FEDERAL COURT OF AUSTRALIA Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411 MIGRATION – application for order of review of decision of Refugee Review Tribunal affirming decision of respondent's delegate not to grant a protection visa – applicant claimed fear of persecution in the form of being press-ganged into Taliban militia – whether Tribunal erred in law or fell into jurisdictional error by not considering whether real chance that applicant as a member of a particular social group (able-bodied Afghan males) might be persecuted, by reason of such membership, by forcible conscription into the Taliban militia to fight in the civil war, there being no evidence of any law of general application – whether matter should be remitted with a direction as to the constitution of the Tribunal. Migration Act 1958 (Cth), s 476(1)(b), (c) and (e) Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 distinguished Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 referred to Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 followed Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881 referred to Mahmoodi v Minister for Immigration and Multicultural Affairs [2001] FCA 1090 not followed Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 referred to Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 referred to APPLICANT S v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 10 of 2001 CARR J 5 OCTOBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 10 OF 2001 BETWEEN: APPLICANT S Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 5 OCTOBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant have leave further to amend his application in terms of the amended minute of proposed further substituted grounds for review filed on 20 July 2001. 2. The decision of the Refugee Review Tribunal, made on 4 January 2001, be set aside. 3. The matter be remitted to the Tribunal for decision in accordance with the law. 4. In the event that there is a dispute over the constitution of the Refugee Review Tribunal that is to determine the matter, the parties have liberty to apply on that issue. 5. 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 W 10 OF 2001 BETWEEN: APPLICANT S Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE: 5 OCTOBER 2001 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 4 January 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a national of Afghanistan, arrived in Australia on 11 July 2000 travelling by boat, with the assistance of a people smuggler. On 25 July 2000 the applicant applied for a protection visa. On 5 September 2000 a delegate of the respondent refused to grant him a protection visa. On 8 September 2000 the applicant sought review of the delegate's decision by the Refugee Review Tribunal. the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · that he is Pashtun by ethnicity, married and comes from a village in a provincial district where his wife, father, mother and four brothers still live; · he and his family have lived under Taliban control for two years; · about three weeks before his departure from Afghanistan, the Taliban sought to conscript him into their forces, but he was able to pay them off; · about a week before the applicant's departure from Afghanistan, the Taliban came back and again sought to conscript him into their forces. He was able to stall them off by telling them that he needed to speak to his parents; · he then departed immediately from Afghanistan with the assistance of a people smuggler to whom his father paid over US$6,000; · at the time when the Taliban took over the area in which he lived, they detained him and his father on suspicion of hiding weapons. They were held for 20 days, during which they were maltreated, but then released; · the applicant feared that if he were returned to Afghanistan he would be hanged by the Taliban because of his refusal to fight for them and because he would be accused of being a Godless person because he had gone to a Western country; 3 I set out below a summary of the Tribunal's reasons and reasons. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS 1. The Applicant has claimed that he fears persecution at the hands of Taliban, the current regime in Afghanistan. 2. He claims that he is the son of the head of his village and that his father was involved in the opposition to the Taliban and that his house was targeted as a result. 3. The Applicant claimed that he was asked to join the Taliban militia but left the country without doing so. 4. In determining this matter I have considered the Applicant's profile and his claims to determine whether or not he is at risk of harm for a Convention reason and whether or not the nature of Taliban's "conscription" would bring him to the adverse attention of the authorities for failing to serve. The Applicant's Position as the son of the Village leader [In paragraph 5 to 13 of its reasons the Tribunal considered and rejected the applicant's claims that he had an enhanced political profile because he was the son of the village leader]. The Claim to have been imprisoned. [In paragraphs 14 to 19 the Tribunal dealt with the applicant's claim to have been imprisoned, expressed some doubt on the matter, and found that had he been imprisoned, the Taliban would not have released him (as he stated) if there was any residual doubt that he may have been opposed to them.] The Social Restrictions of Taliban 20. The Applicant claimed that he was forced to grow his beard and not to listen to taped music and other social restrictions. 21. I accept the Applicant's claims in this regard. 22. [Here the Tribunal referred to portion of a US State Department Country Report]. 23. However, this social restrictions (sic) are imposed uniformly and, accordingly there is no discriminatory element and they can not amount to persecution within the ambit of the Convention. 24. The Applicant has made no claims to have rebelled against these restrictions and thus there is no basis to consider that he has a political opinion imputed to him as a consequence. 