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. The Decision of the Refugee Review Tribunal 4 Following a reference to the relevant provisions of the Refugees Convention and case law, the Tribunal referred to "The applicant's claims" by which it appears to have meant the applicant's written submissions to departmental officers and the records of interview with them together with written submissions to the Tribunal. It also referred to Hakimi's oral evidence given to the Tribunal at a hearing on 3 November 1999. 5 Hakimi had told the Tribunal and/or departmental officers that his father was a farmer in Afghanistan although initially he could not say what kind of farming they carried out as the work was done by his father and brothers. Later he said they cultivated wheat and rice which were sold in the town of Emamsahib. He added, at the Tribunal hearing, that his father owned land about fifteen minutes walk out of the village. Prior to leaving Afghanistan, he lived in one large house with his parents, three brothers, their wives and their eleven children, his wife and two children and his unmarried sister. His brothers had begun working on the land when they finished school. They were each married with a child by the time they were about twenty. At the same time Hakimi was married with a child but did not have any "proper employment". He helped with work at home and also worked for his political party, the Afghan Mellat. He explained his special position, vis a vis his brothers on the basis that he was the youngest child of the family and it was expected that he would study. 6 Hakimi told the Tribunal that his brothers had been conscripted by the Taliban militia about three days after the militia took over in his area and about six weeks before he left Afghanistan. Asked how he had travelled to his uncle's place in Kunduz, Hakimi said he had put on a veil and covered himself and went there with his father in a bus. He had stayed with his uncle for five or six days. His father and uncle had made an arrangement whereby his uncle agreed to buy the land from his father to provide enough money to pay for a smuggler to take Hakimi out of Afghanistan. His uncle is well off. He is a clothing merchant who sells goods wholesale in Kunduz. 7 Asked to explain how he left Afghanistan, Hakimi said his journey out of the country took two nights, the first of which he spent in a hotel. He was told not to ask where it was. He did not know the names of the places he travelled through on his way out. He had never been outside his village and had not travelled anywhere before. It was put to him that if he had not travelled before and was concerned about getting out of Afghanistan he would have been paying attention during the trip. He said he was very depressed and did as the smuggler told him. Although the Tajikistan border is not far from Hakimi's village, he had not gone over the border to the north because he was afraid he would be suspected of drug smuggling. Other Afghans had done that. It was better for him to go to Pakistan. 8 The Tribunal considered what it regarded as independent evidence indicating that recruitment into the Taliban militia was largely voluntary and that it was possible to pay for an exemption. It was put to Hakimi that it would have been possible for his father to pay for his exemption and also for that of his brothers. Hakimi said in reply that this would be true if the Taliban simply wanted to conscript him. The Taliban, he said, knew he had been involved in anti-Taliban activities so conscription would just be an excuse. Asked how they knew of his involvement, he said three of his political colleagues had been arrested. Taliban had come to Hakimi's house looking for him. His father told his inquirers that Hakimi was sick. They told his father that he had to present Hakimi to their office for questioning. He came home at about 12 or 1 o'clock in the morning. His father told him that the Taliban had been looking for him. After that they went to Kunduz and his uncle's place. 9 Hakimi told the Tribunal that he had joined the Afghan Social Democratic Party (Afghan Mellat) when studying English three years ago. Under the Mujahadeen he used to distribute newspapers. After the Taliban took control he put posters attacking them on the walls of mosques and shops. The posters asserted that the Taliban were ruthless and despotic and were the puppets of Pakistan. They also explained the aims of the Afghan Mellat. Asked where the party was based, Hakimi said most of the members were in Europe and he would receive documents from Germany. He said it is only in Europe that party activities could be conducted. 