Hussain v Minister for Immigration and Multicultural Affairs

[2001] FCA 1676

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural Affairs
[2001] FCA 1676

Migration Act 1958 (Cth) ss 36(2), 65(1), 476(1)(g), 476(4)(b)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(h), 3(b)

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 62 ALD 455 referred to

MOHAMMAD HUSSAIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 109 of 2001

MANSFIELD J
3 DECEMBER 2001
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 109 OF 2001

BETWEEN:	MOHAMMAD HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	3 DECEMBER 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent 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 109 OF 2001

BETWEEN:	MOHAMMAD HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	3 DECEMBER 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) made on 10 July 2001.  The Tribunal affirmed a decision of a delegate of the respondent made on 9 May 2001 to refuse to grant to the applicant a Protection (Class XA) Visa for which he had applied on 3 February 2001 under the Migration Act (1958) (Cth) (the Act).

2. To be eligible to be granted that visa, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that the applicant met the criteria specified in the Act and in the Migration Regulations for the grant of that visa: s 65(1) of the Act. The relevant criterion for present purposes is that specified in s 36(2) of the Act, namely that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (the Convention). In turn, in respect of the present application, that required the delegate of the respondent, and on review the Tribunal, to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely a person who:

   “ … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3. The applicant claimed to be a national of Afghanistan, of Hazara ethnicity and of the Shi’a religion.  He is a single man aged 18.  He said that he was uneducated and illiterate, and prior to his arrival in Australia on 1 December 2000 he had assisted his father on the family farm.  For about two and a half years prior to his arrival in Australia, however, he had gone into hiding because the Taliban had started to come to his area searching for young men for conscription.  The Taliban had taken his older brother a few years beforehand, and had returned to take him.  After hiding for a period of time, he had escaped through Pakistan with the assistance of a people smuggler.

4. The Tribunal, in its reasons for decision, recited at some length the information which had been provided by the applicant to officers of the respondent, and to the Tribunal during the hearing conducted on 27 June 2001, and subsequent to that hearing in a written submission through the applicant’s migration agent.  It also referred to linguistic analysis of the applicant’s speech which concluded that the dialect/language spoken by the applicant could with considerable certainty be said to originate in Baluchistan, Pakistan, rather than from the Ghazni Province of Afghanistan from which the applicant claimed to have fled.  He said that he had been born and lived in Gunbad village in Gunbad Angori, in the Jaghouri District of the Ghazni Province.

5. It is apparent that, in the course of the hearing before the Tribunal, the Tribunal formed an adverse view about the credit of the applicant and the reliability of the information which he was providing to the Tribunal.  Those concerns were expressed to the applicant in the course of the hearing, including the significance of the linguistic analysis, so that he could discuss those matters with his immigration agent and respond.  It is also apparent that, apart from asserting that the information he was providing to the Tribunal was accurate, the applicant did not otherwise respond in a way which was convincing to the Tribunal.  The Tribunal also noted independent country information concerning Afghanistan, in particular that indicating that Shi’a Muslims are targeted by the Taliban because they are seen as non-believers, and that mostly Shi’a Muslims belong to the Hazara ethnic group.

6. The Tribunal then turned to record its findings and the reasons for its findings in relation to the applicant’s claims.  It accepted that the applicant is of Hazara ethnicity and a Shi’a Muslim.  However, it was not impressed with the applicant’s claims to have come from Afghanistan and there to have had a well-founded fear of persecution by the Taliban.  It said:

   “In my view, the applicant’s evidence concerning his claims was problematic.  In relation to a number of aspects of his evidence, the applicant was vague and unconvincing.  He also gave evidence that was inconsistent with independent evidence before me, and was unaware of matters that I consider would be known to him if he were from a farming family in a village in Afghanistan.

   The applicant was given ample opportunity to give truthful evidence, including the opportunity to have a lengthy discussion with his adviser concerning the credibility issues I had raised with him.  However, I am of the view that the applicant has deliberately sought to mislead the Tribunal as to his circumstances.  Overall, I consider the applicant to be an unreliable witness and I do not find his evidence credible.”

   The Tribunal then provided a number of examples of what it regarded as the unsatisfactory nature of the applicant’s evidence.  They included:

   1.Although the applicant claimed that he is from Gonbad in the Jaghouri area of the Ghazni Province, the Tribunal considered that Gonbad in the Ghazni Province is nowhere near Jaghouri.  It consulted maps for that purpose.  The applicant was also unaware of the central town in the Jaghouri area, Sang-e Mashah, and of the existence of the city of Ghazni.  Even having regard to the applicant’s claimed illiteracy and lack of education, the Tribunal did not consider that the applicant could be so ignorant of the geography of the area in which he lived.

   2.The applicant gave evidence in his application for a protection visa concerning his activities on the family farm which was inconsistent with that which he provided to the Tribunal.  He was unable to explain that inconsistency.  The Tribunal found his evidence on this aspect to be “totally unconvincing”.