25. Therefore, while he may feel angry and frustrated by this restrictions (sic) they do not, of themselves, advance his case in regard to persecution for a Convention reason. Conscription or the Applicant 26. Having considered his claims, as discussed above, I find that the Applicant has no enhanced profile and his is the situation of a young Afghan Muslim man of the Pashtun race who has lived under Taliban for about two years without coming to undue interest of the Taliban becoming fearful that he will be recruited as has been the case with many youths. 27. I find his experience in this regard was in a drive for recruits in his area where his household/business and others in his area were called where young men were seen and called on to fight. 28. This fear of recruitment is understandable when the situation in the ongoing battle for control of Afghanistan is considered and the lack of training or support for these recruited, unskilled youths is taken into account. 29. I have discussed the issue of Taliban's recruitment and the issue of conscription in general below. 30. The issues which are material to his case and which I accept are: 1. He is Afghan. 2. He is Pashtun, the same ethnic group as the Taliban. 3. He is of fighting age and, had faced conscription in Afghanistan and was at risk of facing it again. 4. The Taliban is predominantly Pashtun and does not have a regular conscription programme but, on an ad hoc basis has a practice of rounding up or pressganging young men available at the time into their services. 5. The Taliban has been in control of his area for two to two and a half years and continues to be so. 6. The situation in Taliban held areas has stabilised to the extent that the UN is prepared to facilitate return to them. 31. The information contained in the Cisnet document CX40735 leads me to conclude that the United Nations is satisfied that, in general circumstances it is safe for Afghan citizens to return to Taliban held rural areas considered safe and, the U.N is facilitating that return. 32. [Here the Tribunal again referred to the same US State Department Report]. 33. For reasons discussed below I find that the Applicant's claims do not come within the Ambit of the Convention. The Applicant's Claims in Regard to Conscription in the Taliban Armed Forces 34. The terms of Article 1 A(2) of the Convention are such that for harm to amount to Convention persecution that harm must have a discriminatory element to it as it states that the persecution must be "for reasons of race, religion, nationality, membership of a particular social group or political opinion." 35. In the absence of any element of discrimination the harm, even if oppressive or constituting "generalised human rights abuses" does not bring the claims within the ambit of the Convention. 36. In the matter of Applicant A & Anor v MIEA (1997) 190 CLR225 at244 Dawson J stated, in reference to claims of serious harm: For my part, however, I do not see how those considerations assist the appellants, since they merely suggest that the persecution which they face is serious and may infringe internationally recognised human rights. That is not the issue in this appeal. The issue is whether that persecution is for one of the five Convention reasons. (my emphasis added) 37. The Courts have held that the harm may be multi faceted and so long as a facet played, "a substantial part in the persecution feared by the applicant that would be persecution 'for reasons of' " (See: Mahespararam v MIMA (unreported, Federal Court of Australia, Madgwick J, 15 Apri1 1999) but that there must be an element of discrimination for one of the five Convention reasons. 38. In Applicant A Brennan CJ stated: ... the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination ("race, religion, nationality, membership of a particular social group or political opinion") mentioned in Art 1(A)(2). 39. 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. 40. I am of the opinion that his representative would have discussed the Applicant's claims and pointed out to him the need for a discriminatory element to exist if his matter was to come within the Convention. 41. I have considered the Applicant's background, the fact that he was raised in a rural village and had little outside contact. I have also taken into account the Applicant's claims, which I accept, that he has had only five years of primary education and considers himself to be illiterate. 42. This would explain his lack of understanding of the Convention and also any confusion he may have held that gave him the misconception that harm, of itself, was sufficient to identify him as a refugee. 43. However, having due regard to the handicaps he faced I have also considered the counsel from his representatives and the nature of the questions put to him by the department to draw out his claims. 44. I accept the information cited above in Cisnet document CX39867, DFAT cable IS500488 to the effect that Taliban does not have a regular conscription policy but has as a practice the recruitment, often forced, of young men regarded to have the potential to fight. 45. I accept that, in some instances, Taliban has been reported to have forced youths of families it regards as being opposed to it to cross mine fields or undertake tasks which could lead to harm for reasons of their opposition. There were reports that some prisoners of the Taliban, including the sons of families that had opposed Taliban social restrictions, had been drafted forcibly and sent to the front. There were also reports that the Taliban forcibly conscripted or attempted to forcibly conscript persons in 1997 and 1998; some of these reports were unconfirmed. US State Department Country Reports on Human Rights Practices 1999. 46. However, I do not accept this is the case in the current matter since I do not accept that he or his family has opposed the Taliban such as to be identified as being of the opposition or that the Applicant was of any adverse concern to them. 47. He has lived under Taliban control for two years and has not come to their adverse attention except the relatively minor annoyance of being told to keep his beard long and not to play taped music. 