Hamid, Yahya v The Minister for Immigration and Multicultural Affairs

[1998] FCA 1617

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 960 of 1998

BETWEEN:	YAHYA HAMID APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		HELY J
DATE OF ORDER:		16 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with 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	NG 960 of 1998

BETWEEN:	YAHYA HAMID APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	16 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:        The applicant is a citizen of Sudan, who arrived in Australia on 9 August 1996.  On 4 November 1996 he applied for a protection visa.  The ground of his application was that he fears being killed if he is returned to Sudan as he is a communist, and as a communist his politics are opposed to those of the ruling government.

The position prior to the applicant’s departure for India
The applicant claimed to have joined the Sudan Communist Party (“SCP”) whilst at secondary school, and to have been active in distributing the official communist newspaper, and in organising meetings.  The fundamentalist Islamic coup, as a result of which the National Islamic Front came to power, occurred on 29 June 1989.  He claimed to have been arrested immediately after the coup, but that he was released after informing the prison authorities that he was going to India to study.

The only specific finding of Refugee Review Tribunal (RRT) in relation to this claim is (page 15):

“I find it implausible that a well known, self-professed communist could secure release from detention immediately after the 1989 fundamentalist Islamic coup by simply saying he was going overseas to study.”

The applicant in India

The applicant was in India between 1989 and 20 May 1995.  In the applicant’s original statement (made on 1 November 1996) he gave details of a number of courses of study which he undertook whilst in India, but did not assert any political involvement during that time.  In a statutory declaration, (declared on 11 September 1997), the applicant contended that during his period of study in India, he continued to be an active member of the General Union of Sudanese Students, and also continued to express his political opinion by preaching communist doctrine.  He contended that due to his fierce opposition to the fundamentalist Islamic government, his political profile became greatly enhanced amongst his fellow Sudanese students.  He said that he became the leader and general secretary of the Sudanese Students Union in the period September 1989 until September 1990.  During his period of study in India, the applicant claimed to fear returning to the Sudan due to his high profile opposition to the Islamic regime.  It was his contention that dissatisfied members of the Students Union, sympathetic towards the Islamic regime, informed the authorities on their return to Sudan of the applicant’s anti-government political activities whilst in India.

Whilst in India he said that he continued to maintain links with members of the outlawed Sudanese Communist Party, and that he was invited back to Sudan by the leadership of that Party to help in its re-establishment. 

On his return to the Sudan on 20 May 1995, the applicant claims that he was immediately arrested and detained by the Sudanese security forces for three hours.  He was extensively interrogated regarding his student activities in India.  During the interrogation sessions he was constantly beaten about the head and body, he was forced to sign a document denouncing the Communist Party, forced to undertake not to involve himself in activities which were adverse to the interests of the Islamic state, and forced to pay a sum of money to arresting officers in order to secure his immediate release.

RRT had before it a number of documents provided by the applicant in support of his contentions.  Several of the documents were said to contain obvious flaws and inconsistencies.  Nonetheless RRT accepted them as genuine.  Amongst the documents were:

• Educational certificates from Indian institutions which bore stamps from the Indian Ministry of External Affairs dated 29 November 1994, and stamps from the Sudanese Embassy, New Delhi dated 30 November 1994.

• A photograph purporting to depict office bearers in the General Union of Sudanese Students at Aligarah Muslim University in the 1989/90 session.  The applicant appears in that photograph as General Secretary.

• Letter dated 20 October 1997 from the Australian Branch of the National Democratic Alliance (Sudan) certifying that the applicant is politically committed to NDA political activities.

• A letter dated 2 November 1997 from the Cairo Branch of the Sudanese Victims of Torture Group certifying that the applicant was a member of the Democratic Front whilst a student in India and was also involved in human rights activities as a supporter to SVTG.

Flight from Sudan

The applicant claimed that after returning from India, he was not able to obtain any form of work in the Sudan because he was a communist and because of threats imposed on the employers from both government and religious institutions.  He was unable to obtain work because his qualifications were not given formal recognition by the Ministry of Education.  He was punished for choosing to live by his convictions.  He was forced to grow a beard and dress in the traditional Islamic dress.  Any defiance would lead to instant detention and public lashing.

