FEDERAL COURT OF AUSTRALIA W124 v Minister for Immigration & Multicultural Affairs [2001] FCA 1387 MIGRATION - judicial review - Refugee Review Tribunal - refugee sur place - whether failed asylum seeker returned from Australia to Afghanistan faces real chance of persecution by reason of failed claim - verbal formulation that no real chance of persecution - no real consideration - questionable reasoning discloses failure genuinely to consider question of risk - Tribunal decision set aside. Migration Act 1958 (Cth) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited W124 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W124 OF 2001 FRENCH J 28 SEPTEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 124 OF 2001 BETWEEN: W124 APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 28 SEPTEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal given on 9 April 2001 is set aside. 2. The matter is remitted to the Refugee Review Tribunal differently constituted to reconsider the application according to law. 3. The respondent is to pay the applicant's costs of the application. 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 124 OF 2001 BETWEEN: W124 APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 28 SEPTEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The applicant is a national of Afghanistan of Tajik ethnicity, who arrived in Australia by boat without authority in November 2000. On 24 January 2001, he applied for a protection visa. His application was refused on 22 February 2001 by a delegate of the Minister for Immigration and Multicultural Affairs ("MIMA"). He filed an application for review with the Refugee Review Tribunal ("Tribunal") on 23 February 2001 and on 9 April 2001 the Tribunal affirmed the decision not to grant him a protection visa. On 27 April 2001, he applied for a review of the Tribunal decision. Factual Background 2 The applicant is a Sunni Muslim of Tajik ethnicity who was born in 1976 at Kabul in Afghanistan. He married in 1994. His wife and two children, aged six and two respectively, are still in Kabul. 3 When interviewed on 21 November 2000 following his arrival in Australia, the applicant was asked why he had left Afghanistan. According to the record of that interview he said he had a jewellery shop. He left Afghanistan because he was imprisoned. One day, at lunchtime, he had left his shop and spoken with a woman. She had asked if some goods had arrived. He was talking to her. They were in the middle of conversation when members of a group called the "Monkarat" arrested them and took them to a police station where he was questioned. He said he was asked what his relationship was with the woman. He said there was no relationship. She said the same. They were not believed. For two weeks, according to the applicant, he was kept in a police centre and then transferred to a prison. There he was held for two months. He was not told why he was being held. He was told he would stay for a long time. Subsequently, however, his father gave somebody foreign currency and as a result he was released. His father arranged a passport for him and took him to Peshawar. People were saying that he was going to be stoned for talking to the woman. He had been accused of adultery with the woman. 4 In a statutory declaration dated 24 January 2001 which accompanied his application for a protection visa, the applicant provided more detail. He said his family came from Kabul and owned a jewellery shop. The Taliban had previously come to their family home on two occasions. The first time they had tried to take him away with them. He had pulled back and had run into the backyard of their home. When the Taliban followed they found his family members, their tenants and guests in the backyard. On the second occasion some Taliban people came to his house. They told him that a car they were following was entering the grounds of the house. This he said was just a trick to grab their property. They left quickly when they saw all the people in the house. He said that the family was a Taliban target because they are jewellers. About two years ago, the Taliban had looted his jewellery shop and had stolen money. His father's jewellery shop was looted on many occasions as well. His father's bag was stolen and his shop torched. 5 One day about eleven months ago he left his shop to go to afternoon prayers. He locked it up intending to return within thirty minutes. On the way he met a woman who was one of his customers and started talking to her. She asked whether he had received stock in the shop. He said that in a week or two the stock would come. While they were talking a car full of a Taliban group called "Bellmaroof" which checks to see if people have gone to prayers, stopped them. They asked him about the woman. He told them she was not related to him. They stopped a passing car and used that car to take the applicant and the woman to their provincial headquarters. There they were questioned for five to ten minutes about whether they knew each other and whether they were relatives. He reiterated his story about being gaoled for two weeks at one of the branches of the Bellmaroof. Two weeks later he was taken to the main prison in Kabul called Polycharkhi. There he was imprisoned for one and a half months. He was not questioned there although he was tortured and abused. Other inmates told him he would be stoned to death. After he had been in prison for a month his father found him and came to visit him. His father had been unable to obtain any information about why he was being detained. Subsequently his father bribed the applicant's Taliban captors. He sold the family home to secure his release and also to pay for his trip to Australia. His father told the applicant it was too dangerous to return home and instead accompanied him to Pakistan. His father took him to one of his friends in Pakistan where they stayed two nights. He met a smuggler and arranged his trip to Australia. 