Alamdar v Minister for Immigration and Multicultural Affairs

[2001] FCA 1698

FEDERAL COURT OF AUSTRALIA

Alamdar v Minister for Immigration & Multicultural Affairs [2001] FCA 1698

MIGRATION – application for an order of review – where the applicant claimed to be an Afghan Hazara Shiite – where the Refugee Review Tribunal concluded that the applicant was not an Afghani national, but was from Pakistan – linguistic analysis

SAKHIDAD ALAMDAR v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
S 120 OF 2001

TAMBERLIN J
ADELAIDE
23 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 120 OF 2001

BETWEEN:	SAKHIDAD ALAMDAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	23 NOVEMBER 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant 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
SOUTH AUSTRALIA DISTRICT REGISTRY	S 120 OF 2001

BETWEEN:	SAKHIDAD ALAMDAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	23 NOVEMBER 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of Afghanistan.  He claimed before the Refugee Review Tribunal (“the RRT”) that, if returned to Afghanistan, he would face a real chance of persecution by virtue of the fact that he is an Hazara Shiite Muslim.  He submitted that there was material indicating that he would be subjected to harassment and punishment if returned.  The RRT rejected the applicant’s claim that he was a national of Afghanistan and made an affirmative finding that the applicant was a Pakistani national.

2. The RRT also expressed the view that it was “not satisfied” that the applicant had ever suffered persecution inflicted by the Taliban, or that he had a fear that he would be conscripted to fight for them, or that he had a well-founded fear of suffering persecution at the hands of the Taliban.  These conclusions were based on two interrelated factors, which were weighed together by the RRT in arriving at its decision. 

3. The decision-maker found that the evidence of a linguistic analysis, although it had some shortcomings, ought to be taken into account and, when that evidence was weighed together with inconsistencies observed by the decision-maker in the applicant’s evidence, it was regarded as sufficient to satisfy the RRT that the applicant was not from Afghanistan.  It is true that the linguistic analysis relied on had a considerable number of problems in that the methodology, the identity of the person expressing the opinion and the experience, training and expertise of that person were not specified.  The RRT made it clear that it gave considerable but not exclusive evidentiary weight to the expert’s linguistic opinion and appreciated in terms that the expert’s opinion should be treated with suuspicion, thereby accepting a submission made on behalf of the applicant in this respect.

4. Moreover, the extent of the evidence derived from the linguistic analysis could be said to be somewhat limited in that the conclusion reached was that the tape which was analysed suggested that the dialect variant occurring in the tape-recording might be said to originate from Quetta in Pakistan.  This does not, of course, establish that the country of nationality of the applicant is Pakistan.

5. However the RRT did not rely, as I have indicated, solely on the evidence of the linguistic analysis.  It relied also on its rejection, for reasons which it gave, of the applicant’s explanation as to his use of Urdu in the record made of his speech.  One matter that was regarded as particularly telling by the decision-maker was that the applicant pronounced the name of the country Afghanistan with a Pakistani accent or in a dialect other than one that could be attributed to an Afghani.

6. In addition, the decision-maker referred to the applicant’s professed ignorance of the existence of Indonesia and the name of that country, despite inconsistencies in his evidence in relation to his experience with that country. 

7. The RRT did say that its decision was arrived at taking into account its finding that the applicant was a Pakistani and that this factor had a material influence on the reaching of the decision, although there were other independent findings as to inconsistency in relation to matters other than the linguistic evidence; for example, the RRT did not accept the applicant’s evidence as to his dealings with the Taliban and the events attributed to the Taliban as recounted by the applicant.

8. A strong finding was made by the RRT in relation to the submission that the applicant was an Afghan Hazara, based on the fact that if this were correct, the applicant would have had a well-founded fear of persecution at the time when he re-entered Afghanistan from Iran. 

9. Other inconsistencies and difficulties in the applicant’s evidence are noted in the RRT decision.  Although minds may differ as to the weight to be given to the matters relied on by the RRT, I am satisfied that it was open to the RRT to reach the conclusions which it did and I am not persuaded that there has been any material error in principle or law, such as to warrant review of the RRT’s decision.

10. Counsel for the respondent pointed out in the course of the hearing that there was an erroneous statement which occurred in the decision with respect to the reading of a statement by the delegate to the applicant.  I am satisfied, having regard to the matters referred to by Counsel, that the matters raised in that interview with the delegate were raised directly with the applicant and put to the applicant, giving him an opportunity to deal with the questions there raised.  Further, I do not think that the erroneous statement had any material effect on the outcome of the matter.  The particular matter I am referring to is set out on page 18 of the RRT decision under the heading “Relationship with the Taliban”.

11. Having given due consideration to the decision of the RRT in this matter, and after reading the decision as a whole, I am not satisfied that there is any disclosure of any material error in the decision.  I therefore dismiss the application and I order that the applicant pay the costs of the respondent of the application for review.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             6 December 2001

Mr Alamdar appeared by video on his own behalf
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 November 2001
Date of Judgment:	23 November 2001