   3.Given the applicant’s claimed background and experience, the Tribunal regarded it as inherently implausible that the applicant had so little knowledge of farming practice generally or of the actual farming practice of his father on the family farm.

   4.The fact that the information provided by the applicant to the delegate of the respondent initially was in some respects different from that which he provided to the Tribunal about his knowledge of farming.  It regarded his explanation of that difference as itself unpersuasive.

   5.The applicant’s evidence of why the Taliban had been unable to find him on its visits to the family farm to take him away was regarded as unconvincing and unpersuasive.

   6.The applicant’s response to the linguistic analysis report, which was put to him in the course of the Tribunal’s hearing, was unconvincing and “particularly disingenuous”.

7. The Tribunal also had regard to the linguistic report to some degree as evidence that the applicant is not from Afghanistan as he claimed.  It also noted on the other side of the scales, that the applicant was aware of some matters to do with Afghanistan, including his awareness of the Tzakira (identity document) and calendar.  It did not think that that awareness outweighed the problems the Tribunal otherwise had with the applicant’s credibility.

8. It concluded:

   “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, I am led to conclude that he has fabricated his claim to be a Hazara 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 Ghazni province as he has claimed.  The applicant did not claim that he had ever lived in any other part of Afghanistan.  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 was ever at risk of being detained by the Taleban, that he ever escaped from the Taleban, or that he was smuggled out of 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.  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.”

9. The applicant appeared in person at the hearing of his application to the Court.  He was clearly at a significant disadvantage in doing so. He had no knowledge or apparent understanding of the role of the Court on such a review, or of its powers under s 476(1) of the Act.  Initially, he indicated through the interpreter that he had not had translated to him the Tribunal’s reasons for decision so that, apart from the result of its decision, he had no awareness of those reasons.  It was necessary to adjourn the hearing for some time whilst arrangements were made to have those reasons translated to him, and for him to have an opportunity of considering what he might put to the Court in support of his application.  Neither his formal application to the Court nor his affidavit in support of it identified any grounds of review which could be related to any subclause of s 476(1) of the Act in which the available grounds of review are specified.  Those documents did little more than re-assert the claims which had been rejected by the Tribunal.

10. At the hearing, apart from again re-asserting claims which the Tribunal had rejected, the applicant did attempt to refute certain of its reasons for rejecting his claims as credible.  In general, however, those refutations were but assertions of contrary facts.  It is not the function of the Court to re-hear the merits of the claim for the visa.  Its function is restricted to determining whether, in reaching its conclusion, the Tribunal erred in a way which enlivens a ground of review available under s 476(1) of the Act.  The assertion that the Tribunal erred in making a finding of fact adverse to the applicant, and that some different fact might or should have been found by the Tribunal, does not of itself indicate reviewable error on the part of the Tribunal.  Subject to s 476(1), it is for the Tribunal to make findings of fact on matters relevant to its consideration of a particular claim.

11. I have carefully considered the applicant’s points.  With one exception, in my view they amounted to no more than attempts to re-argue the merits of the decision or of particular findings by the Tribunal.  Those matters concerned the applicant’s claims that his evasion of the Taliban approaches to seek him out was coherent, that his knowledge of farming practices was that which the Tribunal ought to have accepted as sensible and appropriate, and that he had no reason to present false evidence to the Tribunal and had not done so.  In my view, those matters do not indicate any reviewable error on the part of the Tribunal.  It was obliged to assess his claims.  In that process, it was up to the Tribunal as to the views it formed on matters of fact presented to it, and to form views about the accuracy of those matters of fact;  see e.g.per Brennan CJ Dawson Toohey Gaudron McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 – 575.

12. The one exception relates to the Tribunal’s finding that the applicant was ignorant of the geography of his area, in part because he claimed that he is from Gonbad in the Jaghouri area whereas (as the Tribunal found) Gonbad is nowhere near Jaghouri.  That matter of fact is also the only matter which has arisen, as giving rise to a potential ground of review, upon my  independent consideration of the Tribunal’s reasons.  I considered it appropriate to undertake that independent consideration of the Tribunal’s reasons, having regard to the obvious and significant disadvantages confronting the applicant through his inability to read or speak English and his lack of familiarity with the provisions of the Act, in particular s 476(1).  It is, in my view, clear that he lacked the ability to identify in any meaningful way any grounds for review of the Tribunal’s decision by reference to s 476(1) of the Act.

