Haqani v Minister for Immigration & Multicultural Affairs [2000] FCA 387

FEDERAL COURT OF AUSTRALIA

Haqani v Minister for Immigration & Multicultural Affairs [2000] FCA 387 MIGRATION – decision of Refugee Review Tribunal refusing protection visa – applicant national of Afghanistan – harassment by Taliban for beard and hair style and manner of dress – whether Tribunal erred in failing to find applicant had well-founded fear of persecution for reasons of religious belief – applicant's claim to have hid weapons for mujahadin in his home – whether Tribunal erred in finding inconsistencies in applicant's evidence in support of this claim Migration Act 1958 (Cth) ss 476(1)(g), 476(4)(b) Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 referred to GUL ROSE HAQANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1166 OF 1999

MOORE J 31 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1166 OF 1999

BETWEEN: GUL ROSE HAQANI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 31 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1166 OF 1999

BETWEEN: GUL ROSE HAQANI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 31 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

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."