He claims that he was arrested in December 1995 after participating in a peaceful assembly.  He was accused of trying to plot a communist coup d’etat.  He was detained for three weeks, beaten savagely and denied access to legal assistance.  He was released on 15 January 1996 as a result of the use of influence on the part of his father and left Khartoum for India on 16 March 1996 on an exit visa which his father was able to arrange.

RRT’s findings

RRT did not accept the applicant as a credible witness, because his evidence was said to contain significant inconsistencies, and his claims were said to be implausible.  The inconsistencies were said to be:

• In the applicant’s original statement, he made no mention of political activities whilst he was in India, whereas in his second statement he asserted that whilst in India he acquired, to the knowledge of the Sudanese government, a high profile as an opponent to the Islamic regime.

• He originally claimed at the hearing before RRT, that he had no dealings with the Sudanese Embassy in India.  He later claimed to have had considerable dealings with the Embassy, and to have been well known to the Embassy staff as a communist activist.

Aspects of the applicant’s evidence which RRT found to be implausible were:

• His claim that whilst in India, he was a well known, and high profile, anti-Sudanese government student, having regard to the fact that all of his educational certificates had been endorsed by the Sudanese Embassy.

• His claim to be a well known, leading communist, anti-government political activist having regard to the fact that he was permitted to leave, to re-enter and again to leave Sudan with the full knowledge of the security authorities, given that the Sudanese government maintained stringent international movement controls, and swiftly and severely repressed any criticism of the government.

• His claim that he campaigned against the Sudanese government in India for six years, to the full knowledge of the Sudanese security authorities, having regard to his claim that on his return, he was released after three hours questioning at the airport.

Further, RRT did not accept the applicant’s claims:

• That he was forced to adopt Islamic modes of behaviour, dress and religious beliefs contrary to his communist beliefs.

• That he was unable to obtain employment because of his communist background.

Each of these claims was found to have been fabricated.

In the result, RRT concluded:

“I am satisfied that the Sudanese security authorities have no knowledge of the applicant’s claimed communist activities and beliefs and are not interested in the applicant at all.”

The Peoples Defence Forces

The applicant said that if he returned to Sudan he would be forced to join the Peoples Defence Forces.  He said that he has a conscientious objection against the performance of military duty with a unit which embraces the fundamentalist Islamic Jihad concept which involves the killing of innocent people.

RRT accepted that the applicant fears being required to render service with the PDF.  However, it was also satisfied that the requirement for this service is a general application to the Sudanese community, and is not related to the applicant’s political opinions.

The application for an order for review

Counsel for the applicant contended that:

• The applicant gave an account which, if accepted, establishes that he has a well founded fear of persecution by reason of his position as a communist, opposed to the fundamentalist Islamic government of Sudan.

• The account which he gave of his past and anticipated mistreatment at the hands of the government, is consistent with the way in which the government treats those of its nationals who are opposed to it.

• The account is thus not inherently implausible.

• RRT does not explain the logic which led it to reject the applicant’s claims.

By various alternative legal routes it is submitted that this approach to the matter involved reviewable error.  Reliance was placed on s 420, s 430, s 476(1)(a) of the Migration Act, and on the principles enunciated in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300, and Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 397.

I do not think that the applicant’s argument is a fair characterisation of the process by which RRT reached its decision.

RRT accepted that the government of Sudan was a harsh and repressive regime which was involved in serious human rights abuses.  RRT accepted that government security forces regularly torture, beat, harass and arbitrarily detain persons who are suspected of being opponents to the government.  Criticism of the government was swiftly and severely repressed, and the government maintained stringent international movement controls.  Thus the starting point for RRT’s consideration of the matter is acceptance of the repressive and brutal aspects of the regime which the applicant submits, in its written submissions, were not taken into account.

The applicant put himself forward as being a person who both prior to departure for India, and whilst in India, had acquired a high profile as an opponent of the Islamic regime.

RRT did not believe him.  Apart from internal inconsistencies in his story, RRT came to the conclusion that it was implausible having regard to the certification of his educational certificates by the Sudanese authorities, and having regard to the fact that with the full knowledge of the security forces, he was allowed to leave and re-enter and again leave Sudan.  In the view of RRT, it was implausible that so harsh and repressive regime would behave in this way with respect to the applicant, if the applicant was what he professed to be.  The unremarkable nature of the treatment of the applicant by the authorities in the respects to which I have referred, led RRT to conclude that the security authorities had no knowledge of the applicant’s claimed communist activities and beliefs, and were simply not interested in him at all.  These are decisions on factual matters, which RRT was entitled to make.