6 In support of his application for a protection visa, the applicant said he had fled Afghanistan because he was fearful for his future. He said in Afghanistan he had a good life, with a house, a car and a shop, but he had to leave. He was afraid that he would be caught by the Taliban and treated like a criminal for having supposedly escaped from prison. He said he did not make all his claims at the first DIMA interview because the interpreter told him to make it brief as there was not much time. The statutory declaration which accompanied the application for a protection visa was translated to the applicant and countersigned by the translator. 7 The Tribunal referred, in its reasons, to an interview conducted by the primary decision-maker in connection with the application. It mentioned, inter alia, a statement by the applicant to the primary decision-maker that if he went back to Afghanistan the person to whom his father had given money would say he had escaped. The Bellmaroof were all around Kabul and they would take him to prison. There were other cases like his where men who had met women had been stoned to death. The applicant said that the woman who had met him had been on her own. It was normal for a woman to walk on her own in Kabul, but if she talked to someone she would be arrested. He said the offence had been considered more serious because they were both married. If they had both been single, they would have been released after a few months. 8 The Tribunal made extensive reference to the evidence given by the applicant at the hearing and the exchanges between the Tribunal and the applicant. In the course of those exchanges the applicant said that he had had problems in Kabul as a Dari-speaking Tajik. He connected this with the incident in which Taliban people looted his shop two years ago. Asked whether he had reported the looting to the authorities, he said he had but the authorities wanted to make a case against a member of his family. They had suggested that his elder brother, who was disabled, had looted his shop. The Tribunal put to the applicant that information available to it suggested that the Taliban were willing to punish members of their movement who were found guilty of robbery. The applicant said they detained their people for a short period but released them. By way of example, the Currency Exchange in Kabul had been looted by eight supporters of the Taliban who had been arrested but released after only one and a half months. The Tribunal put to the applicant that about eighteen months previously the Taliban had imposed Islamic punishments on five members of the Taliban who had carried out a robbery. The applicant said they might do this in some cases because otherwise all the people would be against them, but they were only doing it in some cases. Other problems the applicant had experienced after the Taliban took over Kabul arose from their visits to his home. On the first occasion when he opened the door they had pushed it and as a result he was injured and blood was coming from his mouth. He said neighbours had asked the Taliban to let him go as he was "innocent". The Taliban had insisted he was a suspect (of what, was not specified) but they had eventually agreed to release him. The applicant said on two further occasions they had come to his home pretending to have seen a car belonging to opponents of the Taliban there. They had searched the house, but found nothing. 9 The Tribunal then took up the applicant's evidence that he had been arrested after having been found talking to an unaccompanied woman in the street outside his shop. The first place they had been taken was the Governor's House of Kabul Province and while there he had overheard one of the Taliban saying "I brought you a goldsmith". He had been asked about his relationship with the woman and what he had wanted to do with her. His interrogators, however, also said he was a goldsmith and he had a lot of money and asked him if he had given money to the woman. After being taken to the Pul-i-Charkhi prison he said he and other prisoners had been allowed out of their cells for half an hour a day for exercise and had been forced, through hunger, to eat grass in the prison yard. 10 The applicant told the Tribunal that his father had obtained his release by paying someone money. He had paid money to the "priest" in the prison who had given it to someone else. He did not know how much his father had paid, but he had sold all his properties to raise the money. The Tribunal put it to him that he had previously said his father also paid money to the smuggler who arranged his travel to Australia. The applicant said his father had sold the house to pay the money to the smuggler. 