W250/01A v Minister for Immigration and Multicultural Affairs

[2002] FCA 400

FEDERAL COURT OF AUSTRALIA

W250/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 400

MIGRATION – refugee – refusal of protection visa – application for review of Refugee Review Tribunal decision – applicant Afghani of Tajik ethnicity – former bodyguard to Jamiat-i-Islami commander – whether real risk of persecution if returned to Afghanistan – whether persecution needs to be specifically targeted – whether Tribunal erred by failing to consider relevant material

Migration Act 1958 (Cth) ss 5, 36(2), 65, 414, 476

Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274 applied
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 applied
Minister for Immigration & Multicultural Affairsv Haji Ibrahim (2000) 204 CLR 1 applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied
Abebe v Commonwealth (1999) 197 CLR 510 applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

W250/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W250 OF 2001

LEE J
10 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W250 OF 2001

BETWEEN:	W250/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	10 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal made 6 June 2001 be set aside and the matter remitted to the Tribunal for redetermination.

2.The respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W250 OF 2001

BETWEEN:	W250/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEE J
DATE:	10 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent (“the Minister”) that the applicant not be granted a “protection visa”.

2. On 6 January 2001 the applicant, a national of Afghanistan then aged 29, entered Australia’s “migration zone” in north-west Australia without holding a visa issued under the Act. He had left Afghanistan on or about 4 December 2000. Sections 13 and 14 of the Act deemed the applicant to be an “unlawful non-citizen” when he entered the migration zone. Pursuant to ss 189 and 196 of the Act, the applicant was placed in “immigration detention” and has been kept there ever since. The applicant cannot speak English and at all material times has required the assistance of a Dari-speaking interpreter. He was first interviewed by an immigration officer on 14 January 2001.

3. On 27 January 2001 the applicant applied for a protection visa.  He was interviewed by another immigration officer on the next day.  The grant of a visa was refused by the delegate on 14 March 2001. The decision of the Tribunal on the application to review the decision of the Minister was made on 6 June 2001.

4. Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused.

5. At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa:

   “A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

6. In s 5 of the Act, “Refugees Convention” and “Refugees Protocol” (together referred to hereafter as “the Convention”) are defined respectively as “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”. The term “protection obligations” is not defined in the Act and is not a term used in the Convention.

7. The Convention is a treaty pursuant to which the “Contracting States” agree to apply the provisions of the Convention to “refugees”.  Sub-Article 1(A) of the Convention provides the following definition of “refugee”:

   “For the purposes of the present Convention, the term “refugee” shall apply to any person who:…(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…”

   Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F).  It was not contended that any of the foregoing sub-Articles applied to the applicant.

8. As a Contracting State, Australia has accepted the obligations at international law that arise out of accession to the treaty. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of the obligations so undertaken may be said to come within a broad meaning of “protection obligations under the [Convention]”, but having regard to the purpose of s 36(2) the phrase as used therein is to be taken to mean the direct, rather than indirect, obligations to protect a refugee imposed on Australia by the Convention.

9. The hearing before the Tribunal was conducted on 20 April and 2 May 2001 by video link transmission in which the Tribunal, the applicant’s agent and an interpreter were at the Tribunal’s premises in Melbourne, and the applicant was at a telecentre in Derby in north-west Australia.

10. In the written statement of the findings made, evidence relied upon and reasons for decision, provided by the Tribunal as required by s 430 of the Act, the Tribunal recorded the following outline of the applicant’s claims and relevant circumstances as at the time of the Tribunal’s decision:

    “The applicant is a thirty year old man.  His father, who was a retired colonel, died in a rocket attack in the battle for Kabul in 1996 and a brother…died in 1999.  His mother and another brother (…aged around thirty one) remain in Kabul.  The applicant was born in Puli Babuz, Dehadi in the province of Balkh, not far from the northern city of Mazar-e-Sharif.  The family had land and a very large house there.  He states that he is of Tajik ethnicity and a Sunni Muslim.  The family moved to the Kabul area when he was seven and the applicant went to school for nine years in Kabul.  The applicant speaks Dari and the notes prepared by the Immigration official who interviewed him on 14 January 2001 indicates that he spoke very little English.

    His application states that he lived in Chilsutoon, Kabul until September 1992; in Bilaki  Hawaie, Kabul from then until October 1996 when he worked as a security guard with the mujahideen; and in Ghandak, Bamiyan Province from October 1996 after fleeing Kabul at the time the Taliban won control.  He lived in Ghandak until he left the country in December 2000.  He worked there as a cook in the Mohammed Daud Hotel.  He states that he undertook military service from January 1988 until March 1991 as a soldier in Logar.

