FEDERAL COURT OF AUSTRALIA Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 MIGRATION – review of decision of Refugee Review Tribunal – whether decision involved error of law under s 476(1)(e) – whether Tribunal failed to consider cumulative effect of applicant's claims – whether doubt as to past treatment required Tribunal to consider possibility of error in relation to its findings when assessing prospect of future persecution – whether Tribunal failed to make finding on material question of fact. Migration Act 1958 (Cth), ss 430(1)(c), 476(1)(a), 476(1)(e) Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 followed S v Minister for Immigration & Multicultural Affairs [2000] FCA 735 followed Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 followed DOWLAT KHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 947 of 2000 KATZ J 18 OCTOBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 947 of 2000 BETWEEN: DOWLAT KHAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 18 OCTOBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 947 of 2000 BETWEEN: DOWLAT KHAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 18 OCTOBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 3 August 2000. By that decision, the Tribunal affirmed a decision which had earlier been made by a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively). The delegate's decision had been to refuse to grant a protection visa which had been sought by Mr Dowlat Khan, an Afghan national. 2 I will refer below to certain findings of fact made by the Tribunal regarding Mr Khan's personal circumstances, but, before I do so, it is convenient to mention certain matters of a general nature regarding the situation in Afghanistan in recent years. 3 In September 1996, the Taliban militia (the word "Taliban" apparently means "religious students" or "seekers"), which had for some time been a participant in a civil war then being waged in Afghanistan, took control of Kabul, the country's capital, displacing the government of President Burhanuddin Rabbani. President Rabbani had been, together with Mr Ahmad Shah Massoud, one of the leaders of Jamiat-i-Islami ("Jamiat-i-Islami" apparently means "the Islamic Society"). The Rabbani government then retreated to the north of the country, where anti-Taliban militias at that time controlled a number of Afghanistan's provinces. Mr Massoud commanded Jamiat-i-Islami's militia. Jamiat-i-Islami's militia was, in combination with the other anti-Taliban militias in the north of the country, known as the Northern Alliance. The various militias which then continued the civil war were ethnically based, Pushtun (or Pashtun or Pathan) (the largest ethnic group in the country) in the case of the Taliban and Tajik (the second largest ethnic group in the country) in the case of Jamiat-i-Islami's militia. Messrs Rabbani and Massoud were themselves both Tajiks. 4 At the end of July 1999, the Taliban and the Northern Alliance still continuing to oppose each other militarily, the Taliban launched an offensive which initially pushed the Northern Alliance out of the Shomali plains, an area north of Kabul which it then controlled. Then, during a successful Northern Alliance counter-offensive, the Taliban employed during its retreat a scorched earth policy on the Shomali plains and also forcibly relocated many civilians. 5 Turning now to certain findings of fact made by the Tribunal regarding Mr Khan's personal circumstances, I summarise them myself as follows, although, as will be seen below (at [15]), the Tribunal also provided its own summary of them. 6 The Tribunal began relevantly by accepting that Mr Khan was an Afghan national. It next expressed doubt, for reasons which it gave, that Mr Khan had been living in Afghanistan immediately before travelling to Australia, as he had claimed before it. However, it stated that, notwithstanding that doubt, it was prepared to accept that he had been. It next accepted that Mr Khan and his family had been displaced to Kabul by the Taliban after fighting which had occurred in and beyond his home village on the Shomali plains in August 1999 and that his family still remained living in Kabul. It then stated, for reasons which it gave, "However, whilst I accept that Mr Khan and his family were amongst the many thousands displaced to Kabul, in August 1999, I do not accept that Mr Khan was personally suspected of providing any assistance to the northern alliance, or of being loyal to Massoud." 7 The Tribunal next accepted that Mr Khan is of mixed ethnicity, his father having been a Pushtun and his mother (as well as his wife) being a Tajik. "However", it stated, for reasons which it then gave, "Mr Khan clearly identifies himself as a Pushtun, albeit a Pushtun from the Shomali". It next accepted that Mr Khan's village had been composed partly of members of the Pushtun ethnic group and partly of members of the Tajik ethnic group and that, in August 1999, the Taliban had displaced everyone in the village, Pushtun and Tajik alike. The Tribunal next found, for reasons which it gave, that at the time at which they displaced him from his village, the Taliban did not perceive Mr Khan as a Tajik who was loyal to Massoud. 