11 The Tribunal told the applicant that the information available to it indicated that in areas under Taliban control women were only permitted to leave their homes escorted by a male relative. If his woman customer had come out unaccompanied she would have risked a beating. It was also put to the applicant that it was implausible the woman would have been wandering the streets of Kabul unaccompanied. The applicant said there were many women who left their houses unaccompanied because they had no male relatives. They had to buy things for their children. The Tribunal put to the applicant that if he had been found in the company of the woman they might both have been beaten, but it was implausible to suggest he would have been accused of adultery as he claimed. The applicant said this had been a pretext because he was not Pashtun. He said there was very serious discrimination against non-Pashtun nationalities or races. 12 The Tribunal said to the applicant that the evidence available to it did not suggest the Tajiks were being persecuted in Kabul by reason of their ethnicity. The applicant said this was Taliban propaganda. He said that shopkeepers were disappearing and nobody knew where they had gone. He said that in Pul-i-Charkhi there had been many Tajiks and no Pashtuns. The Tajiks were kept there for interrogation and after a period of time sent to the front line. 13 The Tribunal then put to the applicant that the United Nations High Commissioner for Refugees ("UNHCR") had repatriated tens of thousands of Tajiks from Iran, mainly to the western region of Afghanistan and to Kabul, in the course of the previous year. The applicant said this was right, there were millions of Tajiks and other minorities in Afghanistan. The Taliban mainly pressured the people who had money or who had a political profile. He was not saying that the Taliban persecuted all Tajiks or all nationalities. Because he had been a goldsmith they had known that he had a lot of money. Every time they had arrested him, they had talked about money and gold. The Tribunal also put to the applicant that independent evidence suggested most Taliban conscripts were Pashtuns. The applicant said, again, that this was just Taliban propaganda. He said also that the Taliban were sending women with concealed tape recorders into shops to talk to shopkeepers and businessmen and to say things like "I want to go with you" or "I want to make a deal with you". They tried to record the voice of the shopkeeper or businessman on tape and the Taliban would then come and arrest the shopkeepers or businessmen, put them in gaol and confiscate their property. 14 The applicant agreed with the Tribunal that he had not been involved in any political activity in Afghanistan. He said he had not applied for refugee status on the basis of his political opinion. He had applied because there was a big risk that he would be persecuted by the Taliban if he returned to Afghanistan. 15 The Tribunal then put to the applicant that even if it were to accept that he would face punishment for adultery and for having escaped from lawful custody if he were to return to Afghanistan, it was well established that the enforcement of a law of general application was not, without more, persecution for a Convention reason. The applicant responded that it was obvious that the Taliban had persecuted him because of his race, because he had a business and because he had money. He said it had been mainly because of his race. They had arrested his uncle and had killed him by reason of his nationality. The Tribunal put to the applicant that it did not accept that the Taliban persecuted Tajiks in Kabul. The applicant said that they did not persecute all the Tajiks. They persecuted some of them. They used pretext to persecute them to get money and to confiscate all their property. 16 It was put to the Tribunal that there was a logistical issue with regard to how the applicant might return to Kabul. There was no direct route and it was unclear whether any failed Afghan asylum seekers had been repatriated. Afghanistan was still subject to United Nations sanctions. It was also argued before the Tribunal that there was a sur place issue as to whether the applicant could be repatriated without the Taliban becoming aware of what he had been doing in Australia. Moreover, there was a question about the voluntariness of repatriations from Iran. The Tribunal's understanding, expressed to the applicant's representative, was that although the Iranian government had deported some Afghans repatriations conducted under the auspices of the UNHCR were entirely voluntary. The logistical issue did not arise because there was no question of relocation within Afghanistan being raised. 17 On the sur place issue, it was submitted to the Tribunal that given the Taliban's anti-western attitude, it could be inferred that they would draw a distinction between failed asylum seekers repatriated from Western countries and those repatriated from refugee camps in Iran and Pakistan. The Tribunal gave the applicant's representative until 5 April to make further submissions and to obtain evidence on the issue. The Tribunal asked the applicant if there were anything further he wished to add. He said that if he returned to Afghanistan he would definitely be killed. He had escaped from Afghanistan illegally, without the permission of the authorities, and would be killed. 