    The applicant claims in the statement accompanying his application that he joined Jamiat-i-Islami in May 1992 and claims that he was the bodyguard to Commander Mahmoor Faqir.  The applicant provided a membership card from Jamiat-i-Islami which was apparently issued in 1992 in Kabul.  This describes the applicant’s occupation as labourer.  His brothers were also members and also worked for the Party.  He claims that he escaped from Kabul on the very day that the Taliban won control, 7 October 1996.  He apparently told the Immigration official who interviewed him on 14 January 2001 that he was a bodyguard of the secret police in zone 1 and the Taliban had known him before and had looked for him before but he had been able to escape.  The applicant claims that during the few years following the Taliban’s takeover of Kabul they started to harass the applicant’s brothers.  He states that they were both arrested several times and tortured and asked for weapons.  The applicant claims that his other brother was also beaten in 1998 and is a paraplegic in a wheelchair because of the injuries he sustained.  He claims that in 1998 the Taliban burned the family’s house in Chilsutoon.

    His brother was killed on 30 October 1999 and the applicant came to Kabul from Bamiyan Province to attend his funeral.  He states that his brother was beaten was beaten so badly that his gall bladder  ruptured and he died.  He claims that ‘there was a crowd and someone must have told the Taliban that (he) was there and the Taliban came to the funeral and shot (him) in the leg’.  Another person was also injured.  He states that he has the scars of the injury.  The applicant said that he had come to the funeral with the owner of the hotel where he worked and when the applicant was shot they ‘jumped into the car and escaped’ back to Ghandak.

    The applicant claims that it took nearly six or seven months for his leg to heal.  The applicant told the Immigration official at the interview on 14 January 2001 that he had wanted to leave the country when the Taliban took over but had not been able to do so.  He claims that his maternal uncle who lived in Mazar-e-Sharif made the arrangements for him to leave the country for Australia and said that he should do so because the situation in Afghanistan was getting worse and worse.  The applicant said that he went to Pakistan with his uncle.  He said that ‘from Mizar to Torkham the vehicles go through check points - when the Taliban pulls up the vehicle they search the vehicle but they do not bother about the people unless they are specifically looking from someone and have a report on that person.  The driver also has a role to play at these checkpoints and can smuggle people through.  (They) did not need passports to cross the border.  The gate at the border was open.  The border (had been) closed but (he) thinks that the United Nations opened it again.  Families were not allowed to cross but single men could cross.  (They) spent the night at Torkham and at 8 am crossed the border.  There were guards but (they) did not have to show ID’.

    The applicant and his uncle went to Lahore where they met the smuggler who arranged the passport and travel.  He travelled to Singapore and Indonesia by air, arriving in Jakarta on 10 or 11 December 2000.  When he ‘got off the escalators (in Jakarta) there was a person holding a board with (his) name.  He took (the applicant) out the back way - (he) did not go through any checking station’.  He took the applicant to the smuggler Hassan Ayoub who was waiting outside the airport.  The applicant left for Australia by boat on 3 January 2001.  He said that his uncle has a friend here but he does not know his details.  The form completed soon after arrival gave the name Abdulwakil.

    The applicant claims to have had a false Afghan passport which is now with the people smuggler.

    The applicant claims that the Taliban will kill him if he returns to Afghanistan.  He states that he could not relocate as the Taliban would find him wherever he went and he fears that they would arrest and kill him.

    The applicant stated that he may be able to have his taskera sent to him from Afghanistan but he doubted that this could happen.
    …
    The applicant stated that he did not have any problems living in Bamiyan until the Taliban took over in 1998 and it was during this year that two men, who he suspects were with the Taliban because they looked like Taliban, came looking for him at the hotel where he was living and working.  He said that the family’s house was burned down by the Taliban because they knew it belonged to supporters of Jamiat-i-Islami and that he did not continue any involvement with the Party after leaving Kabul in 1996.  The delegate’s decision records that the applicant was able to describe accurately the conflicts within the Party and between it and others.”

11. The Tribunal accepted that the applicant was of Tajik ethnicity; that he undertook military service from 1988 until 1991 as he had claimed; that from 1992 he worked as a bodyguard for Commander Faqir, a Jamiat-i-Islami official responsible for police and security in a section of Kabul; and that he was shot by members of the Taliban while running away from the funeral party at his brother’s funeral in Kabul.

