Case: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363
Outcome: distinguished
The Appellant submitted that the case was on all fours with QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 (' QAAH '). In that case the majority of the Court found that whilst the Tribunal had adverted to Article 1C(5), it failed to apply it. Accordingly, in that case the matter was remitted to the Tribunal for further hearing and determination according to law. 41 QAAH may be readily distinguished from the present case. In QAAH the Appellant based his claim of a well-founded fear of persecution merely on a fear 'that the Taliban will kill him because he is of Hazara ethnicity'. However, in that case, the Tribunal's focus had been upon the Taliban's position as the government of Afghanistan, or at least that part of Afghanistan in which the appellant in QAAH had resided. It determined that there was not, in May 2004 'any real chance of the Taliban re-emerging as a governing authority in Afghanistan in the reasonably foreseeable future, or otherwise be in a position to exercise control in the manner it did at the time the applicant left Afghanistan'. 42 As Wilcox J pointed out in his reasons for judgment at [73] the circumstances that underlay the March 2000 recognition of the Appellant, in that case, as a refugee were not dependant upon the Taliban's status as a governing authority in Afghanistan. The Tribunal failed to address whether the circumstances which led to his fear that the Taliban would kill him because of his Hazaran ethnicity have ceased to exist. 43 The present case is quite different. Plainly, the Tribunal addressed its Article 1C(5) finding on the Appellant's claim to refugee status because of his fear that as a Hazara he would be conscripted by the Taliban to fight for them or, were he to return to Afghanistan in March 2000, be at risk of being killed. The Tribunal did not misdirect itself. 44 In respect of changes which may allow a conclusion that earlier circumstances have ceased to exist the Appellant identified three requirements that should exist 'before the consideration of cessation is warranted', to which Wilcox J referred in QAAH at [60], citing JC Hathaway, The Law of Refugee Status , Butterworths, Canada, 1991 at 200-203, as follows:- '(i) "the change must be of substantial political significance, in the sense that the power structure under which persecution was deemed a real possibility no longer exists"; (ii) "there must be reason to believe that the substantial political change is truly effective"; it cannot be said "there has truly been a fundamental change of circumstances when the police or military establishments have yet fully to comply with the dictates of democracy and respect for human rights"; mere progress towards respect is not enough; and (iii) "the change of circumstances must be shown to be durable".' 45 The Appellant placed particular emphasis upon the requirement that the change of circumstances must be shown to be durable. 46 The findings of the Tribunal in the present case, referred to above, clearly demonstrate that it properly addressed this issue. The durability of the changed circumstances is further evident in the findings of the Tribunal on the Appellant's later application for a permanent protection visa where the Tribunal Member said:- '... Today's Afghanistan, however, has a reasonably representative government chosen by a loya jirga, a new constitution recognising the rights of minorities such as Hazaras, and is making a concerted attempt to establish proper governance and to hold national elections, rebuild infrastructure, and disarm the militias. The applicant is returning to a part of Afghanistan where the population is Hazara and Shi'a, like himself. It is administered by politicians of the Wahdat Party (Khalili faction), a party under whose control the applicant has lived before, without any specific or particular problems (other than having to pay taxes). There are no reports of militia skirmishes, or attacks on Hazara and/or Shi'a people, emanating from his region. To the contrary, the UNHCR has recently described the situation as relatively stable and safe and noted that there have been no reports of conflicts between Hazaras and other groups since the end of the Taliban era. The applicant has not claimed any distinguishing characteristics about himself which may make him a target of adverse treatment, but rather has relied on his ethnicity and his religion, and other characteristics (such as being a returnee from a western country, and being apolitical) which he shares with many others. This of course does not mean that shared characteristics cannot ground refugee claims but in this case, the Tribunal is not satisfied that there is a real chance that harm amounting to persecution will befall the applicant, in the reasonably foreseeable future. ...' 47 In the foregoing circumstances, ground of appeal 1 fails. 48 The Tribunal recorded the Appellant's claim in respect of which the Appellant alleges the Tribunal failed to make a finding as follows:- ' [The appellant] noted that the village [his home village] is under the control of the Khalili faction of the Wahdat Party (WP). He would be expected to join the WP, and the applicant does not wish to do so, and he predicts that he will be forced to do so "at gunpoint". As a member of the WP, he would then be forced to join its militia or alternatively, pay off the commanders (which he cannot afford to do). ...' 49 The Tribunal put it to the Appellant that he had not feared persecution in his village (or his country) prior to the Taliban, and given that the situation in his village had returned to its pre-Taliban state, there was no reason that he could not resume his life there. The Appellant asserted that in pre-Taliban days there were problems with political parties: people were either pressured to join or alternatively to pay 'taxes' for a 'defence fund'. The Appellant, pre-Taliban, elected to pay 'taxes'. His view was that such a requirement would be continuing. 50 Contrary to the Appellant's submission, the Tribunal did make a finding, adverse to the Appellant on this matter as follows:- 'When he [the Appellant] lived in the village, he accepted that the Wahdat Party was the local force: it was that party which issued ID cards and the like. Like other villagers, he resented having to pay "taxes" demanded of him by the party, and did not volunteer to join its militia (unlike his brother, who was badly wounded in its service). He made no claims, nor does the evidence suggest, that he suffered any adverse treatment for reason of his political views (or lack of them) or that he was singled out in any way from any other like-minded villagers. The same people appear to have resumed power in the applicant's village as were in control prior to the Taliban. If they treat the applicant in the same way as they did previously and there is no reason to suggest otherwise then the applicant need not fear Convention-related persecution.'