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[2000] FCA 387
Federal Court of Australia
2000-03-31
Moore J
Original judgment source is linked above.
Introduction 1 This is an application by Gul Rose Haqani ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 6 October 1999. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Background 2 The applicant is, the Tribunal accepted, a national of Afghanistan and arrived in Australia from Pakistan on 18 April 1999. On 30 April 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). On 21 May 1999 the application was refused by a delegate of the Minister, and on 27 May 1999 the applicant sought review of that decision. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Proceedings before the Tribunal 3 The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and to the judgment of the Full Court of this Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. 4 The Tribunal considered the circumstances of the applicant in a section headed "Claims and Evidence". The Tribunal first noted that the applicant's claims were set out in a record of interview with an immigration inspector at the airport, written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal, and oral evidence to the Tribunal. The Tribunal then set out what emerged from that material which is now briefly summarised in so far as it is relevant to the Tribunal's findings. 5 The applicant is, the Tribunal accepted, a man of Pashtun ethnicity and a Sunni Muslim. Before leaving Afghanistan, he operated a shop in Sekouti village in Nangarhar Province. The applicant claimed he left Afghanistan for Pakistan on 18 February 1999. He claimed that on 15 February 1999 Taliban forces learned that a former mujahadin commander named Sanagul, who was a cousin of the applicant's mother and a close friend of the applicant, was hiding weapons on premises belonging to the applicant's family. It was claimed that Sanagul was arrested in February 1999. When the Taliban found the weapons, they sought to arrest the applicant, who was away in the town of Kaga buying merchandise for the shop. At the first hearing, the applicant claimed that that the Taliban had also found, in the applicant's house, anti-Taliban booklets which the applicant was given by Sanagul and had distributed, as well as a membership card for the National Islamic Front belonging to the applicant. It was claimed the applicant's family sent word that the Taliban was looking for the applicant and consequently the applicant went into hiding in Kaga. The Taliban arrested the applicant's father and said they would not release him until the applicant gave himself up. The Taliban subsequently released the applicant's father on condition that he bring his son to the Taliban. At the first hearing the applicant claimed the Taliban beat his father until his father could no longer walk. The father then sent word to the applicant not to return, together with some money. An acquaintance of the applicant then put the applicant in contact with an agent who arranged for the applicant to travel to Australia. 6 The applicant's claims to fear persecution were also based on several earlier incidents involving the Taliban. The applicant claimed that in 1996, he was beaten by the Taliban in the street while helping a woman with directions. The applicant claimed that in 1997 a villager who was a Taliban supporter had asserted ownership of one of the applicant's family's properties, and that the Taliban had taken the land and given it to the villager. The applicant claimed that in January 1998, the Taliban had asked him to join the army and fight. The applicant had told them that he could not do so because his father was unwell, he was the only son, and was required to look after his family. The Taliban did not pursue its request after the applicant had given this explanation. In 1999, the applicant and his sister were beaten by the Taliban in Jalalabad, he on account of his short beard and hair and she on account of her face being visible. 7 The applicant claimed, at various stages of his application, that he fears persecution by the Taliban upon return to Afghanistan: because he is a member of the National Islamic Front and is opposed to the Taliban, because of his connection to Sanagul, because he hid weapons on the family's premises for Sanagul, because he had distributed anti-Taliban booklets given to him by Sanagul, and because he had not given himself up but instead escaped the country. 8 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". The Tribunal accepted the following as facts: "… that the applicant is a Pashtun; that he is a Sunni Muslim; that he may have had a cousin and friend named Sanagul who was with the mujahadin and a member of the National Islamic Front; that the Taliban wanted him to fight for them in January 1998 but he was able to resist because of family obligations and suffered no penalty or punishment as a result; that Taliban members beat him in Jalalabad soon after they took over in 1996 when he helped a woman find her way; that he and his sister were hit by Taliban members in Jalalabad early in 1999; that Taliban members had once asked him why his beard was short and pulled his hair; that there was a dispute over the ownership of land which was resolved in favour of a Taliban supporter and at the expense of the applicant's family; and that he left Afghanistan and went to Peshawar before going to Karachi and Lahore from where he left for the journey to Australia." 9 However, the Tribunal did not accept the following claims: "… his claim to have stored and distributed weapons for the mujahadin, including to National Islamic Front members; to have had and given out booklets against the Taliban; to have had any involvement in any political activity or to have been a member of the National Islamic Front; and his claim about the circumstances which led him to leave his country and what occurred between 15 and 18 February 1999." 