons in Jaghori would be aware whether or not the Applicant had been attending the mosque or drinking alcohol while in Australia. The Applicant replied that that they would know because he had lived here for a period of time and uses some English words when he talks. It has been a long time and he has forgotten how to pray and if he goes and cannot pray they will know. The Tribunal noted that it had seen no reliable reports of persons being targeted on return to Afghanistan for that reason.
It may be noted that this last comment was made by the Tribunal at the hearing after it had received the applicant’s submissions, which he now seeks to rely upon as being relevant.
He was given an express opportunity at the hearing to direct the Tribunal to any relevant material (a hearing attended also by the applicant’s solicitor) and he indicated that he could not make any comment.[4]
In addition to fairly summarising the applicant’s claims, the Tribunal then addressed them, at CB 276.3:
When questioned at hearing about his stated concern that he would be harmed on return by local Hazaras who will regard him as non-observant because he had lived for three years in Australia, the Applicant stated that he had drunk alcohol and had not attended worship in Australia. They would know he had been non-practising because he had forgotten how to pray during the three years out of Afghanistan. The Applicant does not claim to have converted to Christianity or to be anti-Islamic. The Tribunal is aware of no evidence (and does not accept) that Afghan fundamentalists (whether Taliban or other) regard persons who have sought asylum in Western countries such as Australia as Christian converts or have been targeting them for that reason of that non-Muslims are generally targeted and persecuted in Afghanistan. Material provided by the Applicant’s adviser related to converts or others promoting views actively opposed to Islam. The Tribunal does not accept that the Applicant would be in this position or that he would be persecuted simply because he does not attend the mosque. The Tribunal was not satisfied that the Applicant’s beliefs and practices are now such that he would be persecuted for that reason on return. Nor is it claimed that any belief or innate characteristic compel the Applicant to drink alcohol on return. (counsel’s emphasis retained)
[4]     Transcript, page 12 (11)
This passage deals comprehensively with the Applicant’s current “beliefs and practices”. It is not open to this Court to find that the Tribunal failed to address claims it fairly summarised and then expressly addressed.
The Applicant’s second ground under this heading is that the underlined sentence is “demonstrably incorrect”. This is a surprising submission because it is quite obvious, even from the passages relied upon by the Applicant in his submission to this Court, that the material provided by the Applicant’s adviser did at least in part relate to converts and anti-Islamic attitudes.
The Applicant’s argument seems to assume (wrongly) that the Tribunal was saying that this was the totality of the content of the material provided. That is, however, not what the Tribunal said and so to disprove something that was not said does not achieve anything (nor is it accepted that it was disproved anyway).
In context, the Tribunal was at that point addressing one aspect of the Applicant’s claim in this regard, namely whether he faces fear of persecution simply by having sought asylum in the West. The Tribunal said that it was not aware of information to that effect – the information provided by the Applicant did not go that far. The Tribunal then addresses his risk if he does not attend the mosque and then addresses risks as a result of his current beliefs and practices.
There is no error in the Tribunal’s approach.
The present case is readily distinguishable from VOAO and SFGB. In any event, in relation to the former, no concession is made in this case that a mere absence of evidence to support a factual conclusion amounts to a jurisdictional error: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, at 9.
Extortion
Finally, the Applicant contends that the Tribunal should have determined whether he was a member of one of the particular social groups nominated and, if so, whether he would be persecuted by reason of his membership of that group.
The Tribunal noted the nominated groups but found that any extortion he may face would not be by reason of his membership of those groups but because he may be perceived to have money.[5] This is consistent with long established authority: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565; Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at 52; and Mohamad v Minister for Immigration & Multicultural Affairs [1999] FCA 688 at [30].
[5]     court book, page 276.8
I discussed with counsel at the trial whether I should consider, as an alternative to the no evidence argument, the question of whether the RRT overlooked relevant material contained in submissions made to the RRT by the applicant’s representative: see VAAD v Minister for Immigration [2005] FCAFC 117. Counsel agreed to consider this issue and make any necessary additional submissions within one month.