10 In the Tribunal's view the membership card for Afghan Mellat provided by Hakimi showed a person whose appearance differed from his in that the hairline of the person in the photograph was not the same as Hakimi's. It appeared particularly new for a card which was allegedly three years old. The Tribunal told Hakimi that it had difficulty accepting his involvement with Afghan Mellat as he was unaware the party was actually based in Peshawar. Hakimi said he did not have that information because he was getting material from a friend. He produced papers which had been sent to him by his uncle. His uncle had been in Peshawar because he travelled there on business. But the Tribunal's view was that as his uncle obtained the documents in Peshawar it could not accept the documents as evidence that Hakimi was involved in political activities in his village. Asked why he had not previously mentioned, to the department officers, being involved in political activity he said the smuggler had told him not to say anything about being involved in politics. 11 The Tribunal referred to various reports on the condition of human rights in Afghanistan. It then set out its own findings and the reasons for those findings. It criticised Hakimi's evidence as internally inconsistent and implausible. His explanations for serious inconsistencies were unconvincing and the Tribunal did not accept that he was a credible or reliable witness. It did not accept his claim to have been actively involved with the Afghan Social Democratic Party. When initially interviewed by the delegate his stated purpose for departing Afghanistan was fear of conscription into the Taliban forces. He had said nothing about involvement in any political activity nor that Taliban wished to apprehend him because of his involvement. When assessing his credibility, the Tribunal noted that Hakimi had been warned at the outset of the consequences of making differing claims later in the process. He was legally represented when he lodged his application for a protection visa and his advisor was present when the delegate interviewed him. He was also given the opportunity to confer with his legal advisor and to raise issues which had not been raised. Hakimi had maintained that the interpreter had told him not to raise his political activities and that she thought Taliban was a good government and that she hoped there would be a Taliban government in Australia. The Tribunal referred to independent evidence concerning the Taliban's treatment of women and found it inherently implausible that a female Afghan interpreter would express a desire for a Taliban government in Australia. 12 In relation to Hakimi's claim to be a village man who had not travelled outside of Afghanistan, the Tribunal observed that he had undertaken a trip from Afghanistan to Indonesia and from there to Australia which had required at least some degree of planning and negotiation. It did not accept that his village background explained his failure to mention at the outset his involvement in political activities. That evidence as advanced in any event was vague and unconvincing. So too, as the Tribunal found, was the evidence concerning the visit of the Taliban to his home. It was inherently implausible that the Taliban would have left Hakimi's house without him if they had suspected him of being involved in anti-Taliban activities. It was also implausible that the Taliban would have accepted his sickness as an excuse for not arresting him. The improbability of his evidence in conjunction with his failure to raise the claim earlier led the Tribunal to conclude that Hakimi was not involved in political activities and that the Taliban had not raided his home looking for him. The Tribunal also referred to the opportunity for potential conscripts to the Taliban to pay an exemption fee which would enable them to avoid military service with the Taliban. 13 The Tribunal found Hakimi to be a Pushtun and a Sunni, as are most members of the Taliban. While he might not be a Taliban supporter, there is no reason to consider that Taliban would take any adverse interest in him for a convention reason if he were to return to Afghanistan. According to his evidence he had complied with Taliban regulations by growing his beard when they took control of his area. The evidence did not suggest that Hakimi demonstrated opposition to the Taliban in any way. 14 In summary, the Tribunal accepted that Hakimi is an Afghani national and that he does not support the Taliban but did not accept that he had evaded conscription by them or that they would forcibly conscript him if he returned to Afghanistan. The Tribunal did not accept that he was engaged in anti-Taliban political activities, either as a member of the Afghan Mellat or in any other way. It did not accept that he was of adverse interest to the Taliban at the time he left Afghanistan or that he would be of interest if he returned. The Tribunal acknowledged that the human rights situation in Afghanistan is extremely poor but was not satisfied that Hakimi faced adverse treatment in that country for reason of his race, religion, nationality, membership of a particular social group or his political opinion. It was therefore not satisfied that he had a well-founded fear of persecution for a Convention reason. The Application for an Order for Review 15 As noted earlier, an application for an order for review of the decision of the Tribunal was filed on 16 November 1999. The application was in common form alleging error of law. The grounds were, however, particularised