8 The Tribunal next, for a reason which it gave, expressed doubt about Mr Khan's having been detained by the Taliban within a few weeks after his arrival in Kabul, as he had claimed before it. However, it stated that, notwithstanding that doubt, it was prepared to accept that he had been. It further stated that it accepted that he had been physically mistreated whilst in that detention and that that detention had occurred because he was a recent arrival in Kabul from the north. It next noted that Mr Khan claimed before the Tribunal to have been released from that detention after a few hours. The Tribunal next accepted that a Tajik mullah had spoken to the Taliban on Mr Khan's behalf while the latter was in detention, but stated, "I do not accept that the intervention of a mullah - and in particular a Tajik mullah - would have been effective in having Mr Khan released from detention if the Taliban had in fact perceived him to be a Tajik or had they considered that he was involved in any activities supporting the opposition. In my view, Mr Khan was detained and questioned as a security measure because he had recently arrived from the north. …[I]t is implausible that having interrogated him, the Taliban in Kabul would not have been aware that Mr Khan came from a mixed Pushtun and Tajik village and family. In the circumstances, I consider that the fact that the Taliban released Mr Khan after only a few hours indicates that they were satisfied that he posed no security risk, and that notwithstanding his mixed ethnicity, the Taliban identified Mr Khan as a Pushtun who was not loyal to Massoud. … [W]hilst I accept that Mr Khan was detained and questioned shortly after he arrived in Kabul, I am not satisfied that the Taliban had any ongoing interest in him as a result of this incident." 9 The Tribunal next rejected, for a reason which it then gave, a claim made by Mr Khan before it that, during his detention, he had been questioned about the activities of his brother (who, the Tribunal later accepted, had been an active member of Jamiat-i-Islami's militia at the relevant time). 10 The Tribunal next rejected, for reasons which it then gave, a claim made by Mr Khan before it, that he had been detained by the Taliban a second time in February 2000. According to Mr Khan's account, that had occurred when he had served two unaccompanied women in a shop he was then keeping. The Tribunal stated, "The problems set out above with Mr Khan's account of his alleged arrest in February 2000 are such that I am unable to be satisfied that he served unaccompanied women in his shop, that he was arrested either for this reason or because of his actual or imputed political opinion. In my view, Mr Khan fabricated his claims in this regard in an attempt to create for himself the profile of a refugee." 11 The Tribunal next expressed doubt, for reasons which it gave, about Mr Khan's claim before it to have been a member of Jamiat-i-Islami, but stated that, notwithstanding those doubts, it was prepared to accept that he had joined that organisation in 1992. However, it did not accept that Mr Khan had been engaged in anything other than very low-profile activities with the organisation. It next accepted that Mr Khan had not been involved in the organisation's activities in any way after coming to Kabul and also concluded, for a reason which it gave, that Mr Khan had not been involved in any political activities after the Taliban had come to power. 12 The Tribunal next found, for reasons which it gave, that the Taliban were neither aware that Mr Khan had ever joined Jamiat-i-Islami nor would become aware that he had done so if he were to return to Kabul. 13 The Tribunal next accepted that Mr Khan's brother was a member of Jamiat-i-Islami and was fighting in the anti-Taliban forces, but found, for reasons which it then gave, both that the Taliban had been unaware of Mr Khan's brother's activities and that the chance that the Taliban would become so aware in the reasonably foreseeable future was remote. 14 The Tribunal next accepted that Mr Khan was suffering from a post-traumatic stress disorder ("PTSD") arising out of his and his family's forcible displacement from his village in August 1999 and that that event remained very distressing for him. It rejected, however, any suggestion that his PTSD "can adequately explain the high degree of implausibility of aspects of Mr Khan's evidence". 