Mr Karp made the following additional submissions which were filed on 25 July 2006.
a)VAAD concerned a RRT decision where an adverse conclusion was reached as to the appellant’s credit because the RRT did not realize that a particular document had been submitted to the Department several years before a copy was given to the RRT. The RRT found that the document was a recent invention.
b)The Court found, at [77] that the RRT failed to consider a document that was personal to the appellants, particularly the first appellant, and critically important to their case. It was not, “… so insignificant that failure to take it into account could not have materially affected the decision”, citing Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 40 per Mason J.
It was thus relevant material, and since it had not been considered the RRT had committed jurisdictional error.
c)It may be noted that in Peko-Wallsend Mason J said that that which must be considered, if not expressly stated, must be determined by implication from the subject matter, scope and purpose of the Act (at 39-40). The Migration Act provides, amongst other things, for the procedures which should be adhered to by delegates and the two Tribunals.
d)In that respect s 423 permits both the applicant and the Secretary of DIMA to give written arguments to the RRT. In my submission there is a clear and obvious implication that once that material has been submitted it must be considered (see e.g. Singh v Minister for Immigration [1999] FCA 1234 (Mansfield J)). This conclusion is entirely consistent with the statement, in SellamuthuvMinister for Immigration (1999) 90 FCR 287, 292 [19], that “… all of the substantial claims, and information in support of them, put forward by an applicant must be considered[6].”
e)In this case the paragraph at court book, page 276 commencing six lines from the top of the page is intended to address the claim as to what might broadly be called the applicant’s, ‘secularisation’, or his abandonment of Islam. That paragraph does not refer to, or indeed demonstrate any specific knowledge of the evidence of danger to people leading a secular (that is not strictly Islamic) lifestyle. Indeed, the sentence, “Material provided by the applicant’s adviser related to converts or others promoting views actively opposed to Islam”, which, when read in context is intended to address the claim and dispose of the applicant’s solicitor’s submissions ignores substantial proportions of them that are directly relevant.
f)In those circumstances [counsel submits] that the RRT has indeed failed to consider relevant material. This submission fits comfortably within Ground 4 of the existing amended application.
[6] Reference in original.
Mr Lloyd made the following additional submissions which were filed on 4 August 2006:
In the applicant’s supplementary submissions, the applicant seeks to rely upon the decision in VAAD in support of a ground said to be constituted by a failure to have regard to relevant considerations. It is said that the Tribunal was bound to have regard to the applicant’s submission and the country information provided by him and that the Court should infer that it did not have regard to it.
Before turning to the facts of the case, it must be observed that it is not a jurisdictional error for a Tribunal to overlook some item of evidence provided by an applicant (whereas the overlooking of an integer of a claim will generally indicate jurisdictional error). See, for example, the Full Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [25]-[28]:
Failure to take account of relevant information
25 The relevant information was that the appellant said he had received twenty five days of training in the Guards Battalion. It is said that the Tribunal did not have regard to this. There is an initial difficulty about this contention. In his statutory declaration the appellant said he had an initial period of training lasting about ten days, and a later period of fifteen days. At the hearing the Tribunal referred to the declaration on several occasions. There is no doubt that it was familiar with its content. The lengthy exchanges between the Tribunal and the appellant and his adviser are predicated on the material in the declaration. It is true that in its reasons the Tribunal does not refer to the appellant’s claim that he received about twenty five days training. However, in its recitation of the claims and evidence, based in part on the statutory declaration, the Tribunal referred to the training the appellant had received after joining the Guard Battalion. In those circumstances it is difficult to accept that the Tribunal did not have in mind the training he said he had received, especially when it recorded country information that members of the Guard Battalion normally received only five days training.
26 In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 231:
"does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account."
This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].
27 In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] a Full Court said:
"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason."
28 The relevant contention or issue before the Tribunal concerned the integration of the Guard Battalion with the Sri Lankan Army. That matter was squarely addressed. Assuming that the Tribunal overlooked the training evidence (which, as we have said, is a large and difficult assumption to make), that was but a failure to advert to evidence which, if accepted, might have led it to make a different finding of fact: cf WAEE above. It is not a jurisdictional error to make a wrong finding of fact. However, as we have said, we do not accept that the Tribunal overlooked the training evidence. It may well be that it did not dwell on it because it considered it irrelevant to the question whether the Guard Battalion was integrated into the Army in the relevant sense. If that is the reason, we think it well based.