13. The basis of the Tribunal’s finding of fact about Gonbad being nowhere near Jaghouri, as it identified, is from certain maps available to it.  Those maps are included in the material on this application.  They show a town called Gonabad roughly some 400 km WNW from Jaghouri.  It is approximately at the point 34⁰N 63⁰E.  If Gonabad is the town of Gonbad to which the applicant referred, the Tribunal’s finding is well justified.  The respondent has agreed that the Tribunal’s finding was made on that basis.  The respondent has also, very fairly, acknowledged that there is a separate town called Gonbad.  It is approximately at the point 32⁰ 20'N 65⁰ 50'E, and it is roughly 175 km SE from Jaghouri.  In my view, the Tribunal has been shown to have been in error in regarding Gonabad as the town Gonbad.

14. Section 476(1)(g) of the Act provides a ground of review if there was no evidence or other material to justify the making of the decision. That provision is relevantly explained and limited by s 476(4)(b) which provides that the ground specified in s 476(1)(g) is not to be taken to have been made out unless the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. Putting the point at its highest for the applicant, it might be said that the Tribunal based its decision on the existence of the fact that Gonbad is nowhere near Jaghouri, and that fact has been shown not to exist, i.e. that Gonbad is near Jaghouri.

15. The comparable provisions to subss 476(1)(g) and (4)(b) as they appear in subss 5(1)(h) and (3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) were addressed by the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (Curragh). Black CJ, with whom Spender and Gummow JJ agreed, said at 220 – 221:

    “Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.”

16. In this matter, assuming to the benefit of the applicant, that the particular fact that “Gonbad is nowhere near Jaghouri” did not exist, in my view the Tribunal’s decision was not based upon the existence of that particular fact.  In certain circumstances, a factor used in making a decision adverse to an applicant’s credit may be a critical factor so that the decision may be based upon it:  e.g. Minister for Immigration & Multicultural Affairs v Rajamanikkam (2000) 62 ALD 455. In this instance, however, the Tribunal’s reasons indicate that the location of Gonbad is but a part of the wider issue as to the applicant’s ignorance of the geography of the area in which he lived. That wider issue, as the Tribunal’s reasons disclose, was the result of other considerations apart from the location of Gonbad. The Tribunal said on this topic:

    “The applicant claims that he is from Gonbad in the Jaghouri area of Ghazni province.  However, the Encarta map I have consulted indicates that Gonbad in Ghazni province is nowhere near Jaghouri.  Furthermore, the applicant, whilst claiming to be from Jaghouri, was unaware that the central town in the Jaghouri area is Sang-e Mashah.  In addition, although the applicant claims to have always lived in Ghazni province, he was unaware of the existence of the city of Ghazni.  In my view, it is implausible that the applicant would be so ignorant of the geography of the area in which he lived, if he had always lived in the same area as he claims.  I am of this view even taking into account the applicant’s claimed illiteracy and lack of education.”

    To adopt the description in the passage in Curragh to which I have referred above, the location of Gonbad is not itself a critical link in the chain of reasoning of the Tribunal but one of several parallel lines in its chain of reasoning.  Moreover, it is a parallel link in the Tribunal’s consideration of only one of the “examples” the Tribunal provided of the unsatisfactory nature of the applicant’s evidence.

17. Having regard to the location of Gonbad as now pointed out by the respondent, and on the basis that the Tribunal erred in regarding Gonabad as Gonbad, in any event I am not persuaded that the particular fact identified by the Tribunal did not exist.  As noted above, one reason for the Tribunal regarding the applicant as inappropriately ignorant of the geography of the area in which he lived was that Gonbad is “nowhere near Jaghouri”.  That is the particular fact referred to by the Tribunal, not the particular location of Gonbad.  Distance is a relative measure in such circumstances.  The location of Gonbad, as described above and having regard to the applicant’s evidence about the extent of his local area, in my view might fairly be described as nowhere near Jaghouri.  At the least, I am not of the view that that description of the location of Gonbad in relation to Jaghouri identifies a state of fact which does not exist.  For that additional reason, I consider that this ground of review must fail.

18. As I have indicated, no other potential grounds of review emerged in my consideration of the Tribunal’s reasons.  Accordingly, the application must be dismissed.  I order the applicant to pay the respondent’s costs of the application to be taxed.

19. This is another matter in which the Tribunal has not been satisfied that an applicant for a protection visa who claims to be a national of Afghanistan is in fact a national of Afghanistan.  Consequently, there have been no findings about what might confront the applicant if he is sent to Afghanistan, and also the respondent has no basis for sending him to Afghanistan as his country of nationality.  The Tribunal has made no finding as to the nationality of the applicant.  Counsel for the respondent pointed out that the respondent may, in the light of the decision that the applicant is not entitled to a protection visa, deport the applicant to any country that will accept him provided there is no breach of Article 33 of the Convention in so doing.  For the purposes of that process, it should be noted that his claim to the protection visa was not dealt with on the basis that he is from Afghanistan and that he has no well-founded fear of persecution should he be returned there.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             28 November 2001

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms S Maharaj with Ms K Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 October 2001
Date of Judgment:	3 December 2001