FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Applicant M [2002] FCAFC 253 MIGRATION – protection visa – whether conscientious objector in Afghanistan would have well-founded fear of persecution by reason of "political opinion"– whether "political opinion" of conscientious objection imputed – whether Afghan society perceived conscientious objectors as comprising a "particular social group". Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 referred to Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 referred to Minister for Immigration and Multicultural Affairs v Applicant Z [2001] FCA 1823 cited MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v APPLICANT M W 502 of 2001 WHITLAM, NORTH and STONE JJ 23 AUGUST 2002 SYDNEY (HEARD AT PERTH) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 502 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND: APPLICANT M RESPONDENT JUDGES: WHITLAM, NORTH and STONE JJ DATE OF ORDER: 23 AUGUST 2002 WHERE MADE: SYDNEY (HEARD AT PERTH) THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The orders made by the primary judge on 5 October 2001 be set aside, and in lieu thereof, order that: (a) the application be dismissed, and (b) the applicant pay the respondent's costs. 3. The respondent pay the appellant's costs of the appeal. 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 W 502 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND: APPLICANT M RESPONDENT JUDGES: WHITLAM, NORTH and STONE JJ DATE: 23 AUGUST 2002 PLACE: SYDNEY (HEARD AT PERTH) REASONS FOR JUDGMENT THE COURT: Introduction 1 This is one of a series of cases under the Migration Act 1958 ("the Act") in which a judge of the Court held that able-bodied Afghan males were a "particular social group" for the purposes of Art 1A(2) of the Refugees Convention. A Full Court (Sackville, Kiefel and Hely JJ) allowed the appeal in one of these cases: Minister for Immigration and Multicultural Affairs v Applicant Z [2001] FCA 1823. In that case Sackville J held that the judge erred in holding that the material before the Refugee Review Tribunal ("the Tribunal") obliged it to consider whether able-bodied Afghan men constituted a particular social group. Kiefel J held that able-bodied Afghan males did not constitute a particular social group for the purposes of the Refugees Convention. Hely J agreed with Sackville J and with Kiefel J. 2 In the present case counsel for the respondent concedes that the material before the Tribunal was insufficient to require it to consider whether able-bodied Afghan men constituted a particular social group of which his client was a member. However, he seeks to sustain the primary judge's order setting aside the Tribunal's decision on the basis of the other grounds that his Honour held to have been made out. 3 The respondent arrived in Australia on 11 July 2000. When interviewed after arrival, he said that he came to Australia in order to avoid being pressed into fighting for the Taliban in Afghanistan. The respondent applied for a protection visa on 25 July 2000. A delegate of the appellant ("the Minister") refused to grant him such a visa on 5 September 2000, and the delegate's decision was affirmed by the Tribunal on 2 January 2001. The Decision of the Refugee Review Tribunal 4 The Tribunal accepted that – · the respondent was an Afghan national and a member of the majority Pushtun tribe; · he came from a part of Afghanistan which had been under Taliban control for several years; · the Taliban had a practice of press-ganging young men into their armed forces; · the respondent's cousin was forcibly recruited in this fashion and killed in battle shortly afterwards; · the respondent was "of fighting age"; · the Taliban had tried to "conscript" him, but he avoided being conscripted because his father paid the Taliban; and · the respondent feared that he would be conscripted to fight for the Taliban and that he could face serious harm or death. 5 The Tribunal did not accept that the respondent had ever spoken out against the Taliban or that the Taliban regarded him as an opponent. It said of his fear of being recruited by the Taliban (at pp 18-19): "While the ad hoc practice of recruitment and press ganging new recruits including young students as described in the independent material cited above, is not one which would be condoned internationally, Taliban's motivation is solely based on whether or not the recruits are capable of fighting. This selective process which targets young, able bodied males does not amount to discrimination for a Convention reason. The selection of young men or men of fighting age albeit in an 'ad hoc' manner does not amount to discrimination and is not Convention related any more than regularised conscription is in other countries." The Tribunal then cited (at p 19) a statement of Branson J in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834, where her Honour said at [23]: "… This Court has on a number of occasions recognised that the enforcement of laws providing for compulsory military service, and for the punishment of those who avoid such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention …" After noting that the respondent claimed to have "pacifist" views, the Tribunal went on (at p 20) to find that the Taliban recruited "young men at random, as needed for its military purposes" and that the Taliban did not have a "regular" conscription program. Specifically, the Tribunal said that there was no evidence or other material before it which indicated that there was "a penalty for failure to serve". 