12. The relevant “country information” before the Tribunal, as set out in the Tribunal’s written statement, read as follows:

    “Amnesty International reported that in the few days following its takeover of Kabul in September 1996, the Taliban took ‘prisoner up to 1,000 civilians during house-to-house searches throughout the city…families of the victims, almost all young men, have no idea of their whereabouts… (Taliban) searched for evidence of co-operation with the former administration…they have then taken away the young men of the family…’ (‘Taliban take hundreds of civilians prisoner’ Amnesty International News Service 175/96 2 October 1996 CX24807).  In 1997 and following an opposition military advance towards Kabul which made ‘the Taliban increasingly nervous at the possibility of insurrection in the capital, they stepped by [sic] their arrests of opposition sympathisers.  The Persian (Dari) speaking Tajik and Hazara populations, who represent a sizeable proportion of the Kabuli population, became the inevitable targets for these arrests’ (Marsden, Peter The Taliban: war, religion and the new order in Afghanistan Karachi, Oxford University Press, 1998 p55).

    A researcher with the Canadian Immigration and Refugee Board spoke in 1998 with two scholars who have studied Afghanistan about the treatment of Tajiks in Kabul by the Taliban.  The report of the discussion records that one said that ‘generally people who are suspected of supporting or being sympathisers of the Northern Alliance would be under tight surveillance from the Taliban security forces.  Ethnic affiliation is not a primary reason for being targeted by the Taliban security forces.  However, Tajiks living under the Taliban rules are careful and venture into the streets of Kabul with caution’.  The other scholar said that Tajiks were under ‘close surveillance because of the proximity of the front line.  However, Tajiks (include) a large number of sub groups and not all of them are targeted by the Taliban.  Ethnic affiliation to the Tajik groups is not a primary reason for being targeted by the Taliban.  For example, the Tajiks who would face difficulty in Kabul are usually young men of military age trying to enter or exit Kabul, while an old Tajik man or woman would not be targeted by the Taliban’ (Afghanistan: information on the treatment of Tajiks in Kabul by the Taliban in 1998 … Ottawa, 14 July 1998 AFG29658.E).  ‘Following the military offensives in the Shomali plains in August and September 1999, the Taliban separated many people from their families.  One human rights organisation claimed that some 1000 Tajik men were separated from their families during the exodus and detained by the Taliban.  Their whereabouts remained unknown at the end of 1999…there were reports (during 1999) of the forcible expulsion of ethnic Tajiks from areas newly occupied by the Taliban’ (Afghanistan assessment, cited above, Section 5).

    UNHCR has reported that ‘minority groups continue to face harassment by the Taliban.  Arbitrary detention, hostage taking and summary execution for imputed political opinion are used for minority populations (i.e. Tajiks originating from the Panjshir Valley, the stronghold of Commander Masoud, and Uzbeks in Faryab Province) as a pre-emptive measure to deter opposition to emerge in certain areas or where there is an increased number of security incidents attributed to the opposition or as a direct response to developments at the front-lines.  The main element of these violations is not the ethnicity or the religion, rather the actual or imputed opposition to the Taliban’.  ‘As part of its policy of forced displacement, the Taliban systematically burned the houses and crops and destroyed the agricultural infrastructure of Tajik civilians living in areas north of Kabul.  Among the Tajiks forcibly displaced were some 8000 children, women and elderly men reportedly separated by the Taliban from their male relatives and sent to the deserted Sarashi camp near Jalalabad…reportedly some one thousand men were held prisoner by the Taliban’ (Background paper on refugees and asylum seekers from Afghanistan, cited above, Section 5.2).”

13. The relevant conclusions of the Tribunal expressed under the heading “FINDINGS AND REASONS” were as follows:

    “I have considered the profile and fate of the applicant’s brothers and his claim that the family’s house in Chilsutoon was burned in 1998 because it was known that it was owned by Jamiat-i-Islami supporters.  The applicant states that his brothers were also Jamiat members who worked for the Party, that the Taliban harassed, arrested, tortured and injured them, so badly that one of his brothers died on 30 October 1999 from the injuries he sustained.  The other brother became a paraplegic because of the injuries he sustained in 1998.  The applicant’s evidence about why he believes that his brothers were harassed and hurt by the Taliban is that his mother told him so in her letters and presumably when she saw him in Kabul at the end of October 1999.  I have been mindful that independent information indicates that many young men in Kabul were taken away by the Taliban shortly after the Taliban took over, that there was not widespread mistreatment of people who worked for the mujahideen government, that subsequent political developments have meant that there have been times when members of the Tajik population were arrested on suspicion of being opposition sympathisers and that Tajiks in Kabul had been cautious in going out and about.  His evidence was that the family had moved in 1992 from the house which was burned.  Against the background of all of the applicant’s evidence, I have some doubt that what he has said about the fate of his brothers and the burning of the house is accurate.  Even if it is and in the light of all of the evidence about the nature and extent of the Taliban’s interest in the applicant, I have been unable to accept that these events indicate that the Taliban had any interest in him.”