18 Under cover of a submission of 30 March 2001, the applicant's representative produced what the Tribunal described as "brief responses" obtained from Dr William Maley, Associate Professor of Politics at the Australian Defence Force Academy and an acknowledged expert on Afghanistan. In relation to discrimination against Tajiks, Dr Maley said that in Kabul Tajiks suffer from discrimination on linguistic grounds since they are typically speakers of Dari, while the Taliban are typically Pashto speakers. More seriously, Tajiks are likely to be associated in the minds of Taliban extremists with the Taliban's "United Front" opponents. Ahmad Shah Masud, the main United Front leader, was a Panjsheri Tajik. Professor Burhanuddin Rabbani, President of the "Islamic State of Afghanistan" whose credentials the United Nations continue to accept, is a Badakhshi Tajik. Asked whether there was any evidence of persecution of unsuccessful asylum seekers returned to Afghanistan, Dr Maley said that to the best of his knowledge, not one Afghan asylum seeker from Australia, Tajik or otherwise, had been returned to Afghanistan. This in itself indicated a degree of political disorder in that country. Nor was he aware of Afghan asylum seekers being returned to Afghanistan from other Western countries. 19 Dr Maley also expressed the view that the Taliban would regard a returnee from Australia in a different light to a returnee from Pakistan. Returnees from Pakistan tended to be ethnic Pashtuns, whose earlier return was blocked by such obstacles as anti-personnel mines in ancestral properties. An Afghan returned from Australia would be scrutinised with vastly more attention and could well experience harassment. He also said that forced conscription of Tajiks and Hazaras has been reported on occasion. This was likely to increase in future given the well documented shortages of manpower which the Taliban had experienced in the previous year and the subsequent imposition by the United Nations Security Council Resolution 1333 of sanctions which made Pakistan responsible for blocking the flow of manpower to the Taliban from Madrassas (religious schools) in Pakistan. 20 The Tribunal was referred, in a submission from the applicant's representative, to general information concerning the human rights situation in Afghanistan. Reports of harassment, extortion and forced expulsion from their homes of ethnic Hazaras and Tajiks by Taliban soldiers were referred to in the US State Department's Country Reports on Human Practices for 2000. The US State Department observed that the Taliban was Pashtun dominated and had shown little tolerance for accommodation with ethnic minorities. There was information suggesting that those suspected of sympathising with opponents of the Taliban had been arrested and detained in Afghanistan. Reference was also made to the World Report 1999 from Human Rights Watch that beginning in 1996 large numbers of Tajiks had been forcibly relocated from their homes north of Kabul out of fear that they might give support and cover to opposition troops trying to move south towards the capital. An Amnesty International Report made reference to Tajik, Hazaras, Uzbek and Panjshairi travellers trying to flee Afghanistan in July 1998 and being stopped by Taliban guards. The killing of thousands of ethnic Hazaras civilians at the time of the capture of Mazar-i-Sharif in August 1998 was also mentioned. The applicant's representative also drew attention to religious persecution and, in particular, the religious police force known as the Ministry for Promotion of Virtue and the Suppression of Vice ("PVSV") which enforced rules concerning appearance, dress, employment, access to medical care, behaviour, religious practice and freedom of expression. Members of the PVSV regularly checked persons on the streets in order to ascertain that individuals were conforming to Taliban edicts. Persons found to be in violation of edicts were subject to punishment meted out on the spot which could include beatings and detention. 21 In relation to the return of failed Afghan asylum seekers, the applicant's representative referred to comments from Amnesty International stating that Afghan refugees should not be returned to Afghanistan against their will. The Tribunal observed that these comments related to those persons recognised as refugees under the Refugee Convention, not failed asylum seekers. The applicant's representative also made a submission about conscription noting that one NGO quoted by the Danish Immigration Service observed that Taliban conscripts had included both Tajiks and Hazaras. It was submitted that the applicant feared persecution by reason of his Tajik ethnicity and his imputed political opinion (perceived opposition to the Taliban). It was submitted the applicant feared he would be perceived as being opposed to the Taliban because he was Tajik and spoke Dari, because he had spoken to a woman on the street contrary to the Taliban strict religious rules and because he had made an application for refugee status in a Western non-Islamic country. 