Hakimi v Minister for Immigration & Multicultural Affairs [2000] FCA 84

FEDERAL COURT OF AUSTRALIA

Hakimi v Minister for Immigration & Multicultural Affairs [2000] FCA 84

MIGRATION - appeal from decision of Refugee Review Tribunal affirming refusal to grant protection visa – Afghani national – whether Tribunal erred in law in rejecting application on the basis of factual inconsistencies and credibility – factual findings adverse to applicant on issues critical to refugee status – whether findings adequately explained – no reviewable error – application dismissed.

Migration Act 1958 (Cth) s 430

Migration Regulations 1958 (Cth) cl 866.221

MOHAMMAD NABI HAKIMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W139 OF 1999

FRENCH J

11 FEBRUARY 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W139 OF 1999

BETWEEN: MOHAMMAD NABI HAKIMI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FRENCH

DATE OF ORDER: 11 FEBRUARY 2000

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The Applicant is to pay the Respondent'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 W139 OF 1999

BETWEEN: MOHAMMAD NABI HAKIMI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FRENCH

DATE: 11 FEBRUARY 2000

PLACE: PERTH

REASONS FOR JUDGMENT

The Background to these Proceedings 1 Mohammad Hakimi is an Afghani citizen. He was born in Afghanistan on 31 March 1978. He is married with two very young sons who remain with his wife in Afghanistan. His parents, three brothers and two sisters also live in Afghanistan. In April 1999 he left Afghanistan and travelled to Australia. His father paid $8,000 to a "smuggler" to arrange for the journey. He arrived in Australia as an illegal immigrant, having travelled here by boat with no relevant travel documents. He was placed in detention at the Port Hedland Detention Centre and has remained at the Centre since his arrival. 2 On 24 June 1999, Hakimi made an application for a protection visa. A statement was submitted with the application by his then legal advisers, Macpherson & Kelley. He claimed that early in 1999, shortly after fighting between Taliban militia forces and those of a political party called Jamiat-E-Islami, near his hometown of Emamsahib, the Taliban had conscripted his three brothers to fight for them. His brothers had been forced to go and were beaten by the Taliban on account of their initial refusal. He and his father were also beaten but Hakimi was not taken at the time because of his father's age. In spite of this apparent exemption, Taliban personnel came to his home again about six weeks later to "recruit" him. However he was sick at the time and on his father's promise to send him to the Taliban when he was better, they went away. According to Hakimi's initial statement he did not agree with Taliban actions and did not want to go and fight for them. The very next day, his father took Hakimi to an uncle's home at Kunduz as it was not safe for him to remain in Emamsahib. His father raised money to pay a smuggler to get Hakimi out of Afghanistan. Hakimi said he expected that had he remained in Afghanistan the Taliban would have killed him for not agreeing to fight for them or would have sent him to fight where he would be killed. 3 On 25 August 1999 a delegate of the Minister refused the protection visa application on the basis that Hakimi was not a person to whom Australia had protection obligations under the Refugee Convention. On 30 August 1999, Hakimi lodged an application for review of that decision with the Refugee Review Tribunal. It was supported by a submission prepared by his lawyers. On 11 November 1999, the Tribunal affirmed the decision not to grant a protection visa. On 16 November 1999, Hakimi lodged an application in this Court seeking an order for review of the Tribunal's decision.