48. In the time he and his family lived under the control of Taliban he made no claim to have opposed their "social restrictions" and he made no claim to have suffered in a discriminatory way under Taliban. 49. 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. 50. In the matter of Mijoljevic v MIMA [1999] FCA 834 (Branson J, 25 June 1999) the Applicant objected to military conscription on the basis of his pacifist views. The Tribunal found that this objection and the possible consequences of failing to undertake conscription did not bring the Applicant's case within the ambit of the Convention. 51. In determining the appeal Branson J stated: In my view, the conclusion of the Tribunal that the applicant's pacifist views did not provide a basis upon which it could be satisfied that he was a person to whom Australia owes protection obligations under the Refugees Convention was open to it on the evidence and material before it. Further, in my view, the Tribunal's reasons for decision do not suggest that the Tribunal's conclusion in this regard involved any error of law. 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 (see for example, Murill-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150; Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750). See also Hathaway, TheLaw of Refugee Status at para 5.6.2. (Ibid at 23). 52. 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 against (sic) the fighting that is happening and has no reason to kill anyone. 53. He also claims that Taliban is a foreign force from neighbouring Pakistan. 54. I have considered the information before me and, while I am left in no doubt that Taliban is by most standards a ruthless and despotic political body founded on extremist religious tenets. It is, nevertheless the body which controls 90 percent of Afghanistan and, though not internationally recognised by many states, is the current de facto government of Afghanistan. 55. While I accept that Pakistani extremists both promote and support the movement and accept the evidence cited above that many Afghan Taliban were trained in Madrassas in Pakistan I do not accept the Applicant's views that it is a foreign force. It is, according to independent material a "Pashtun-dominated ultra-conservative Islamic movement" headed by Mullar Omar of Afghanistan. 56. I do not intend to further consider the issue of whether or not it is a foreign force as this would not, in any event, convert the Applicant's fear to a Convention based claim. 57. As discussed above it is clear that Taliban does not have, as a policy, a regularised military service or conscription programme but rather, takes young men at random, as needed for its military purposes and I accept the DFAT advice in cable IS5OO488 of 21 October 1996 to the effect that thousands of young men have left Afghanistan for this reason. 58. I find that this is what occurred in the case of the Applicant who had managed to avoid recruitment in one drive by paying the recruiters off and, in a second drive stalled them by saying he needed to speak to his parents. 59. The nature of the recruitment process is such that there are no criteria for selection save being able bodied and, being in the wrong place at the wrong time. 60. By his own account he was approached in an ad hoc recruitment drive and, I also find that the recruiters in that exercise were not seriously concerned whether he did fight or not as they were equally content with being payed (sic) to allow him to avoid the recruitment drive. 61. When the second group came they took no action when he said he wanted to speak to his parents first and indicated that he may also pay them. 62. Given Taliban's rigid approach to compliance this action leads me to conclude they were not concerned about the Applicant who had no skills or any significant value to them apart from his youth and the fact he was able-bodied. No immediate follow up occurred and he was not required to report to them. 63. This leads me to conclude that he was not targeted to the extent that he was listed or registered for recruitment by the Taliban but was merely seen as a young man who was available in that area at that time and, in the random manner of such an ad hoc drive he was able to avoid recruitment for a second time. 64. There is no regular programme neither is there in the independent material or the Applicant's evidence any indication of a penalty for failure to serve. 65. In the Applicant's case, he has given an account which indicates he evaded service by leaving the area to avoid recruitment. 66. The large numbers of young men doing so, his minimal profile as a rural villager and the random nature of recruitment leads me to conclude that his departure from the area shortly after a recruitment drive would not have brought him to the attention of the Taliban such that he would be of concern or that an imputed political opinion would be attributed to him. 67. While I have sympathy for this young man and the tragic plight of his country over the past twenty years and under the current control of the extremist Taliban movement I find that his fear is that of many young men in his circumstances that, for non Convention reasons he will be recruited to fight for Taliban and that, the consequences could be that he may face serious harm or death. 68. However, as discussed above I do not accept that he is of concern to the Taliban as someone who is opposed to them for speaking out against them nor, do I find that his departure to avoid the ad hoc conscription practices of the Taliban would lead them to consider he was politically opposed to them. 69. Large numbers of people who formerly fled Afghanistan are returning, in conditions which UNHCR considers safe. 70. I find that this young man can do as thousands of his fellow citizens are doing and not face a "real chance" of persecution for a Convention reason. 71. In summary , I find that the Applicant is a national of Afghanistan and is a Pashtun who could be considered to be of fighting age by the Taliban. 