    Whether the independent information stated that “there was not widespread mistreatment of people who worked for the mujahideen government” may be a matter of debate.  In so far as the Tribunal stated that it had “some doubt” that the applicant’s claims about the fate of his brothers and the burning of the family house were “accurate”, the “country information” set out above suggests that it was quite likely to have been accurate.  In any event, the Tribunal went no further than expressing doubts on the issue and certainly made no affirmative finding, based on the absence of any real doubt on the issue, that the applicant’s brothers had not met the fate the applicant had described.

14. The Tribunal continued:

    “I have considered the applicant’s evidence about the circumstances which led to him being shot.  He has stated that it occurred as he ran away from a gathering at his brother’s funeral when the Taliban came down the hill from their post.  He and the owner of the hotel in Ghandak (who had brought him to Kabul) ran away and the applicant was shot at and hit in the leg.  The applicant has stated that he thought that someone must have told the Taliban that he was there and that is why they came towards the gathering.  I accept that the applicant might have been shot as he ran away as he has claimed but I do not consider that the evidence indicates that the Taliban were coming down the hill looking for him.  There is nothing to indicate that the Taliban were where they were because it was the funeral of the applicant’s brother or because they thought they might catch the applicant there: they had a post further up the hill and I do not accept that the applicant was of interest to them.  The evidence indicates to me that the Taliban members shot at a person who was running away and am not satisfied that they knew that the person hurrying away from the scene was the applicant.”

    …

    I will now consider whether those claims which I have accepted give rise to a well founded fear of persecution: that he is a Tajik; that he undertook military service and later worked for a Jamiat-i-Islami Commander as a bodyguard; and that he was shot while running away from a group of people who had gathered for his brother’s funeral.

    Independent evidence outlined above indicates that the Taliban has arrested many Tajik people suspected of sympathising with opposition forces.  In 1998, it was reported that Tajiks were cautious in Kabul and that a fit young Tajik man (as is the applicant) in Kabul could at that time have difficulty whereas an old man would not.  In 1999, in the context of fighting in the area of the Shomali plains north of Kabul, Tajik men were separated from their families and detained and Tajiks expelled from areas won by the Taliban.  UNHCR has recently reported that Tajiks originating from the Panjshir Valley (in the north where the Northern Alliance is in control) are an example of a group which can be persecuted by the Taliban for the reason of actual or imputed political opposition.  Other evidence indicates that in 1999 Tajiks from Panjshir were regarded as a group at risk but that over what appears to be a six month period in 2000 Tajiks made up 68 per cent of the more than 57,000 Afghans who returned to their country from Iran.  A large number of Tajik people are returning to Afghanistan and I do not believe that so many would be doing so if they faced a real chance of persecution although I recognise that the tightening policies of neighbouring countries to discourage Afghans from remaining there are a significant factor in people’s decision to return.  My assessment of the evidence is that a Tajik person would not today be at risk simply because of their ethnicity if they were to return to a place where they had social links.  Factors relevant to the question of whether the applicant faces a real chance of persecution as a Tajik are his political profile and the fact that he is a fit youngish man.

    The applicant undertook military service from 1988 until 1991 when the communist government was still in power.  There is no evidence that this had any adverse implications for him after the fall of the communist regime.  He was not involved in any military actions and his work had involved being stationed at security posts and cooking.  Certain people associated with the communist regime have been at risk under the Taliban but I do not consider that a person who merely undertook military service of the kind described by the applicant would be sufficiently identified with the regime so as to face a risk of harm.

