Asif v Minister for Immigration and Multicultural Affairs

[2001] FCA 1193

FEDERAL COURT OF AUSTRALIA

Asif v Minister for Immigration & Multicultural Affairs
[2001] FCA 1193

ASIF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ASIF
N 968 OF 2001

GYLES J
SYDNEY
16 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 968 OF 2001

BETWEEN:	ASIF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	16 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be 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 968 OF 2001

BETWEEN:	ASIF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	16 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

1. This is an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 June 2001, affirming a decision of a delegate of the respondent Minister not to grant a protection visa to the applicant.

2. When the proceeding was called on for hearing this morning, counsel appeared for the applicant for the first time and sought, and was granted, leave to amend the application.  The amended ground is as follows:

   “S 476(1)(g) and s 476(4)(b) of the Migration Act 1958

   -there was no evidence or other material to justify the making of the decision, because the RRT based its decision on the existence of a particular fact and that fact did not exist

   Particulars

   The RRT found (RD 114.4):

   “… he did not appear to be aware that there was a river running through Kabul”

   The RRT had taken evidence from the applicant as follows (RD 105.2):

   “I asked the applicant at which Mosque he prayed.  He stated that it was named Pule Kheshti, that it was in the centre of Kabul close to a place called Sarie Shahzadeh and close to a bridge.  I asked the applicant what was the name of the river that the bridge crossed.  He said he thought it was also called Pule Kheshti, then answered that he did not know”.”

3. The applicant arrived in Australian on 25 November 2000, claiming to be a citizen of Afghanistan, and on 27 November 2000 he lodged an application for a protection visa.  The Tribunal set out in some detail in its decision the problems which it saw in relation to the evidence of the applicant concerning matters to do with Afghanistan.  The Tribunal also took into account a linguistic analysis, provided by a language analysis service based in Sweden, of the tape recording of the Tribunal’s interview with the applicant, which pointed to the dialect of the applicant originating from Pakistan.  The language analysis was supplied to the applicant and the applicant’s adviser made various points in response.  The Tribunal dealt with, and in essence rejected, a number of pieces of material which supported the claim of the applicant to be of Afghan origin, having resided in Afghanistan.  The Tribunal concluded there was no supporting documentation or details to corroborate the applicant’s claims. 

4. The Tribunal went on:

   “… I do not consider the expert linguistic analysis to be conclusive of the applicant’s place of origin.  However, when considered in conjunction with the unsatisfactory nature of the applicant’s evidence concerning Afghanistan, I place some weight on the report as evidence that the applicant is not from Afghanistan as he claims.

   If considered in isolation, each of the problems with the applicant’s evidence might not be determinative of the lack of credibility of his claims.  However, when the overall unsatisfactory nature of the applicant’s evidence is considered, in conjunction with the expert linguistic analysis, the Tribunal finds that he has fabricated his claim to be a Pashtun from Afghanistan in an attempt to create for himself the profile of a refugee.  In the circumstances, I cannot be satisfied that the applicant has ever lived in Kabul or Jalalabad as he has claimed.  I therefore cannot be satisfied that the applicant has ever lived in Afghanistan.  As I cannot be satisfied that the applicant has ever lived in Afghanistan, I cannot be satisfied that he fears the Taliban will send him to war.  I therefore cannot be satisfied he has a genuine fear of persecution in Afghanistan.

   Whilst there is insufficient evidence before me to allow me to determine the applicant’s nationality, I am unable to be satisfied that he is a national of Afghanistan and he has not made any claims against any other country.  As I cannot be satisfied that the applicant is a national of Afghanistan, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason in that country.”

5. As appears from the amended grounds of review, one of the features of the applicant’s account which the Tribunal found to be unconvincing concerned his knowledge about the river running through Kabul.  The particulars of the ground set out above reproduce the relevant extract from that part of the decision which related to the claims and evidence.  The relevant portion of the reasons of the Tribunal is as follows:

   “The applicant claims that he is from Kabul and he moved there from Jalalabad ten years ago.  However, when asked to name the river running through Kabul the applicant was unable to name the river, he did not appear to be aware that there was a river running through Kabul.  In my view, if the applicant had lived in Kabul for ten years, he would know the name of the main river running through the city, even taking into account his claimed illiteracy and lack of education.”

6. Counsel for the applicant argues that the Tribunal’s statement “he did not appear to be aware that there was a river running through Kabul” was a particular fact within the meaning of s 476(4)(b) of the Migration Act 1958 (Cth) (“the Act”) and that fact did not exist, as appears from the Tribunal’s account of the actual answers given by the applicant. It is submitted that the principles outlined in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 and Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 apply to establish the ground of review provided by s 476(1)(g).

7. The solicitor for the respondent submits that the applicant’s argument does not survive proper analysis of what was said by the Tribunal. It is submitted that the matter which was taken into account by the Tribunal was that the applicant had lived in Kabul for ten years but did not know the name of the main river running through the city. The statement “he did not appear to be aware that there was a river running through Kabul” was an observation by the Tribunal of the impression left by the applicant’s statements. It was submitted that, in any event, such a statement was not a particular fact within the meaning of s 476(4)(b).

8. In my opinion, the contention on behalf of the respondent is correct.  The statement which is reproduced in the reasons of the Tribunal relating to claims and evidence is only a summary.  The transcript of the interview is not in evidence.  The impression that the applicant did not appear to be aware that there was a river running through Kabul is not falsified by the earlier statement concerning that issue in the claims and evidence portion of the Tribunal’s decision.  Most importantly, however, the matter which was taken into account against the applicant was not knowing the name of the main river running through the city rather than not being aware that there was a river running through Kabul.  No doubt is cast upon the conclusion of the Tribunal concerning the name of the river.  Whether or not it is reasonable or appropriate to take that circumstance into account against the applicant is entirely a matter for the Tribunal.

9. This conclusion makes it unnecessary for me to consider the problems of applying      s 476(1)(g) in circumstances such as the present.

10. The application is dismissed.  The applicant is to pay the costs of the respondent.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             27 August 2001

Counsel for the Applicant:	R Killalea
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 August 2001
Date of Judgment:	16 August 2001