In any event, this Court should not find that the applicant’s submission was not considered. First, the submission containing the relevant country information was expressly mentioned and its content noted (CB 263.4).
Secondly, the subject of that submission was discussed at the hearing and summarised in the Tribunal’s reasons (CB 263.6, 264.9-265.1).
Thirdly, in the relevant discussion at the hearing, the Tribunal indicated that it had seen no reliable reports of persons targeted on return to Afghanistan from Australia for “that reason” (“that reason” being a reference to the applicant’s loss of interest in Islam and inability to pray). The applicant said that he had no comment, nor did the adviser have a comment on this. The inference is that the applicant had considered the relevant submission (provided a week before the hearing) but did not see it as supportive of this issue.
The Court should not conclude that the Tribunal failed to have regard to it. The inference is that the Tribunal did not see the material provided as cogent on the critical issue, namely whether the applicant would face harm as a result of his current practices.
Finally, the Tribunal, after having accurately summarised the applicant’s current practices and beliefs said that it “was not satisfied that the Applicant’s beliefs and practices are now such that he would be persecuted for that reason on return”. (CB 276.4)
The applicant may not like the Tribunal’s conclusion. It may or may not be factually correct. However, mere error of fact is not jurisdictional error.

Reasoning

The Court is faced with apparently irreconcilable decisions of the Full Federal Court in QAAH of 2004 v Minister for Immigration [2005] FCAFC 136 and NBGM v Minister for Immigration [2006] FCAFC 60. In QAAH, the majority found that the RRT erred in giving too limited consideration to the issue of cessation of protection for the purposes of Article 1C(5) of the Convention. In particular, at [76] Wilcox J said:
In the passage in its reasons quoted at para 18 above, the Tribunal accepted ‘that remnants of the Taliban remain active in Afghanistan’. The Tribunal seems also to have accepted the appellant’s claims that ‘Afghanistan is still unstable’ and that ‘the interim government is unable to protect [him]’. It noted the appellant’s claim of a well-founded fear of persecution, at the hands of the Taliban or factions of the Interim Authority – apparently factions sympathetic to the Taliban - and various warlords and governors. However, all this was put aside because the Tribunal limited the circumstances underlying the March 2000 recognition to the fact that the Taliban was then in government, or at least ‘a governing authority’. That limitation was unjustified and it resulted in the Tribunal failing to give proper consideration to the issue it was required to determine.
Then, in NBGM a majority found that a similar decision of the RRT involved proper consideration of the well-foundedness of the applicant’s fear of perseuction at the time of the RRT decision, for the purposes of s.36(3) of the Migration Act. At [25] Black CJ said:
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.

I accept that this Court must follow the most recent pronouncement of the principles applicable to a cessation of protection case in NBGM.
In the present case, the presiding member noted that the applicant was recognised by Australia as a refugee in September 2001 on the basis of his fear of the Taliban and, after referring to an optimistic US State Department assessment about the general situation in Afghanistan, also noted country information from the Danish Immigration Service that, while the Taliban no longer exists as a powerful movement there are groups who have been closely associated with the movement and who now constitute a security problem and engage in activities, particularly in the south east of Afghanistan. The Danish report stated that there are some elements, who have been closely affiliated with the Taliban throughout the country, and there continue to be attacks by radical fundamentalist forces[7]. The presiding member also noted country information that Hazaras have been widely regarded as second class citizens in Afghanistan and during times of conflict have been particularly vulnerable. Some extremist movements of Sunni Islam such as the Taliban have regarded Hazaras as heretical because of their Shia beliefs, and their physical distinctiveness has made them easy targets for such groups[8]. Nevertheless, in his findings and reasons the presiding member said:
The circumstances in connection with which the Applicant was originally recognised as a refugee in 2001 were essentially and explicitly (as found by the delegate) that Afghan Hazaras were subject to persecution by the ruling Taliban.