10 The Tribunal then stated its reasons for not accepting these claims. 11 With regard to the claim to have stored weapons, the Tribunal noted that there were inconsistencies in the applicant's evidence about where they were stored. The applicant had asserted, at various stages of his application, that the weapons were stored in an abandoned property of the applicant's family; in a room next to his bedroom; in a building behind the family's house; in a building separated from where he slept by a courtyard; and in a room next to a spare room next to his bedroom. The applicant's adviser at the second hearing had further stated that the applicant slept in the room next to the room where the weapons were stored, which was in a building separated from the house by a courtyard, and regarded the room where he slept as his bedroom. The Tribunal stated: "The applicant's adviser submitted that it was important to recognise the design features of Afghan houses and explained those relevant to the applicant's evidence. I have considered all of this evidence with the design she outlined in mind but there are inconsistencies in his evidence about where the weapons were stored which in my view cannot be attributed to his or my limited understanding of the design of houses in our countries." 12 As to the applicant's claim to have distributed weapons, the Tribunal noted that the applicant had raised this claim at the second hearing, but not in his original application nor in the interview with the delegate. The Tribunal stated: "The applicant said that he had not mentioned this role in giving weapons to the mujahadin before because he had tried to provide a short account of what had happened. The involvement of the applicant in the distribution of weapons seems to me to be of such conspicuous relevance to his claims that I cannot accept that, if true, he could have failed to mention it to his adviser when the initial application was being prepared or at the interview with the delegate."
13 The Tribunal stated that it was unable to conclude the applicant had given truthful evidence about the storage and distribution of weapons, and consequently did not accept the applicant's claims on these issues. 14 As to the applicant's claim to have given out booklets against the Taliban, the Tribunal noted that this claim was not mentioned in the application, the interview with the delegate, nor in the applicant's adviser's written submission to the Tribunal prior to the first hearing. The Tribunal stated: "[The applicant] explained that he had not been asked about things such as booklets, that he had not previously had the opportunity to describe this aspect of his claims and that he had forgotten to mention things. I understand that applicants can overlook things which may not appear to be central to their claims but I do not accept that he had not had the opportunity to mention this at earlier stages in the process. I am not satisfied that he had and distributed anti-Taliban booklets as he has claimed." 15 The Tribunal was likewise not satisfied that the applicant had engaged in political activity or had been a member of the National Islamic Front, stating: "[H]is claim to have belonged to the Front is another of such conspicuous relevance to his claims for recognition as a refugee that I cannot accept that, if true, it could have failed to have been mentioned in both his application and in the interview with the delegate, who asked specific questions about his involvement in political activity with Sanagul to which he responded that he had none […] It follows that I do not accept that there was ever a membership card." 16 As to the applicant's claim to have been targeted for arrest by the Taliban, the Tribunal first stated that its rejection of the applicant's claims concerning the weapons, the booklets and membership of the National Islamic Front meant that the Tribunal did not accept that these things led the Taliban to want to arrest the applicant. Additionally, the Tribunal found the applicant's account of events between 15 and 18 February 1999 improbable, stating:
"I put to the applicant that the account he had given seemed to me to be improbable given his claim that he had been caught unawares and that there had been no pre-planning: there appeared to me to be too many things to have feasibly happened in such a short time, particularly in view of the distances between his village, Kaga and Jalalabad, and his evidence was that he left his village on 15 February on a routine shopping expedition. I found especially improbable the applicant's evidence about the detention of his father, who he said was so badly injured so as to be unable to walk yet who was able to arrange so quickly for a message and $5000 to be sent to the applicant who was staying about an hour's travel away." 17 The Tribunal next considered whether the parts of the applicant's claims that were accepted by the Tribunal gave rise to a well-founded fear of persecution for a Convention reason. 18 The Tribunal first stated that there was no evidence that Pashtun or Sunni Muslims are singled out for harm by the Taliban per se. Consequently, the Tribunal did not accept that the applicant's ethnicity or religion were factors that would lead him to face harm in Afghanistan. The Tribunal considered, however, that such people could be harmed for other reasons which might include their political activity. 