6 The Tribunal did not find that the respondent's departure to avoid the ad hoc conscription practices of the Taliban would lead them to consider he was politically opposed to them. It did find (at p 21) that he could return to Afghanistan and "not face a 'real chance' of persecution for a Convention reason". The Tribunal accepted that the respondent might "face serious harm as a consequence of being recruited into the Taliban militia", but it found that "although he may not be committed to the aims and objectives of the Taliban, the motivation of the Taliban in recruiting him would be solely because he is a male with the potential to fight and for no other reason." The Decision of the Primary Judge 7 The primary judge held at [34] that the Tribunal erred in law to the extent that it fell into jurisdictional error within the meaning of s 476(1)(b) of the Act. His Honour identified two such errors. First, he said at [22] that "the Tribunal confined its reasoning, on the question whether the respondent had suffered persecution by reason of political opinion, to the question whether he had spoken out against the Taliban". His Honour held at [25] that the Tribunal accordingly failed to consider whether the respondent "would be singled out from other objectors to conscription on the basis that he was a conscientious objector and thus held a political opinion for which he would be persecuted". Secondly, the primary judge held at [34] that the Tribunal failed to consider whether the respondent had a well-founded fear of persecution "by reason of his membership of a particular social group comprising those persons who held a conscientious objection to military service." An Imputed Political Opinion as a Conscientious Objector? 8 His Honour thought that the respondent had "put forward" to the Tribunal a claim that he would be at risk of persecution by reason of a political opinion attributed to him on the basis of his pacifist views. His Honour detected this claim as having been raised in two items of evidence before the Tribunal. The first was a statement of the respondent's reasons for claiming to be a refugee in Part C of his protection visa application. This statement was dated 25 July 2000 and was prepared by John O'Kane, a migration agent in the firm of solicitors who acted for the respondent throughout the prosecution of his visa application. The second piece of evidence was something the respondent evidently said either in an interview with an officer from the Department of Immigration and Multicultural Affairs ("DIMA") or at the hearing before the Tribunal. 9 In the statement dated 25 July 2000 the respondent said: "I am 27 years old I was living with my family. I was living with my father and mother, with my three brothers and three sisters, and my wife and child. I was a sewing machinist and I was running a shop. My brother Mohammad Ismail was working as a driver. The rest of my brothers and my father were working on the farm. Why I left my country: The reason I left Afghanistan was that the Taliban forced us to go to the front line and fight against their enemies. Otherwise we have to pay 20,000,000 Afghani a month not to go and fight. When I was working in my shop the Taliban were coming to the shop and were giving us a very hard time about my beard and my long hair. They said my beard had to be very long and that I should not have long hair. One day they took my cousin, that was seven months ago and he was killed in the battle. Three months ago, before I left, they came to my house and they asked my father – you have to send your son to the fight and that is why my father decided that I have to leave Afghanistan. I was at home at the time, but when they came I was hiding inside. They spoke only to my father and he told them that I was not home. I do not agree that the Taliban should make young people go to the war zone and fight. I will never agree to kill anybody. If the Taliban caught me and wanted me to go and fight and I refused, they would either have taken us by force, put me in jail or killed me. It is my political opinion that the Taliban should not be able to take young men to the front if they do not want to fight, but they take them by force. Because of that opinion I would be in danger if I stayed in Afghanistan. My father found a smuggler, I don't know how he found him. I had met this smuggler before this once … his name was Niamatullah. He took me somewhere in Afghanistan and introduced me to another smuggler. I went with that smuggler and then he introduced me to another smuggler. Finally we ended up in Bali – the smuggler told us it was Bali. I don't know what countries we went through on the way or where we left Afghanistan. What I fear might happen if I go back to my country: If I went back to Afghanistan the Taliban would kill me. Who I think will harm or mistreat me if I go back: The Taliban are the ones who would kill me. Why I believe they will harm or mistreat me if I go back: First of all they would kill me because I escaped from Afghanistan, second of all because they asked us to go to the fight and I refused. They have come to my house asking about me and I felt my life was in danger if I stayed. Why I believe that the authorities in my country will not protect me if I go back: I only have my father and brothers – there are no authorities who can protect me from the Taliban." (We have highlighted those parts of the answers in the statement that the primary judge apparently had in mind.) 10 As we have already mentioned, the Tribunal noted the respondent's "pacifist" views. In doing so, the Tribunal recorded in its reasons for decision (at p 19) what the respondent said in amplification of his position: "In the current matter the Applicant has claimed he fears harm if he is taken to fight for Taliban. He also claims to have pacifist views in that he claims he would be forced to kill people and, '[he is] totally against the fighting that is happening and [he has] no reason to kill anyone.'" (Emphasis added.) The appeal papers do not include transcripts of interviews with DIMA officers or of the Tribunal hearing, and it is not clear from the Tribunal's reasons when the words quoted were spoken. 