However, independent evidence cited above, which the Tribunal accepts, indicates that the Taliban were removed from power in Afghanistan by mid-November 2001. The Tribunal accepts that remnants of the Taliban remain active in Afghanistan, including in some part of Ghazni province, but the independent information cited above indicates the Taliban no longer exists as a coherent policitial movement. While these armed remnants may cause security problems for the Government and for US troops engaged in combating them, it is now three years since the Taliban was removed and the Tribunal does not accept that there is any real chance of the Taliban re-emerging as a governing authority in Afghanistan in the reasonably foreseeable future or otherwise be in a position to exercise control in the manner it did at the time the Applicant left Afghanistan, for example by arresting and/or conscripting Hazaras.
Continuing terrorist acts against foreign aid workers, government officials and government and international forces by Taliban remnants – and consequent military operations against Taliban elements – does not of itself give rise to a real chance of persecution of the Applicant for a Convention reason.
On the basis of all the material before it concerning the circumstances in connection with which the Applicant was recognised as a refugee, the Tribunal finds that he can no longer continue to refuse to avail himself of the protection of Afghanistan because those circumstances have ceased to exist. Therefore, Article 1C(5) of the Convention applies to the Applicant. In other words, in relation to those circumstances, the Tribunal is satisfied that, as at the date of its decision, the Applicant does not have a well-founded fear of being persecuted for a Convention reason if he returns to Afghanistan.
The Tribunal reaches the same conclusion having regard to s.36(3) of the Act. As explained above, if a previously recognised refugee no longer has a well-founded fear of being persecuted in his or her country of nationality for one or more of the Convention reasons, and has not taken all possible steps to avail himself or herself of a right to enter and reside in that country, s.36(3) will apply, irrespective of the operation of the cessation clauses. The Tribunal finds s.36(3) will apply, irrespective of the operation of the cessation clauses. The Tribunal finds that, as a national, the Applicant is able to avail himself of a right to enter and reside in Afghanistan and that, having regard to the changed circumstances since he was recognised as a refugee, he no longer has a well-founded fear of being persecuted in that country because of the circumstances in connection with which he was so recognised. It follows that s.36(3) applies in relation to those circumstances[9].
[7] court book, page 268
[8] court book, page 269
[9] court book, pages 271-272
The passage of time has not been kind to the presiding member’s assessment of the risk posed by the Taliban and other fundamentalist Islamic insurgents in Afghanistan. If we are to believe media reports about circumstances currently in Afghanistan, the Taliban is resurgent, at least in the south and south east of the country and a struggle continues against other insurgents in the mountainous east.

The international community continues to support military intervention by foreign forces in Afghanistan to support the Afghan government of President Hamid Karzai and to provide peace and security for the people of Afghanistan. Recently, there have been media reports that countries participating in that military intervention have felt compelled to send additional troops to deal with a deteriorating security situation. This tends to suggest that the Taliban is far from a spent force and that the international community’s goal of providing peace and security within Afghanistan is as yet not achieved. In the circumstances, one is tempted to ask the rhetorical question: If it is now safe for persons afforded refugee status to return to Afghanistan, why are foreign forces still there and increasing in number?
The presiding member in this case did not speculate on that issue.

He did not consider what would happen if and when the foreign forces are withdrawn. The presiding member relied upon generally optimistic assessments of the security situation, drawn particularly from, but not limited to, the US State Department.
It will be apparent from the foregoing that I have some concerns about the RRT’s assessment in this case of the well-foundedness of the applicant’s continuing fear of the Taliban in Afghanistan. In particular, I am concerned that the RRT gave no serious consideration to the threat posed by the Taliban as non state agents following their removal from government and the capacity of the new Afghan government to provide effective state protection against that threat. I am also concerned that the presiding member’s reasoning was influenced by the information derived by the assessment of the US State Department in February 2004 about the general situation in Afghanistan.