22 The Tribunal then reviewed the historical background of Afghanistan following the abolition of the monarchy in 1973. It referred also to social and political conditions and the ethnic distribution in that country. 23 In its findings and reasons for decision, the Tribunal assessed various aspects of the applicant's claims. It began by determining that his account of arrest and detention for having been found talking to a woman in the street was implausible. The Tribunal said: "The information available to me indicates that in areas under Taliban control women are only permitted to leave their homes escorted by a male relative. If the Applicant's woman customer had come out unaccompanied she would have risked a beating." The Tribunal did not accept that the woman would have been wandering the streets of Kabul unaccompanied. In dealing with the applicant's argument that there were many women who left their houses unaccompanied because they had no male relatives, the Tribunal noted the applicant's story that the woman in question had come out to buy things just before noon at a time when, according to the applicant's evidence, religious police would come around every day asking people to close their shops because it was prayer time. The Tribunal did not accept that the woman would have risked coming out of her home unaccompanied by a male relative at this time of day. 24 The Tribunal considered it implausible that even if the applicant had been found by religious police talking to the woman he would have been arrested, detained for two months and accused of adultery. The information available to the Tribunal suggested that the religious police mete out beatings on the spot for the violation of the prohibition on women being in the company of men who are unrelated to them. The applicant had said this had been a pretext because he was not Pashtun. In relation to discrimination against Tajiks, the Tribunal said that the evidence available to it did not suggest that Tajiks were being persecuted in Kabul by reason of their ethnicity. The applicant said this was Taliban propaganda. There had been many Tajiks and no Pashtuns in the prison. The Taliban kept Tajiks there for interrogation and after a period of time sent them to the front line. However the Tribunal relied upon its finding that UNHCR had repatriated tens of thousands of Tajiks from Iran mainly to the western region of Afghanistan and to Kabul in the course of the past year. The Tribunal did not consider that the UNHCR would be doing this if Tajiks were being persecuted in Kabul. The Tribunal concluded that the independent evidence available to it did not support the applicant's claims that Tajiks were being singled out for persecution by reason of their ethnicity in Kabul. 25 The Tribunal then referred to the applicant's claims that he was under constant pressure from the Taliban to go to the front line to fight against the Taliban's opponents and that he and his father gave money to the Taliban to protect him. Reference was also made to Dr Maley's evidence. The Tribunal accepted that the Taliban had, on occasion, forcibly conscripted Tajiks as well as other races. However, there was nothing in the independent evidence available to the Tribunal to suggest that the Taliban had singled out Tajiks for forcible conscription by reason of their race. The independent evidence suggested that most Taliban conscripts were Pashtuns. The Tribunal said: "I prefer the independent evidence available to me to the Applicant's evidence, to the extent of any inconsistency. I do not accept that there is a real chance that the Applicant will be singled out for forcible conscription by the Taliban by reason of his race (Tajik) if he returns to Afghanistan now or in the reasonably foreseeable future." 26 The Tribunal accepted Dr Maley's evidence that Tajiks suffer from some discrimination on linguistic grounds in Kabul because they speak Dari. However, the Tribunal considered any discrimination that they might suffer from on this basis would fall short of "persecution" for the purposes of the Convention. There was nothing in the independent evidence available to the Tribunal to suggest that Tajiks or Dari speakers were prevented from owning or operating businesses in Kabul. The applicant said that for many years he and his father had been bribing the Taliban to be allowed to continue in business and to stay in Afghanistan. The independent evidence available to the Tribunal, however, suggested that, contrary to the claims of the applicant, ethnicity was not a primary reason for being targeted by the Taliban security forces in Kabul. 27 The Tribunal accepted that large numbers of civilians were displaced from their homes in the Shomali plains to the north of Kabul in 1999 in connection with fighting between the Taliban and the Northern Alliance and that the Taliban had killed members of ethnic minorities, primarily Hazaras, but also Tajiks and Uzbeks associated with the Northern Alliance after capturing towns such as Mazar-i-Sharif, Bamiyan and Taloqan which had changed hands on more than one occasion in recent years. The applicant, however, came from Kabul and, according to his own evidence, remained there for about four years after it was captured by the Taliban. The Tribunal did not accept on the evidence that there was a real chance that Kabul would be affected by fighting in the reasonably foreseeable future. Although there was some harassment of Tajiks and other ethnic minorities associated with the Northern Alliance in Kabul immediately after the Taliban took control of the city in September 1996, there had been no reports of such harassment in recent years. 