15 Finally, the Tribunal summarised its findings as follows: "In summary, I accept that Mr Khan is an Afghan national. Although I have some doubts in relation to the matter, I accept that prior to coming to Australia, Mr Khan was living in Kabul, having been displaced with his family from the Shomali plains in around August 1999. I accept that Mr Khan is of mixed Pushtun and Tajik ethnicity, but is identified as a Pushtun because this was his father's ethnicity. I accept that Mr khan's mother is a Tajik, as is his wife. However I do not accept that Mr Khan was perceived [that is, by the Taliban] as a Massoud supporter prior to being displaced to Kabul. I accept that Mr Khan was detained, physically mistreated and questioned for a number of hours some weeks after he arrived in Kabul. On Mr Khan's own evidence during his departmental interview, at this time everyone from the North of Afghanistan in Kabul was being arrested, because they were suspected of supporting Massoud. However, I consider that having interrogated Mr Khan on this occasion, the Taliban accepted that notwithstanding his mixed ethnicity and place of origin, Mr Khan was not involved in anti-Taliban activities. I am of the view that Mr Khan was released from detention because the Taliban were satisfied that he was not a security risk. I am of the view that once he was released from detention, Mr Khan was of no further interest to the Taliban. I do not accept that Mr Khan was again detained prior to his departure from Afghanistan. I do not accept that the Taliban accused him of wanting to have sexual intercourse with unaccompanied women in his shop. As I do not accept that Mr Khan was detained again prior to his departure from Afghanistan, I do not accept that he bribed his way out of detention. Although I have some doubts in relation to this issue, I accept that Mr Khan was a member of Jamiat-e Islami. However, I do not accept that Mr Khan was engaged in any activities opposed to the Taliban whilst he was living in Kabul. I do not accept that the Taliban was aware of his membership of Jamiat. I am of the view that the chance that Mr Khan would become involved in anti-Taliban activities if he returned to Afghanistan is remote. I am of the view that the chance that the Taliban would become aware of Mr Khan's Jamiat membership if he returned to Afghanistan is also remote. I accept that Mr Khan's brother is fighting with Massoud's forces. However, I do not accept that the Taliban was aware of this. I am of the view that the chance that his brother's activities would give rise to a well-founded fear of persecution for Mr Khan in the reasonably foreseeable future is remote. As I do not accept that Mr Khan was of any adverse interest to the Taliban prior to his departure from Afghanistan, I do not accept that he would be of any interest to the Taliban if he returned to that country. In the circumstances, I cannot be satisfied that Mr Khan has a well-founded fear of persecution for a Convention reason." 16 Although I have not so far mentioned it, nor did the Tribunal in its summary of its findings which I have just set out, I should mention now that, at the outset of that portion of its statement of findings and reasons in which it set out those findings and reasons, the Tribunal had stated, "Aspects of Mr Khan's evidence were confused, vague, implausible, internally inconsistent and inconsistent with the independent evidence. I consider that the problems with Mr Khan's evidence are such that I am unable to accept that he was a reliable or credible witness." Later in its statement of findings and reasons, the Tribunal gave numerous examples of each of the defects in Mr Khan's evidence which it had listed in the passage which I have just quoted. 17 I turn now to the grounds on which Mr Khan has sought review of the Tribunal's decision. 18 In an amended application, filed in Court without objection by the Minister at the outset of the hearing before me, Mr Khan alleged one ground of review only, namely, that the Tribunal's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law: see par 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). One particular of that ground was given, namely, that in assessing the risk of Mr Khan's being persecuted in the future if he should return to Afghanistan, "the Tribunal failed to consider the cumulative effect of the Applicant's claims". 19 In his written submissions in support of that ground of review, Mr Khan identified what he submitted to have been a number of findings of fact by the Tribunal. I will set out below each of those so-called findings of fact by the Tribunal and comment on them. 20 First, Mr Khan submitted that, "Despite reservations, the Tribunal 'was prepared to accept' that the Applicant was of mixed Pashtu [sic] and Tajek [sic] ethnicity". 21 That submission was incorrect. The Tribunal had expressed no reservations on the matter, but had simply accepted it. At the same time, however, it had found, as I have already mentioned, that Mr Khan perceived himself as a Pushtun, as did the Taliban. 22 Secondly, Mr Khan submitted that the Tribunal "was prepared to accept that the Applicant's brother was a prominent member of the opposition forces". 