72. I accept that he may face serious harm as a consequence of being recruited into the Taliban militia as a consequence of fighting but, I find this harm would be the consequence of fighting between two opposing forces and, 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. 73. This being the case, I find that his claims are such that I can not be satisfied that he faces discriminatory treatment for any one or a combination of the five Convention reasons or for an aggregate of other reasons with a component of any of the five Convention reasons. 74. This being the case, any fears he may hold in that regard are not well-founded and his claims do not bring the matter within the ambit of the Convention. CONCLUSION 75. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa." grounds of the application 4 The applicant did not appear to have had legal assistance in lodging his application. 5 When the matter first came on for hearing before me, on 1 May 2001, Mr M D Howard of counsel appeared for the applicant on a pro bono publico basis. He applied for, and obtained, leave to substitute two grounds for the grounds originally contained in the application. Ground 1 asserted a failure to observe procedures required by s 430(1)(c) of the Act on the Tribunal's part by failing to set out particular finding on a material fact. Ground 1 was later abandoned, with the result that Ground 2 became Ground 1 and is in the following terms: "Pursuant to paragraph 476(1)(e) of the Act, the applicant applies for review of the decision of the Tribunal on the basis that the Tribunal erred in law and incorrectly interpreted the applicable law and, or, incorrectly applied the law to the facts. That is: 1) the Tribunal did not consider whether the applicant held a well-founded fear that he would be persecuted if he were returned to Afghanistan because the Taliban would impute to him an "adverse" political opinion by reason of him leaving Afghanistan and travelling to the "West"." 6 [The above reflects the content of former Ground 2 as at the hearing on 1 May 2001, but I have altered the format slightly to facilitate understanding the nature of further amendments which the applicant seeks to make to this ground. Those proposed amendments arose because I raised with counsel for the applicant the question whether the manner in which the Tribunal had dealt with the matter of conscription might have given rise to reviewable error. The trial was adjourned part-heard. When the matter came on for further hearing on 2 August 2001 the applicant applied to add some further particulars to what is now Ground 1]. 7 The two further particulars which the applicant seeks to add to this ground are: "2) the Tribunal proceeded on the basis that the Taliban's ad hoc, random, or selective conscription was the same as a matter of law, as conscription pursuant to a law of general application." 8 [The respondent did not oppose this amendment, and the applicant will have leave to make it.] "3) the Tribunal did not consider whether the applicant was part of a social group within the meaning of the Convention; namely: (a) those sought on an ad hoc, random, or selective basis for conscription; and, or (b) those who are unable to avoid the ad hoc, random, or selective conscription by reason of not being able to pay or otherwise." 9 The applicant also sought to add a new Ground 2 in the following terms: "Pursuant to paragraphs 476(1)(b) and, or, (c) of the Act, the applicant applies for review of the decision on the basis that the Tribunal did not have jurisdiction to make the decision, and, or, the decision was not authorised by the Act. Particulars The applicant repeats 1), 2) and 3) set out under Ground 1 above." 10 The respondent opposed the amendment of Ground 2 by the addition of the particulars pleaded in proposed sub-paragraph 3 above and by the addition of Ground 2. The respondent argued that the principles explained in Bank Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at pp 284 and 416, as followed by Lee J in Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, applied notwithstanding that this is an application for judicial review, not an appeal. The applicant should not be granted leave, so it was put, completely to alter the basis of his claims to the Tribunal as to his entitlement to a protection visa. 11 I propose to grant leave to amend for the following reasons. First, the respondent has not pointed to any prejudice which he may sustain if the amendments are allowed. On the other hand, there is a risk of very substantial prejudice to the applicant if the amendments are not allowed, should there be any merit in them. Secondly, this being an application for judicial review, all the relevant facts have been determined by the Tribunal. The question is one of construction of law and in my view, it is expedient and in the interests of justice that the point be decided. 12 The respondent asserted that the applicant had made no claim to the Tribunal that he feared persecution by reason of his membership of a particular social group. He also referred to the fact that the applicant had legal representation in putting his case before the Tribunal. In my view, those matters go to whether the proposed amendments have any merit and, although relevant to the question of leave to amend, do not outweigh the other considerations to which I have referred. 13 In my opinion, it is in the interests of justice that the applicant have leave to amend in the terms sought. ground 1(1) – imputed political opinion 14 The applicant submitted that the Tribunal had erred in law by either incorrectly interpreting the applicable law or incorrectly applying it to the facts by not considering the point of whether the applicant held a well-founded fear that he would be persecuted if he were returned to Afghanistan because the Taliban would impute to him an "adverse" political opinion by reason of his having left Afghanistan and having travelled to the "West". 