at the hearing of the appeal by Mr Moen, who made his services available on a pro bono basis to argue the appeal on behalf of Hakimi. The particularised grounds were as follows: "1. The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both. (a) The Tribunal erred in that it made no allowance for the difficulties faced by the Applicant fearing persecution and being outside his normal country of residence; (b) The Tribunal failed to speculate by reference to the material before it, on whether there was a real chance of persecution for a Convention reason if the Applicant were to return to Afghanistan; (c) The Tribunal by a process of factual finding on particular elements of the material provided, foreclosed reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material; (d) The primary decision maker was satisfied that the claimed harm to or mistreatment was of sufficient gravity to constitute persecution and that according to Chan, a threat to life or freedom always amounts to persecution, however, the Tribunal failed to consider the question "what if I am wrong?", and determine whether the claimed mistreatment was of sufficient gravity to constitute persecution; (e) The Tribunal failed to adequately deal with the Applicant's fear of persecution for reasons of imputed political opinion, the fact that his beliefs are opposed to the beliefs of the Taliban; (f) The Tribunal failed to find that the harm feared by the Applicant was of a level sufficiently grave to constitute persecution within the meaning of the Convention; (g) The Tribunal failed to determine whether the Applicant was differentially at risk of serious harm; (h) The Tribunal failed to adequately consider whether or not it would be reasonable for the Applicant to re-locate to Afghanistan safely and effectively where he would not face the chance that he would be persecuted; (i) The Tribunal's finding that the Applicant was not a Taliban supporter, and that there was no reason why the Taliban would take an adverse interest in him for a Convention reason was an inconsistent finding on the evidence before the Tribunal; (j) The fact that the Tribunal considered that the Applicant had not shown any active opposition to the Taliban before he left Afghanistan was an irrelevant consideration in considering the test to be applied; (k) The finding that the Applicant would not actively oppose the Taliban if he were to return to Afghanistan was not open on the evidence before the Tribunal; 2. The decision of the Tribunal involved an error of law in that the Tribunal made findings upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it. (a) The Tribunal failed to adequately refer to the independent evidence indicating that conscription into the Taliban militia was largely voluntary and that it was possible to pay an exemption; (b) The Tribunal erred in failing to find that the payment of an exemption or extortion of money to advert conscription or indeed penalty was a form of persecution giving rise to a Convention reason; (c) The Tribunal by a process of factual finding on particular elements of the material provided, foreclosed reasonable speculation upon chances of persecution emerging from consideration of the whole of the material; (d) The Tribunal failed to comply with s 430(1)(d) Migration Act 1958 by failing to refer to the material in which its finding on ability to return was based; (e) The Tribunal failed to make specific findings in respect of the occurrence of events reported in the Amnesty International Report ASA 11/12/96 entitled Afghanistan: Grave Abuses in the Name of Religion (November 1996), and also the Amnesty International Country Report for 1999, such a failure evidenced a misconception by the Tribunal of its duty to apply itself to all of the material issues it was required to consider. (f) The misconception as detailed in para (d) above, constituted a breach of procedure and a constructive failure to exercise jurisdiction reviewable under ss 476(1)(a), (c) or (e) Migration Act 1958; (g) Even if the Tribunal did make findings that events as described in the reports detailed in para (d) above did not occur, it failed to meet the requirements of s 430(1)(d) Migration Act 1958, as it did not refer to the evidence or material on which the findings were based. (h) The Tribunal did not deal adequately with the information about the human rights situation in Afghanistan as submitted by the Applicant; (i) The Tribunal's failure to have regard to all material arguably relevant to determining whether the applicant's circumstances come within the legal test, amounted to an error of law." Contentions and Conclusions 16 A first perusal of the particulars of the two grounds of review left the strong impression that the contentions advanced on behalf of Hakimi went to factual findings of the Tribunal. That impression was confirmed in the written and oral submissions made on his behalf. Particular (c) of ground 1, sets the tone for much of the argument with the proposition that the Tribunal "by a process of factual finding on particular elements of the material provided, foreclosed reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material". 