28 The Tribunal also referred to Dr Maley's evidence that Tajiks were liable to be associated in the minds of Taliban extremists with its Northern Alliance opponents. It noted that the Canadian Immigration and Refugee Board had obtained advice from experts on Afghanistan in July 1998 indicating that while persons suspected of supporting or being sympathisers of the Northern Alliance would be under close surveillance from the Taliban security forces in Kabul, ethnic affiliation was not a primary reason for being targeted by them. The Tribunal accepted, as suggested by Dr Maley, that Panjshiri Tajiks and Badakhshi Tajiks would be considered suspect by the Taliban. However, the applicant is a Kabuli Tajik. The Tribunal did not accept that there was a real chance that he would be regarded as a supporter or sympathiser of the Northern Alliance by reason of his ethnicity. The Tribunal moreover did not accept that UNHCR would be returning Tajiks to Kabul if there were a real chance that they would be persecuted by the Taliban by reason of a perception that they were supporters or sympathisers of the Northern Alliance based on their ethnicity. The Tribunal did not accept that the applicant had a well-founded fear of being persecuted by reason of his race or any political opinion which might be imputed to him by reason of his race if he were to return to his home in Kabul now or in the reasonably foreseeable future. 29 As to the contention that the applicant had been singled out for extortion and robbery because he was a goldsmith and had money, the Tribunal found that there was nothing in the independent evidence to suggest that goldsmiths or jewellers constituted a "particular social group" in Afghanistan for the purposes of the Convention. Nor was there anything in the independent evidence to suggest that goldsmiths or jewellers were targeted by the Taliban or extortionists or robbers generally by reason of their membership of the suggested "particular social group". The Tribunal did not accept that the Taliban were failing to provide Tajiks in Kabul with protection against crime because of their ethnicity. It did not accept that there was a pattern of State-tolerated or State-sanctioned discrimination against Tajiks in Kabul such that it could be said that for a Convention reason State protection was unavailable to Tajiks there. 30 The Tribunal repeated its reliance upon the fact of the UNHCR returning Tajiks from Iran to Kabul as indicating that Kabul was not unsafe for Tajiks. 31 The Tribunal did not accept the applicant's evidence that his shop had been robbed by Taliban from the police post in the main shopping centre of Kabul and that they had suggested his disabled brother was responsible. The information available to the Tribunal suggested the Taliban were willing to punish members of their movement found guilty of robbery. The Tribunal did not accept, on the evidence before it, that the Taliban condoned robberies or extortion by members of their movement or that they failed to provide effective protection to members of the civilian population in areas under their control against such acts. The Tribunal did not accept that the applicant would have been arrested, detained for two months and accused of adultery merely because he was found talking to a woman in the street. Even if the Tribunal were to accept that there was a real chance that the applicant would be punished by being stoned to death for adultery or having escaped from legal custody and having departed Afghanistan illegally, it did not accept that this brought him within the terms of the definition of a refugee under the Refugee Convention. This was because the law in question would be a law of general application. The Tribunal did not accept that the applicant would be treated differently from other offenders by being punished more harshly by reason of his race, imputed political opinion or membership of any particular social group for the purposes of the Convention. 32 As to the claim of religious persecution, the Tribunal regarded it as a well-established fact that Afghanistan is an Islamic state and that certain of its laws reflect Islamic morality. This did not mean that the enforcement of such laws would amount to persecution by reason of political opinion or religion. In addition, the Tribunal held there was no evidence to suggest that the Taliban imputed political opinion to failed asylum seekers who may be returned to Afghanistan. It referred again to the UNHCR's repatriation of tens of thousands of Afghans from Pakistan and Iran. As to Dr Maley's evidence of the non-return of any Afghan asylum seekers from Western countries, the Tribunal noted that he did not address the situation of failed Afghan asylum seekers from Iran who are mainly Tajiks. The Tribunal did not accept that UNHCR would be repatriating failed Afghan asylum seekers from Iran to Afghanistan if the Taliban imputed persons who had applied for refugee status in a country like Iran, which is