15 Mr Howard referred to: · the fears expressed by the applicant in his initial interview and in his written submissions in support of his application for a protection visa; · the findings by the Tribunal that the Taliban would not tolerate or ignore opposition or suspected opposition and was a ruthless regime which had a pattern of taking revenge on its opponents; · the fact that the applicant might come to the attention of the Taliban if he were returned to Afghanistan; · the findings by the respondent's delegate that it was possible that the applicant, on return to his village, might be questioned by local Taliban representatives or supporters regarding the period he spent outside Afghanistan and might be criticised for having expressed a preference for life in the West over a life of pious austerity as valued by the Taliban. my reasoning in relation to this sub-ground 16 I accept the respondent's submissions that the Tribunal had regard to evidence before it that large numbers of people who had formerly fled Afghanistan (including people like the applicant who had departed to avoid the Taliban's ad hoc recruitment drives) were returning to Afghanistan in conditions which the United Nations High Commissioner for Refugees considered safe. I also accept the respondent's submission that the Tribunal made a specific finding that the applicant could similarly return to Afghanistan and would not face a "real chance" of persecution for a Convention reason. In the present context that meant either actual or imputed political opinion. The relevant paragraphs in the Tribunal's reasons include paragraphs numbered 68, 69 and 70. 17 As the respondent pointed out, there was no evidence or material before the Tribunal that Afghani citizens who returned to Afghanistan and who had been to a Western country were persecuted for reason of an imputed political opinion as a result of having done so (having gone to a Western country). 18 In my view, in this part of its reasoning, it can be seen that the Tribunal understood the law and correctly applied it. grounds 1(2) and (3) and ground 2 – the conscription issue 19 The question here is whether the Tribunal erred by not considering whether the applicant had a well-founded fear of being persecuted for reasons of membership of a particular social group. 20 In Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881, I held that, in a similar case, the Tribunal had erred in a manner giving rise to reviewable error when it had failed to consider: · whether able-bodied Afghan men comprised a particular social group of which the applicant in that case was a member; · whether forcible recruitment by the Taliban of such persons to fight on the Taliban's side against the Northern Alliance (which, on the evidence in that case, controlled about 10% of Afghanistan), amounted to persecution by reason of membership of that particular group within the meaning of the Convention; · whether, despite the fact that people may pay to avoid such recruitment, such extortion could amount to persecution within the meaning of the Convention; and · whether there was any evidence that the Taliban were acting pursuant to a law of general application. 21 Mr P R Macliver, counsel for the respondent, in written submissions, acknowledged that although the findings in the present case were not in precisely the same terms of the findings by the Tribunal in Applicant Z, they were of a sufficiently similar nature as to make my reasoning in that case equally applicable to the Tribunal's decision here. Mr Macliver submitted that my decision and reasoning in Applicant Z was in error. 22 I am inclined to agree with the respondent that the manner in which the applicant's counsel has defined the particular social groups in Ground 1(3)(a) and (b) above does not disclose a particular social group within the meaning of the Convention. That is because, in my view, the descriptions fall foul of what was held by the High Court of Australia in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 i.e. that a shared fear of persecution is not sufficient to constitute a particular social group. But this case was fought (in common with another application in which argument was heard at the same time) on the basis that the applicant was putting forward able-bodied Afghani men as the relevant particular social group. 23 The respondent contended that because: (a) the applicant had had legal assistance from solicitors in making his application for a protection visa and his application to the Tribunal for review; (b) he had never asserted a claim to be considered as a refugee on the basis of his membership of a particular social group; and (c) he had never made any claim to have a well-founded fear of persecution by reason of his membership of any particular social group; there was no error on the part of the Tribunal in failing to consider whether the applicant was a member of a particular social group. Counsel relied upon the observations of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (at 443) where his Honour said: "… the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant." 24 In Randhawa the question was whether the appellant, a Sikh, could reasonably be expected to relocate elsewhere in India. The appellant had raised several matters in relation to that issue and the Tribunal was held to have dealt with those issues (on the question of whether it was reasonable to relocate elsewhere in India). Those matters (so it would appear from p 443) were concerned with certain impediments to relocation. It was in that context that his Honour held that because the appellant had not raised certain other impediments to relocation, there was no error on the Tribunal's part in failing to consider whether there were such other impediments. 25 The respondent also relied upon the decision of a Full Court of this Court in Suleiman v Minister for Immigration and Multicultural Affairs [2001] FCA 752. 26 I would distinguish Randhawa on the facts of this matter. In my view, the appropriate test is whether in this matter it could fairly be said that sufficient facts were placed before the Tribunal as to require it to consider whether there existed a particular social group, being able-bodied Afghan men and whether the applicant, as a member of that particular social group, had a well-founded fear of persecution if returned to Afghanistan. 