There is often much to admire in the assessments made by officers of the executive government of this country of protection claims, including recently in circumstances of great political sensitivity. However, the assessment of refugee claims by the officials of a host state in circumstances where the host state is engaged in military operations in the country from which the claimant has fled poses particular difficulties. In my view, the problems become insuperable where decision makers place reliance upon the assessments of the major protagonists in an ongoing military conflict. That is not to say that reliance upon dubious assessments constitutes an error of law, let alone a jurisdictional error. It does, however, point to a risk that such reliance may indicate a loss of objectivity, even an apprehension of bias.
In the present case, in relation to the first ground of review, the applicant proceeds upon the basis that I am bound by the decision of the Full Federal Court in NBGM, at least pending the outcome of further consideration by the High Court of the issues relating to the application of Article 1C(5) of the Convention and s.36(3) of the Migration Act in cases such as the present. The applicant contends that NBGM was wrongly decided but that contention is a mere formality, given that I am bound by that decision. The first ground of review would succeed upon the basis of the reasoning of the majority in QAAH, but the parties appear to have proceeded upon the basis that the opposite result would necessarily follow on the basis of the reasoning of the majority in NBGM.
I do not accept that assumption. While it is hypothetically possible that different outcomes might result from the application of either Article 1C(5) or s.36(3) to a particular case, it is equally possible that the same result might be achieved. The outcome depends upon the facts of the particular case. There are several difficulties in applying the decision of the Full Federal Court in NBGM. The first is that there is limited discussion in the judgments about the facts of that case, especially the basis upon which the applicant in that case claimed and was granted a protection visa. The most detailed discussion about the facts is to be found in the judgment of Stone J at [73]-[76]. Her Honour appears to have proceeded on the basis that the applicant’s protection visa claims had been accepted. As will become apparent, that is a point of distinction from this case.
The second problem is that the majority did not agree on their reasoning. They only agreed on the outcome. To the extent that any ratio decidendi can be drawn from the majority judgments in NBGM it is to be found in the judgment of the Chief Justice at [25] quoted above. It is important to read carefully what the Chief Justice says in that paragraph. It is important in particular to consider the final sentence:
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 my view, it follows from the reasoning of the Chief Justice that it is not sufficient to deny a protection visa because of the circumstance that a previous decision maker was satisfied that the applicant had a certain fear when a temporary protection visa was granted and that circumstances had changed, if the basis upon which the protection visa was granted was a more limited basis than the basis upon which the visa was claimed and continues to be claimed. Decision makers must deal with protection visa claims on the basis that they are put, whether the consideration relates to an extension of a temporary protection visa or an initial application. Decision makers are not entitled to limit their consideration to a narrow basis for protection when the protection visa claims are put on a wider basis[10].
[10] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [75] per McHugh, Gummow and Hayne JJ
In the present case, the applicant’s original protection visa claims are relevantly set out on pages 26 and 27 of the court book. The applicant claimed to fear persecution by the Taliban, not by the Taliban in government. The Minister’s Department wrote to the applicant on 20 September 2001 to advise him that he had been granted a temporary protection visa and provided a record of the reasons for the decision[11]. The delegate noted that the applicant claimed he fears persecution by the Taliban and is afraid to return to Afghanistan[12]. The delegate noted that there were some inconsistencies and implausibilities in the applicant’s specific claims that led her to have “serious reservations as to the veracity of those claims”. However, she accepted that the applicant is an Afghan citizen of Hazara ethnicity and country information suggests that Hazaras in Afghanistan had been subject to persecution “by the ruling Taliban”[13]. It was on that basis that the delegate accepted that the applicant’s fear of persecution was well‑founded. In other words, the decision to grant temporary protection was on a narrower basis than the applicant had claimed.
[11] court book, pages 28-31
[12] court book, page 30
[13] court book, page 31
The applicant maintained essentially the same claims in his second protection visa application[14]. In other words, the applicant continued to claim not a fear of the Taliban in government but a fear of the Taliban. The applicant later augmented his claims[15] but he did not retreat from his asserted fear of the Taliban.
