FEDERAL COURT OF AUSTRALIA Abdul Noor Esa v Minister for Immigration & Multicultural Affairs [2001] FCA 1203 Migration Act 1958 (Cth) Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 applied Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 applied Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied ABDUL NOOR ESA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S76 OF 2001 MANSFIELD J ADELAIDE 29 AUGUST 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S76 OF 2001 BETWEEN: ABDUL NOOR ESA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 29 AUGUST 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be allowed. 2. The applicant's application to the Refugee Review Tribunal be remitted to the Refugee Review Tribunal for reconsideration in accordance with the reasons for judgment. 3. The respondent pay to the applicant costs of the application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S76 OF 2001 BETWEEN: ABDUL NOOR ESA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 29 AUGUST 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 28 December 2000. On 3 February 2001 he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act"). On 23 February 2001 a delegate of the respondent refused to grant that visa. The applicant applied for a review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 4 June 2001 the Tribunal affirmed the decision not to grant to the applicant the visa which he sought. 2 The applicant appeared on this application by himself. He was not legally assisted. It was unclear whether he had had the opportunity to have translated to him the material in the application book beyond the Tribunal's reasons. His oral submission was simply a repetition of his claims before the Tribunal and assertions that the Tribunal had erred in fact in its conclusions adverse to him about his knowledge of Afghanistan. He clearly had little appreciation of the limited basis upon which the Court can review decisions of the Tribunal. His submissions were of no assistance in deciding the application. In Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 at par [13], Stone J said : "... that in cases where an applicant is not legally represented the Court takes a more active role than is usually the case. This requires or involves the Court in examining the reasons for the decision of which review is sought in order to ascertain for itself whether any reviewable error has been made." Those observations were adopted with approval by Carr J in Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 at par [10]. I share the view that it is appropriate for the Court in relation to this application to adopt a similar course. 3 To be eligible to be granted the visa, it was necessary for the applicant to satisfy the delegate of the respondent, and on review the Tribunal, that he is a person to whom Australia owes protection obligations under the Refugee's Convention as amended by the Refugee's Protocol ("the Convention"), using those terms as they are defined in the Act: see s 36(2) of the Act. In practical terms, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that he is a "refugee" as defined in Art 1A(2) of the Convention, namely a person who : "... 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; ..." 4 The applicant claimed to be a citizen of Afghanistan. He said he was born in 1970 in a remote mountain region in the eastern area of Afghanistan, now under the control of the Taliban. He claimed to be a Pashtun and a Sunni Muslim. He said that he had had no formal education, and from about the age of ten had worked firstly as a wood seller and subsequently as a driver. He comes from a family including four brothers and two sisters. In November 2000, he claimed that the Taliban had forcefully conscripted two of his brothers against their will, and that they had not been seen since. He feared the same fate. Consequently, he decided to flee and by payment of a significant fee was smuggled from Afghanistan through Pakistan until he arrived in Australia. 5 The Tribunal recited in its reasons for decision his claims as made to the respondent upon his arrival in Australia, and in support of his application for the visa, and his claims to the Tribunal including through his oral evidence on 9 April 2001. It also recorded extensive country information it had available to it concerning Afghanistan and the conduct and activities of the Taliban in Afghanistan. 6 It is difficult to discern the Tribunal's findings with any certainty. After that process of recording the information available to it, the Tribunal turned to that section of its reasons headed "Findings and Reasons". It was clearly concerned about the credibility of the applicant. It said : "I do not find the applicant to be a credible or a reliable witness in relation to various aspects of his claims. I am not satisfied that the applicant is how he claims to be. I found many of his claims implausible and his lack of knowledge about fundamental matters a clear indication that he had not lived in the area of Afghanistan in the circumstances he claims. I am satisfied that he feigned a lack of knowledge about various aspects of his evidence. I am satisfied that he did not have sufficient knowledge of certain fundamental aspect [sic] of life in Afghanistan to indicate that he was who he claimed to be." However, precisely what it is that the Tribunal did not accept is not clear. It expressly accepted that the applicant is a Pashtun and a Sunni Muslim. It accepted his description of his family and his work activities, including that he is the head of his family with four brothers and two sisters. It then went on to indicate that it was not satisfied that the applicant gave truthful evidence when describing other aspects of his life, and gave reasons for that, including reasons for doubting the applicant's claim that he is an illiterate peasant from Afghanistan. Notwithstanding those doubts, the Tribunal then accepted and found that the applicant is from Afghanistan. It proceeded to address his claims on the basis that he had had two brothers forcibly removed by Taliban in November 2000, and that he feared that he too was vulnerable to being forcibly conscripted by Taliban. It did not expressly make that finding, but its subsequent consideration of his claims seems to indicate that it proceeded on that basis. Counsel for the respondent acknowledged that it had proceeded on that basis, so that any issue as to whether the Tribunal had erred in its consideration of the applicant's credibility was not relevant for the purposes of the review. 