27 In his written submissions, the respondent said this: "For example, if an applicant had no representation or assistance, and if the evidence and material before the Tribunal disclosed the existence of a particular social group within the relevant country, and that the members of that group were persecuted for reason of their membership of that group, and if the evidence and material also showed that the applicant was a member of that particular social group, the Tribunal would be bound to consider whether the applicant had a well-founded fear of persecution by reason of his membership of that particular social group, even if the applicant had not raised that as an issue. However, such a case will be rare, and does not arise on the evidence and material before the Tribunal in the present case." 28 As I see it, the only difference between the test which I propose and the test for which counsel for the respondent contends, is the fact that the applicant had representation or assistance. 29 I do not think that, in the present context, the fact that the applicant was legally represented can shield the Tribunal from legal error or jurisdictional error if, on the facts before it, there appeared to be a particular social group of which the applicant was a member and by reason of such membership had a well-founded fear of persecution if returned to his country of origin. In my view, it was the Tribunal's duty to consider whether the facts threw up an arguable basis for the existence of any of the five Convention reasons. 30 I would distinguish Suleiman on the facts. In Suleiman the Court was, in my view, very much influenced by the fact that there was nothing before the Tribunal to suggest that the appellant had a fear of harm or injury by reason that he was a member of a class of "coastal people". As will be seen below, that was very different from the circumstances of this case. 31 The respondent contended that there was simply no evidence or material before the Tribunal from which it might have been open for it to conclude that there existed within Afghanistan a particular social group such as able-bodied Afghani men, nor, so it was submitted, was there any evidence that the Taliban's conscription of such men was by reason of their membership of any such particular social group. 32 Finally, the respondent submitted that there was no evidence that the applicant in any way feared persecution (i.e. a subjective fear) by reason of his membership of a particular social group. 33 On the question of a subjective fear, I first refer to the following passage at p 8 of the Tribunal's reasons where it was reciting what took place before the respondent's delegate: "The delegate asked the Applicant if it was reasonable to say that the Applicant's greatest fear of Taliban was that they may conscript him to fight for them. The Applicant agreed that was the case." 34 At pp 18-19 of that portion of the Tribunal's reasons which was headed "Findings and Reasons" there appears the following: "Having considered his claims, as discussed above, I find that the Applicant has no enhanced profile and his is the situation of a young Afghan Muslim man of the Pashtun race who has lived under Taliban for about two years without coming to undue interest of the Taliban becoming fearful that he will be recruited as has been the case with many youths. I find his experience in this regard was in a drive for recruits in his area where his household/business and others in his area were called (sic) where young men were seen and called on to fight. This fear of recruitment is understandable when the situation in the on-going battle for control of Afghanistan is considered and the lack of training or support for these recruited, unskilled youths is taken into account." 35 In my view, the above constitutes a finding that the applicant, as one of many similar young men, held a subjective fear of persecution in the form of forced conscription (without the authority of any law) to fight on the Taliban's side in the civil war. 36 It is also, in my view, quite clear that the Tribunal found that there was a real chance of the applicant facing persecution (in the sense of some significant detriment or disadvantage) if returned to Afghanistan. This can be seen in paragraph numbered 72 of its reasons set out above. 37 This finding is comparable to the finding of the Tribunal in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 which was referred to at paragraph 4 of the main reasons for judgment. 38 There is no reference anywhere in the Tribunal's reasoning to there being a law of general application in Afghanistan requiring military service. On the contrary, the Tribunal in several parts of its reasoning acknowledged that there was no regular conscription in Afghanistan, but that the Taliban was known to have conscripted people into their forces in an ad hoc way by rounding up young men in the areas of their control to serve in their militias. I refer to the following [the Tribunal's description of part of its dialogue with the applicant]: "I said that the information before me was that there was no regular conscription in Afghanistan but that Taliban was known to have conscripted people into their forces in an "ad hoc" way by rounding up young men in the areas of their control to serve in their militias …" . . . In regard to conscription I put to the Applicant that the information cited above indicated to me that Taliban did not have a regularised conscription but that they recruited young men at random when they were going to attack and (sic) area." . . . I said that was my point that Taliban did not operate on normal rules of law." [In the Tribunal's findings at p 19] "4. The Taliban is predominantly Pashtun and does not have a regular conscription programme but, on an ad hoc basis has a practice of rounding up or press-ganging young men available at the time into their services." . . . I accept the information cited above in Cisnet DocumentCX39867, DFAT Cable IS500488 to the effect that Taliban does not have a regular conscription policy but has a practice the (sic) recruitment, often forced, of young men regarded to have the potential to fight." 