19 The Tribunal was not satisfied that there was a real chance that the applicant's relationship with Sanagul would cause the applicant to be persecuted by the Taliban for a Convention reason. The Tribunal stated that even accepting that Sanagul was arrested in February 1999 and that the reason for his arrest was his opposition to the Taliban, it did not accept that there was a sufficient link between Sanagul and the applicant for the applicant to be perceived as holding a similar political opinion as Sanagul. The Tribunal noted that on the applicant's own evidence, the applicant saw Sanagul less often after the fighting with the Taliban began, they lived some distance apart, and the applicant had seen Sanagul only once in the year before he left Afghanistan for Australia. 20 The Tribunal also did not accept that the applicant's claim to have delivered messages to people in Jalalabad gave rise to a well-founded fear of persecution. The Tribunal noted that even accepting that the applicant had delivered messages, the last time he did so was in 1997 and "nothing seems to have followed as a result of this action". The Tribunal took this as indicating that the Taliban was unaware of his action. 21 As to the applicant's evidence that he was asked by the Taliban to fight for them in January 1998 but was able to resist because of family obligations and suffered no penalty or punishment, the Tribunal stated: "I do not consider that he would face harm because of this if he were to return. That he was not pressed into serving the Taliban and that he was not asked again indicates to me that there is little if any chance that he would be required to fight for them if he were to return, at least for the reasonably foreseeable future." 22 The Tribunal next considered the 1996 and 1999 beatings. The Tribunal found that these were "isolated incidents of violence". The Tribunal then stated: "I have also considered the circumstances surrounding the assaults and whether the evidence indicates that the Taliban members who assaulted the applicant did so because of his race, religion, nationality, membership of a particular social group or political opinion. […] The evidence indicates to me that the applicant (and his sister) was an individual going about his life who was assaulted because he was seen to be not complying with aspects of the strict regime imposed by the Taliban. I have considered whether such non-compliance could engage the reasons in the Refugees Convention because of the fundamentalist religious character and the strictness of the Taliban's rule in Afghanistan. What he experienced in the more than two years that the Taliban was in control of his province were two isolated assaults and there is no credible evidence before me of any other mistreatment of him by the Taliban or of any continuing adverse interest in him on the part of the Taliban. The evidence before me does not indicate that the applicant has been seen as an opponent of the regime or has been imputed to have a political opinion or religion which challenged the Taliban's. I have therefore concluded that what the applicant experienced in 1996 and in 1999 did not happen to him because of any of the reasons in the Refugee Convention." (Emphasis added) 23 As to the treatment the applicant might face upon return to Afghanistan, the Tribunal said: "The Taliban is a heavy handed and often violent regime and I have considered whether there is a chance that the applicant, if he were to return to his country, may be assaulted again by Taliban members, including for such transgressions as those which led to the assaults in 1996 and 1999. […] He may be again a victim of assault at the hands of the Taliban but, in the light of the pattern of what has occurred in the past and in the absence of any credible evidence which might indicate that he would come to the adverse attention of the Taliban upon return, I consider that chance is not substantial. As well, I am not satisfied that what he might face would exhibit the selective character necessary for conduct to constitute persecution within the meaning of the Refugees Convention […]" 24 On the specific issue of harassment because of beard and hair style, the Tribunal further stated: "It is possible that he would again be harassed for this reason if he were forced to return but I do not consider that Taliban members' harassment of him because of his beard and hair is serious detriment or harm of a kind which could reasonably be seen to constitute persecution. For the reasons outlined already, I am also not satisfied that what he experienced or might experience in future in this regard is for a Convention reason: I do not consider that his failure to comply with rules about hair and beards has led him to be imputed to have political or religious beliefs against those of the Taliban." 25 The Tribunal then found that, even taken cumulatively, the treatment the applicant could face upon return could not be seen to be persecution. 26 As to the 1997 land dispute which was resolved in favour of a Taliban supporter at the expense of the applicant's family, the Tribunal was prepared to accept that its outcome may have been affected by political connections. However, the Tribunal was not satisfied that there would be a repeat of the action to take land from the applicant's family or that the 1997 dispute would have consequences that would enliven the provisions of the Convention. 27 Last, the Tribunal was not satisfied that the applicant's flight from Afghanistan would be perceived by the Taliban as an admission of guilt in connection with opposition activity. The Tribunal based this conclusion on its findings that the Taliban had no interest in the applicant and that the applicant had not fled to escape persecution for any Convention reason, as well as on independent evidence about the cross-border traffic to and from Afghanistan. Consideration of the Issues raised in the Application 28 As the application was finally argued two grounds were pressed: "1. The decision involved an error of law, being an error involving an incorrect interpretation of the law or an incorrect application of the law to the facts as found by the respondent, within the terms of section 476(1)(e) of the Migration Act ('the Act').