hostile to the Taliban, with a political opinion opposed to the Taliban and persecuted such persons as a result. No sensible distinction could be drawn in this context between Iran and Western countries on the basis that Iran is an Islamic country having regard to the fact that Iran is a long standing political opponent of the Taliban. In the event, the Tribunal said: "Even taking into account the cumulative effect of the Applicant's circumstances, therefore, I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Afghanistan." Grounds of Review 33 The application, which was initially lodged by the applicant himself, was amended on the basis of legal advice received. The amendment was in accordance with a minute filed in Court on 30 August 2001. The grounds of the application, as amended are: "1. Failure to observe procedures - section 476(1)(a) of the Migration Act 1958 ("the Act"); No jurisdiction to make the decision - section 476(1)(b) of the Act; A decision not authorised by the Act - section 476(1)(c) of the Act and Error of Law - section 476(1)(e) of the Act The decision of the Tribunal was: (a) a failure to act in accordance with the procedures required by law; (b) not authorised by the Act; (c) a decision involving an incorrect application of the applicable law; and (d) an incorrect application of the law to the facts as found by the Tribunal. The Tribunal did not have jurisdiction to make the decision. PARTICULARS (i) The Tribunal ignored relevant material and in particular ignored material relating to persons of Tajik nationality and the return of persons from Western countries and the likelihood of persecution. (ii) Relied on irrelevant material and in particular on material relating to the return of persons from Iran and on one reported episode of Taliban members being punished for theft. (iii) Erred in law or relied on irrelevant material or ignored relevant material in not making the distinction between the crime of extortion and State sponsored or tolerated extortion. (iv) Failed to follow procedures and erred in law by drawing inferences or coming to conclusions that were not justified on the evidence and by rejecting the applicant's evidence without cause." Whether the "Real Chance" Test was Applied? 34 Written submissions in support of the grounds of review were prepared by a legal practitioner acting pro bono for the applicant. The applicant represented himself at the hearing, but relied upon the written submissions which had been lodged. In those submissions it was said that the Tribunal's reasons disclosed what appeared to have been an ongoing cross-examination of the applicant by the member. They were punctuated by the clause "I put it to the applicant that…". Whilst it is true that the reasons so expressed do convey that impression, I accept that the member was setting out the course of his exchanges with the applicant on matters where he had formed a view potentially adverse to the applicant and giving the applicant an opportunity to comment. There is no basis for a ground of review in that respect although the way in which that procedure is carried out may convey the impression of a sceptical or even hostile inquisition. But the Tribunal, it must be remembered, is not an independent judicial body. It is an arm of the Executive, exercising Executive functions, albeit conferred by statute. Its processes are not judicial and cannot and should not be judicialised by over scrupulous procedural review, even to the limited extent that that is available. And its reasoning, as is well established, is not to be scrutinised with an eye keenly attuned to error. 35 The submission argued that the Tribunal had failed to take account of relevant material and had taken into account irrelevant material. The relevant material said not to have been taken into account was: 1. Evidence before the Tribunal that it was plausible that the applicant could have been, as he said he was, found by religious police talking to a woman, arrested and detained for two months and accused of adultery. 2. The submission made by the applicant that ethnic Hazaras and Tajiks are subject to extortion and robbery and that they faced expulsion from their homes by Taliban soldiers. 3. The report from Amnesty International which the Tribunal regarded as not bearing upon the repatriation of failed asylum seekers. The material taken into account which was said to be irrelevant was: 1. The fact that there was an occasion upon which members of the Taliban were prosecuted for robbery. One such incident could not, it was submitted, disprove the applicant's contention that the Taliban engaged in extortion and robbery. 2. The repatriation of Tajiks from Iran to Afghanistan, relied upon by the Tribunal to support its contention that Tajiks were not being persecuted in Kabul. The applicant faces repatriation from a Western country. 36 The complaints made in these submissions about failure to take into account relevant evidence, and taking into account irrelevant material, were in essence complaints about the reasoning process adopted by the Tribunal or the weight given by it to material before it. Subject to the remarks that follow, no error of law or jurisdictional error was disclosed on the basis of a failure to take into account relevant material or taking into account irrelevant material - Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. 