39 Finally there is this passage at pp 21-22: "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." 40 The Tribunal cited some authorities which involved conscription-based refugee claims, mainly authorities in this Court. Each of those decisions concerned the enforcement of laws of general application which provided for compulsory military service and for punishment, without discrimination, of those who avoided such service. 41 This case was different. The Tribunal accepted that Afghanistan was in a state of civil war between the Taliban, on the one hand (which controlled about 90 per cent of the country) and on the other hand, the forces of two other factions of those who formerly opposed the Soviet Union. Those two other factions respectively were under the command of Ahmed Shah Masood in parts of the Parwan and Kapesia Provinces, and the Hezb-I-Whdat. 42 In paragraph numbered 49 of its reasons, set out above, the Tribunal characterised the Taliban's ad hoc practice of press-ganging recruits as being "… not one which would be condoned internationally". In my view, this can be seen to have come very close to characterising that practice as "… such a significant departure from the standards of the civilised world as to constitute persecution" and not being "appropriate and adapted to achieving [a] legitimate government object" [the quotes are from Chen Shi Hai at [29]]. The Tribunal then characterised the Taliban's motivation, whereby it based its selection process upon targeting young able-bodied men, as not amounting to discrimination and not being Convention-related, any more than regularised conscription was in other countries. It was at this point, in my opinion, that the Tribunal started to fall into error by asking itself the wrong questions, being such an error of law as to amount to jurisdictional error. 43 In my view, the circumstances of: · civil war of the type described above; · recruitment by force (without legal right) on an ad hoc basis of able-bodied young men at random; · preparedness to extort money as the price for not conscripting such young persons; and · the existence of a targeted class of persons, namely able-bodied young men all point to a classic situation for the generation of a particular social group of refugees. 44 As to the Taliban's motivation – the High Court of Australia in Chen Shi Hai at [33] to [35] explained that the absence of "enmity" or "malignity" does not mean that conduct does not amount to persecution for a Convention reason. 45 The particular social group (able-bodied Afghan men) is not defined by reference to the discriminatory treatment that its members fear. The members of the group are defined by the very characteristic of being able-bodied Afghan men, in the same way as the appellant in Chen Shi Hai was identified as a "black child". As McHugh J said in Applicant A at 264: "Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognised as a particular social group." 46 The fact that able-bodied Afghani men receive adverse treatment from the Taliban, as the Tribunal found in this matter, is "descriptive of their situation" and facilitates their recognition as a social group for the purposes of the Convention, but it does not define them – see Chen Shi Hai at [23]. 47 The evidence accepted by the Tribunal showed that the applicant would be persecuted (the Tribunal expressly found this) because he was an able-bodied Afghan male. There was no scope, in my view, for the Tribunal to conclude that that treatment was for any other reason – see Chen Shi Hai at [32]. 48 In my opinion, the Tribunal should have considered whether able-bodied young men (or possibly able-bodied young men without the financial means to buy-off the conscriptors) in the above circumstances, comprised a particular social group within the meaning of Article 1A(2) of the Convention. 49 By not doing so, in my opinion, the Tribunal erred in law in the manner to which I have referred above. The extent of its error was, in my view, such as to amount to jurisdictional error within the meaning of the principles explained in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. 50 Since writing the above reasons I have had the advantage of reading the reasons for judgment of Tamberlin J in Mahmoodi v Minister for Immigration and Multicultural Affairs [2001] FCA 1090, to which I was referred by the respondent's solicitor about a week after I reserved judgment in this matter. At that stage his Honour's reasons, delivered ex tempore, were not available, so I proceeded to draft the above set of reasons and deferred delivering judgment until the judgment in Mahmoodi was published. 51 One of the grounds of the application in that case was that the Tribunal had failed to consider and make findings on whether there was a real chance that the applicant as a member of a particular social group (able-bodied Afghan males) might be persecuted, by reason of such membership, by forcible conscription into the Taliban militia to fight in the civil war. Tamberlin J held that "able-bodied Afghan males" could not be a basis for defining and delineating a particular social group for Convention purposes. The relevant paragraphs of his Honour's reasons were as follows:- "7. In the present case, the class contended for - "able-bodied Afghan males" – is a reference to characteristics based on gender and health or fitness. In my view, neither of these criteria, either taken alone or in conjunction, could amount to a basis on which to find the existence of a particular social group within the meaning of the definition in the Refugees Convention as amended by the Protocol. The reference to "able-bodied" is a reference which could encompass any Afghan male regardless of age, location and political, religious or social persuasion or beliefs. It would encompass a major section of the community. Indeed, the characteristic of being "able-bodied" could well be transient or fortuitous and vary from day to day because at any particular time a person may not be "able-bodied" or at a later point in time may become "able-bodied" within the description. Such a criterion is quite unsatisfactory and inappropriate as a basis for defining and delineating a relevant class or group for Convention purposes. There is simply no common, unifying element apart from basically having a sound body and being male. 8. Accordingly, on this aspect of the matter, I am not persuaded that there has been any error of law by the RRT in failing to take into account the question whether this possible description amounted to a particular social group or whether any possible persecution based on that classification could amount to persecution within the meaning of the Convention. 