17 There is no doubt that the Tribunal's findings of fact led to its conclusion that Hakimi did not have a well-founded fear of persecution for a Convention reason. The findings of the Tribunal relevant to that conclusion may be summarised as follows: 1. Hakimi was not involved in political activity or with the Afghan Mellat – the Tribunal gave extensive reasons for rejecting his late contentions in this respect. 2. The Taliban did not come to his home, did not attempt to conscript him and were not looking for him. 3. Even if the Taliban had sought to recruit him, service could be evaded for a fee payable to Taliban which Hakimi could well afford. 4. Taliban militia are free to leave their units except in the face of battle and face no punishment for doing so. Hakimi could not be treated as holding an adverse political opinion merely because he did not wish to fight for the Taliban. 5. Hakimi had not been denied employment in Afghanistan and would not be denied employment on his return. It was highly improbable that he did not work on his father's farm in equal measure with his brothers. There is no reason to suppose that the Taliban would take any adverse interest in Hakimi if he were to return to Afghanistan. 6. The evidence does not suggest that Hakimi demonstrated active opposition to the Taliban in any way. 7. The Tribunal was not satisfied that Hakimi faced adverse treatment in Afghanistan for any Convention reason. The findings of fact which I have set out are unimpeachable in the setting of judicial review. They allow no room for the conclusion that Hakimi could qualify as a refugee in terms of the Convention. 18 The comprehensive written submissions prepared by Mr Moen, who appeared pro bono for Hakimi and the oral argument he advanced on the judicial review application, could not surmount the obstacle to the applicant's case posed by the Tribunal's findings of fact. It was submitted that Hakimi has "a "well-founded" basis for fearing that he will be subjected to discrimination because of unacceptable political opinions and views opposed to the Taliban which will be ascribed to him". That contention must fail in the light of the Tribunal's findings of fact. It was submitted further that the Tribunal had failed to make any allowance for difficulties faced by Hakimi in fearing persecution and being outside his normal country of residence. In particular the Tribunal had failed to speculate by reference to the material before it on whether there was a "real chance" of persecution for a Convention reason if he were to return to Afghanistan. It was submitted that the Tribunal failed to have regard to all material arguably relevant to determining whether Hakimi's circumstances came within the legal test. So the Tribunal, by a process of fact finding on particular elements of the material, foreclosed reasonable speculation on chances of persecution emerging from consideration of the whole of the material. As to all of this, there is nothing on the face of the Tribunal's reasons which indicates that it has failed to properly consider the evidence before it. That is not to essay a conclusion on the correctness or otherwise of its findings but this Court is precluded from itself inquiring into the correctness of factual conclusions by the Refugee Review Tribunal. 19 It was submitted that independent evidence before the Tribunal showed that the fundamentalism of the Taliban with its strict adherence to Islamic principles has resulted in a totalitarian regime whereby the slightest dissent or infraction results in swift, cruel and excessive punishment, and those most at risk include those who fail to carry out the decrees of the Taliban and are believed to be demonstrating their opposition to the Taliban. Assuming that contention to be correct, it does not affect Hakimi's position having regard to the Tribunal's finding that he was not involved in political activity in opposition to the Taliban and that the Taliban had no adverse view of him. 20 The Tribunal's statement of reasons was attacked for non-compliance with s 430 of the Migration Act. That section provides: "430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." It was submitted that the Tribunal had failed to comply with s 430(1)(d) in that it did not refer to material on which its findings about Hakimi's ability to return to Afghanistan were based. Having regard, however, to the Tribunal's rejection of the evidence advanced by Hakimi, its rejection of evidence necessary to establish the fundamental grounds of refugee status under the Convention and its comprehensive explanation for the rejection of that evidence, the Tribunal has done, in my opinion, all that it was necessary to do to explain the findings of fact which were dispositive of the case. In my opinion, no reviewable error has been disclosed and the application must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 11 February 2000 Counsel for the Applicant: Mr D P A Moen Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 February 2000 Date of Judgment: 11 February 2000