[14] court book, pages 58-59
[15] court book, pages 69-70
Seen in this light, it does not matter whether the consideration of the applicant’s claims was governed by Article 1C(5) of the Convention or s.36(3) of the Migration Act. Even on the basis of the reasoning of the Chief Justice in NBGM the exercise of power by the RRT in this case miscarried. That is because the presiding member did not consider the applicant’s claim of fear of the Taliban on the basis that it was put[16]. Rather, he considered that claim on the basis on which temporary protection had previously been granted by the delegate. The presiding member asked himself the wrong question[17]. The question was not on what basis had temporary protection been granted and had circumstances changed? The question was, what did the applicant claim to fear and did there remain a well-founded basis for that fear?
[16] Minister for Immigration v Yusuf op cit
[17] Craig v State of South Australia (1995) 184 CLR 163 at [179] per Brennan, Deane, Toohey, Gaudron and McHugh JJ
The passage from the RRT reasons quoted above at [32] shows, in my view, conclusively that the RRT fell into error by directing its consideration to the limited basis upon which temporary protection had been granted rather than the more general basis upon which protection had been sought. The final paragraph in the quoted section from the RRT decision shows that the presiding member applied the same reasoning to the application of s.36(3) of the Act as he did to the application of Article 1C(5). As is apparent from the reasoning of the Chief Justice in NBGM this was the wrong approach. The RRT needed to consider the applicant’s claims on the basis that they were put, by reference to the guidance provided by s.36(3) of the Migration Act. The RRT could not narrow its consideration to the more limited basis upon which temporary protection had been granted.
The error made by the RRT was fundamental and I have no doubt that it constitutes jurisdictional error. In consequence, the applicant is entitled to receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
It is strictly unnecessary to consider the remaining grounds advanced by the applicant. For completeness, however, I should record that I accept the Minister’s submissions in relation to ground 3.
The obligation on the RRT was to consider the applicant’s claims as they were put. There was no obligation on the RRT to consider a claim that the applicant might have put but did not. The RRT did consider the applicant’s claim that he would be harmed because he would be imputed with the political opinion believed to have been borne by his father because of his actions. That claim was considered and rejected. I see no error in the approach taken by the RRT.
Conversely, I agree in part with the applicant’s submissions in relation to grounds 4 and 6. The RRT made two errors in dealing with the applicant’s claims of secularisation. The first error was to consider separately the elements of this claim but not to consider the cumulative impact of the various elements of the claim[18]. The cumulative impact of the applicant’s claim of secularisation was that he presented as a person who had abandoned both his religion and his traditional Afghan culture. He had been “westernised” by his experiences in Australia. The RRT needed to consider the cumulative impact of the various elements of this claim in order to determine whether the applicant would face a serious risk of harm in a conservative and deeply religious society as one who had become an outsider by abandoning his religious beliefs and cultural attitudes.
[18] MZWPD v Minister for Immigration [2006] FCA 1095 at [69]
The second error made by the RRT was to assume that the applicant could be expected to modify his behaviour should he return to Afghanistan[19]. In relation to the applicant’s claim that he would face harm as a consumer of alcohol the presiding member said:
Nor is it claimed that any belief or innate characteristic compel the applicant to drink alcohol on return.
[19] see Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
This statement betrays an assumption that the applicant could be expected to refrain from drinking alcohol on his return. In other words, the applicant could be expected to give up the western lifestyle he had assumed in Australia in order to fit back in into the conservative religious society he came from in Afghanistan. That was an impermissible assumption.
I reject the fifth ground of review for the same reasons as are advanced in the Minister’s submissions. There was evidence for the finding that material provided by the applicant’s adviser related to converts or others promoting views actively opposed to Islam. That evidence was in the material provided. It did relate to such people. It did not only relate to such people but the RRT did not make that finding.
The material also made reference to the situation of westernised returnees who are not necessarily actively opposed to Islam.
The presiding member did not make express reference to that aspect of the material. He would probably have been unable to avoid referring to that aspect of the material if he had not fallen into the error of failing to consider the cumulative impact of the various elements of the claim of secularisation and if he had not fallen into the further error of assuming that the applicant could revert to a more traditional lifestyle. However, the no evidence ground of review fails.
Costs should follow the event in this case. Substantial preparation by both solicitors and counsel was required and, in addition, I sought and received post hearing submissions from counsel. This case properly calls for a costs order fixed in the sum of $6,000.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 September 2006