11 At this point it is instructive to set out a sizeable excerpt from the reasons for decision of the Minister's delegate given on 5 September 2000: "A precis of the applicant's claims are: · that he fears being conscripted into the Taliban militia; · that he will be killed by the Taliban upon return because he refused military service; · that he will be killed by the Taliban upon return because he escaped from Afghanistan; Finding of Fact and Reasons for Decision The applicant claims that Taliban officials would periodically visit his village, requiring that one male from every family join their militia. There is no evidence to suggest that the applicant's family were treated differently from others, and the applicant stated at interview that 'I'm on nobody's side, I never participated in the fighting'. The decision for the applicant not to join the Taliban militia was made on the basis of an unwillingness to support the Taliban combined with concern for the safety of the applicant. The applicant stated in this regard that 'the Taliban should not be able to take young men to the front if they do not want to fight'. I accept that the applicant does not support the Taliban, but as the UN Refugees Handbook states, 'holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions'. Moreover, Olney J. in Yan Xu v MIMA supports the contention that 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 right 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' for a Convention related reason. I have no evidence before me to suggest that the applicant was targeted by the Taliban at any time for reasons of his race, religion, nationality, membership of a particular social group or political opinion. He is a Sunni Muslim of Pashtun ethnicity, as are both the majority of Afghanis and the majority of Talabanis. Rather, I find that he was chosen because he was the oldest able bodied son in his family. I do not accept that the Taliban would perceive the applicant as having refused or evaded conscription on the basis of his past actions, nor do I accept that they will judge his absence as constituting draft evasion, should they became [sic] aware of his absence prior to his return to Afghanistan. The available evidence indicates that the Taliban do not target predetermined individuals for conscription purposes, but rather hold general 'recruitment campaigns' where young men are intimidated into either 'volunteering' or paying an exemption levy which satisfies the Taliban until their next recruitment drive. Furthermore, there is no evidence to support the applicant's claim that the Taliban persecutes Afghani returnees for merely having departed or 'escaped' the country, as he put it. On the contrary, the numbers of UNHCR assisted and other voluntary repatriations to Afghanistan in the past few years demonstrates that, for Pashtuns at least, return is a reasonably safeand viable option." 12 Two working days before the Tribunal hearing the respondent's solicitors sent a submission prepared by Rachel Fitzpatrick, another one of their migration agents. Ms Fitzpatrick said that, in response to the delegate's decision, the respondent had provided "additional information" which indicated "a fear of persecution for reason of political opinion". She described these claims as follows: "The applicant is a 27 year old Pashtun from Uruzgan. His claims arise from the fact that he opposed the Taliban movement and its radical interpretation of Islam, and did not wish to fight for them. He also instructs that one of his customers was a member of Jamiat-e-Islami, and gave him anti-Taliban newspapers and articles to distribute secretly. He instructs that the Taliban realised that he was spreading propaganda, and he feared that he would be captured by means of forcible conscription into the militia. He now fears that he will be killed on return to Afghanistan, despite the fact that he is Pashtun and Sunni. He sates that if a person poses a threat to the Taliban, they do not care who or what he is, and the fact that he is a Sunni Muslim will afford him no protection." This was a new claim, about which the Tribunal remarked (at p 17) of its reasons: "Although the Applicant was interviewed twice by departmental officers and counselled by a solicitor, prior to the hearing and the submission of 13 October 2000 he made no claims to have feared harm at the hands of the Taliban for any reason other than being made to fight for them." 13 At the beginning of the section of its reasons where it set out its findings, the Tribunal described (at pp 12-13) the shift in the respondent's claims this way: "The Applicant's original application and subsequent interviews were such that he can be taken to have claimed to fear 'persecution' at the hands of the Taliban authorities in Afghanistan for reasons of conscription to fight for them in the same way that other young men or men of fighting age had been conscripted from time to time. He also claimed that he disagreed with the fighting and killing people and that his failure to fight would be regarded as opposition to Taleban. At the Tribunal hearing and in a submission around the time of the hearing the Applicant made fresh claims to the effect that his fear of discriminatory treatment amounting to persecution was based on Taliban's motivation to target him as a person who had spoken out against the Taliban and that the motivation for recruiting him was because of his opposition. He further claimed that he could not return having left and that he would be sent to an area or a situation such as a mine field so that he would be killed. " 14 So far as the appeal papers disclose, the respondent never advanced any argument before the Tribunal under the rubric of "conscientious objection to military service". However, in its discussion of Mijoljevic, the Tribunal mentioned (at p 19) that the asylum claimant in that case objected to military conscription on the basis of his pacifist views. In the Court below counsel for the respondent, with considerable ingenuity, seized on this notion to link it with a political opinion allegedly to be imputed to his client. 