Particulars …[the Tribunal Member] found that the applicant was assaulted and hospitalised because he was seen as not complying with the strict social regime imposed by the Islamic fundamentalist Taliban militia in Afghanistan. This, together with other findings of fact made by the Tribunal member sufficed to bring the Applicant within the ambit of the Refugees Convention and the Applicant therefore ought to have been granted a protection visa. In refusing to grant a protection visa, the Tribunal Member's decision involved an error of law. … 5. The decision was made in circumstances where there was no evidence or other material to justify the making of the decision in that the decision was based upon the existence of particular facts, and those facts did not exist, in terms of sections 476(1)(g) and 476(4)(b) of the Act. Particulars (a) The [Tribunal] based its decision upon a particular fact, that the Applicant's claims in relation to the storage of weaponry were inconsistent, which did not exist." 29 The submissions in support of the first ground were to the following effect. The Taliban was a theocratic organisation and did not presently represent the State of Afghanistan. Reference was made to legal criteria for statehood set out in Brownlie Principles of Public International Law 5th ed. 1998 at p. 70-71. Both in 1996 and in 1999 the applicant suffered harm at the hands of members of the Taliban. Thus, it should have been inferred by the Tribunal, the motives of those inflicting harm stemmed from their religious beliefs and their perception about the religious beliefs of the applicant. It is to be recalled that the hospitalisation of the applicant in 1996 resulted from an assault arising out of the applicant having given directions to a woman in the street. The assault in 1999 concerned the length of the applicant's beard and his sister's manner of dressing. The Tribunal addressed these matters in the passage of its decision set out in paragraph 22 above. 30 This passage, in my opinion, manifests an unexceptionable approach to the facts. While the passage was followed by a reference to the Taliban as "a heavy handed and often violent regime" those observations have to be viewed with the reasons of the Tribunal as a whole. In an earlier section entitled "relevant independent information about Afghanistan" the Tribunal referred to several independent sources which made plain the Taliban's fundamentalist adherence to Islamic religious beliefs. The approach of the Tribunal does not suggest it was not conscious of this information when considering the question of whether the applicant was persecuted for his actual or imputed religious beliefs. Moreover the comparatively limited attention the Tribunal paid to this question of persecution for reasons of religious belief is explicable. The application for a protection visa was originally made and later pursued only on the footing that the applicant had a well founded fear of persecution because of his political opinions. It is understandable, therefore, that the question of persecution of the applicant because of his religious beliefs was not dealt with at length by the Tribunal. Nonetheless, the way the Tribunal approached the matter does not manifest an error of law. 31 The second ground concerns the approach the Tribunal took to the applicant's evidence about the circumstances in which weapons were secreted at the applicant's home. The Tribunal concluded that the applicant's various accounts of where they were secreted manifest inconsistencies in his evidence. The submission was made that this finding was not open on the evidence and was a finding of a fact that did not exist of the character that attracted the combined operation of s 476(1)(g) and 476(4)(b). The relevant fact was that the accounts were inconsistent. Reference was made to the recent judgment of a Full Court in Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236. However the first of probably several difficulties the applicant confronts with this submission is that, in my opinion, the applicant has not demonstrated that the fact the Tribunal relied on did not exist. That is, the applicant has not established that the accounts were not inconsistent. The findings of the Tribunal as to the contents of each account were not challenged. Those findings were: (i) In his initial application the applicant said the arms were hidden in an abandoned property of his family. (ii) The applicant stated to the Tribunal that the arms had first been stored in the family's house. (iii) The applicant said to the Tribunal that the weapons were in the house in a room next to his bedroom. (iv) At a subsequent hearing before the Tribunal the applicant said the weapons were stored in a building behind the family's house and this is what had been meant by an abandoned property. (v) The applicant said he had lived in a separate building which was where the weapons had been stored and that there was a courtyard between his bedroom and where the weapons were stored. (vi) The applicant said the weapons were stored in a room next to a spare room next to his bedroom. 32 It is, of course, possible that these accounts simply reflect a confused but broadly consistent version of where the weapons were stored. However, they can also be viewed as evidencing an inconsistent account and, on that approach, the Tribunal was entitled to form the view it did. The applicant has not affirmatively satisfied me that the Tribunal relied on a fact which did not exist. It is unnecessary to consider the remaining aspects of this submission though I rather apprehend the decision of the Full Court in Guden v Minister for Immigration and Multicultural Affairs (above) was being given a wider application than was intended. 33 I dismiss the application. I order the applicant pay the respondent's costs. I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Solicitor for the Respondent: Australian Government Solicitor
Haqani
Minister for Immigration & Multicultural Affairs