37 There is, however, a question whether the Tribunal, in its approach to the case, properly considered the question whether the applicant had a well-founded fear of persecution for a Convention reason. That is to say, did the Tribunal consider whether there was a real risk or real chance that the applicant could, if returned to Afghanistan, face persecution for a Convention reason. It is, of course, quite right to say that when the Tribunal's positive findings about a case are clear they may exclude the hypothesis that there is any real chance of persecution. In that event the "real chance" question need not be put separately. But where the Tribunal merely rejects an applicant's contentions as improbable, the "real chance" question is still a live one. It may be then that there is a probability, less than fifty per cent, of persecution if the applicant is returned to the country from which he or she is fleeing. The issue was not expressly raised in this form in the grounds of review or submissions but emerges naturally from the question whether an unsuccessful asylum seeker repatriated from a Western country may be a refugee sur place by virtue of having sought asylum in the Western country. 38 Counsel for the Minister was invited to, and did make, a submission on this point. He submitted that there was evidence from Dr Maley to the effect that there was no information about repatriation from Western countries and that it might be that someone repatriated from Australia would face peculiar attention or different attention from the ordinary returnee. It was submitted that the Tribunal had regard to that evidence but also to evidence of the large number of Tajik returns from Iran who apparently suffered no adverse consequences. This was notwithstanding the long-standing and well-known animus between Iran and the Taliban. Counsel said it was open to the Tribunal to conclude that by parity of reasoning the likelihood of Tajik people encountering adverse attention when returned from Australia might be similar. He conceded that the merits could be thought quite finely balanced on that point. Counsel said there was no obligation on the Tribunal to accept Dr Maley's evidence. It was an entirely proper consideration for the Tribunal to refer to the situation of returnees from other countries and, in particular, from Iran. The Tribunal's reasoning was entirely proper, though finely balanced as to the merits. 39 In my opinion, the Tribunal did not give real consideration to whether there was a chance that, by reason of being a failed asylum seeker in Australia, the applicant would face persecution upon his return to Afghanistan. The Tribunal relied upon what was said to be the absence of evidence to suggest that the Taliban would impute adverse political opinions to failed asylum seekers generally. This, of course, did not address the specific position of asylum seekers returned from Western countries and, in particular, from Australia. Dr Maley's evidence that he was not aware of failed Afghan asylum seekers having been returned to Afghanistan from Western countries at all and his opinion that returnees from Australia would be viewed differently was rejected on the basis that he had not addressed the situation of failed Afghan asylum seekers returned from Iran. The Tribunal did not consider that any sensible distinction could be drawn between Iran and Western countries on the basis that Iran is an Islamic country having regard to the fact that Iran is a long standing political opponent of the Taliban. The Tribunal did not accept that if the applicant returned to Afghanistan now or in the reasonably foreseeable future there was a real chance that there would be imputed to him a political opinion opposed to the Taliban by reason of his having made an application for refugee status in a Western country like Australia. 40 The reasoning of the Tribunal does not command assent. That, of course, is not a basis for interfering with its decision. In my opinion, however, notwithstanding the verbal formulation the sanguine alignment of returnees from Australia with returnees from Iran, against the opinion of an acknowledged expert, rejected for no persuasive reason, indicates that the risk was given no realistic consideration. Had it been given any real consideration it would have been apparent to the Tribunal that there was no rational ground for excluding it. In this case the failure of rationality in the Tribunal's reasons does not provide a ground for review. But it does evidence an underlying failure on the part of the Tribunal to pose for itself the critically important question that it should have asked. Its failure to pose the question constitutes a failure to apply the criteria under the Refugee Convention which inform Australia's protection obligations for the purpose of the grant of a protection visa. In this respect the Tribunal committed an error of law. Its decision must be set aside and the matter remitted to another Tribunal differently constituted. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 28 September 2001 The applicant appeared via video on his own behalf Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 September 2001 Date of Judgment: 28 September 2001