    The applicant submits that it was his work from 1992 until 1996 as a bodyguard to Commander Faqir and his consequent association with Jamiat-i-Islami which is the reason why the Taliban has regarded him as a person of concern.  I have found that the evidence does not indicate that the applicant has been of adverse interest to the Taliban in the past but it is necessary to consider whether his work from [sic] Commander Faqir could bring the applicant to the notice of the Taliban if he were to return.  I have considered the nature and extent of the applicant’s involvement with Jamiat and I have concluded that his involvement was very limited: he said that he joined only because he had to in order to take up his position with Commander Faqir; he said that he was not involved in any political activities other than his work with Commander  Faqir; and he was not involved at all after leaving Kabul in 1996 (notwithstanding claiming to have then lived in an area which he said was under Jamiat-i-Islami control).  He gave no evidence of ever being involved in any conflict or active protection work for the Commander as he (the Commander) discharged his responsibilities for security and policing in an area of Kabul.  Independent information indicates that there appears to have been no widespread action taken by the Taliban against supporters of the mujahideen government led by President Rabbani although some people were detained soon after the Taliban took over but most were released.  I do not consider that the applicant’s job with Commander Faqir has placed him at risk from the Taliban as a suspected political opponent and I do not consider that it would do so if he were to return.

    The applicant is an apparently fit man and is now thirty, an age which could be seen as a military age.  Information prepared in 1998 gave such men of Tajik ethnicity as an example of a group which might attract the adverse interest of the Taliban but there are no later reports of which I am aware to indicate that this situation has changed or remains.  I have concluded that there is not more than a remote chance that the applicant would be of interest to the Taliban because of his ethnicity combined with his gender and age: he was not of interest to the Taliban in the past.  I note that he claims to have lived in an area over which the Taliban had control for some two years before leaving the country and nothing happened for these reasons.  I do not consider that he would be at risk of harm from the Taliban amounting to persecution if he were to return to Kabul or to Ghandak (if he in fact ever lived there).

    I have accepted that the applicant was shot in the leg as he was running away from the gathering at his brother’s funeral but have found that the evidence does not support a conclusion that the Taliban members who shot at him were after him and I do not consider that that [sic] they knew that the person running away was the applicant.  While such violence simply for running away is terrible, it was an isolated incident and I do not believe that what he experienced exhibited the selective quality for a Convention reason necessary for conduct to be regarded as persecutory.  I do not accept that it is plausible that the Taliban would now know that it was he who ran away and was shot and so impute to him a political opinion opposed to the Taliban.  In reaching this conclusion, I have had regard to his evidence that nothing further followed after he left the area.  I do not accept that an explanation for this is that he was in an underground room and only came up to cook when he would have been quite visible when he did so.

    I understand that the applicant does not like the Taliban and the way they go about ruling his country but citizens of countries which do not enjoy the freedoms which exist in liberal democracies, where there is not the same rule of law, where human rights standards fall far short of those in western democracies and where the government is autocratic cannot ‘establish a claim to refugee status unless it can be demonstrated that the applicant is differentially treated’ because of a Convention reason (Yan Xu v MIMA, unreported, Federal Court of Australia, Olney J, 18 April 1997 at 11).  I have been unable to conclude that there exists a real chance that the applicant would face treatment amounting to persecution for the reasons of race or political opinion, real or imputed, or any of the remaining reasons specified in the Refugees Convention if he were to return to Afghanistan.  I therefore find that his fear is not well-founded.”

    A significant part of the material before the Tribunal, commenting on circumstances in Afghanistan at the relevant time, indicated that armed conflict between the Taliban and the Northern Alliance continued in areas surrounding, and to the north of, Kabul.  The Northern Alliance consisted substantially of Tajiks and, in particular, members of the Jamiat-i-Islami.  The leader of the Northern Alliance, Ahmed Masoud, was a member of the Jamiat-i-Islami and had been Defence Minister in the government overthrown by the Taliban, led by President Rabbani, leader of the Jamiat-i-Islami.  The United Nations still regarded Rabbani as President of Afghanistan.

1. The reasoning of the Tribunal as to why it could disregard the fact that the applicant had suffered a gun-shot wound at the hands of the Taliban, is difficult to follow.  The Tribunal said it was an “isolated incident” that did not have the “selective quality” necessary for the conduct to be regarded as persecutory.  If the Tribunal understood that at law it had to be satisfied that the applicant personally had been “differentially treated”, and only then could the event be considered by the Tribunal in the process of determining whether the applicant would face treatment amounting to persecution in future, then the Tribunal misunderstood the relevant law. 

