## Facts

- Wahk (pseudonym) was a citizen of Afghanistan and a member of the Hazara ethnic group (Shi’a), which he said had been targeted by the Taliban and by the Pashtun majority.
- In August 2001, Wahk entered Australia from Afghanistan seeking asylum.
- The Minister for Immigration & Multicultural & Indigenous Affairs commenced deportation-related proceedings, and Wahk’s asylum claim was rejected at first instance.
- Wahk appealed to the Refugee Review Tribunal (RRT).
- Wahk gave evidence that Hazaras in his home province (Ghazni) were unarmed and vulnerable, and that he feared serious harm or death if returned.
- In May 2002, the RRT accepted that, as at August 2001, Wahk faced a real chance of persecution on a Convention ground if returned to Afghanistan.
- The RRT nevertheless refused protection on the basis that circumstances had changed since August 2001 because the Taliban had been removed from national power, and it concluded that Hazaras like Wahk would not face a real chance of persecution.
- Wahk appealed to the Federal Court, arguing the RRT erred by treating the Taliban’s removal from government as ending the risk, despite evidence that the Taliban still had meaningful capacity in Afghanistan and that Hazara people remained exposed to harm.

## Issues

1. Whether the RRT erred in its application of the “real chance” test by treating the Taliban’s removal from national government as sufficient to find that Wahk no longer had a well-founded fear of persecution.
2. Where a decision-maker accepts that an applicant had a well-founded fear at the time of departure, whether the decision-maker may find the fear has ceased without deciding that a reasonable person in the applicant’s position would have their fear allayed by later country changes.

## Decision

- The Full Court allowed Wahk’s appeal.
- The Court held that the RRT’s “changed circumstances” reasoning was legally wrong because it did not properly address whether Wahk still faced a real chance of persecution despite the Taliban’s loss of formal government power.
- The Court set aside the decision under review and ordered that the matter be sent back for reconsideration according to law.

## Legal Principles

- A protection claim turns on whether there is a real chance (not remote or speculative) of Convention-related persecution if the applicant returns, assessed at the time of decision.
- If a decision-maker has accepted that an applicant previously had a well-founded fear of persecution, a continuing fear should be treated as well-founded unless it can be said that a reasonable person in the applicant’s position would have their fear allayed by the later changes in the country of nationality.
- Political or governmental change (including the removal of a persecuting regime from office) does not, by itself, show that the risk of persecution has ended; the decision-maker must assess the applicant’s risk on the evidence, including the ability of remaining forces or other actors to inflict harm.
- A “changed country conditions” finding must be based on an evaluative assessment of the actual effect of the change on the applicant’s risk, not a conclusory assumption drawn from who controls the central government.

## Conclusion

Wahk holds that where the tribunal accepts an Afghan Hazara applicant previously faced a real chance of persecution, it cannot deny protection merely by pointing to the Taliban’s removal from government; it must decide, on the evidence, whether later changes would truly allay the fear of a reasonable person in the applicant’s position and whether a real chance of persecution still exists if the applicant is returned.


Wahk v. Minister for [Australian] Immigration and Multicutural & Indigenous Affairs, 2004 FCAFC 12 (2004)