15 We think that the Tribunal's reference in the present case to the respondent's "pacifist" views is entirely equivocal. The delegate's decision shows that what the respondent said about his unwillingness to fight was intended to buttress his evidence to the effect that he was not a supporter of the Taliban and that he feared being conscripted by them. By the time of the Tribunal hearing, Ms Fitzpatrick was advancing on behalf of the respondent a quite explicit "political opinion" as the relevant reason for persecution under the Refugees Convention, and it was not a reason based upon a principled objection to military service. Of course, Ms Fitzpatrick did not abandon the respondent's claim that, were he to return to Afghanistan, he would have a political opinion of opposition to the Taliban attributed to him on account of his flight from the country to avoid conscription. But the main focus before the Tribunal was on the respondent's claims to have been detected spreading anti-Taliban propaganda and to have spoken out against the Taliban. 16 We do not read the respondent's claim that he would be killed if he refused to fight as an assertion that such a fate would befall him because he was perceived to be a conscientious objector. In our view, there simply was no case raised by the evidence and material before the Tribunal that the respondent would have attributed to him a political opinion such as that identified by the primary judge. In the present case the respondent never suggested that he articulated or demonstrated in any way any principled opposition to conscription so that a political opinion might be imputed to him. It follows that, in our opinion, the primary judge erred in holding that the Tribunal was obliged to consider the issue he formulated. Conscription and the Concept of Persecution 17 The primary judge also held that the Tribunal fell into error when it relied on the decision in Mijoljevic. His Honour distinguished at [29] that case and the authorities cited by Branson J in that case on the basis that "they concerned the enforcement of laws of general application providing for compulsory military service." His Honour said at [33] that in the present case "there was no evidence of a law of general application on the matter of conscription. All the evidence points to forcible conscription by the Taliban without any lawful justification." 18 It may be that the Tribunal has misunderstood the reasoning in Mijoljevic. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 Gleeson CJ, Gaudron, Gummow and Hayne JJ observed (at 302) that the question whether conduct is undertaken for a so-called "Convention reason" cannot be entirely isolated from the question whether that conduct amounts to persecution. Conscription into the Yugoslav armed forces in the 1990s might well have been regarded as involving a real chance that a person would suffer serious harm, and Mijoljevic may stand for no more than the undeniable proposition that such a person must be able to show that he was singled out for conscription for one of the five reasons under the Refugees Convention. 19 The fact that there was not a law of general application in the present case is, in our opinion, not to the point. That merely meant that there was no need to inquire whether there was a sanction for disobedience. In any event, for what it is worth, here the Tribunal noted that there was no such penalty. It was clear that, if a person suffered the misfortune to be recruited by the Taliban, he went into service. There was no alternative. That is why the Tribunal accepted that a person may face serious harm or death as a consequence of being recruited by the Taliban. (Incidentally, the expression, a law of "general application", is hardly a term of art. For example, in England, the prerogative of the Crown to impress seafaring men survived for many years as an exception to the right of personal liberty. This arbitrary power was not founded on any statute, but on immemorial usage. See Holdsworth, A History of English Law, (1938), vol X, pp 381-382.) 20 An argument about the lawfulness of the Taliban's random recruiting is sterile. So long as the "accountability" theory of the interpretation of the Refugees Convention holds sway, the way in which the Taliban treat people under their control will have to be assessed, whether or not the Taliban are non-State actors. The critical point is that, even if such treatment is regarded as amounting to "persecution", there is still the further requirement of "a Convention reason". Conscientious Objectors as a Particular Social Group? 21 As to the other jurisdictional error found by the primary judge, in our view, there simply was no material before the Tribunal which raised for its consideration the question whether Afghan society, or some clearly identifiable section of it, perceived conscientious objectors as a distinct social unit. Conclusion 22 In our view, none of the grounds on which the primary judge set aside the Tribunal's decision can be sustained. The appeal will be allowed, the orders made at first instance set aside and in lieu thereof orders made that the application be dismissed with costs. The respondent must pay the costs of the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Dated: 23 August 2002 Counsel for the appellant: P R Macliver Solicitor for the appellant: Australian Government Solicitor Counsel for the respondent: Joseph McGrath Date of hearing: 27 May 2002 Date of judgment: 23 August 2002