7 The Tribunal identified the applicant as having made two specific claims to satisfy the Tribunal that he had a well-founded fear of persecution by reason of his being a Pashtun or a Sunni Muslim. The first is that he feared that he would be forcibly recruited by Taliban, and the second that he made his objections to such a course known to Taliban so that he may be persecuted if he were to return to Afghanistan for imputed anti-Taliban political opinion. The Tribunal rejected that second claim. It was made only belatedly. It was not satisfied that Taliban would impute to him political opinion by reason of his conduct before leaving Afghanistan. That aspect of its decision was not raised by the applicant before the Court. 8 In relation to his claim that he is vulnerable to being forcibly conscripted by Taliban, the Tribunal expressed the issue in the following terms : "The question that remains is whether, in the particular circumstances of this case, the conduct of the Taliban in conscripting people from the applicant's village of which the applicant complains is referable in the relevant sense to one (or more) of the Convention grounds. Further whether conscription or compulsory military service in the circumstances described constitutes persecution and if it does whether there is a real chance the applicant will face persecution." That question could be paraphrased into the following questions : · is the conduct of Taliban in forcibly conscripting people such as the applicant for conduct engaged in for reasons of race, religion, nationality, membership of a particular social group or political opinion; · if it is, is that conduct of sufficient significance to constitute persecution for the purposes of the Convention, · if so, does the applicant have a well-founded fear that he may be exposed to that conduct. The question of whether the applicant has a well-founded fear of such persecution (assuming that the conduct does constitute persecution for a Convention reason) involves considering whether he has a subjective fear of being forcibly conscripted by Taliban, and an assessment of whether that fear is "well-founded", that is whether there is a real chance that he may be exposed to that conduct: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. 9 The essence of the Tribunal's reasons in its consideration of those matters is contained in the following passage from its reasons : "The country information referred to above indicates that the Taliban are restrictive in their recruitment procedures unless in an emergency. The applicant said men over the age of 18 could be conscripted. This is consistent with country information referred to above, which also indicates that conscription was known to take the form of demands on a particular local community in some places. It was known to be possible to buy exemption by paying the equivalent of US$200 to 300 per person. Traditionally Afghan conscripts are aged between 22 and 39. For the well heeled there is a choice of sending a man to fight or paying a tax. The applicant's own evidence is that the Taliban recruit using some discrimination about whom was eligible for conscription into Taliban forces. Two of his brothers were not taken and did not have trouble with the Taliban. It is clear form the applicant's evidence that not all young make [sic, male] Pashtun Sunni Muslims from the applicant's area are at risk of being recruited. The country information referred to above indicates that the applicant's province has been under the control of the Taliban since about 1995 and it is only recently that they have shown any interest in recruits from that area despite the fact that they have been through many crisis since 1995. I accept that the Taliban have on occasion forcibly conscripted young men from various races. However, there is nothing in the independent evidence referred to above to suggest that the Taliban have singled out Pashtuns for forcible conscription by reason of their race. The independent evidence referred to above suggests that most Taliban conscripts are Pashtuns, however, while they are preferred they are not exclusively recruited. The applicant's evidence that the Taliban conscripted just two of his brothers and were not interested in him is a further indication of the accuracy the country information that not every Sunni Pashtun male is at risk. I do not accept that there is a real chance that the applicant will be recruited or penalised by the Taliban if he returns to Afghanistan. I make this finding because his two remaining brothers were not of interest to the Taliban. I am not satisfied that there is any reason that the applicant would be of interest to the Taliban. I do not accept that simply because he left Afghanistan after his brothers were recruited he will be imputed with a political opinion opposed to the Taliban. The applicant left Afghanistan without difficulty after meeting with a smuggler. There is evidence from UNHCR (see Background Paper referred to above) that many people go in and out of Afghanistan to Pakistan from refugee camps or for other reasons. I do not accept that there is a real chance that the applicant will be singled out for forcible conscription or punishment by the Taliban by reason of his race or ethnic group or any other Convention reason if he returns to Afghanistan now or in the reasonably foreseeable future." 