9. There is another aspect to the case and that is the reference in the authorities to "laws of general application". The RRT considered that because laws relating to conscription in Afghanistan were in substance laws of general application, using the expression "law" in the broad sense of "policy" or "objective", then there could be no discrimination, the assumption being that the laws would be applied on a general and non-selective or discriminatory basis. In support of this proposition reference is made to Applicant A, where McHugh J said, at 258: "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution." 10. In my view, these principles meet the argument that there has been an error in the conclusion reached by the decision-maker in this case. The requirement of conscription, on the material before the decision-maker, could be reasonably considered to be a legitimate object of the refugee's country. . . . 12. In the course of argument, reference was made to a recent decision by Carr J in Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881. In that case, his Honour found that there had been an error in a decision of the RRT because it gave no consideration to a number of questions, one of which was "whether able-bodied Afghan men comprised a particular social group" for Convention purposes: at 9. Other matters which had not been considered and which flowed from that failure were whether conscription by the Taliban amounted to persecution by reason of membership of that particular group and whether there was any evidence that the Taliban were acting pursuant to a law of general application: ibid. 13. It appears that the question as to the application of the decision of the High Court in Applicant A was not argued before his Honour. For reasons given above, I do not consider that it was an issue which the RRT was bound to consider in this case." 52 I regret that I must differ, respectfully, from Tamberlin J on this point. I decline to follow Mahmoodi because, with the greatest respect, I think it is plainly wrong. First, the description "able-bodied" does not encompass any Afghan male. In practical terms, it will exclude those who are too young or too old to fight, but will include, mostly, fit Afghan males ranging from early teenagers through to, say, men in their fifties or possibly sixties. The fact that such a group would encompass a major section of the community is, in my respectful opinion, not relevant in the context of the Convention. History has shown that persecution can, at any particular time, be targeted at millions of people. The clearest example, of course, is Nazi Germany's persecution of five to six million Jewish people. Had they been able to escape and had the Convention been in force, they would quite clearly have been refugees within its terms. 53 Nor do I regard the fact that the characteristic of being "able-bodied" might vary from day to day as being determinative of, or even, (again respectfully), relevant to the existence of a particular social group. Some persons may change their political opinions or religious persuasion from time to time. Thus the composition of those groups who might seek protection on political or religious grounds may also change from time to time. That cannot be a basis for exclusion from protection under the Convention. 54 The proposition that forcible conscription by the Taliban forces could be reasonably considered as a legitimate object of Afghanistan, as the refugee's country, and thus fall within the "law of general application" exception is not one which fits the facts as found by the Tribunal in this matter. As mentioned above, the evidence before the Tribunal was that Taliban controlled about 90% of Afghanistan by force of arms. Judicial knowledge can be taken of the facts that the Taliban were not recognised, at the time of the Tribunal's decision, as the government of that country by the United Nations or (with only three exceptions) by the individual members of the international community. In my opinion, the Tribunal erred in law and committed jurisdictional error in characterising what the Taliban do to any able-bodied male they can lay their hands on, (or whose family cannot afford to bribe them), as the enforcement of a law of general application. Conclusion 55 For the foregoing reasons, the application will be allowed. The Tribunal's decision will be set aside and the matter will be remitted to it for decision in accordance with the law. I have given consideration to the question whether the matter should be remitted to a differently-constituted Tribunal. The question was not debated at the hearing, but has been the subject of some recent authority, including Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 at [11-12], [23-27] and [112], and Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332. As the issue has not been the subject of any submissions, I will take the course adopted in Wang of reserving liberty to apply on that matter. The respondent should pay the applicant's costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. A/g Associate: Dated: 5 October 2001 Counsel for the Applicant: Mr M D Howard (who appeared on a pro bono publico basis) Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 May 2001, 2 August 2001 Date of Judgment: 5 October 2001