2. Decisions of the Full Court of this Court have stated in clear terms that for there to be persecution for a Convention reason it is not necessary that the persecution be aimed individually at the applicant (See: Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274 per Burchett and Lee JJ at [13]; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 per Wilcox J at 39-40, Lindgren J at 42, Merkel J at 68-69.) It is the language of the Convention that is paramount and has to be applied. (See: Minister for Immigration & Multicultural Affairsv Haji Ibrahim (2000) 204 CLR 1 per Gleeson CJ at [5], Gummow J at [146-147], Hayne J at [205].)

3. The question the Tribunal had to consider was whether, on accepted past facts and the possibility that other claimed events may have occurred (even if the Tribunal was not satisfied that they had occurred), there was some degree of chance that the applicant may suffer persecution in future if returned to Afghanistan.

4. In that matrix of material, the fact that the applicant, a Tajik of an age able to render military service, had been shot by the Taliban whilst attending his brother’s funeral in Kabul, had to be considered along with other relevant material.  By treating the occurrence as an “isolated incident” without a “selective quality” the Tribunal did not apply its mind to the question whether the fact that the applicant had been shot by the Taliban, in combination with whatever degree of likelihood there was that his brothers also had been ill-treated by the Taliban - one had died and the other had been paralysed by injuries inflicted - made it possible that the Taliban attributed political opinion to the applicant because of his Tajik ethnicity, his past service to the regime overthrown by the Taliban, and his ability to render military service to the Northern Alliance, largely comprised Tajiks.  According to the country information before the Tribunal, it would not have been the case that only young Tajiks known to the Taliban would have been at risk of persecutory conduct at the hands of the Taliban.  The fact that there was some degree of probability that the applicant’s brothers had been so ill-treated, and that the applicant had been ill-treated, made the question whether there was a real risk that the applicant could suffer treatment of a like nature at the hands of the Taliban in the future, a live issue for the Tribunal to determine.

5. The case put forward by the applicant was that a political opinion of opposition to the Taliban was imputed to all Tajiks in and around, or to the north of, Kabul, who were able to render military service to the Northern Alliance.  The Tribunal directed its attention to Tajiks in general, rather than a specific class, and failed to have regard to the combination of factors that would consist of accepted past events and possible past events relating to the applicant, and constitute the “rational basis” on which the Tribunal had to assess the likelihood of the applicant suffering persecution in future. (See: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 575).

6. The Tribunal did not take into account the claimed events in respect of the applicant’s brothers, who had worked also for  Jamiat-i-Islami in Kabul.  The Tribunal said no more about the treatment of the brothers than it had some doubt that the applicant’s account of their fate was “accurate”.  The Tribunal could not ignore the claimed events without making an affirmative finding, based on probative material, that those events had not occurred.  It had to assess the degree of likelihood that those events had occurred and, so informed, put them in the balance with other accepted events, and other events for which some degree of possibility was acknowledged, to ascertain what risk of persecution faced the applicant in future.

7. As Gleeson CJ and McHugh J stated in Abebe v Commonwealth (1999) 197 CLR 510 at [83], the fact that an applicant:

   “…might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail.  As Guo [at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.  The Tribunal ‘must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution’ [Guo at 576].”

8. The Tribunal did not follow the foregoing process in making its determination on the application for review and thereby fell into error.

9. By failing to have regard to the correct question, or by failing to take into account considerations relevant to that deliberation, the Tribunal failed to apply the law for the making of a decision under s 414 of the Act, and made a jurisdictional error. Alternatively, the decision of the Tribunal involved an error of law in the making of the decision by reason of the Tribunal failing to interpret the relevant law correctly and, thereby, failing to determine according to law whether Australia had protection obligations to the applicant. It follows that ground for review has been established under s 476(1)(b), (c) or (e) of the Act. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, per Gleeson CJ at [10]; McHugh, Gummow, Hayne JJ at [76]-[85]).

10. In further written submissions addressing the fall of the Taliban in Afghanistan, presented by counsel after the hearing of the application, both counsel agreed that if the discretion of the Court to make an order setting aside the decision of the Tribunal was enlivened, it would not be appropriate for the Court to refrain from exercising that discretion on the ground the Taliban regime had been expelled.  That fact would be a matter for the Tribunal to take into account when it redetermined the matter and assessed whether the applicant now held a well-founded fear of persecution.

11. The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:             10 April 2002

Counsel for the Applicant:	H N H Christie
Solicitor for the Applicant:	Christie & Strbac
Counsel for the Respondent:	C A Searle
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 November 2001
Date of Further Written Submissions:	28 January 2002
Date of Judgment:	10 April 2002