23 That submission was incorrect. First, the Tribunal had stated nothing whatever about Mr Khan's brother's prominence or otherwise as a member of the opposition forces. Secondly, the use in the submission of the words "prepared to accept" implies that the Tribunal had expressed some doubt about Mr Khan's brother's membership of the opposition forces, but had nevertheless proceeded as if it were the case. The Tribunal had, however, expressed no doubt in the matter. At the same time, however, it had found both that the Taliban had been unaware of Mr Khan's brother's activities and that the chance that the Taliban would become aware that Mr Khan's brother was fighting in Massoud's forces was remote. 24 Thirdly, Mr Khan submitted that the Tribunal had been prepared to accept that he had been a member of Jamiat-i-Islami. So it had, but at the same time, it had found both that the Taliban had not been aware of that matter and that the chance that the Taliban would ever become aware of that matter was remote. 25 Fourthly, Mr Khan submitted that the Tribunal had been "prepared to accept that the events he said had occurred in his town had occurred and that he had witnessed them". In so far as that submission was intended to imply that the Tribunal had been prepared to accept anything more of Mr Khan's account of what had happened in his village in August 1999 than that he and his family had been forcibly displaced from it to Kabul, it was incorrect. Further, the Tribunal had found that Mr Khan's forcible displacement had not occurred because he had been perceived either to be a Tajik, to be loyal to Massoud or to have provided any assistance to the Northern Alliance. 26 Fifthly, Mr Khan submitted that the Tribunal had been "prepared to accept that … as a result [that is, of the events which he had witnessed occurring in his village], he suffered from PTSD". That submission was incorrect. First, I repeat the first point which I made in the preceding paragraph of these reasons. Secondly, the use in the submission of the words "prepared to accept" implies that the Tribunal had expressed some doubt about Mr Khan's suffering from PTSD, but had nevertheless proceeded as if that were the case. The Tribunal had, however, expressed no doubt in the matter. 27 Sixthly, Mr Khan submitted that the Tribunal had "accepted that he had been displaced to Kabul". So it had, although I repeat that it had also found that Mr Khan's forcible displacement had not occurred because he had been perceived either to be a Tajik, to be loyal to Massoud or to have provided any assistance to the Northern Alliance. 28 Finally, Mr Khan submitted that the Tribunal had "accepted … that he had been arrested, interrogated, and 'physically mistreated'" shortly after his arrival in Kabul. So it had (although it had expressed considerable doubt whether the event had occurred). However, at the same time, it had found both that those events had occurred as a security measure because Mr Khan was a recent arrival in Kabul from the north and that, following his interrogation, the Taliban was satisfied that he was a Pushtun and not loyal to Massoud and had no further interest in him. 29 Having identified the various so-called findings of fact by the Tribunal with which I have dealt above, Mr Khan then submitted, "The Tribunal's error lies in its compartmentalising of the risk factors attending upon the Applicant. The Tribunal was obliged to consider whether, given the totality of factors which could lead to the applicant being adversely targeted by the Taliban in the future, both known and not known to the Taliban, there was more that [sic] a remote chance that the Applicant would be persecuted for reasons of a political opinion imputed to him. The Tribunal's error lies in considering each risk factor in isolation, rather than cumulatively." 30 In his oral submissions at the hearing before me, Mr Khan persisted with the submission which I have just set out, although the submission was refined to some extent. It was put in the following way orally: the Tribunal had accepted as a fact that Mr Khan was a member of Jamiat-i-Islami; it had accepted as a fact that Mr Khan's brother was a member of the anti-Taliban forces; and it had accepted as a fact that Mr Khan was from that part of the country in which the Taliban's opponents were most numerous. There was admittedly a slim chance, based on any one of those three facts alone, that, if Mr Khan were to return to Afghanistan, he would be the subject of persecution by the Taliban for reasons of political opinion. However, it had been necessary for the Tribunal to ask itself whether there was a real chance, by reason of all three of those facts in combination, that, if Mr Khan were to return to Afghanistan, he would be the subject of persecution by the Taliban for reasons of political opinion. That the Tribunal had not done. 31 I accept, that in determining whether a protection visa applicant has a well-founded fear of being persecuted for a Convention reason, it is necessary for the