10 It does not appear that the Tribunal found it necessary to determine the question whether forceful conscription by the Taliban would amount to persecution, assuming that conduct was undertaken for a Convention reason. In the way in which the Tribunal approached the matter, it did not need to do so. If the Tribunal is shown to have committed a reviewable error in its consideration of the applicant's claim, that question will need to be addressed. 11 Although it does not appear elsewhere in the recital of the applicant's claims, the concluding paragraph of that passage just quoted includes reference to a further claim by the applicant that he is a refugee, namely that because he left Afghanistan after his brothers were recruited he would be imputed with a political opinion opposed to the Taliban. The Tribunal simply rejected that claim. It might be considered that the terms in which that claim was rejected indicate error on the part of the Tribunal by failing to consider whether the applicant had a well-founded fear of persecution for that reason, because it has expressed its conclusion in terms of there being a need for a positive finding of imputation of that political opinion, rather than of a real risk or real chance of the imputation of that political opinion. However, as was pointed out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the reasons for the Tribunal are not to be scrutinised over-zealously. In its earlier discussion of the meaning of the Convention, and at this point in its reasons, the Tribunal has referred to what is called the "real chance" test. I am not persuaded that the way in which the Tribunal has expressed its conclusion in relation to that claim demonstrates that it has failed to apply that test properly in relation to that claim. 12 However, in my judgment, the Tribunal has erred in its consideration of the claim of the applicant that he may be recruited forcibly by Taliban if he returns to Afghanistan. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ said : "A fear is 'well-founded' when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 percent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation." 13 It is a matter of interpreting or construing the Tribunal's reasons to determine whether it has applied the appropriate legal test in considering this particular claim of the applicant. Counsel for the respondent contended that the Tribunal, in the passage quoted above, had given its reasons for considering why there was no well-founded fear of persecution on the part of the applicant of being forcibly conscripted by Taliban for a Convention reason. In effect, it is contended, the Tribunal rejected the applicant's claim because there is no real risk that he will be conscripted at all, or that he will be conscripted by reason of his ethnicity or religion. The Tribunal has, as I have noted, in terms referred to the question whether there is a real chance that the applicant would be recruited by Taliban if he returns to Afghanistan, and has expressed itself as not being satisfied that there is such a risk. However, in my judgment, its reasons belie that assertion. I consider that they disclose that the Tribunal did not in fact apply the test of whether the applicant has a well-founded fear of being conscripted by Taliban by reason of his ethnicity or religion. The particular factors which the Tribunal has mentioned in its reasons for reaching that conclusion are simply not reasons which demonstrate that it was, in considering the question, properly addressing the issue. It said : · not all young male Pashtun Sunni Muslims from the applicant's area are at risk of being recruited. · most Taliban conscripts are Pashtuns, as they are preferred conscripts, but that Pashtuns are not exclusively conscripted. · not every Sunni Pashtun male is at risk. · the applicant's two remaining brothers are not at risk. · there is no reason that the applicant "would be" of interest to the Taliban. In my view those observations by the Tribunal indicate that it has in fact misapplied the test to determine whether the applicant has a well-founded fear of persecution for a Convention reason. Having regard to its comments noted above, its emphasis is not upon whether there is a real chance that the applicant may be forcibly conscripted by the Taliban, but rather upon the proposition that he may not be so forcibly conscripted because not all Pashtun Sunni Muslims are so conscripted, or that the focus of Taliban is not exclusively upon Pashtuns when conscripting males. The converse is not necessarily true, namely that Pashtuns are not selected for conscription on the basis of their ethnicity. In the light of its findings, the Tribunal's conclusion that there is no reason that the applicant would be of interest to the Taliban, having regard to its finding about the risk to which Pashtuns or Sunni Pashtuns are exposed, and the fact that two of his brothers have already been conscripted, tends to confirm that it has not in fact approached the applicant's position in accordance with the dictates of the Convention and of s 36(2) of the Act. 14 In my view, therefore, the Tribunal has erred in law. It is necessary that the matter be remitted to the Tribunal for reconsideration in accordance with these reasons. I so order. The respondent should pay to the applicant costs of the application to be taxed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 29 August 2001 The applicant appeared in person Counsel for the Respondent: Mr M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 21 August 2001 Date of Judgment: 29 August 2001