Having come to the conclusion that RRT did not believe the applicant’s claim that he was a high profile opponent of the Sudan government, it was a matter for RRT to decide whether it was prepared to accept other aspects of his claim, such as inability to obtain employment, and whether the applicant was forced to adopt Islamic modes of behaviour, dress and religious beliefs.  RRT does not have to have rebutting evidence before it can reject an applicant’s factual claims.  Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347, 348.

The core of commonsense which is inherent in the observations of Foster J in Guo v Minister for Immigration & Multicultural Affairs (1996) 64 FCR 151, 194 was, I think, acknowledged by the respondent. But nonetheless disbelief of part of an applicant’s testimony requires the RRT to make a factual determination of whether it is prepared to accept other aspects of that testimony, particularly when they are dependent substantially on no more than the word of the applicant himself. That being so, it seems to me that it was open to RRT as a matter of fact not to accept the applicant’s claims as to the disabilities to which he was exposed allegedly because of his communist background.

Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 deals with the requirement that RRT give reasons for its decision. A substantial failure to state reasons for a decision, where a statement of reasons is a requirement of the exercise of the decision making power under the statute, constitutes an error of law. The Tribunal’s reasons should expose the logic of its decision and should contain findings on those matters that are essential to that logic. Kandiah v Minister for Immigration & Multicultural Affairs (3 September 1998, Finn J – unreported).  This is not a case in which RRT simply recited the applicant’s claim and dismissed it without exposure of reasoning process.  RRT stated that it did not believe the applicant, and it gave its reasons for coming to that conclusion.  The reasons which it gave were capable to sustaining that conclusion.

It is true that in section of its reasons headed “Findings and reasons” the Tribunal does not specifically refer to material of a general nature relating to the repressive nature of the regime and the human rights position in Sudan but the general import of this material was clearly accepted by RRT.

It is also true that in this section of its reasons RRT does not refer to the documentary evidence referred to above except for the statement that notwithstanding flaws and inconsistencies, the documents were accepted as genuine.  But the documents to which I have referred do not impeach RRT’s findings that the applicant was not of interest to the government of Sudan by reason of his claimed communist activities and beliefs.  This is not a case as was Kandiah, where the documentary material was directly relevant to the claims which were disbelieved for reasons of credibility. 

Accordingly, in my opinion, the claim of failure to consider the evidence before RRT rationally, the claim that conclusions were reached without logical foundation, the claim of a failure to address material evidence and the claim of failure sufficiently to expose the reasoning process have not been made out.

Failure to act fairly and justly by disclosing information

At page 14 of its reasons RRT said:

“DFAT advises ‘it is not unusual for Sudanese nationals to remain outside Sudan for long periods, usually for economic reasons, and when such people do return they do not encounter problems with the authorities.  Furthermore, DIMA Cairo advised they are aware of Sudanese nationals who have returned to Sudan, after fleeing as refugees following the 1989 coup.  Some of these were given refugee status in Australia and have suffered no problems with the authorities on return to Sudan’ (DFAT CA 500922 of 22 January 1998, CX27237).”

It was contended that the contents of this cable was not disclosed to the applicant and that he had no opportunity of dealing with it.

No evidence was placed before me which would establish that the applicant was ignorant of this cable, or of the subject matter with which it dealt, or that if ignorant of the cable and had it been drawn to his attention, that there was any or any particular response which he could and would have made to it.  There was no claim of illegality in relation to the applicant’s departure from Sudan.  Even if there was a non-disclosure of the subject matter of this cable, I am not satisfied on the evidence before me that there has been any material prejudice accruing to the applicant on that account.  The substantial basis on which the applicant’s claim failed was that RRT did not believe him.  The cable played no part in the formation of RRT’s judgment on that credibility issue.

Conclusion

The result is that the application for review should be dismissed

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:            16 December 1998

Counsel for the Applicant:	L Snelling
Solicitor for the Applicant:	A Harrison Harrisons, the Lawyers
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	E Warner Australian Government Solicitor
Date of Hearing:	9 December 1998
Date of Judgment:	16 December 1998