Tribunal to have regard to the totality of the case put forward by that applicant. However, when that case depends on the claimed occurrence of certain past events for a Convention reason and a fair reading of the Tribunal's statement of findings and reasons shows that the Tribunal itself had no real doubt either that those claimed past events did not occur or that, if they occurred, they did not occur for a Convention reason, then there is no warrant for holding that the Tribunal was required to have regard to the possibility that those claimed past events occurred or occurred for a Convention reason in determining whether the protection visa applicant had a well-founded fear of being persecuted for a Convention reason. So much is established by the decision of a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. See, in particular, the reasons of Sackville J, with whom North J agreed, at 239-41, [60]-[67]; see also the reasons of Kenny J at [140]. (I agree, incidentally, with Heerey J, who said in S v Minister for Immigration & Multicultural Affairs [2000] FCA 735 (6 June 2000, unreported) at [27] that, at [140] in Rajalingam, Kenny J had encapsulated what Sackville J had said in his reasons concerning the nature of the Tribunal's fact finding task in assessing the real chance of future persecution where there is uncertainty as to the occurrence of past events.) 32 It is plain that, in the present matter, the Tribunal was alive to how it was required by Rajalingam to approach its fact finding task, because it stated in its statement of findings and reasons, "If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam ...)". 33 Focusing now specifically on the three facts which were adverted to by Mr Khan in oral submissions before me, it is true that the Tribunal found each of them to exist. However, what is important for present purposes is that, in the case of each of them, the Tribunal rejected, with no real doubt apparent on the face of its statement of findings and reasons, any conclusion that that fact either had led in the past or would lead in the future to any persecutory conduct against Mr Khan. In those circumstances, there was no need for the Tribunal to engage in the exercise with respect to them urged by Mr Khan when determining the ultimate question of whether Mr Khan had a well-founded fear of being persecuted if he should return to Afghanistan. 34 I have referred above to the fact that Mr Khan's amended application contained only one ground of review. However, during his oral submissions, Mr Khan sought to raise an additional ground of review, with which additional ground the Minister was content to deal and to do so immediately. That ground was that the Tribunal had failed to make a finding on a material question of fact, namely, the circumstances in which all of the members of Mr Khan's village other than Mr Khan and his family had been forcibly displaced in August 1999. Mr Khan sought to raise that ground when I drew to his attention my understanding that the Tribunal had found in substance that his own forcible relocation from his village to Kabul had not been Convention-based. 35 In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 482, [54]-[57], Black CJ and Sundberg and Hely JJ and I said, "[54] We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided. Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision. [55] The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act: 'Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include 'findings on material questions of fact'.' [56] Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at 416 [65] and 417 [67]. [57] Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings: contrast Xu at 442 [49] and 443 [51]. A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists." 36 Applying to the present circumstances the reasoning just quoted, I reject the submission that the circumstances in which all of the members of Mr Khan's village other than Mr Khan and his family had been forcibly relocated in August 1999 was a material question of fact on which the Tribunal was required by par 430(1)(c) of the Act, read together with par 476(1)(a) of the Act, to make a finding. The Tribunal having found in substance, with no real doubt apparent on the face of its statement of findings and reasons, that Mr Khan's own forcible relocation from his village to Kabul had not been Convention-based, the question of the circumstances in which all of the members of Mr Khan's village other than Mr Khan and his family had been forcibly relocated in August 1999 could, in my view, not have been of any materiality to the Tribunal's task. 37 In all the circumstances, I dismiss Mr Khan's application with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Date: 18 October 2000 Counsel for the Applicant: Mr C Jackson Counsel for the Respondent: Ms V Harstein Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 October 2000 Date of Judgment: 18 October 2000